K. S. GUPTA ( 1 ) THIS petition under sections 8 and 20 of the Arbitration Act, 1940 was filed alleging that Mange Ram is the proprietor of petitioner. Respondent No. 1 floated tender for construction of 4 flats for teaching staff and 2 flats for non-teaching staff. Tender documents were issued to the petitioner on payment of Rs. 100/- vide receipt No. 1428 dated 10/08/1990. Thereafter petitioner submitted tender on item rate basis and deposited Rs. 10. 000/ -. towards earnest money with respondent No. 1. However, tenders were not opened. It is further alleged that in continuation of said tender, the respondent No. 1 invited lumpsum offer for the work. The petitioner submitted lumpsum offer of Rs. 11,98,666/- on 11/01/1991 on the basis of drawings supplied by M/s. Kapoor and Associates, architect of respondent No. 1. After negotiations, contract was finalized for a total sum of Rs. 11. 80 lakhs and an agreement was formally signed on 27/02/1991. Earnest money deposited along with Tender documents on 30/08/1990 by the petitioner was adjusted towards the contract agreement executed on 27/02/1991 by respondent No. 1. It is asserted that terms and conditions of Tender documents to be opened on 30/08/1990, remained applicable to the parties. It is further alleged that respondent No. 1 rescinded the contract vide its letter dated 26/02/1992. Details of disputes/claims of the petitioner have been set out in para 12 of the petition. It is alleged that clause No. 50 of General Conditions of Tender documents contains arbitration clause. Respondent No. 1 neither paid the amount due to the petitioner nor referred the disputes / claims to arbitration in terms of said arbitration clause. It was prayed that preferably Vice-Chancellor, respondent No. 2 be appointed as sole arbitrator and, in the alternative, an Engineer be appointed to adjudicate the claims of petitioner. ( 2 ) RESPONDENT No. 1 contested the petition by filing reply. It is not denied that pursuant to advertisement dated 1/08/1990, tenders were invited for construction of 4 flats for teaching staff and 2 flats for non-teaching staff and petitioner was supplied Tender documents on payment of Rs. 100/- vide receipt No. 1428 dated 10/08/1990 as alleged. Last date for submission of tender and deposit of earnest money was 30/08/1990. It is stated that petitioner neither submitted any tender nor deposited Rs. 10,000/- by way of earnest money. 100/- vide receipt No. 1428 dated 10/08/1990 as alleged. Last date for submission of tender and deposit of earnest money was 30/08/1990. It is stated that petitioner neither submitted any tender nor deposited Rs. 10,000/- by way of earnest money. It is claimed that after rejecting the tenders received pursuant to advertisement dated 1/08/1990, answering respondent on 7/01/1991 invited lumpsum offer for the work. The petitioner submitted offer for Rs. 11,98,666/- on 11/01/1991 and it was allotted work on the terms and conditions incorporated in agreement dated 27/02/1991. This agreement does not contain any arbitration clause. It is asserted that terms and conditions of lumpsum tender were different from the tender advertised on 1/08/1990. Present petition seeking reference of certain claims to arbitration is not legally maintainable. It is denied that the amount claimed or any other amount is payable by answering respondent to the petitioner. ( 3 ) I heard Ms. Anusuya Salwan for petitioner and Sh. Anurag Mathur for respondent No. 1. ( 4 ) IT is not in dispute that respondent No. 1 issued advertisement dated 1/08/1990 inviting tenders on item rate basis for construction of 4 flats for teaching staff and 2 flats for non-teaching staff; petitioner was issued Tender documents against payment of Rs. 100/- on 10/08/1990; petitioner submitted lumpsum offer on 11/01/1991; respondent no. 1 accepting lumpsum offer, awarded the work to petitioner on 30/01/1991 and agreement between the petitioner and respondent No. 1 was thereafter reduced into writing on 27/02/1991. Admittedly, this agreement does not contain any arbitration clause. Thus, controversy between the parties mainly centres around the question if award of work to petitioner was in continuation of tender enquiry for which advertisement dated 1/08/1990 was issued or was it independent thereof? In support of the stand that after abandoning itemwise tender for which the petitioner did not submit tender, fresh tenders on lumpsum basis were invited by respondent No. 1, my attention was drawn on