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I \ HIGH COURT OF DELHI
ARB.P. 116/2011
MAHIPAL SINGH .....Petitioner
Through Mr.M.S.Rahman,Adv.
ARB.P. 116/2011
MAHIPAL SINGH .....Petitioner
Through Mr.M.S.Rahman,Adv.
VERSUS
UNION OFINDIA& ANOTHER , Respondents
Through Mr.Ruchir Mishra, Adv.with Mr.Sanjiv K.Saxena,Adv.
Through Mr.Ruchir Mishra, Adv.with Mr.Sanjiv K.Saxena,Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
13.03.2013 Petitioner Mahipal Singh has filed the present petition under Section
11(6)ofthe i^bitration and Conciliation Act,1996for appointmentofa sole arbitrator.
The notice ofthis petition wasissued to the respondent who has filed his reply. From the material placed on record,it appears that a press notice
A dated 2"^ March, 2009 inviting tender was issued by respondent inviting tender for"Upgradation of318 DII Flats at Kidwai Nagar,New Delhi dgOS-
09(SH:Kota stone work in stair cases and chain link fabricfencing)".
The case ofthe respondent is that the said tender document/NIT has notbeen filed and broiightto the notice ofthis Court. The said NIT does not contain any arbitration clause/arbitration agreement. In the absence of arbitration agreement, the petitioner is without any reason relying upon
Clause 25 of the agreement which has never been signed and executed
2013:DHC:8326
■4 \x. submission of tender by petitioner, and after scrutiny of the same with other several tenders, a letter dated 16^*^ May, 2009 was issued communicating to the petitioner the acceptance of its tender but due to failure of petitioner in furnishing performance guarantee as per the condition of the tender document, his eamest money (EMD) was forfeited vide letter dated 29^*'
May, 2009.
Learned counsel for the respondents has also referred to Condition
No.15 of the tender document whichreads as under;
"The notice inviting tender shall form apart of the contract document.
The successful tenderer/contractor on acceptance of his tender by the accepting authority shall within 15 days from the stipulated date of start of work, sign the contract consisting of
(a) The notice inviting tender, all the documents including additional and special conditions, particular specification and drawings, if any, forming the tender as issued at the time ofinvitation of tender and acceptance thereof together with any correspondence leading thereto.
(b)Standard CPWD fonn-8.
It isnot deniedby the respondents that the tender ofthe petitioner was accepted but no contract as referred to condition No.15 pursuant , to acceptance of tender of petitioner has been signed and execute because of the reason that the petitioner was required to submit the performance guarantee within seven days, however, no performance guarantee was submitted within the stipulated seven days in schedule F. Though the schedule F provides for extension of time by a maximum period of three
; not comply with the condition in tenns of his own undertaking. The petitioner hassubmitted perfonnance guarantee on 2?"'May,2009 after the expuyofseven daysperiod. Eventhe said bankguaranteesubmitted bythe petitioner wasbeyondtheperiod ofthree daysfor whichthetenderprovides forextension infumishing the perfoimance guaiantee. Teamed counselfor i the respondenthas also infonned the Courtthatthe perfonnance guarantee has beenreturnedtothepetitionerbyletterdated22"''June,2009.
In view ofthe abovesaid facts and circumstancesofthe case,there is no merit m the petition m view ofthe reason that there is no live dispute
^ betweenthe parties. Thesameisdismissed ^ MARCH13,20I3/jk MANMOHANSINGH,i.
13.03.2013 Petitioner Mahipal Singh has filed the present petition under Section
11(6)ofthe i^bitration and Conciliation Act,1996for appointmentofa sole arbitrator.
The notice ofthis petition wasissued to the respondent who has filed his reply. From the material placed on record,it appears that a press notice
A dated 2"^ March, 2009 inviting tender was issued by respondent inviting tender for"Upgradation of318 DII Flats at Kidwai Nagar,New Delhi dgOS-
09(SH:Kota stone work in stair cases and chain link fabricfencing)".
The case ofthe respondent is that the said tender document/NIT has notbeen filed and broiightto the notice ofthis Court. The said NIT does not contain any arbitration clause/arbitration agreement. In the absence of arbitration agreement, the petitioner is without any reason relying upon
Clause 25 of the agreement which has never been signed and executed
2013:DHC:8326
■4 \x. submission of tender by petitioner, and after scrutiny of the same with other several tenders, a letter dated 16^*^ May, 2009 was issued communicating to the petitioner the acceptance of its tender but due to failure of petitioner in furnishing performance guarantee as per the condition of the tender document, his eamest money (EMD) was forfeited vide letter dated 29^*'
May, 2009.
Learned counsel for the respondents has also referred to Condition
No.15 of the tender document whichreads as under;
"The notice inviting tender shall form apart of the contract document.
The successful tenderer/contractor on acceptance of his tender by the accepting authority shall within 15 days from the stipulated date of start of work, sign the contract consisting of
(a) The notice inviting tender, all the documents including additional and special conditions, particular specification and drawings, if any, forming the tender as issued at the time ofinvitation of tender and acceptance thereof together with any correspondence leading thereto.
(b)Standard CPWD fonn-8.
It isnot deniedby the respondents that the tender ofthe petitioner was accepted but no contract as referred to condition No.15 pursuant , to acceptance of tender of petitioner has been signed and execute because of the reason that the petitioner was required to submit the performance guarantee within seven days, however, no performance guarantee was submitted within the stipulated seven days in schedule F. Though the schedule F provides for extension of time by a maximum period of three
; not comply with the condition in tenns of his own undertaking. The petitioner hassubmitted perfonnance guarantee on 2?"'May,2009 after the expuyofseven daysperiod. Eventhe said bankguaranteesubmitted bythe petitioner wasbeyondtheperiod ofthree daysfor whichthetenderprovides forextension infumishing the perfoimance guaiantee. Teamed counselfor i the respondenthas also infonned the Courtthatthe perfonnance guarantee has beenreturnedtothepetitionerbyletterdated22"''June,2009.
In view ofthe abovesaid facts and circumstancesofthe case,there is no merit m the petition m view ofthe reason that there is no live dispute
^ betweenthe parties. Thesameisdismissed ^ MARCH13,20I3/jk MANMOHANSINGH,i.
JUDGMENT