1996 (2) TMI 529 - SC - Companies Law

Whether there existed any valid and binding arbitration clause between the parties? Held that - In view of the fact that Section 2 a of the Act envisages a written agreement for arbitration and that written agreement to submit the existing or future differences to arbitration is a pre-condition and further in view of the fact that the original contract itself was not a concluded contract, there existed no arbitration agreement for reference to the arbitrators. The High Court, therefore, committed a gross error of law in concluding that an agreement had emerged between the parties, from the correspondence and from submission of the tenders to the Board. Accordingly it is declared that there existed no arbitration agreement and that the reference to the arbitration, therefore, is clearly illegal. Consequently arbitrators cannot proceed further to arbiter the dispute, if any. The conclusion of the High Court is set aside. Appeal allowed.

Summary

Issues Involved:
1. Existence of a valid arbitration agreement.
2. Interpretation of the draft agreement and counter-proposal.
3. Authority and competence of the parties to enter into a contract.
4. Jurisdiction of arbitrators to decide their own jurisdiction.
5. Application of the Indian Contract Act, 1872.

Detailed Analysis:

1. Existence of a Valid Arbitration Agreement:
The appellant sought a declaration under Section 33 of the Arbitration Act, 1940, asserting that no valid agreement existed between the appellant and the respondent that could be referred for arbitration. The High Court initially found that a concluded contract existed, including an arbitration clause under Clause 14. However, the Supreme Court held that there was no consensus ad idem on the material terms of the contract, particularly due to the unilateral deletion of Clause 10 and alteration of Clause 12 by the respondent. Consequently, no valid arbitration agreement existed as per Section 2(a) of the Act, which requires a written agreement to submit disputes to arbitration.

2. Interpretation of the Draft Agreement and Counter-Proposal:
The draft agreement dated June 22, 1984, was sent to the respondent, who returned it with significant modifications. The appellant did not sign the modified agreement. The Supreme Court emphasized that the modifications made by the respondent constituted a counter-proposal, which was not accepted by the appellant. The Court clarified that mere submission of tenders did not amount to acceptance of the counter-proposal, as the material alterations in the contract terms precluded a concluded contract from emerging.

3. Authority and Competence of the Parties to Enter into a Contract:
The Articles of Association of the appellant-company, a State Government Undertaking, stipulated that only the Board of Directors had the authority to enter into contracts. The Court noted that the appellant had not signed any contract binding the parties, and the respondent's reliance on the doctrine of "indoor management" was misplaced. The Court reiterated that public undertakings and government entities must adhere to their internal procedures and obtain proper authorization for contracts to be valid.

4. Jurisdiction of Arbitrators to Decide Their Own Jurisdiction:
The Supreme Court held that arbitrators do not have the power to conclusively decide their own jurisdiction. This jurisdictional issue must be determined by the Court under Section 33 of the Arbitration Act. The Court cited "Russel on Arbitration" and "Law of Arbitration" by Justice Bachawat to support its position that arbitrators cannot enlarge the scope of their jurisdiction by deciding the validity or existence of an arbitration agreement.

5. Application of the Indian Contract Act, 1872:
The Court referred to various sections of the Indian Contract Act, 1872, including Sections 3, 4, 7, 10, 31, and 32, to analyze the formation and validity of contracts. The Court concluded that the draft agreement and the counter-proposal did not result in a concluded contract, as there was no absolute and unqualified acceptance of the proposal. The Court also highlighted that the contract was contingent upon acceptance by the Board, which did not occur, rendering the contract void under Section 32.

Conclusion:
The Supreme Court concluded that no valid arbitration agreement existed between the parties, and the reference to arbitration was illegal. The High Court's decision was set aside, and the appeal was allowed with costs quantified at Rs. 15,000/-. The Court emphasized the necessity of a written and duly authorized agreement for arbitration to be enforceable.