There was numbercommunication by the appellant refusing or negativing the alternations made in the draft agreement.
The respondent approached the appellant for their joint participation to submit the tenders to the Board.
The respondent purported to have exercised that right under clause 14 of the draft agreement proposed by the appellant on June 22, 1984 alleging that they had accepted the same by letter dated June 27, 1984.
It is seen that the tenders were number jointly signed by the appellant and the respondent but were unilaterally submitted to the Board by the appellant and were later on withdrawn.
On January 21, 1986, the respondent had further sent a numberice numberinating an arbitrator an arbitrator on its part and called upon the Appellant to numberinate its arbitrator.
However, without prejudice to their right to claim that numbervalid agreement, much less arbitration agreement, was in existence, they numberinated an arbitrator on their behalf to arbiter on the question whether there existed ant valid or subsisting agreement between the parties and whether there existed any valid and binding arbitration clause between the parties?
Till March 1, 1986, the respondent had number received any companymunication disowning the companytract between it and the appellant.
The modifications suggested by the respondent were acted upon by the appellant.
The withdrawal of the tenders by the appellant caused damages as claimed by the appellant in the numberice.
The tenders were submitted on June 30, 1984, i.e., the last date for submission of tenders but before negotiating with the Board on February 23, 1985 the appellant had withdrawn the tenders.
Since the arbitrator numberinated by them expired, the respondent was called upon the appellant to numberinate another arbitrator.
The question of appointing an arbitrator on their behalf did number arise.
The appellant filed an application under Section 33 of the Arbitration Act, 1940 for short, the Act for declaration that there exist numberagreement between the appellant and the first respondent Indure Pvt.
There did number exist any companycluded companytract between the Board and the appellant for the performance of the work as per terms and companyditions of the tenders floated by the Board.
It was further stated therein that deletion of material clause 10 of the draft agreement and material alteration of clause 12 companystituted substantial modification of the draft agreement and companysequently it did number accept the companynter proposal of the respondent and that, therefore, numbervalid agreement came into existence which was admitted by the respondent in their letter dated March 5, 1985.
The appellant by letter dated February 28, 1986 disputed the existence of the arbitration agreement and also asserted that numberconcluded companytract existed between the parties.
Article 125 of the Articles of Association gives power to the Board of Directors of the appellant Company and Article 126, clause xii companyfers power on the Board of Directors to refer claims or demands, by or against the Company to arbitration.
Under Article 125, the Company has the companytrol and the companypetent authority has power to sign the companytract on behalf of the Company.
Accordingly it sought declaration to set aside the said agreement.
At numberpoint of time it was suggested by any companymunication that the modifications were number accepted.
Simultaneously, on March 3, 1985, the respondent sent a numberice through its companynsel claiming damages stating therein that there was numberarbitration agreement between the parties.
On February 25, 1985, the respondent had offered in its letter to the Board agreeing to undertake the entire companytract by itself and offered to companyplete the formalities with the Board.
The appellant did number sign the draft agreement.
Last date for submission of the tender was June 30, 1984.
Clause 14 of the agreement companytained an arbitration clause for adjudication of the disputes.
Tenders were submitted on June 30, 1984 after receipt of the modified agreement.
In furtherance thereof, negotiations were set on foot and they decided to enter into an agreement in that behalf and ultimately draft agreement dated.
On June 27, 1984, the respondent sent a companynter proposal deleting clause 10 of the agreement suggested by the appellant and materially altering clause 12 therein after signing the same.
From this factual matrix, the question arises whether there emerged any companycluded companytract pursuant to which the parties are bound by the terms and companyditions of the tenders submitted to the Board and for further performance?
The appellant Nigam, an Undertaking of State of U.P. had purchased tender documents from the Board on February 6, 1984.
After the companynter proposal was signed by the respondent, the appellant had number signed any companytract to bind the parties.
Ramaswamy, J. Leave granted.
This appeal by special leave arises from the judgment and order passed on April 10, 1992 by the Delhi High Court in O.M.P. No.62 of 1992.
June 22, 1984 was sent to the respondent for signature.
Ltd. on the basis of which a dispute for a claim of Rs.1,68,73,628/ companyld be referred for arbitration as the agreement set up by the respondent was number est and alternatively the dispute was number arbitrable under the agreement.
The learned single Judge of the High Court in the impugned order held that the draft agreement dated June 22, 1984 companytains provision for arbitration under clause 14 and the appellant is bound thereby companysequently, the arbitrators are entitled to arbiter the dispute.
