N. G. Nandi ( 1 ) IN the petition under Section 33 of the Indian Arbitrationact (hereinafter referred to as "the Act"), seeking declaration that there is no validarbitration agreement between the petitioner and respondent No. 1; that thealleged arbitration agreement contained in the proposed contract is of no effect; adeclaration that there is no contract and/or privity of contract much less a validarbitration agreement between the petitioner and respondents 2-4; that the Indiancouncil of Arbitration has no jurisdiction to arbitrate on the claims against thepetitioner, of respondents 1-4, as contained in the statement of claim filed before theica in matter titled "stora Kvarnasvenden AB and Others v. STC of India Ltd. "case No. 1ca/ac/452; and that the arbitration proceeding before the Indiancouncil of Arbitration in Case No. 1ca/ac452 is illegal and without jurisdiction,on the grounds that there is no arbitration agreement between the petitioner andrespondent No. 1 and there is no privity of contract much less an arbitrationagreement between the petitioner and respondents 2-4, the petitioner, by this I. A. under Section 41 of the Act, seeks stay of the arbitration proceedings pendingbefore the Indian Council of Arbitration being titled "stora Kvarnasvenden AB andothers v. STC of India Ltd. ", Case No. 1ca/ac/452 and also restraining therespondents from proceeding with the same in any manner till the final disposal of ,the main petition. ( 2 ) THE say of the petitioner is that in May, 1991, petitioner was required toimport standard news print on an emergent basis; that the petitioner issued atender Notice dated 26. 2. 1991 inviting offers for upto 40,000 MT standard newsprint as per its stated requirement/specifications; that respondent No. 1 submittedits offer dated 11. 3. 1991 for 15000 MT standard newsprint through its Indian agentanika Internation Pvt. Ltd. for supplies to be made by it through certain Scandinavian Producers; that respondent No. 2 negotiated with the petitioner through itsagent Anika; that the quantity in the abovesaid offer was subsequently enhancedby respondent No. 1 to 20,000 MT; that the petitioner placed an order for 20,000 MTof standard newsprint with respondent No. 1 vide telex dated 30/31. 3. 1991, whichcontained various terms relating to price and deliver; that all other terms andconditions were to be separately agreed to; that respondent No. 1 informedpetitioner through Anika s letter dated 15. 4. 3. 1991, whichcontained various terms relating to price and deliver; that all other terms andconditions were to be separately agreed to; that respondent No. 1 informedpetitioner through Anika s letter dated 15. 4. 1991 that their principal i. e. Stora wasnot agreeable to certain terms and that it was returning the contract (three copies)with the request that the proposed contract be modified; that respondent No. 1 inthis manner declared that there was no consensus-ad-idem of the parties withrespect to the other contractual terms. Therefore, in the circumstances, there wasno agreement between the parties except as to price and delivery terms and penaltyfor late delivery; that petitioner did not effect any modification in the proposedcontract and returned the copies of the proposed contract for acceptance andsignatures by respondent No. 1; that respondent No. 1 did not sign the same andreturned the same to the petitioner; that on 20. 10. 1991 petitioner asked for signedproposed contract as it had to satisfy various governmental agencies. That Anika,through its letter dated 11. 2. 1991 informed the petitioner that respondent No. 1 hadnot yet signed the proposed contract as it found certain ambiguities therein. Thatin a malafide manner and for ulterior purposes, respodent No. 1 has filed copy ofthe proposed contract purported to be signed by it although all along respondentno. 1 refused to sign it as a token of its acceptance and returned it to the petitioner,be speaking of a belated and misconceived effort to invoke the arbitration clause inthe proposed contract; that the only contract between the petitioner and respondent No. 1 is contained in the telex order i. e. the telex order dated 30-31. 3. 1991,which accepts respondent No. l s offer dated 11. 3. 