JUDGMENT - M.B. SHAH, C.J.:---This application is filed by the applicant M/s. Premlaxmi Co. against the Respondent -Traflagar House Construction India Ltd. under section 11 of the Arbitration Conciliation Act, 1996 (hereinafter, for the sake of brevity, referred to as the said "Act") for referring the dispute between the Applicant and the Respondent to the Arbitrator. 2.It is the contention of the applicant that M/s. Tata Electric Co. (TEC) is the owner of Mulshi Dam situated at Pune. M/s. Tata Electric Co. entered into a contract with the respondent as per work order dated 1st August 1995 for strengthening the said Mulshi Dam by rock excavation and filling earth as per its specification. The respondent in turn appointed the applicant as Sub-Contractor for doing the excavation work for spillways and allied work as per the terms and conditions mutually agreed by and between the applicant and the respondent. It is also the contention of the Applicant that appointment of the applicant as Sub-Contractor was duly approved by the Tata Electric Co. The terms of the agreement between the applicant and the respondent are mentioned in the letter dated 19th September, 1995 (Exhibit 'A' to the petition) written by the respondent, which inter alia, provide as under:- "Specific Terms and Conditions: All conditions of contract as per Tata Electric Company's Tender document (as per attached Annexure 'A' ) except the following, will be applicable to you on back to back basis." Annexure 'A' to the said letter is the Tata Consulting Engineers Title General Conditions of Contract. Clauses 22.1, 23.1 and 23.2 of the said General Conditions of Contract read as under:- "22.1 The decision, opinion, certificate or valuation by the ENGINEER/OWNER with respect to all or any of the matters under scope of Contract and Clauses 3.0, 4.0, 8.0, 11.0, 12.0, 13.0, 20.0, 29.2, 30.0, 32.5, 38.0 and 40.0 hereof (which matters are herein referred to as expected matters ) shall be final and conclusive and binding on the CONTRACTOR and shall be without Appeal. Any other decision, opinion, direction, certificate or valuation of the ENGINEER/OWNER or any refusal of the ENGINEER/OWNER to give any of the same shall be subject to the right Arbitration as per clause 23.0." "23.1 In case any dispute or difference shall arise between the OWNER or the Engineer on his behalf and the CONTRACTOR touching or concerning this contract or the construction, meaning, operation or effect thereof or of any clause herein contained or as to the rights, duties or liabilities of the parties hereto respectively or of the ENGINEER under or by virtue of these presents or otherwise or touching the subject matter of these presents or arising out of or in relation thereto (except as to matters left to the sole discretion of the ENGINEER) the same shall be referred to the arbitration of a single arbitrator in case the parties can agree upon one, otherwise, to two arbitrators, one to be appointed by each part and an umpire to be appointed by the two arbitrators before entering upon the references and in either case in accordance with the subject to the provisions of the Indian Arbitration Act, 1940, or any statutory modification or to enactment thereof for the time being in force. (Emphasis supplied) "23-2 Work under the contract shall, if reasonably possible continue during the arbitration proceedings and no payments due or payable by the OWNER shall be withheld on account of such proceedings." 3.It is contended by the applicant that as per the agreement dated 19th September 1995, the applicant has carried out nearly 98% of the work (including allied work) and certain disputes and differences have arisen between the applicant and the respondent which could not be settled on amicable basis. For this purpose, various meetings were held between the parties. However, high-handedly, the respondent, by its Advocate's letter dated 19th April 1997, terminated the Contract dated 19th September, 1995 without giving any Notice to the applicant. Thereafter, the Applicant demanded certain amount by its final bill dated 15th July, 1997 (Exhibit 'D' to the Petition) 4.Subsequently, the applicant sent a letter dated 2nd September 1997 (Exhibit 'E' to the petition) to the respondent stating therein that as per condition No. 23 of the Contract read with respondent's letter (work-order) dated 19th September, 1995, disputes are required to be referred to arbitration. Accordingly, the applicant appointed one Mr. Accordingly, the applicant appointed one Mr. J.D. Pradhan, a retired Chief Engineer of Municipal Corporation of Greater Mumbai as its Arbitrator and called upon the respondent to appoint an Arbitrator on its behalf. It is also stated in the said letter that if the respondent failed to appoint an Arbitrator, action would be taken under section 11 of the Arbitration Conciliation Act, 1996. 