JUDGMENT Hon’ble Rajnish Kumar, J.—The instant appeal under Section 37 of the Arbitration and Conciliation Act, 1996 has emanated from the judgment and order dated 28.8.2018, passed by the Commercial Court, Lucknow in Arbitration Case No. 49 of 2018; M/s.Proactive In & Out Advertising Ltd. v. U.P. State Road Transport Corporation. 2. The facts in brief for adjudication of the present controversy are that the appellant is a Private Limited Company registered under the Companies Act 1956. The appellant entered into an agreement with the respondent-Corporation on 12.12.2014 for display of advertisement on ordinary buses for a period of two years plying on depots in 14 different regions within the State of Uttar Pradesh. As per the terms of the agreement the appellant had agreed to pay Rs. 857 per bus per month. 3. Upon expiry of the agreement the respondent issued a tender at a higher price calling for submission of bids by 9.12.2016. It appears that no bidders were forthcoming, therefore, the bid submission date was extended up to 28.12.2016 but no bids were submitted. Therefore, the appellant wrote a letter to the respondents on 16.1.2017 requesting for extension of agreement for a period of three years. The meeting was held between the appellant and respondents on 2.3.2017. In pursuance thereof the appellant wrote a letter dated 3.3.2017 to the respondents regarding the meeting. Thereafter the appellant and the respondents entered into an agreement on 3rd of March 2017 for a period of one year for display of advertisement at Rs. 986 per month per bus. 4. Prior to completion of the period of aforesaid agreement on 15.3.2018, the respondents issued E-Tender on 5.3.2018 for agreement for display of the advertisement on the buses for the year 2018. The E-Tender was divided in three parts; one for 4214 buses; second for 3128 buses and third for 1257 buses. It appears that as per E-Tender majority of the bus depots in 14 different regions, which earlier formed part of appellant’s agreement, were scattered in to 4214 buses, 3128 buses and 1257 buses segments. The bid document also specify Right to First Refusal (ROFR) in favour of the appellant for 4214 buses. The appellant sought clarification from the respondents regarding deletion of lucrative depots from the 4214 buses segment of tender vide letter dated 14.3.2018. 5. The bid document also specify Right to First Refusal (ROFR) in favour of the appellant for 4214 buses. The appellant sought clarification from the respondents regarding deletion of lucrative depots from the 4214 buses segment of tender vide letter dated 14.3.2018. 5. The respondents issued a corrigendum on 19.3.2018, in which it was clarified that the right of matching bid of the appellant is not absolute as other bidder if so interested and offer the bid would be allowed to negotiate. The appellant wrote a letter dated 26.3.2018 to the respondents to clarify the appellant’s ROFR as per agreement dated 3.3.2017 and requested to amend the terms of tender. Thereafter the appellant shown its willingness to continue with the contract that expired on 15.3.2018 for further period of three years at the same rate and same terms and conditions of the expired contract vide letter dated 17.4.2018. The meeting was also held on 18.4.2018 between the parties, in pursuance thereof the appellant again wrote to the respondents indicating its willingness to enter into a fresh agreement for a period of three years with suitable-required revision of price as per current value of currency. 6. It appears that respondents issued a letter dated 23.4.2018 to the appellant in response to the appellant’s letter dated 26.3.2018 admitting the ROFR of the appellant and denying the same on the grounds mentioned therein. 7. The bids were opened on 21.5.2018, wherein no bid was made for 4214 buses. It appears that the appellant had not applied against the said tender, however, it reiterated its claim as per clause 6(ii) and recital of the agreement vide it’s letter dated 26.5.2018. 8. Since the request of the appellant was not accepted, the appellant approached to the District Court by means of a Petition under Section 9 of the Arbitration and Conciliation Act 1996. The case was registered as Arbitration Case No. 49 of 2018 and the notices were issued. During the pendency of the said case the respondents again issued tender on 13.7.2018, wherein there was no provision for ROFR of the appellant. 9. The appellant, being aggrieved with the same, filed a writ petition No. 21442 (MB) of 2018 before this Court on 25.7.2018. During the pendency of the said case the respondents again issued tender on 13.7.2018, wherein there was no provision for ROFR of the appellant. 