JUDGMENT
Vijender Jain, C.J.
1. This petition under Section 11 of the Arbitration and Conciliation Act, 1996 has been filed by the petitioner for appointment of an Arbitrator.
2. Learned Counsel for the respondents say that there was no valid contract as the arbitration agreement was not signed by the petitioner. On the other hand, learned Counsel for the petitioner has placed on record copy of a written statement, which was filed by respondents No. 1 and 2 in the suit filed by the petitioner before the Civil Judge (Jr. Division), Chandigarh.
3. In the said written statement, preliminary objection No. 2 was taken which is to the following effect:
2. That the Ministry of Surface Transport, Govt. of India, through the Roads & Building Department of Govt. of Punjab, invited bids for construction of four lane road over Bridge. Tender of the petitioner was accepted. The successful tenderer required to execute the work with his own funds and to coup the same collecting toll for a specified period. The controversy between the Plaintiff relates to Clause 3.36 of the tender. That initially Clause 3.36 was deleted in the pretender meeting but at the time of final signing of the contract the Ministry of Law was of the opinion that interest of the state or Govt. of India is to be suitably protected and that clause must be included in the agreement. The basic purpose for which the Clause 3.36 was initially included also agreed in the Tender Documents and finally also retained under the advice of the Ministry of Law is that if the contractor without any reasons abandon the work, he should not be compensated for the reasons that his incomplete work will be of no use for the Govt. There are other clause in the agreement on issues if the contractor abandons the contract because of the fault of the Government or because of the force majure and how the entrepreneur is to be compensated. However, to maintain the basic feature of the build operate and transfer contract, clause
3.36 in the basic clause which is required to be retained in the contract. As such as per condition 14 of the tender document (Annexure A-2), which gives right to the Govt. to suitably amend the agreement at the time of signing Clause 3.36 was retained in the agreement.
4. In view of the stand taken by respondents 1 and 2 in the written statement filed in the civil suit that there is an arbitration agreement, the matter is required to be referred to arbitration.
5. At this stage, Mr. Amol Rattan Singh, Additional Advocate General appearing for respondents No. 1 and 2 says that in reply to the suit on merits, it was pleaded in the written statement that no agreement was signed between the parties, therefore, the petitioner had no right to seek arbitration.
6. This plea cannot be accepted, at this stage, because it was for the respondents to take a stand at that stage that on the basis of the plea taken in the written statement that arbitration agreement had not been signed by the petitioner, the suit should be decided on merits. Now the respondents cannot blow hot and cold at the same breath. Having not done so, the respondents have lost their right to raise the said plea at this stage and the matter has to be referred to arbitration now in these proceedings, which have been initiated by the petitioner and the petitioner cannot be non-suited.
7. Therefore, I allow this petition and direct that an arbitral tribunal be constituted. The petitioner will supply the name of the Arbitrator within 15 days to respondent No. 1 and respondent No. I will supply its vacancy within two weeks and thereafter respondent No. 3 Union of India shall appoint the Empire within four weeks.
8. Petition stands disposed of.