5.In response to the applicant's aforesaid letter, the respondent wrote a letter dated 24th September, 1997 (Exhibit 'F' to the petition) to the applicant, which inter alia states as under:- "While it is clear to us from the contents of paragraph 2 above, that you are entitled to receive from us Rs. 30, 76,409/- for the jointly measured work under the final bill, by you delayed performance in terms of the Letter of Intent dated 19-9-95 you are also liable to pay us the consequential damages arising from the unreasonable delay in the performance (i.e. beyond 18-5-96) and/or in your carrying out and/or discharging your obligations under your agreement dated 19-9-1995 with us (hereinafter referred to as "the agreement"). You are aware that under our agreement with our client, Tata Electric Company Limited (hereinafter referred to as "our client") dated 16-10-95 (hereinafter referred to as "the TECL Agreement), we are liable to them to the extent of 10% of our contract value for any delay caused in our performance beyond agreed time of the contract with them." Paragraph 6 of the said letter reads as under:- "In so far as the appointment of an arbitrator is concerned, we would like to reiterate that the TECL Agreement is a separate and distinct agreement and although some of the clauses under the TECL Agreement were agreed to be incorporated into the agreement, it was always the understanding between the parties that the terms incorporated into the Agreement, were merely the technical clauses, excluding in particular the arbitration clause in the said agreement. Assuming, without admitting, that as alleged by you throughout the correspondence exchanged between us after the termination of the Agreement, that all the clauses, save certain specificized clauses, were agreed to be included in the agreement, then by virtue of clause 22 of the agreement, the differences that have arisen between yourselves and us are to be finally decided by us, and as stipulated by clause 22, are specifically excluded from the ambit of the arbitration clause. Therefore, the disputes and differences that have arisen between us cannot be referred to arbitration and the question of our appointing our arbitrator or our concurring with the appointment of Mr. J.D. Pradhan as the sole arbitrator, does not arise. Consequently, the purported appointment of the arbitrator is invalid." (Emphasis supplied) 6.Thereafter, there is some correspondence between the parties which is not required to be referred to in this matter. Ultimately, the present application is filed for appointment of Arbitrator under section 11 of the Act. 7.The learned Counsel appearing on behalf of the respondent vehemently contended that there is no Contract between the parties to refer the dispute to the Arbitrator. With regard to the Arbitration Clause, he submitted that there was no consensus ad idem that if any dispute arises the same would be settled by the arbitrator. He, therefore, submitted that this application requires to be rejected. 8.As against the aforesaid contentions, the learned Counsel for the applicant submitted that there is a specific agreement between the parties to incorporate all the conditions of Contract as per the Tata Electric Company's Tender Documents. He further submitted that the respondents has specifically carved out the conditions which were not applicable and those conditions are Condition Nos. 1 to 12 as mentioned at pages 28 to 30 of the petition. He, therefore, submitted that what is excluded is specifically provided by the respondent in its letter dated 19th September, 1995 and the parties have taken a conscious decision to incorporate rest of the terms and conditions of Contract as per the Tata Electric Company's Tender Documents. 9.In my view, before dealing with the contentions raised by the learned Counsel, it will be necessary to refer to the definition of "Arbitration Agreement" provided in section 2(1)(b) to mean "an agreement referred to in section 7". Section 7 provides that "Arbitration Agreement" means "an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not". Section 7 provides that "Arbitration Agreement" means "an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not". Thereafter, for our purpose, sub-section (5) of section 7 is relevant, which reads as follows: "(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration Clause part of the contract." From the aforesaid sub-section, it is clear that reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing, as in the present case, and the reference is such as to make that arbitration clause part of the contract. 10. From the facts stated above, it would hardly lie in the mouth of the respondent to say that the arbitration clause contained in the TECL Agreement was not incorporated in the agreement between the parties. The letter dated 19th September, 1995 is written by the respondent. From the terms and conditions mentioned in the letter dated 19th September, 1995 written by the respondent, it is apparent that the respondent had placed an order for item Nos. 1 to 6 as mentioned in the said letter and the estimated value of the items is shown as Rs. 1,65, 92,650/-. Thereafter, there is a specific condition which is stated above, and that provides that all conditions of Contract as per Tata Electric Company's Tender Document which is attached as Annexure 'A' to the said letter, were made applicable on back to back basis. The terms which were excluded are also specifically mentioned therein. It should be noted that in the letter dated 24th September, 1997 (Exhibit 'F' to the petition) the respondent has specifically stated that "the TECL Agreement is a separate and distinct agreement and some of the clauses under the TECL Agreement were agreed to be incorporated into the Agreement". The terms which were excluded are also specifically mentioned therein. It should be noted that in the letter dated 24th September, 1997 (Exhibit 'F' to the petition) the respondent has specifically stated that "the TECL Agreement is a separate and distinct agreement and some of the clauses under the TECL Agreement were agreed to be incorporated into the Agreement". After admitting this fact, it is stated that "It was always the understanding between the parties that the terms incorporated into the Agreement were merely the technical clauses, excluding in particular the arbitration clause in the said Agreement." In my view, this statement is without any basis because whatever was required to be excluded is specifically excluded in the respondent's letter by stating that "all conditions of Contract as per Tata Electric Company's Tender Document", except conditions Nos. 1 to 12 mentioned therein, will be applicable. Result of the exclusion of the specific conditions would mean that the other conditions of the TECL Agreement are agreed upon by the parties. 