9. The appellant, being aggrieved with the same, filed a writ petition No. 21442 (MB) of 2018 before this Court on 25.7.2018. The writ petition was dismissed as withdrawn by means of order dated 27.7.2018 with liberty to the appellant to approach the District Court by filing an application for interim relief in context of the prayer made in the petition. While dismissing the writ petition this Court requested the District Judge, Lucknow to deal with the application for interim relief and take a decision as soon as possible, in accordance with law. 10. It appears that thereafter the appellant filed an application for interim relief in the pending Arbitration Case praying therein for stay with respect to the tender issued by the respondents on 13.7.2018. The Commercial Court after considering the pleadings of the parties and hearing dismissed the application under Section 9 of the Arbitration and Conciliation Act 1996 vide judgment and order dated 28.8.2018, which has been impugned in the present appeal. It appears that meanwhile the appellant has sent a notice dated 31.8.2018 to the respondents for arbitration. 11. Heard Shri Varun Singh, learned Advocate holding brief of Ms.Diksha Jain, learned counsel for the appellant and Shri Ratnesh Chandra, learned counsel for the respondents. 12. Submission of learned counsel for the appellant is that after negotiation between the appellant and the authorities of the respondents, in pursuance of letter of the appellant dated 16th of January 2017, the terms and conditions were agreed upon. The terms and conditions were disclosed in the letter of the appellant dated 3.3.2017 written to the Additional Managing Director of the respondent, which have not been disputed. 13. According to the terms agreed, the contract for the display of Advertisement was to be allotted by the respondent to the appellant initially for a period of 1+1=2 years. It was further provided that after completion of one year of contract the first right of refusal (ROFR) would be with the appellant. It was further decided that the appellant will pay license fee of Rs. 986/- per bus per month to the respondent for contract period. It was further provided that after completion of one year of contract the first right of refusal (ROFR) would be with the appellant. It was further decided that the appellant will pay license fee of Rs. 986/- per bus per month to the respondent for contract period. In pursuance of the negotiation held between the parties an agreement was executed between the appellant and the respondent on 3rd of March 2017. It was further provided in the terms and conditions in clause 6(ii) that in case the contractor continues the agreement for the next year then he has to provide 12 equated PDC’s of license fee on the H1 rates offered in the tender or Rs. 986/- per bus /per month whichever is higher. But deliberately the contract was not awarded to the appellant for the second year. 14. It was further submitted that the respondents before expiration of the agreement on 15.3.2018 issued E-Tender on 5.3.2018 for agreement for display of the advertisement on the buses for the year 2018. The last date for submission of the proposal was 26.3.2018. Point No. 4 of Note of Clause 1.0 of the tender provided that M/s. Proactive in & out advertising Ltd., Mumbai will have the right of refusal on the offered H-1 rates according to their existing agreement for 4214 buses of fourteen regions as per Annexure-1. But the same was amended by the Corrigendum/Addendum dated 19th of March 2018 unilaterally keeping reserve the ROFR for the appellant. The amendment was made that after acceptance of appellant on the offered H-1 rate in the financial bid if the firm offering H-1 rate expresses his desire for the further negotiation then the tender will be alloted to the firm offering highest rate after the negotiation. The amendment so made in the E-Tender was against the terms and conditions of the agreement dated 3rd of March 2017 between the appellant and the respondent, therefore, the appellant submitted a representation dated 26.3.2018 requesting to the respondent to clarify over the right of the appellant of ROFR and amend the terms of tender by allotting the bus depots earlier forming the part of agreement dated 3.3.2017. But the same was not considered. 15. But the same was not considered. 15. Thereafter the appellant wrote a letter dated 17th of April 2018 to the respondent disclosing its willingness to continue with the contract that expired on 15th of March 2018 for further period of three years at the same rate and same terms and conditions of the expired contract, but when nothing was done by the respondent despite reminder the appellant was constrained to approach to the learned District Court by means of an Arbitration Petition under Section 9 of the Arbitration and Conciliation Act 1996 on 7th of June 2018 for interim relief and directions to restrain the respondent from entering into a contract with third party for 4200 buses as per the terms of the agreement without enabling the appellant to exercise its first right of refusal as agreed in agreement dated 3.3.2017, E-Tender dated 5.3.2018 and Corrigendum dated 19.3.2018. 