JUDGMENT
Vijender Jain, J.
1. The petitioner filed a petition under Section 33 of the Arbitration Act, 1940 inter alia pleading that there is no valid arbitration agreement in existence between the parties and, therefore, the respondents could not forfeit the earnest money amounting to Rs. 20,000/- in terms of the agreement. According to the petitioner, the validity of the acceptance of the offer of the contract in dispute was till 30.11.1988. The case of the petitioner is that respondent by their letter dated 29.11.1988, though sent by registered post, which was received on or about 3.12.1988. The main contention of the learned counsel for the petitioner is that in the said acceptance the respondents modified the conditions which was offered by the petitioner on 28.4.1988. Mr. Dewan, learned counsel for the petitioner, argued that if the condition of the offer was at variance with the original offer made by the petitioner, no legal, valid and binding contract came into existence. He further argued that the alleged acceptance was put in transmission after the expiry of the validity period.
2. During the course of the arguments, it was pointed out by Ms. Ansuya Salwan, learned counsel for the respondents, that the petitioner has accepted the letter of the award of the work dated 29.11.1988 on 30.11.1988, which was issued by the office of the respondent-DDA on 29.11.1998. This court directed the respondents to file the relevant documents on record. Respondent filed an application along with an affidavit to put the relevant documents on record. The same was listed as IA No. 4373/93. Respondent pleaded in the application that non-filing of the said documents was due to a bona fide mistake and prayed for taking the documents on record. The petitioner filed reply to the said application and took preliminary objection that the application was not maintainable as the same was belated and the documents filed were in possession of the respondent and could have been filed long before. Petitioner further argued that at this stage when final arguments for disposal of the case were being heard, the respondents cannot be allowed to file the documents. No doubt, normally a document at this late stage may not be taken on record but here is a case when the partner of the petitioner-firm has taken the copy of the letter from the office of respondent – DDA on 30.11.1988 and there is no whisper about it in the petition filed by the petitioner under Section 33 of the Arbitration Act. Learned counsel for the petitioner fairly concedes that the signature on the letter issued on 29.11.1988 is of one Mr. S. N. Mohata, who is the partner of the petitioner-firm. In my view, there is concealment on the part of the petitioner and in the interest of justice and to decide the matter on the basis of record available, it would be expedient that the documents be taken on record. I allow this application and take the documents on record.
3. Mere perusal of the documents filed by the respondent demolish the arguments of the learned counsel for the petitioner that no valid and binding contract came into existence and, therefore, the respondent = DDA in terms of the agreement cannot for felt the earnest money. Apart from the fact that the petitioner has received the letter of award dated 29.11.1988 on 30.11.1988, the issuance of said letter and its receipt by the petitioner is also evident from the diary register maintained by the respondent = DDA which clearly shows that Mr. S. N. Mohata, who has received the letter dated 29.11.1988, has signed the said register also in token of the receipt of the said letter. There is a copy of telegram dated 29.11.1988 which was also sent to the petitioner which has been filed on record. In view of this overwhelming evidence filed by the respondent the arguments advanced by the learned counsel for the petitioner that the acceptance was received after 30.11.1988, as the letter was dispatched by the respondent = DDA on 1.12.1988, does not hold any ground. The stand of the petitioner is falsified by its own letter dated 2.12.1988, which was received in the office of respondent = DDA on 2.12.1988 itself. The copy of this letter was not filed by the petitioner nor any mention made in the petition. The same is reproduced as under :
“2.12.1988.
The Executive Engineer S.E.D.
9, D.D.A. (Saket),
New Delhi.
Sub : Construction of 304 Janta Houses at Pul Pheladpur i/e
Internal water supply & sanitary.
Installation Complete, Group II
Dear Sir,
Thank you for your Award letter dated 29.11.1988 for the subject.
One Non-Judicial Stamp Paper worth Rs. 2.00 with court paper is enclosed for agreement.
Please favor us with requisite Drawings to take up the work and in the meantime we are getting ready with preliminaries.
Thanking you,
Enclosed As above.
Your’s faithfully,
for Associated Builders.
(S. N. Mohata)”
14. Advertising on the second arguments of the learned counsel for the petitioner that there is variance in the terms of the contract as offered by the petitioner and hence the award letter dated 29.11.1988 can only be termed as counter-offer and no acceptance. Learned counsel for the petitioner has referred the case of Union of India v. M/s. Uttam Singh Dugal & Co. (Pvt.) Ltd. in support of his submission. The main contention of the learned counsel for the petitioner is that as per the rebates offered by the petitioner the figure of the estimated cost of the contract would come to Rs. 58,47,747.20 paise whereas in the letter of acceptance dated 29.11.1988, the respondents had shown the estimated cost at Rs. 58,43,084/-. The learned counsel for the petitioner has submitted that this is on account of changing the mode of rebate offered by the petitioner to the respondent. I see no ground to interfere with the decision of the respondents as in my considered opinion from the persual of the letter dated 29.11.1988 awarding work to the petitioner, there is no material change in the terms offered by the petitioner. There is no merit in the case of the petitioner. As a matter of fact, in the letter dated 2.12.1988 the petitioner in categorical terms accepted the acceptance letter and agreed to commence the work in terms of the award. If there was any modification in rebate or any substantial or material variation in the offer, the petitioner ought to have pointed out in the letter dated 2.12.1988. In view of the contents of the aforesaid letter, it is not open to the petitioner to aver that a valid and concluding contract did not come into force. What was only desired from the petitioner after acceptance of the award letter dated 29.11.1988 was to execute an agreement on Rs. 2 Stamp Paper which the petitioner did not execute in spite of several requests made by the respondent. The execution of reducing in writing the terms and conditions which hitherto agreed to by the parties would not render the agreement invalid. In this context learned counsel for the respondent cited the case of Punjab State Electricity Board v. M/s. Abnash Textile Trading Agencies, Ambala City and the case of Union of India v. M/s. A. L. Rallia Ram . In the case of Union of India v. M/s. Uttam Singh Dugal & Co. (Pvt.) Ltd. (supra) this court had occasion to deal with question of execution of a formal agreement as an essential term and condition precedent to the contract. Quoting from the law on this point laid down by Lord Parker in Von Hatzfeldt-Wilden-burg v. Alexander((1912) I Ch 284 SC 1685) the court held :
“It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties. It is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored. The fact that the reference to the more formal document is in words which according to their natural constructions import a condition is generally if not invariably conclusive against the reference being treated as the expression of a mere desire.”
5. In the peculiar facts and circumstances of this case, the execution of an agreement was merely expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. This is a case which will fall in the second category where reference to the more formal document may be ignored. This dictum has been approved by the Privy Council in Shankarlal Narayandas Munade v. The New Mofussil Co. Ltd. (AIR 1946 PC 97).
6. In view of the above discussions, I dismiss the petition with costs, counsel’s fee Rs. 2,000/-.