11.However, it is the contention of the learned Counsel for the respondent that unless there is a specific conscious agreement, arbitration clause cannot be presumed to have been incorporated in the Contract. For this purpose, he relies upon the Judgment of the Supreme Court in the case of (K. Sasidharan v. Kerala State Film Development Corporation)1, reported in 1994(4) Supreme Court Cases 135. In that case, the Court referred to Clause (f) of the Contract which reads as under : "the terms of the Contract cannot be added to, varied or reduced by any oral agreement previous or subsequent to its signature. Clause 12 relied upon by Shri Anam, the relevant part reads thus: "Any item of work shall be carried out as per Madras Detailed Standard Specifications and its addenda volume and shall be deemed to have been included here." In view of the aforesaid term, the Court held that arbitration clause is distinguishable from other clauses in the Contract. The other clauses set out the obligations which the parties have undertaken towards each other binding them, but the arbitration clause does not impose on one of the parties an obligation towards the other. Therefore, arbitration clause in a contract stands apart from rest of the contract, it must be construed according to its language and in the light of the circumstances in which it was made. Therefore, arbitration clause in a contract stands apart from rest of the contract, it must be construed according to its language and in the light of the circumstances in which it was made. The Court further held that considering the clauses stated above, when the parties to the agreement, in terms of the documents, have not incorporated the arbitration agreement in clause 73 of the Madras Detailed Standard Specifications (MDSS), it cannot, by implication, be imported by interpretation that the terms of clause 73 including arbitration clause therein can be attracted. The Court also held that by necessary implication, it conflicts with the expressly agreed terms of the contract and stated that clause 12 quoted above, is only of the terms referable to the execution of the work, etc. and not concerned with the agreement to refer any dispute arising between the parties to arbitration. 12.The learned Counsel for the respondent further relies on the decision in the case of (M. Dayanand Reddy v. A.P. Industrial Infrastructure Corporation Limited others)2, reported in 1993(3) Supreme Court Cases 137 wherein the Court has observed as follows:- "It is also not necessary that agreement to arbitration should appear in the document containing the other terms of agreement between the parties. Law is well settled that arbitration clause may be incorporated by reference to a specific document which is in existence and whose terms are easily ascertainable. It is to be noted, however, that the question whether or not the arbitration clause contained in another document is incorporated in the contract, is always a question of construction. It should also be noted that the arbitration clause is quite distinct from the other clauses of the contract. Other Clauses of agreement impose obligation which the parties undertake towards each other. But arbitration clause does not impose on any of the parties any obligation in favour of the other party." (Emphasis added) 13.In the present case, as stated above, the letter (Exhibit "A") dated 19th September, 1995 is absolutely clear. The intention of the parties is to be gathered from this document. The language of Exhibit "A" leaves no room for doubt and all the terms and conditions (except those specifically excluded) of the TECL tender document were made applicable and, therefore, that tender document was sent as Annexure "A" along with the letter Exhibit "A". 14. The intention of the parties is to be gathered from this document. The language of Exhibit "A" leaves no room for doubt and all the terms and conditions (except those specifically excluded) of the TECL tender document were made applicable and, therefore, that tender document was sent as Annexure "A" along with the letter Exhibit "A". 14. The learned Counsel for the respondent has not produced any document from which any contrary intention between the parties could be gathered. 