16. In the meantime the bids were opened and no bid was made for 4212 buses, therefore, the respondent again issued tender on 13.7.2018, wherein it had purposely deleted the appellant’s ROFR. While it was valid for a period of one year. Therefore, the appellant was constrained to approach to this Court by means of filing a writ petition No. 21442 (MB) of 2018. The said writ petition was withdrawn with liberty to approach the District Court by filing an application for interim relief in context of the prayer made in the petition. 17. The appellant moved an application in the Arbitration Case before the learned District Judge with a prayer to pass an order of stay with respect to the tender issued by the respondent on 13.7.2018 till the pendency of the petition. But the learned Commercial Court, while dismissing the petition, has failed to consider the most vital aspect of the pleading of the respondent’s written statement in which it had categorically admitted the ROFR of the appellant, therefore, the issuance of the fresh tender process without ROFR offered by the appellant was illegal and against the respondent’s own admission. 18. But the learned Commercial Court, while dismissing the petition, has failed to consider the most vital aspect of the pleading of the respondent’s written statement in which it had categorically admitted the ROFR of the appellant, therefore, the issuance of the fresh tender process without ROFR offered by the appellant was illegal and against the respondent’s own admission. 18. It has further been submitted that the learned Commercial Court has also failed to consider that the respondent has erroneously amended the Note-Point No. 4 of clause 1 of the E-Tender dated 6th of March 2018 by means of the Corrigendum/Addendum dated 19th of March 2018 against the terms and conditions agreed between the parties as enumerated in the letter dated 3.3.2017 and the agreement of the same date. Learned counsel for the appellant further submitted that the learned Commercial Court has erroneously and against the terms and conditions arrived at between the parties held that the appellant would not be entitled for ROFR without participating in the tender process because there was no such provision in the agreement arrived at between the parties. It is erroneous interpretation of the terms and conditions of the agreement. 19. Learned Commercial Court has also failed to consider that if there is any ambiguity in the terms and conditions or it is not clear then for that the appellant cannot be allowed to suffer on the whims of the respondent. It has further been submitted that the findings of the learned Commercial Court that the appellant is not interested in initiating arbitration is misconceived because initiation of the arbitration proceedings during the pendency of application under Section 9 of the Arbitration and Conciliation Act 1996 is not a prerequisite. 20. On the basis of the above, learned counsel for the appellant submitted that the judgment and order passed by the learned Commercial Court dated 28.8.2018 is erroneous and without appreciation of the fact and circumstances and the law in its true spirit and the same is liable to be set aside by this Court and the respondent may be directed to provide ROFR in favour of the appellant in the tender process issued on 13.7.2018. 21. 21. Learned counsel for the appellant has relied upon the decisions namely Messer Holdings Limited v. Shyam Madanmohan Ruia; 2010 SCC On Line Bom 1284, Ravi Development v. Shree Krishna Prathisthan and others; (2009) 7 SCC 462 , Percept D’mark (India) (P) Ltd. v. Zaheer Khan and another; (2006) 4 SCC 227 , Bank of India and another v. K. Mohandas and others; (2009) 5 SCC 313 , Bharat Heavy Electricals Limited (Bhel) v. Bajaj Allianz General Insurance Co. Ltd.; 2017 SCC On Line Del 7690, Alstom Hydro France v. Tehri Hydro Development Corporation and another; 2009 SCC On Line Utt. 474, National Highways Authority of India v. Gwalior Jhansi Expressway Limited; 2018 SCC On Line SC 688, Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and another; (2016) 16 SCC 818, Ramana Dayaram Shetty v. International Airport Authority of India and others; (1979) 3 SCC 489 . 22. Per contra learned counsel for the respondents vehemently opposed the submissions of learned counsel for the appellant. 