behalf of respondent No. 1 to the receipts issued to contractors who submitted the tenders pursuant to advertisement dated 1/08/1990, minutes of the meeting held on 2/12/1991 alongwith work chart, copy of letter dated 29/01/1992 issued by the Principal of respondent No. 1 to the petitioner, agreement dated 27/02/1991, affidavit dated 10/09/1999 of dr. Kavita A. Sharma, Principal of respondent No. 1 and admission made by Mange Ram, proprietor of petitioner in. Kavita A. Sharma, Principal of respondent No. 1 and admission made by Mange Ram, proprietor of petitioner in. the reply affidavit filed on 28/10/1999 to the effect that petitioner submitted cheque for Rs. 10,0007- towards earnest money with respondent No. 1 on 15/04/1991. It is averred in the said affidavit by Dr. Kavita A. Sharma that pursuant to advertisement dated 1/08/1990 inviting itemwise tenders besides petitioner, 17 other contractors had purchased Tender documents and out of them, only 12 submitted their tenders. Petitioner did not submit tender. It is further averred that governing body of respondent No. 1 college abandoned itemwise tenders and decided to issue fresh tenders on lumpsum basis. In pursuance of that decision fresh tenders were invited and agreement dated 27/02/1991 was executed between the petitioner and respondent No. 1. This agreement does not specify any time limit for completion of work. In the meeting dated 2/12/1991 the petitioner agreed that work will be completed by it within a period of 10 weeks as per the work chart. Time limit for completion of work stipulated in said meeting was reiterated in the letter dated 29/01/1999. Alongwith affidavit, copies of aforesaid receipts issued to contractors in token of having received tenders (Annexure R-2 (colly), minutes of the meeting dated 2/12/1991 alongwith work chart (Annexure R-3 and r-4) and letter dated 29/01/1992 (Annexure R-5) have been filed. Originals of said copies were filed subsequently by respondent No. 1 on 4th/ 6/12/1999. In the reply affidavit filed by Mange Ram Sharma it is, interalia, averred that in normal practice no receipt is issued to contractors at the time of submitting tenders and in the affidavit dated 10th september 1999 it has been falsely stated that respondent No. 1 issued receipts to contractors who submitted the tenders. Alleged receipts have been fabricated for denying appointment of an arbitrator to adjudicate upon the petitioner s claims. It is further averred that on receipt of copy of said affidavit of Dr. Kavita A. Sharma, the petitioner wrote letters to contractors who submitted the tenders with respondent No. 1 enquiring if any receipt was issued to them. By the letter dated 1/10/1999 (Annexure P-2) Eastern Construction Corporation intimated the petitioner that no such receipt was issued to it while submitting the tender, by respondent No. 1. Kavita A. Sharma, the petitioner wrote letters to contractors who submitted the tenders with respondent No. 1 enquiring if any receipt was issued to them. By the letter dated 1/10/1999 (Annexure P-2) Eastern Construction Corporation intimated the petitioner that no such receipt was issued to it while submitting the tender, by respondent No. 1. It is also stated that after-submitting tender, deponent received a telephone call after about 4 months from respondent No. 1 calling upon him to give lumpsum offer in place of itemwise rates. Accordingly, petitioner submitted lumpsum offer vide letter dated 11/01/1991. Vide respondent No. 1 s letter dated 30/01/1991, work was awarded to petitioner and an agreement also executed on 27/02/1991 between them. It te claimed that other conditions contained in Tender documents issued pursuant to advertisement dated 1/08/1990 such as condition No. 3 providing for completion of work within a period of 4-1/2 months, condition No. 7. 