Judgment : SANJIB BANERJEE, J. The ambit of the authority of the Chief Justice or his designate under Section 11 of the Arbitration and Conciliation Act, 1996 again falls for consideration. The petitioner suggests that as to whether there is a concluded contract between the parties has to be assessed by the arbitral tribunal. The respondent insists that it is for the Chief Justice or his designate to decide whether there is a concluded contract between the parties since, without there being a binding agreement, the arbitration clause would not be operative. There is little dispute as to the facts, but there is a serious conflict as to the legal effect of the admitted facts. The petitioner circulated bid documents to interested parties for procuring MDPE pipes. The bid documents were made out in five sections, including instructions to the bidder; general conditions of contract; and, special conditions of contract. In the instructions to the bidder, the contents of the bidding documents were specified. Clause 16 of the instructions stipulated that the bid would remain valid for acceptance for four months from the bid due date. Clause 41.1 of the instructions provided that prior to the expiration of the period of bid validity, the purchaser would “notify the successful bidder in writing, by fax or e-mail to be confirmed in writing, that the bid has been accepted.” The clause emphasised that the “notification of award/Fax of Intent will constitute the formation of the Contract.” Clause 1.2 of the general conditions specified that the contract would mean the purchase order/contract and all exhibits and documents referred to therein and all terms and conditions thereof together with any subsequent modifications thereto. Clause 30 of the general conditions spelt out the mechanism for resolution of disputes. The opening limb of Clause 30.4 is relevant in the context: “30.4 Arbitration All disputes, controversies, or claims between the parties (except in matters where the decision of the Engineer-in-Charge is deemed to be final and binding) which cannot be mutually resolved within a reasonable time shall be referred to Arbitration by a sole arbitrator.” The rest of the clause provided the procedure and other details pertaining to arbitration. The respondent submitted its bid on or about November 7, 2006 in the printed bid form contained in the bid documents. The respondent submitted its bid on or about November 7, 2006 in the printed bid form contained in the bid documents. The third and fifth paragraphs of the bid need to be noticed: “We agree to abide by this bid for a period of 4 (four) months from the date fixed for bid opening under Instructions to Bidders and it shall remain binding upon us and may be accepted at any time before the expiration of that period. … “Until a formal contract is prepared and executed, this bid, together with your written acceptance thereof in your notification of award (Fax of Intent) shall constitute a binding Contract between us.” It is not in dispute that the bid due date in terms of the tender documents was November 7, 2006. The petitioner issued a letter of intent to the respondent on March 13, 2007. The letter specified that a detailed purchase order would follow. There is no dispute, and it is apparent, that the letter of intent was issued beyond the period of four months from the bid due date during which the respondent’s bid was to remain valid. The respondent has relied on a letter of March 26, 2007, which is not appended to the papers but the authenticity whereof has not been questioned by the petitioner, that reveals that there were negotiations and correspondence exchanged between the parties subsequent to the bid of November 7, 2006 and prior to the issuance of the letter of intent. It is not necessary at this stage to ascertain as to whether the original bid had been revalidated or, by conduct of the parties, they had modified the condition in the bid document that the bid was to remain valid for a period of four months from the bid due date. What is on record is a letter dated May 7, 2010 by which the petitioner invoked the arbitration clause and asserted that since all attempts at an amicable settlement had failed “due to your unreasonable actions, we are constrained to invoke Clause 30 of the Contract for recovery of our … claim.” The petitioner appointed its vice-president (corporate finance) as the arbitrator in terms of the relevant clause and requested the respondent to participate in the reference. On June 7, 2010 the respondent wrote back claiming that there was no concluded contract between the parties since “the Fax of Intent dated 13thMarch 2007 was sent after our Bid validity period and also completely varied the terms and conditions of the bid submitted by us …” The respondent indicated its disagreement in the appointment of the arbitrator on the ground that he was involved in the transaction. The seventh paragraph of the respondent’s letter of June 7, 2010 carried the following sentence: “ 7. … Notwithstanding the above, we are agreeable to referring the disputes between us to a free, fair and unbiased arbitration proceeding to be conducted by an independent arbitrator. …” The respondent suggested the names of four retired Judges as possible arbitrators and invited the petitioner to concur in the appointment of any of them. It is necessary, in this context, to notice what transpired in the interregnum between the issuance of the letter of intent and the petitioner’s invocation of the arbitration clause. In terms of the bid documents, the respondent was required to furnish a bank guarantee in lieu of earnest deposit. Following the respondent’s failure to accept the letter of intent or make supplies in terms thereof, the petitioner sought to invoke the bank guarantee. The respondent challenged such action by way of a suit filed before a