23. Learned counsel for the respondent submitted that the present appeal has been filed with material concealment of facts in as much as though the appellant has participated in the tender dated 3.7.2018 by submitting bid, but the said fact has not been disclosed before this Court and it came to the notice of the respondent only on 5.9.2018 at 3.30 p.m. when the technical bids were opened from the e-portal. However the appellant had not deposited the bid money. It is further submitted that in terms of agreement dated 3.3.2017, which confers a right upon the appellant of ROFR, subsequent tender dated 5.3.2018 was floated wherein ROFR was provided in favour of appellant. But the appellant chose not to participate in the said tender dated 5.3.2018 and remained a fence-sitter and ultimately acquiesced his ROFR by not participating in the said tender and was bent upon to get the contract executed in his favour at the rate of Rs. 986/- per bus per month, which is not acceptable. 24. In view of the terms of letter dated 3.3.2017 as well as agreement dated 3.3.2017 and perusal of clause 6(ii) agreement was only for a period of one year. However on mutual consensus the contract may have been continued for another one year. 986/- per bus per month, which is not acceptable. 24. In view of the terms of letter dated 3.3.2017 as well as agreement dated 3.3.2017 and perusal of clause 6(ii) agreement was only for a period of one year. However on mutual consensus the contract may have been continued for another one year. In such an event the appellant would be liable to pay licence fee on H-1 rates as offered in the tender or Rs. 986/- per bus per month, whichever is higher. The respondent was not interested in extending the contract beyond one year and thus the condition in agreement dated 3.3.2017 or the letter dated 3.3.2017 for continuing the contract for subsequent year got diluted. Even otherwise while floating the tender dated 5.3.2018 the term of agreement was kept as 2+1 year, therefore, there remains no question of continuing the appellant only for one more year in terms of agreement dated 3.3.2017. 25. The respondent, who is the drafter of the agreement had provided in the agreement dated 3.3.2017 with a clear thought and interpretation of provision of 1+1 year contained in the agreement dated 3.3.2017. The only meaning, which could be assigned to this clause is that the extension can only be granted when both the parties agree to it and refusal of any of the party would amount to non-extension of agreement beyond one year. In view thereof since the respondents were not interested in extending the contract beyond one year the appellant cannot get any benefit of the said provision. 26. However, option was available with the appellant to participate in the tender process issued on 5.3.2018, in which the base/reserve price was kept at Rs. 1150/- per bus per month, but the appellant chose not to participate and therefore, he is not entitled for benefit of ROFR inasmuch as he could not get himself technically qualified in order to avail the ROFR. In this regard it has been submitted that unless an express exemption is granted to the claimant of ROFR without participating in the tender process the appellant was bound to participate in the tender process in order to avail the benefit of ROFR. Therefore, by not participating in the tender process it has lost its right of ROFR as it was not granted to it in perpetuity, hence no provision of ROFR has been made in the subsequent tender dated 13.7.2018. Therefore, by not participating in the tender process it has lost its right of ROFR as it was not granted to it in perpetuity, hence no provision of ROFR has been made in the subsequent tender dated 13.7.2018. However, if the appellant would have participated in the tender dated 5.3.2018, he might have itself been the H-1 bidder and the tender would have been awarded to it subject to the condition that it would have qualified the technical bid. 27. It has further been submitted by the learned counsel for the respondent that the respondent-Corporation is a Government Sector undertaking and in case the illegal analogy of the appellant that he may be awarded the contract for Rs. 986/- per bus per month only is accepted, the respondent would suffer heavy loss, which clearly would be the loss of the public exchequer. In this regard he has pointed out that out of three segments in tender dated 5.3.2018 in respect of 3128 buses, bid of Rs. 1505/- per bus per month was received against the reserve/base price of Rs. 1150/- per bus per month, who was declared as H-1 bidder and accordingly agreement has been executed between the respondent and M/s.Lav Kush Enterprises on 26.6.2018. 28. Lastly it has been submitted that without raising any dispute with respect to the agreement dated 3.3.2017 the appellant had filed an application under Section 9 of the Arbitration and Conciliation Act 1996 before the learned District Judge, Lucknow while it is only in respect of dispute with regard to an agreement, which can be adjudicated through arbitration under clause 21 of the agreement and consequently the application could have been filed. Thus, the submission is that on the one hand the appellant is trying to get the subsequent tender dated 13.7.2018 while on the other hand he has not participated in the said tender. Therefore, it loses the right even to challenge the said tender as a whole or any of its terms and conditions or inclusion of any other terms and conditions. 