1991 which contained the basicterms of price and delivery and all other terms were not agreed to by the parties;that the petitioner did sent to respondent No. 1 the proposed contract whichcontained an arbitration clause. That respondent No. 1 intends to invoke thearbitration clause which is a misconceived and malafide act; that there is noarbitration agreement between the parties. On these averments, the petitioner prays for the reliefs in the petition and thei. A. respectively, as aforestated. That respondent No. 1 intends to invoke thearbitration clause which is a misconceived and malafide act; that there is noarbitration agreement between the parties. On these averments, the petitioner prays for the reliefs in the petition and thei. A. respectively, as aforestated. ( 3 ) THE say of respondents 1-4 is that the petitioner has suppressed materialfacts and has rather misrepresented the true and correct facts in order to suit itsconvenience; that the petitioner is estopped from challenging the existence and/or authority of the arbitration agreement; that the contract was duly entered intobetween the parties; that the respondents effected sales of material to the petitionerunder terms of the said written contract entered into between the parties; that thepetitioner accepted the material sold/consigned to it under the contract; that thepayments were effected in terms of the contract save and except the claims of therespondents against the petitioner and the relationship and terms and conditionsof such sales between the parties wherein terms and conditions are stipulated in thecontract bearing No. STC/pn/stora/11/sweden/91-92 dated 30. 3. 1991 signedand executed by and between the parties; that the petitioner can not challenge theexistence and/or the authority of the arbitration agreement in terms of which thepetitioner accepted the goods unconditionally and unequiably; that the petition isliable to be dismissed on this ground as well; that the petitioner never ever allegdlyand/or challenged the existence and/or validity of the arbitration agreementduring the course of the entire transaction, during the various correspondencesexchanged between the parties, and thereafter. Even in the reply sent by thepetitioner to the notice in the year 1994, the petitioner never ever challenged and/or questioned the existence and/or validity of the contract. The petition isevidently an after thought, is motivated and has been made in a mischievousattempt to delay the proceedings and frustrate the valid and legitimate claims ofthe answering respondents; that the transaction under reference is not the firsttransaction entered into by the petitioner with the respondents. The respondentshave been regular suppliers of the news print to the petitioner and have beensupplying news print to the petitioner since last many decades; that the respondentduly signed the contract, shipped the material and the same was duly accepted andacknowledged by the petitioner unconditionally and without any protest or demurever save and except the petition; that the respondents, vide its letter dated23. 10. 10. 1991 informed the petitioner that the signed contract would be sent "in a dayor two" which was eventually sent by respondent No. 1 under cover of its letterdated 18. 11. 1991. That the shipment under the contract was effected in April, May1991 and the payments made in July, August 1991. 91. It is denied that there was noconsensus-ad-idem of the parties with respect to the contract as respondent No. 1had already under the cover of letter dated 18. 11. 1991, despatched the dulyexecuted signed contract. ( 4 ) IT will be seen from the above that the existence of the contract with regardto the price and delivery terms and penalty for late delivery is not in dispute. Whatthe petitioner disputes is that there was no concluded contract with regard to thearbitration clause. In other words, there was no contract containing clause ofarbitration concluded between the parties to the arbitration proceeding. The initialfacts, viz. the petitioner inviting tender for the purchase of standard newspring andrespondent No. 1, through its agent Anika, submitted its offer dated 11. 3. 1991 for15000 MT of standard newsprint is not in dispute and also the subsequentenhancement of the offer by respondent No. 1 to 20000 MT is also an admittedposition. Annexure 2 dated 11. 3. 1991 is the offer by respondent No. 1. Theconditions to be found in Annexure 2 suggest that the same would be as per earliersupplies and standard contract of STC. Anenxure 3 is the order placed by thepetitioner for 20000 MT standard newsprint of which 15000 MT were to be suppliedby 15. 4. 1991 and 5000 MT by 25. 4. 