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(C) In respect of one claim i.e., regarding "controlled blasting", the amount claimed to the tune of Rs.1,56,00,000/- is based on a forged document produced and relied upon by the respondent herein and hence the award is illegal inasmuch as the respondent has not approached the Arbitral Tribunal with clean hands.

Re.Point (A):

6. Sri Nanjunda Reddy submitted that since the existence of arbitration agreement is sine qua non for the purpose of initiating proceedings under Section-11 of the Act before the Arbitral Tribunal, the proceedings before the Arbitral Tribunal are without jurisdiction. He submits that 'Arbitration agreement' as defined under Section 2(b) of the Act means an agreement referred to in Section 7; Under Section 7 of the Act, the 'arbitration agreement' means an agreement by the parties to submit to arbitration all or certain disputes which have arisen between them in respect of a defined legal relationship, whether contractual or not; an arbitration agreement may be in the form of arbitration clause in a contract or in the form of a separate agreement; an arbitration agreement shall be in writing and such agreement shall be signed by the parties; even an exchange of letters, telex, telegram or other means of telecommunication which provide a record of the agreement or an exchange of statements of claim and defence in which existence of the agreement is alleged by one party and not denied by the other can be called as arbitration agreement in case if the same is in writing. He further submits that even a reference in a contract to the document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. According to him, in the matter on hand, neither there is an arbitration agreement duly signed by the parties nor there is a reference in the agreement between the parties to a document containing the arbitration clause. He further submits that Clause-17 of the Tender Conditions cannot be treated as arbitration clause inasmuch as the tender conditions are neither signed by the parties nor the tender conditions are referred to in the agreement between the parties dated 10.7.1995. Since the tender conditions are not made part and parcel of the agreement between the parties and as there is no reference to the tender conditions in the agreement entered into between the parties, the tender conditions cannot be treated as part and parcel of the agreement and hence there is no arbitral agreement at all between the parties. He draws the attention of the Court to sub-clause (c) of Clause 21 of the Tender Conditions to argue that the successful tenderer i.e., respondent has not executed an agreement incorporating the tender conditions, so also the appellant has not prepared the agreement incorporating the tender conditions and consequently the tender conditions cannot be treated as part of the agreement between the parties.

7. Sri Udaya Holla, learned senior advocate appearing on behalf of the respondent submits that the advocate for MML did not press the question of jurisdiction before the Arbitral Tribunal and the same is noted by the Arbitral Tribunal in the award; Relying on Section 7(4)(c) of the Act, he submits that an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other, amounts to arbitration agreement; since the respondent had alleged the existence of arbitration agreement both in the claim statement made before the ICA as well as before the Arbitrators and as the appellant did not deny such submission made by the respondent before the Arbitrators during the course of arguments, it is clear that the arbitration agreement exists between the parties. He further draws the attention of the Court to the fact that the Deputy General Manager of the appellant has signed the tender conditions and such fact is not disputed by MML at any point of time before the Arbitral Tribunal and therefore the tender conditions are binding on the parties and shall form part of the agreement between the parties. The Tender Condition No.17 clearly reveals the arbitration clause. He further submits that the Letter of Intent dated 4.7.1995 issued by MML to the respondent refers to the Tender Notification dated 18.5.1995; even the Work Order issued to the respondent by the appellant refers to the Letter of Intent dated 4.7.1995 and as aforementioned the Letter of Intent in turn contains reference to the Tender Notification dated 18.5.1995. Even the agreement dated 10.7.1995 entered between the parties also testifies that the tenders were invited by issuing the Tender Notification dated 18.5.1995. Thus he submits that the Tender Notification and the conditions enumerated therein shall form part of the agreement dated 10.7.1995 and shall be read alongwith the said agreement.

12. From the above, it is clear that the successful tenderer shall execute an agreement incorporating the conditions enumerated in the tender notice, which clearly means that it is incumbent on the successful tenderer/respondent herein to abide by the conditions enumerated in the tender notice. The Letter of Intent dated 4.7.1995 refers to the tender notification dated 18.5.1995. It is clearly mentioned in the Letter of Intent that pursuant to the tender notification dated 18.5.1995 and subsequent correspondence and discussion, the offer was made by the appellant to the respondent to perform the work found in the Letter of Intent at the cost of Rs.7,18,90,682/-. One of the works entrusted to the respondent is relating to Jambur mines, which contains loose soil as well as all other types of strata. The Letter of Intent also prescribes the rate per cubic meter i.e., at Rs.16.70 in respect of loose soil and Rs.36.75 per cubic meter in respect of all other types of strata. Even the agreement dated 10.7.1995 discloses that the appellant company has invited tenders for the work mentioned in the agreement pursuant to the tender notification dated 18.5.1995. Thus it is clear that the tender process has been initiated pursuant to the tender notification dated 18.5.1995. The respondent as well as the appellant knew very well that both the parties are bound by the tender conditions. The tender notification is referred to in the Letter of Intent as well as in the agreement entered into between the parties mentioned supra. The work order issued to the respondent by the appellant dated 11.7.1995 refers to the Letter of Intent dated 4.7.1995. The tender notification, Letter of Intent, agreement entered into between the parties and the work order have to be read homogeneously and together. They cannot be read in isolation. The intention of the parties can be gathered by reading these documents homogeneously together.

Thus merely because the agreement dated 10.7.1995 does not contain the arbitration clause would not debar the respondent to invoke the arbitration clause contained in the tender notification. Since the tender notification is referred to not only in the Letter of Intent but also in the agreement entered into between the parties as also in the work order issued to the respondent by the appellant, the same should be read as part and parcel of the agreement itself. Therefore the parties are bound by the tender conditions also.