1 providing for furnishing of security deposit, condition No. 10 providing for extension of time, condition No. 11 providing for the materials, condition No. 28 providing for liquidated damages, condition No. 37 providing for cancellation of contract, condition No. 38 providing for risk and cost expenditure, condition no. 41 for deduction of income tax and condition No. 50 providing for arbitration, were to be followed by the parties. It is further averred that agreement dated 27/02/1991 was executed without furnishing earnest money as cheque towards earnest money was already with respondent No. 1 having been submitted with Tender documents by the petitioner on 30/09/1990. After respondent No. 1 learnt that cheque towards earnest money had lapsed, it called upon the petitioner on 15/04/1991 to submit another cheque in lieu thereof and petitioner submitted a fresh cheque on 15/04/1991. In between petitioner had got two payments of Rs. 48,332/- and Rs. 51,548/- against the work done from respondent no. 1. It is asserted that fresh, tender as alleged in Para 6 of the affidavit dated 10th september 1999 was not advertised in any newspaper by respondent No. 1. Telephone number of petitioner was not given in the Telephone Directory issued by P and T Department. Annexure R-1 filed by respondent No. 1 did not contain the telephone number of petitioner at serial No. 5. In fact, respondent No. 1 got the telephone number of petitioner from the covering letter filed by the petitioner alongwith tender on 30/08/1990. Telephone number of petitioner was not given in the Telephone Directory issued by P and T Department. Annexure R-1 filed by respondent No. 1 did not contain the telephone number of petitioner at serial No. 5. In fact, respondent No. 1 got the telephone number of petitioner from the covering letter filed by the petitioner alongwith tender on 30/08/1990. It is emphatically denied that any time limit was specified in the meeting dated 2/12/1991 as alleged. It is averred that on 2/12/1991 when deponent visited the construction site he found the Principal, Architect, Administrative officer, Engineer and 4/5 other persons present there and they asked him to complete the work immediately. Deponent told them that work could be completed only after payments were released. It was assured that they would release payments provided letter dated 6/11/1991 was withdrawn and remaining work completed as per the chart which was ready with them. Thereafter minutes of alleged meeting dated 2/12/1991 was brought to deponent on 5/12/1991 for signature which he refused. Deponent informed respondent No. 1 by writing letter dated 6/12/1991 that he had been forced to write a letter to the Principal of respondent No. 1 withdrawing the letter dated 6/11/1991 and sign the chart. In the letter dated 1/12/1992, petitioner had clearly stated that as per agreement the time schedule for completion of work was 4-1/2 months. Alongwith reply affidavit, copies of letter dated 1/10/1999 received from Eastern Corporation Limited (Annexure P-2), letter of lumpsum offer dated 11/01/1991 addressed to Principal of respondent No-1 college (Annexure p-3), letter dated 30/01/1991 awarding work by respondent No. 1 (Annexure P-4), letter dated 6/12/1991 (Annexure P-5), letter dated 6/11/1991 (Annexure p-6) and letter dated 1/02/1992 (Annexure P-7) referred to in the affidavit had been filed. ( 5 ) PHOTOSTAT copy of Tender documents is placed at pages 7 to 74 on Part III file while that of aforesaid agreement dated 27/02/1991 at Pages 27 to 32 on Part I file. Terms and conditions set out in the agreement which are material, are reproduced below:- "terms and Conditions 1) All the work shall be done according to the drawings/specifications provided by Architect and all materials will be as per standard mentioned and approval of the Architect. 2. The water and electricity will be provided by the college and the consumption of electricity will be paid by the contractor. 3. 2. The water and electricity will be provided by the college and the consumption of electricity will be paid by the contractor. 3. 75% as secured payment of the material sent by the contractor at the site will be made immediately by the college authority and recovery of the payment will be as per the consumption of materials. 4. Full payment in respect of steel, cement and sanitary items will be made by the college authorityto the contractor in advance and recovery or advance will be as per consumption of the materials. 