15.The learned Counsel for the respondent further referred to certain paragraphs from Russell on Arbitration. In my view, those paragraphs, support the contention of the applicant. At page 45, paragraph 2-034 of Russell on Arbitration, the learned Author has stated as under:- "The key question is: does the reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitute an arbitration agreement? It does have that effect if the reference is such as to make that clause part of the agreement." In paragraph 2-037 at pages 46 and 47, the learned Author has also stated as under: "Construction projects frequently involve sub-contractors. A common problem is whether the terms of the main contract, including its arbitration clause, have been incorporated into a sub-contract. The courts have gone to some lengths to give effect to these arbitration clauses: An order placed on sub-contractors specified that it should be in the "appropriate form for nominated sub-contractors (RIBA 1965 edition)." There was no such form. The Court held that the parties meant to refer to the "green form" commonly used for sub-contracts. Like the RIBA forms, the green form contained an arbitration clause, which was held to be binding on the parties." In the present case, as there is a specific mention that all terms and conditions of the Tata Electric Company's Tender Document will be applicable except those specified therein, the intention of the parties is clear that arbitration clause would also be applicable. 16.For this purpose, the learned Counsel for the applicant rightly relied upon the decision in the case of (J.K. Jain others v. Delhi Development Authority others)3, reported in A.I.R. 1996 Supreme Court 318 wherein the Court has referred the following paragraph from Commercial Arbitration by Mustill and Boyd, second edition at page 105:- ".......the parties need not set out the terms of arbitration agreement in the contract itself. It is sufficient for the clause to be incorporated by reference either to a standard form of clause or to a set of trade terms which themselves include provisions requiring disputes to be submitted to arbitration. Nor need the contract itself be contained in a single document." After referring to the said paragraph, the Court held, in that case, as under:- "As already pointed out above, so far the present case is concerned, the arbitration clause has not been included in the agreement itself. But it shall be deemed to be part of the agreement because the agreement specifically says that the terms and conditions contained in the tender form shall be binding between the parties which obviously will include Clause 14 of the tender form, which admittedly requires any dispute between the parties to be referred to an arbitration." (Emphasis added) In that case, the Court also rejected the objection that there was no condition in the main agreement to refer the disputes to arbitration because it could be accepted only if it is held that the different terms and conditions mentioned in the tender form are not binding on the parties, as parties never agreed to those terms and conditions while entering into a contract. Same is the position in the present case. It is the respondent who has sent the letter dated 19th September, 1995 which specifically mentions that the terms and conditions of the Tata Electric Company's Tender Document are applicable. In this view of the matter, there is no substance in the contention of the learned Counsel for the respondent that there is no arbitration agreement between the parties. 17. The learned Counsel for the respondent next contended that the items which are sought to be referred to arbitration are excluded from Arbitration Clause 22.1 quoted above. In my view, the claim made by the applicant pertaining to the clauses mentioned in Clause 22.1 is required to be decided by the Arbitrator/Arbitrators and not by this Court. Section 16 of the Act specifically provides that Arbitrator has jurisdiction to decide the question of his own jurisdiction. Hence, whether the said items are covered by Clause 22.1 or not, as contended by the learned Counsel for the respondent, is to be decided by the Arbitrator and, therefore, this contention is required to be rejected. Section 16 of the Act specifically provides that Arbitrator has jurisdiction to decide the question of his own jurisdiction. Hence, whether the said items are covered by Clause 22.1 or not, as contended by the learned Counsel for the respondent, is to be decided by the Arbitrator and, therefore, this contention is required to be rejected. 18.The learned Counsel for the respondent submitted that the respondent is not prepared to appoint an Arbitrator despite the aforesaid findings and the Court may appoint Arbitrator in accordance with law. 19.The learned Counsel for the applicant contended that, in the present case, the claim of the applicant is for a sum of Rs. Two Crores and odd and, therefore, he submitted that three Arbitrators may be appointed as per Clause 23.1 of General Conditions of Contract. He, therefore, suggested various names of judicial and technical persons for being appointed as Arbitrators. As the learned Counsel for the respondent says that he is not prepared to suggest any name, the following persons (one judicial and two technical) are appointed as Arbitrators. JUDICIAL Justice S.M. Jhunjhunuwala, Retired Judge, Bombay High Court. TECHNICAL i) Mr. S.S. Wadekar, Chief Engineer (Retired) Vice President of M.H.A.D.A. ii) Mr. S.M. Joglekar, Retired Chief Administrative Officer (Construction) Central Railway. 20.Application stands disposed of accordingly. 21.The learned Counsel for the respondent prays that operation of this order be stayed for a period of six weeks from today. 22.Prayer granted. Operation of this order is stayed upto 12th October, 1998. Application accordingly.