1991. The said order was in response to the offerby respondent No. 1 through its agent Anika International. The said order alsosuggest that all other terms and conditions shall be as per STC s standard contractfor standard newsprint. Thus, it will be seen that respondent No. 1, vide Annexure2 offered to supply 15000 MT of standard newsprint on condition as per the earliersupplies and standard contract of STC, which offer has been accepted and inpursuance thereof, vide Annexure 3, petitioner placed order which contained thatall other terms and conditions shall be as per STC s standard contract for standardnewspring. So the tender Annexure 2 offered by the petitioner has been acceptedand order placed pursuant thereof vide Annexure 3 by the petitioner. So the tender Annexure 2 offered by the petitioner has been acceptedand order placed pursuant thereof vide Annexure 3 by the petitioner. ( 5 ) IT is suggested from Annexure 6 dated 11. 4. 1991 by the petitioner torespondent No. 1 that three copies of the contract No. STC/np/stora/11/swedeb/91-92 dated 13. 3. 1991 for import of 20000 MT of standard newsprintduly signed by the petitioner as the buyer, have been sent to respondent No. 1requiring respondent No. 1 to sign the same as the seller and return two copies tothe petitioner for its record. Thus, three copies of the contract duly signed by thepetitioner have been sent on 11. 4. 1991 by the petitioner to respondent No. 1 forsigning the same and return of two copies thereof. Page 30 to 36 is the disputedcontract. Clause 17 of the contract at internal page No. 34 contains the arbitrationclause, which reads as follows :- "17. ARBITRATION: All disputes or dfference concerning or arising out ofor in connection with or under this contract shall be settled by arbitration inthe country of defendant according to the laws applicable there. Where STCis a defendant, the Rules of Arbitration of the Indian Council of Arbitrationshall apply and the arbitration shall take place at New Delhi (India), andwhere the Seller is defendant, the Rules and Procedure of the Seller s countrywill apply and the arbitration will take place in Seller s country. Any awardmade in pursuance of the arbitration proceedings shall be final and bindingon both the parties"clause 18 of the said contract at internal page 35 contained clause regardingforce majure. ( 6 ) IT is not disputed that the goods have been supplied by respondent No. 1and payments thereof made by the petitioner under this very contract, and as faras the price, quantity, delivery, payment etc. are concerned, the same has been fullyacted upon by both the parties. ( 7 ) THE petitioner has been contending that the proposed contract in threecopies sent by the petitioner was not a concluded one and respondent No. 1 didreturn the same. Annexure 8 is the letter dated 28. 10. 1991 by the petitioner whereby respondent No. 1 has been told that in spite of lapse of more than six months, respondentno. ( 7 ) THE petitioner has been contending that the proposed contract in threecopies sent by the petitioner was not a concluded one and respondent No. 1 didreturn the same. Annexure 8 is the letter dated 28. 10. 1991 by the petitioner whereby respondent No. 1 has been told that in spite of lapse of more than six months, respondentno. 1 has not returned the said contract to the petitioner for their record and thatthey have been facing great problem to satisfy various Government agencies aboutimport of newsprint under the aforsaid contract i. e. contract No. STC/np/stora/11 /sweden/91-92 dated 30. 3. 1991. In the said letter, respondent No. 1has been requested to immediately courier to the petitioner two copies of theaforesaid contract duly signed by respondent No. 1. The petitioner also relies onannexure 9 dated 23. 10. 1991, a fax message by respondent No. 1 to the petitionerwherein respondent No. 1 has regretted the delay in returning the contract withassurance that it will now be sent in a day or two. According to the petitioner, on23. 10. 1991, respondent No. 1 had assured the return of the contract in a day or two. Referring to Annexure 10 dated 11. 12. 1991, it has been stated that the contract wasnot concluded even by that date inasmuch as Anika writes to the petitioner thatrespondent No. 1 had sent the message to Anika today i. e. 11. 12. 1991 about signingof contract as stated therein. It is suggested from this letter that some objections hadbeen raised by respondent No. 1 through its agent Anika, as there was someambiguity for which respondent was not able to sign the contract. It may be appreciated that the amibiguity raised in Annexure 10 is with regardto one of the terms of the shipment of cargo and that STC has stipulated in thecontract that the goods will be shipped on liner term basis, and according torespondent No. 1, if the goods are shipped on liner term basis, the date of B/l istaken as the basis of shipment and if the penalties are to be levied for delay and inthis board certificate, as insisted by the petitioner. That board cetificate can betaken as a base if the cargo is shipped by Charter Party vessel and this is as perinternational contract terms. Thus, the ambiguity, as suggested in Annexure 10 isto this effect. That board cetificate can betaken as a base if the cargo is shipped by Charter Party vessel and this is as perinternational contract terms. Thus, the ambiguity, as suggested in Annexure 10 isto this effect. ( 8 ) IT may be appreciated that respondent No. 1 on 14. 