5. At the completion of the work, final bill will be submitted by the contractor and the payment of the same will be made by the college within 15 days of submission of such bill. 6. It may be noticed that despite assertion made in aforesaid reply affidavit of Mange Ram that no fresh tender on lumpsum basis was advertised in any newspaper by respondent no. 1, it has not been disclosed either in rejoinder affidavit dated 16/08/2000 or affidavit dated 10/09/1999 of Dr. Kavita A. Sharma as to in what manner fresh tenders on lumpsum basis were invited by respondent No. 1 college and what were the names of contractors other than petitioner who submitted the tenders. Further, it is admitted by respondent No. 1 that petitioner submitted cheque for Rs. 10,000/- towards earnest money on 15/04/1991. As may be noticed from the terms and conditions reproduced above of the agreement dated 27/02/1991, it does not provide for furnishing of earnest money by the petitioner. In this backdrop there seems to be no reason to disbelieve the stand taken by petitioner that said cheque towards earnest money was submitted on 1 5/04/1991 in lieu of cheque which was submitted alongwith tender on 30/09/1990. It will not be out of place to mention that aforementioned receipts (Annexure R-2 (colly) originals whereof were allegedly issued to contractors, bear the date of receipt of tenders as 30/08/1990. It does not appeal to reasons that all contractors may have chosen to submit their tenders only on 30/08/1990 which was the last date for submission of tenders. Needless to say that in aforesaid letter dated 1/10/1999 one of the contractors, namely, Eastern Construction Corporation has denied that any receipt was issued to it at the time of submitting tender, by respondent No. 1. Needless to say that in aforesaid letter dated 1/10/1999 one of the contractors, namely, Eastern Construction Corporation has denied that any receipt was issued to it at the time of submitting tender, by respondent No. 1. According to this letter such a receipt is never issued in the trade which is also the case taken in reply affidavit by the petitioner. No credence, thus, can be attached to said alleged receipts which, obviously, had been filed to support the plea taken in written statement about non-filing of tender by the petitioner pursuant to advertisement dated 1/08/1990 Again, it is inconceivable that respondent No. 1 who issued Tender documents (at Pages 7 to 74) containing terms and conditions also touching the subjects of income tax deduction, security deduction, period of completion of work and penalties etc would have felt contended only by incorporating 5 conditions referred to above in the agreement dated 27/02/1992. It may also be pointed out that in the letter dated 24/02/1992 on record sent by the Principal of respondent No. 1 college to the petitioner threatening to rescind the contract, amongst others, penalty/compensation @ Rs. 15,000/- per month beyond 4-1/2 months till completion of work has been claimed by respondent No. 1. Thus, 4 -1/2 month period seems to have been taken from Tender documents (at pages 7 to 74) as in aforesaid agreement dated 2 7/02/1991 no time schedule for completion, of work has been provided. Aforesaid letter dated 29/01/1992 which was issued pursuant to alleged meeting dated 2/12/1991 and on which heavy reliance was placed on behalf of respondent No. 1, obviously, runs contrary to said letter dated 24/02/1992 in the matter of prescribing time limit for completion of work by the petitioner. On a conjoint consideration of above circumstances, and ratio in the decisions in Lal Chand Vs. Dev Raj, AIR (38) 1951 Pepsu 115; State of orissa and another Vs. M/s. B. K. Panda and Bros and another, AIR 1982 Orissa 147; Union of India Vs. A. L. Pallia Ram, AIR 1963 SC 1685 ; J. K. Jain and others Vs. Delhi development Authority and others, (1995) 6 SCC 571 and Kashmiri Lal Gupta Vs. Dev Raj, AIR (38) 1951 Pepsu 115; State of orissa and another Vs. M/s. B. K. Panda and Bros and another, AIR 1982 Orissa 147; Union of India Vs. A. L. Pallia Ram, AIR 1963 SC 1685 ; J. K. Jain and others Vs. Delhi development Authority and others, (1995) 6 SCC 571 and Kashmiri Lal Gupta Vs. The union of India, AIR 1965 Jammu and Kashmir 114, I have no hesitation in reaching the conclusion that tender on lumpsum basis was submitted by the petitioner in continuation of tender enquiry for which advertisement dated 1/08/1990 was issued by respondent no. 1. Tender documents (at pages 7 to 74) contain an arbitration clause by way of clause no. 50. Thus, claims (i) to (iv) referred to in para 12 of petition, deserve to be referred for being decided to the Vice-Chancellor, Delhi University, named arbitrator also arrayed as respondent No. 2. 7. Consequently, the petition is allowed with costs and said claims (i) to (iv) are referred for adjudication to respondent No. 2. It will be open to respondent No. 1 to raise counter claim (s), if any, before him. Arbitrator will make and publish the award in accordance with law. 8. Let a copy of this order be sent to said arbitrator for information immediately by the registry.