court in Jalgaon, Maharashtra. Both the petitioner herein and the concerned bank were arrayed as defendants in such action. An interlocutory application seeking an injunction to restrain the encashment of the bank guarantee was dismissed on April 29, 2008. The respondent herein applied under Article 227 of the Constitution of India before the Bombay High Court, seeking reversal of the order. On February 17, 2010 the Bombay High Court allowed the revisional application, restrained the encashment of the bank guarantee and directed the bank guarantee to be kept renewed. In course of the judgment, the Bombay High Court expressed a prima facie view that there was no concluded contract between the parties herein which was “manifest from the letter correspondence exchanged between the parties.” A special leave petition carried by the petitioner herein to the Supreme Court was dismissed on April 19, 2010 by recording a statement made on behalf of the respondent that the bank guarantee would be kept alive till the disposal of the suit. Despite the disputes raging between the parties from or about March 2007, the petitioner invoked the arbitration agreement only upon the interlocutory proceedings in the suit culminating by virtue of the Supreme Court order. No point of limitation has, however, been raised by the respondent in course of the present proceedings. Despite the respondent’s reservation as to the arbitrator, the petitioner exercised its rights under the arbitration agreement to send the disputes to the reference of the officer of the petitioner described by designation in the arbitration agreement. The respondent applied under Sections 13 and 16 of the 1996 Act before the arbitrator. The arbitrator was gracious to appreciate the respondent’s apprehension as to his independence and impartiality and recused himself. Since the arbitration agreement did not provide for any other mechanism for securing the constitution of the arbitral tribunal and the parties have failed to agree upon the composition of the arbitral tribunal, the present request has been carried under Section 11 of the 1996 Act. The petitioner had appointed another arbitrator by a letter of September 14, 2010, to which the respondent replied on September 29, 2010 by asserting that there was no binding contract between the parties and, consequently, no valid arbitration agreement. The petitioner contends that the disputes between the parties have per force to be resolved in arbitration since the bid documents contained an arbitration agreement and there is no dispute as to the existence thereof. The respondent insists that the relationship between the parties as governed by the bid documents stood terminated upon the expiry of the validity of the bid. The respondent says that the issue as to whether there is a concluded contract between the parties is at the heart of the pending suit and a prima facie view has been taken therein that there was no concluded contract between the parties. The respondent refers to Section 7 of the 1996 Act and emphasises that there is no defined legal relationship between the parties which is the minimum requirement for an arbitration agreement to stand on. The respondent also makes a passing reference to Sections 6 and 7 of the Contract Act. The respondent refers to Section 7 of the 1996 Act and emphasises that there is no defined legal relationship between the parties which is the minimum requirement for an arbitration agreement to stand on. The respondent also makes a passing reference to Sections 6 and 7 of the Contract Act. The petitioner relies on a judgment reported at (2007) 7 SCC 120 (Aurohill Global Commodities Ltd v. MSTC Ltd) and refers, in particular, to paragraph 13 thereof for the proposition that a conclusive decision as to the validity of an arbitration agreement has to be left to the arbitrator, once it is found that there is an arbitration agreement entered into between the parties. In the same vein, the petitioner places another judgment reported at (2011) 3 SCC 507 (Indian Oil Corporation Ltd vs. SPS Engineering Ltd) for the principle that a dispute of the present nature should not be adjudicated on in course of a request to a Chief Justice or his designate under Section 11 of the 1996 Act. It has now come to be accepted that notwithstanding the Constitution Bench judgment in SBP & Co. v. Patel Engineering Ltd [ (2005) 8 SCC 618 ), a Chief Justice or his designate does not have to express a definitive opinion either on the validity of the arbitration agreement or as to the arbitrability of the disputes once it is found that the physical existence of the arbitration agreement is not in doubt. In a recent judgment rendered by this Court on August 9, 2011 in AP No. 267 of 2011 (Orient Paper & Industries Ltd v. Shaun Automobiles Pvt. Ltd) it has been observed, inter alia, as follows: “SBP & Co. says that Sections 8 and 11 of the 1996 Act are complimentary; but it does not follow – whether from the statute or from the majority opinion – that the one is the mirror image of the other. Though the nature of the assessment under either provision may be similar, but there is a difference in degrees. says that Sections 8 and 11 of the 1996 Act are complimentary; but it does not follow – whether from the statute or from the majority opinion – that the one is the mirror image of the other. Though the nature of the assessment under either provision may be similar, but there is a difference in degrees. A pronouncement by the judicial authority on an application under Section 8 of the Act can leave no room for further adjudication on the issues covered thereby; but the Chief Justice or his designate exercising authority under Section 11 of the Act has more flexibility than a judicial authority which is in seisin of an action that has been instituted apparently in breach of the arbitration agreement