3. 1991 served thepetitioner with registered notice through its solicitor, copy whereof is to be foundat page 98. In this notice, respondent No. 1 has specifically referred to contract No. STC/np/stora/11/sweden/91-92 dated 30. 3. 1991 for sale and supply of20,000 MT of standard newsprint at the price of US $ 625 per MT. By this notice,the petitioner is called upon to pay a sum of US $ 3,83,266. 60 along with interest atthe rate of 18% p. a. The petitioner is also cautioned that in the event of failure tocomply with the requisition of this notice within 15 days, respondent No. 1 wouldproceed to file their claims before the Indian Council of Arbitration, New Delhi, asprovided for in the agreement for their claim towards the said amount and suchother amount, which may further be found due and owing from the petitioner torespondent No. 1 alongwith interest. It is pertinent to note that the petitioner hasfiled reply to this notice, which is to be found at page 68 dated 27. 4. 1994. It ispertinent to note that in this reply, the petitioner has not denied the contractcontaining arbitration clause. It is pertinent to note that in this reply it has beenstated by the petitioner that in view of the applicability of force majure, thepetitioner cannot accept any liability whatsoever on this account. I put a questionto myself as to what made the petitioner to invoke "force majure":. In this context,reference may be made to clause 18 of Annexure2,contract No. STC/np/stora/ii/sweden/91-92 dated 30. 3. 1991. As pointed out above, clause 18 of thecontract dealswith the force majure . Now, unless there was a concluded contract,where would be the question of invoking force majure clause . Moreover the petitioner in reply dated 27. 4. 1994 writes that the respondentswould be suitably adviced to not to resort to any litigation and/or initiatearbitration proceedings as against the petitioner. If there was no concindedcontract containing arbitration clause, that the reaction of the petitioner would bedifferent and the one as suggested by the reply dated 27. 4. 1994 as pointed outabove. 4. 1994 writes that the respondentswould be suitably adviced to not to resort to any litigation and/or initiatearbitration proceedings as against the petitioner. If there was no concindedcontract containing arbitration clause, that the reaction of the petitioner would bedifferent and the one as suggested by the reply dated 27. 4. 1994 as pointed outabove. ( 9 ) AS seen above, the contract Annexure 6 dated 30. 3. 1991 has been actedupon by both the parties, which is an admitted position. The contract is accordingto the STC s standard contract for standard newsprint as suggested in Annexure 2and 3 byrespondent No. 1 aswell as the petitioner, i. e. in the offer and the subsequentorder. placed by respondent No. 1 and the petitioner respectively. The petitioneraccepts the contract in all material particulars including the clause of force majure,disputes, the arbitration clause therein. As pointed above, the ambiguity raised byrespondent No. 1 is with regard to the shipment and that was the reason assignedfor not signing the contract by respondent No. 1 by its communication dated23. 10. 1991. The contract has been implemented and executed in all particulars andthe same has been according to the offer by respondent No. 1 and acceptance of thesame by Annexure 2 by the petitioner, as pointed out above. It seems the partieswent ahead with the arrangement arrived at by Annexure 2 and the formal contractwas reduced in writing lateron but it was agreed that the contract shall be accordingto the standard contract of STC for the supply of newsprint and that conditionseems to have been carried out by Annexure 6. ( 10 ) UNDER the circumstances, on prima-facie consideration of the material onrecord, I am of the view that there exists a contract between the petitioner andrespondent No. 1 containing arbitration clause for reference of the disputes arisingbetween the parties out of the contract for adjudication to the arbitrationas pointedout in clause 17 reproduced above, and I do not find any prima-facie substance inthe contention of the petitioner raised in this regard and the IA being devoid ofmerits, is liable to be dismissed. ( 11 ) IN the result, the I. A. fails. Ordered accordingly.