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In the light of this letter, the draft was changed and the word 'shall' was introduced therein instead of 'may'. After the draft agreement was submitted to the respondent Company the latter replied en 29-3-1951 to the following effect :

"We have to acknowledge receipt of your letter No. 240P of the 21st instant and confirm the street lighting rate agreement mentioned in your letter under reference. We shall send you a draft agreement embodying these terms and conditions for a period of 7 years, in due course."

In pursuance of this letter, the respondent Company sent the draft agreement to the petitioner. That draft contains .1 number of alterations or corrections but the proviso to Clause 3 is the same as that in the draft agreement engrossed on a stamp paper, which was sent to the Electrical Adviser to Government; that is to say, it contains the words 'shall be metered by meter' instead of the words 'may be metered by meter'.

19. The question then is whether the word 'shall' indicates that there was no option with the Company in the matter of computing the consumption of energy and that it was bound to make computation on the basis of the readings recorded in the meters. Shri Phadke says that the word 'shall' is followed by the word 'may' and that the proviso taken as a whole would seem to suggest that there was an option either to make computation on the basis of the meter readings or on the basis of wattage and that such option mast necessarily remain with the respondent Company. Shri Abhyankar says that there was really no option at all so far as the Company is concerned and that option if any was with the petitioner. That again is a matter of interpretation of the agreement and we think that it properly lies within the jurisdiction of the arbitrator to be appointed under Clause XII of the Schedule. It would not therefore be right for us to express any opinion on the point as to whether the interpretation placed by Shri Abhyankar is correct or that placed by Shri Phadke is correct.

21. Further, on the basis of the argument advanced before us by Shri Phadke on behalf of the respondent Company a dispute of this kind must, under Clause 13 of the 'concluded contract' (the terms of which are embodied in the draft agreement engrossed on a stamp paper) go to an arbitrator. No doubt, Section 24(1) confers certain statutory powers upon the respondent Company but by agreeing under clause 13 of the draft agreement to refer the dispute to an arbitrator the respondent must be deemed to have circumscribed its rights under Section 24(1) by attaching a condition precedent to their exercise. So, looking the matter either way, we think that it was not open to the respondent to exercise its powers under Section 24(1) of the Act at the present stage of the dispute between it and the petitioner.

32. Then there is another fact and that is that even assuming that there was a concluded contract between the parties that contract came into force on 1-3-1951 and came to an end on 28-2-1958. Therefore so far as the months, March, April and May 1958 are concerned, the computation of energy could not be made upon the basis contended for by the respondent, that is the draft agreement which had expired. Now, Shri Phadke says that there is a condition in the draft agreement that unless a party to the agreement gave one year's notice in writing before the agreement expired that agreement would continue to be in force and that the petitioner not having given such notice, the agreement must be still deemed to be subsisting. Now, here, we find that the respondent Company had itself given notice on 11-11-1957 to the effect that as and from 1-3-1958 a different tariff would apply. Then again on 28-2-1958, the Chairman and Managing Director of the respondent Company wrote a letter to the petitioner saying, among other things, that pending final agreement regarding the street lighting terms and tariffs the Company should continue the supply as it is doing at present from 1-3-1958 and the rates and conditions as may be agreed upon will come into force from 1-3-1958. From both these letters it would appear that the respondent itself did not want the renewal of the old agreement of 1951 in the form in which that agreement existed.