9911796707
TMI Blog2007 (5) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies (Special Provisions) Act, 1985 and The Arbitration and Conciliation Act, 1996. 3. Brief facts, as germane to the controversy are that the petitioner had placed an order for supply of BOPP films upon the respondent. On the back of the said purchase order dated 13.2.1997, were printed some terms and conditions upon which the petitioner company made its aforesaid offer. 4. Clauses 10 and 11 thereof read as follows: 10. Any terms stipulated in seller's confirmation or any other documents in addition or contradiction to what mentioned in this order will not be acceptable to us unless specifically agreed to in writing. 11. Any dispute arising out of this contract shall be subject to the jurisdiction of courts in Delhi and the supplier expressly agrees to submit to such jurisdiction. 5. Respondent No. 1 supplied the goods to the petitioner as per the order. However, a dispute arose regarding the payment for these goods. 6. The invoices and delivery documents raised by the Respondent No. 1, and signed and accepted by the petitioners agents also contained on its reverse certain terms and conditions of the respondent. Condition 4 of the said invoice as filed on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to this bill the same shall be referred to the "Paper Merchants Association (Regd.) Delhi" for sole arbitration and the judgment given by the Arbitrator/Arbitrators appointed by the Executive Committee shall be final and binding on both the parties. 2. For an outsider the above term of Arbitration will be printed or stamped on original and duplicate sale invoices and both the parties will be bound to this term. Even if the term of Arbitration is not printed on the Sale invoices and both the parties appear and participate in the Arbitration proceedings, it will be presumed that the parties have accepted the Arbitration. Discussion and Decision: Issue Regarding Existence of an Arbitration Agreement: 12. I have gone through the award and heard learned Counsel for the Petitioner. Learned Counsel for the respondent did not address oral arguments despite opportunity, and on 21st March, 2007 sought three days time to file written submissions. However, no written submissions have been filed by the Respondents. 13. In my opinion, the submission of the Petitioner that there was no existing agreement between the parties to refer the disputes arising out of their commercial rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, the Petitioner herein made his offer when it placed the purchase order dated 13.2.1997 upon the Respondent which, inter-alia, contained Clauses 10 and 11 as aforesaid. Clause 10, specifically made any other terms or conditions, contained in any document of the respondents that were in addition to, or in contradiction to those contained therein, inapplicable to the contract unless they were specifically agreed to by the petitioner in writing. Clause 11 subjected all disputes to jurisdiction of Delhi Courts. The respondent acted on this offer by effecting supplies of the goods, and at the same time raised an invoice dated 6.3.1997 for Rs. 1,49,866.17 which contained condition No. 4 as extracted above. 18. What is the legal effect of the aforesaid conduct of the Respondent? In my view, when the Respondent supplied the goods in compliance of the Purchase Order, it accepted the terms and conditions stipulated therein. The mere printing of condition No. 4 on the reverse of the invoice was, at the highest, an offer made by the Respondent to the Petitioner. Unless the said offer was accepted by the Petitioner, it could not result in a binding and enforceable contract. The inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration by the Paper Merchants Association (Regd.), Delhi. The condition No. 4 appears to be incomplete and rather vague. Pertinently, Regulation XXX of the Paper Merchants Association states that the clause, above clause No. 2 in bold words, has to be printed by the Merchant on its invoice, for it to bind the outsider. However, what is printed by the Respondent on its invoice as condition No. 4 is nowhere close to the boldly printed text in Regulation XXX. It also appears that the arbitration contemplated in Regulation XXX is in respect of disputes of non-payment "between member to member or member to outsider". It is not in respect of disputes of non-payment from an outsider and a member, which is the case in hand. In response to the invoice sent by the respondent with the condition No. 4 as aforesaid, there was no exchange of letters, telegrams or any other means of telecommunication in writing from the side of the Petitioner to the respondent where from the consent of the Petitioner to the conditions contained on the reverse of the invoice could be inferred. 21. For the aforesaid reasons I find that there was in fact no arbitration agreement between the parties and that the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent on 16.1.2000 be considered to be an acknowledgment? The Respondent contended that the submission of 'C' form amounts to an admission of the jural relation, and would in law amount to an acknowledgment of liability within the meaning of Section 18 of the Limitation Act. Counsel for the Petitioner refuted this claim by contending that the 'C' form is, at best an admission of a transaction that took place in the past, but not of any present subsisting liability to pay. He contends that it cannot even be treated as an acknowledgment of a jural relation of a debtor and creditor. 26. In order to buttress this argument Petitioner placed reliance upon Shapoor Freeloom Mazda v. Durga Prasad Chamania and Ors. [1962]1SCR140 ; State of Haryana v. Bharat Steel Tubes Ltd. AIR1996Delhi198 ; K. Ganpathy v. Vaidyalingam AIR1971Mad425 ; and Union of India owning Southern Railway represented by General Manager, Madras, v. Sayadev Beedi Co. and Anr. AIR1970Mad108 . 27. In Shapoor Freedom (supra), the Apex Court while sounding a word of caution in the manner in which the words used in a document ought to be construed in such cases, held that words contained in each document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Champaka Pillai v. Sivathanu Pillai and Ors. (1979) SCC 429 it was held that Under Section 18 of Limitation Act, 1908, one of the essential requirements for a valid 'acknowledgement' is that the writing concerned must contain an admission of a 'subsisting liability'. A mere admission of the past liability is not sufficient to constitute such an 'acknowledgement'. Hence a mere recital in a document as to the existence of a past liability, coupled with a statement of its discharge, does not constitute an 'acknowledgement' within this Section. 30. This Court in R.K. Chemical v. Kohinoor Paints Faridabad Pvt. Ltd. (P) Ltd. and Anr. 2005 II AD (Del) 133, held that an auditors report signed on 27th November 1996 which reflected a debt existing in the accounting period 1995-96 (1.4.1995 to 31.3.1996) did not constitute acknowledgment of the debt as the said report merely affirmed the state of affairs prevailing as on 31.3.2006 and cannot be treated as acknowledging the position existing on the date of the report as well, i.e., 27th November 1996. For even if the position of debtors or creditors had undergone a change between April to November 1996, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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