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ARB. A. (COMM.) 11/2017                                            Page 24
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61. The absence of a concluded contract and a consensus ad idem for a concluded contract coming into being is prima facie apparent from the undisputed existence of the chain of events and documents referred above. This prima facie factual background was also recognized in the 26 August 2016 Judgment of the Delhi High Court (at paragraph 4 to 10; 18 to 41 thereof) in coming to its decision that there was no concluded contract between the Parties.

(b) My above-mentioned findings in paragraphs 104 to 109 above - the lack of contractual consensus ad idem between the Parties, the unaccepted counter-offer and lack of consideration for the formation of an arbitration agreement separate from the contract - also apply to the Claimant's alternative contention of an arbitration agreement in the form of a "separate agreement"

or in "an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement"

52. Learned senior counsel for the appellant has relied upon the judgment of Govind Rubber Limited (Supra) to contend that an agreement even if not signed by the parties can be spelled out from the correspondence exchanged between the parties. Further in order to constitute an Arbitration Agreement, it need not be signed by all the parties if the record of agreement is provided by exchange of letters, telex, telegram or other means of telecommunication. While there cannot be any dispute on the above proposition of law, as noted above, from the correspondence exchanged between the parties it cannot be said that the parties had arrived at a consensus ad idem on the commercial relationship between the parties.

"Unless from the correspondence, it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence."

55. In UP Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. And Others, (1996) 2 SCC 667, the Supreme Court had reiterated that where the contract is in a number of parts, it is essential for the validity of the contract that the contracting parties should either have assented or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem. In absence of any consensus ad idem on the material terms of the contract to be entered into between the parties, no concluded contract can be said to have emerged between the parties. Once the original contract itself was not a concluded contract, there existed no Arbitration Agreement between the parties. The present would be a similar position on facts. Once it is held that the Distribution Agreement itself did not come into existence on mere signing of the same by the appellant due to the conditional nature of acceptance given by it, clearly the Arbitration Agreement contained in such Distribution ARB. A. (COMM.) 11/2017 Page 37 Agreement cannot be said to have come into existence. There cannot be an Arbitration Agreement in the vacuum. Though severable from the main agreement, it has to have a foundation in some defined legal relationship between the parties. The defined legal relationship would require a consensus on the terms thereof between the parties. In the absence of such consensus on the legal relationship, no Arbitration Agreement can be said to have come into existence between the parties. To put it differently, it cannot be said that the parties agreed to have their dispute in relation to an agreement, settled through arbitration and would be bound by the same even though such agreement never came into existence as the parties could never reach consensus ad idem on terms thereof.