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Judgment
L.N. Mittal, J.—Appellant The Ganga Yamuna Co-op. L & C Society Limited has filed this first appeal assailing judgment dated 20.02.2009 passed by learned District Judge, Yamuna Nagar, thereby dismissing objections preferred by the appellant u/s 34 of the Arbitration and Conciliation Act, 1996 (in short - the Act), for setting aside the Arbitrator''s Award dated 30.07.2003 (Annexure A-1).
Case of the appellant is that work of supply of material for construction of road was allotted to the appellant by the respondents (State of Haryana nd Executive Engineer) vide letter dated 09.01.1998, but the other agency did not start the earth work at the site and time limit given to the appellant expired. The appellant sent letter dated 07.04.1999 to respondent no.2 claiming higher rate of material in view of rise in price. However, respondents, without any Arbitration agreement, referred the dispute to Arbitrator, who gave the impugned Award Annexure A-1. The said Award is illegal because there was no valid agreement between the parties for referring the dispute to Arbitrator. It was also alleged that proper opportunity for leading evidence and hearing was not given to the appellant by Arbitrator.
Respondents, in their reply, resisted the objections and alleged that there was no condition between the parties that the appellant had to supply the material only after completion of earth work, to be done by other agency. It was also alleged that there was unconditional acceptance of the tender of the appellant by the respondents, and therefore, valid agreement came into existence between the parties and there was arbitration clause in the tender form, which was accepted by the respondents. It was pleaded that the appellant was given full opportunity of hearing and leading evidence by the Arbitrator. The impugned Award is legal and valid.
Learned District Judge, vide impugned judgment dated 20.02.2009, dismissed the objections filed by the appellant. Feeling aggrieved, instant appeal has been filed by the appellant.
I have heard learned counsel for the parties and perused the case file.
The appellant, in its evidence, examined Dharamvir (PW-1) - Senior Accounts Clerk of the respondents. No other evidence was led by either party. The aforesaid witness stated that tender of the appellant being lowest was accepted and work was allotted to the appellant vide letter dated 09.01.1998, but no agreement was executed between the parties.
Relying on aforesaid statement of Dharamvir (PW-1), counsel for the appellant contended that there being no agreement between the parties, there was no arbitration agreement between them, and therefore, the dispute could not be referred to the Arbitrator.
On the other hand, counsel for respondents contended that tender form contained arbitration clause and other terms and conditions and the same were accepted by the respondents, on being submitted by the appellant, and therefore, valid agreement regarding said terms and conditions including arbitration clause contained in the tender form came into existence between the parties.
I have carefully considered the rival contentions.
Contention raised by counsel for the appellant, on first blush, appears to be very attractive. However, the same is found to be meritless on proper scrutiny. Counsel for the appellant admitted that in letter dated 09.01.1998 sent by respondents regarding acceptance of tender form of the appellant, there was no stipulation that any further agreement was to be executed between the parties. On the other hand, appellant admittedly submitted the tender form containing all terms and conditions including arbitration clause and the said tender form was accepted unconditionally by the respondents. Consequently, valid contract came into existence between the parties with all terms and conditions contained in the tender form. The said tender form contained arbitration clause also, and therefore, there was valid arbitration agreement between the parties. Consequently, contention of counsel for the appellant has to be rejected. The lower court has rightly arrived at the aforesaid conclusion. There is no infirmity in the said finding of the lower court.
As regards granting of opportunity to the appellant by the Arbitrator, there is not even an iota of material on record to depict that proper opportunity was not given by the Arbitrator to the appellant, either for leading evidence or for hearing. No witness of the appellant Society stepped into the witness-box in support of aforesaid plea taken in objections u/s 34 of the Act.
For the reasons aforesaid, I find no merit in the instant appeal. Objections preferred by the appellant u/s 34 of the Act have been rightly dismissed by the lower court. The appeal is accordingly dismissed.