which a party to the action seeks to enforce. On receipt of an application under Section 8 of the 1996 Act, the judicial authority has to conclusively decide as to whether the subject-matter of the action before such judicial authority is capable of being adjudicated under the arbitration agreement which is cited. The judicial authority then has not only to decide on the existence and validity of the arbitration agreement, but also on the efficacy thereof, at least, in so far as the subject-matter of the action before the judicial authority is concerned. The judicial authority can scarcely take a prima facie view of the matter and refer the parties to arbitration with the issue left open to be decided before the arbitral tribunal. This is because Section 8 of the 1996 Act contemplates that the action before the judicial authority would come to an end upon the judicial authority allowing a petition under Section 8 of the 1996 Act. “There is a little latitude available to the Chief Justice or his designate under Section 11 of the 1996 Act. Upon a request under such provision being received, there is yet no action before any civil forum on the substance of the disputes between the parties. “There is a little latitude available to the Chief Justice or his designate under Section 11 of the 1996 Act. Upon a request under such provision being received, there is yet no action before any civil forum on the substance of the disputes between the parties. The Chief Justice or his designate has to ascertain the physical existence of the arbitration agreement – this is a matter which can never be left to any arbitral tribunal – but as to the legal efficacy or validity of the arbitration agreement or as to whether the arbitration agreement is capable of accommodating all the disputes that have arisen between the parties, a prima facie view may be taken by the Chief Justice or his designate and the matter could be left to the arbitral tribunal for a definitive finding. This has to be the approach adopted in view of the scheme of the 1996 Act. Section 5 of the 1996 Act limits the extent of judicial intervention in matters pertaining to an arbitration only to the extent as permitted by the statute. Both Sections 13 and 16 of the Act give the arbitrator or the arbitral tribunal the primacy to adjudicate upon the eligibility of the members on the arbitral tribunal; the arbitrability of the disputes; and, the scope of the arbitration agreement. Though, following SBP & Co., the Chief Justice or his designate is deemed to exercise judicial functions while dealing with a request under Section 11 of the 1996 Act, if it is possible for the request to be dealt with without impinging on the authority conferred by the statute on the arbitral tribunal, it should be the endeavour of the Chief Justice or his designate to steer clear of matters that are within the exclusive domain of the arbitrator and yet dispose of the request.” Though there does not appear to be any embargo on a protracted adjudication following a request under Section 11 of the 1996 Act, including upon oral evidence being adduced; ordinarily, the adjudication is by summary procedure on affidavit evidence. Nothing in Section 11 of the 1996 Act or the judicial interpretation thereof requires the request to a Chief Justice or his designate to constitute an arbitral tribunal to be assessed by summary procedure. Nothing in Section 11 of the 1996 Act or the judicial interpretation thereof requires the request to a Chief Justice or his designate to constitute an arbitral tribunal to be assessed by summary procedure. Indeed, if the physical existence of the arbitration agreement is challenged in course of such proceedings, a trial on evidence may be indispensable. But if the physical existence of the arbitration agreement is not in doubt and other questions arise as to the validity thereof or the arbitrability of the disputes thereunder, only a prima facie view need be taken by the Chief Justice or his designate and the more involved adjudication ought to be left to the contractual forum. That there is an arbitration agreement between the parties herein is beyond question. The issue here is as to whether the arbitral tribunal to be constituted under the arbitration agreement should be left free to decide as to the efficacy of the arbitration agreement to adjudicate upon the disputes that have arisen between the parties. Even if it be assumed that upon the expiry of the period of four months from the bid due date the respondent owed no further obligation to the petitioner, to say that the arbitration agreement between the parties became inoperative thereupon would be to hold that the validity of the arbitration agreement would be co-terminus with the tenure of the substantive agreement. That would go against the fundamental principle of the severability of the arbitration clause from the substantive agreement notwithstanding the arbitration clause being contained in the same document. In any event, the matter will still be open for adjudication by court if an issue as to the validity of the arbitration agreement is raised and it is answered either way. However tempting it might be to decide the matter conclusively at this stage, the Chief Justice or his designate must eschew the thought and yield to the statutory primacy of the contractual forum. AP No. 265 of 2011 is directed to be placed before the Hon’ble designate of the Hon’ble the Chief Justice for the constitution of an arbitral tribunal in accordance with the arbitration agreement between the parties to adjudicate upon the disputes covered thereby. There will be no order as to costs. Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. There will be no order as to costs. Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Later : The respondent seeks a stay of the operation of the order which is declined.