29. On the basis of above, the learned counsel for the respondent submitted that the application of the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 has rightly been considered and rejected in accordance with law after considering the plea of the parties and material available on record by means of judgment and order dated 28.8.2018. 29. On the basis of above, the learned counsel for the respondent submitted that the application of the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 has rightly been considered and rejected in accordance with law after considering the plea of the parties and material available on record by means of judgment and order dated 28.8.2018. The present appeal has been filed on misconceived and baseless grounds, which is not tenable in the eyes of law and is liable to be dismissed with costs. 30. In support of his contentions learned counsel for the respondent has relied upon the judgments namely National Highways Authority of India v. Gwalior Jhansi Expressway Limited; 2018 SCC On Line SC 688, Tafcon Projects (I) (P) Ltd. v. Union of India and others; (2004) 13 SCC 788 , Uttar Pradesh Avas Evam Vikas Parishad and others v. Om Prakash Sharma; (2013) 5 SCC 182 , Meerut Development Authority v. Association of Management Studies and another; (2009) 6 SCC 171 . 31. We have considered the submissions of learned counsels for the parties and perused the record. 32. The appellant had entered into an agreement with the respondent-Corporation on 12.12.2014 for display of advertisement on ordinary buses for a period of 2 years. Upon expiry of the said agreement the tender was floated by the respondent. Since no bidders were forthcoming, the appellant wrote a letter to the respondent on 16.1.2017 requesting for extension of agreement for a period of three years. 33. After meeting between the parties, the terms and conditions agreed between the parties, were incorporated by the appellant in the letter dated 3.3.2017, which are reproduced as under : “1.The contract for the display of Advt. will be allotted by UPSRTC to M/s Proactive In & Out Advt.Pvt.Ltd. Initially for 1+1=2 years. 2. UPSRTC will invite tenders for the display of Advt.after the completion of 1 year of the contract. The first right of refusal will be with M/s Proactive IN & Out Advt.Pvt.Ltd. for the contract. 3. Initially approx. 4200 UPSRTC buses will be provided to M/s. Proactive IN & Out Advt. Pvt. Ltd. for the display of Advertisement. 4. To increase or decease the number of buses it will be decided mutually. 5. It was decided after negotiation that M/s Proactive IN & Out Advt.Pvt. Ltd. will pay license fee Rs. 3. Initially approx. 4200 UPSRTC buses will be provided to M/s. Proactive IN & Out Advt. Pvt. Ltd. for the display of Advertisement. 4. To increase or decease the number of buses it will be decided mutually. 5. It was decided after negotiation that M/s Proactive IN & Out Advt.Pvt. Ltd. will pay license fee Rs. 986.00 (Nine hundred eighty six rupees) per bus per month to UPSRTC for contract period. 6. It was also decided that the display of Tobacco & Liquor products will not be done on buses. The display of other products will be allowed which are not restricted by Government of India.” 34. Thereafter an agreement was executed on the 3rd of March 2017 for a period of one year for display of advertisement on buses at Rs. 986/- per month per bus. 35. It was provided in the said agreement that this agreement will authorize second party i.e. the appellant for complete branding through specified panels for a period of one year. UPSRTC will invite tenders for display of advertisement before the completion of one year of the contract. For awarding the tender first right of refusal will be with the appellant. Clause 5 of the agreement provides that the operation of the agreement shall commence with effect from the 16th day of March 2017 and shall remain valid for a period of one year i.e. till 15th day of March 2018 unless terminated by the Corporation for any reason whatsoever. It was also provided in the said clause that in case of extension, the validity of agreement shall change accordingly. 36. Regarding mode of payment it was provided in clause 6(ii) of the agreement that in case the Contractor continues the agreement for the next year then he has to provide 12 equated PDC’s of license fee on the H1 rates offered in the tender or Rs. 986/- per bus/per month whichever is higher. It was further provided in clause 13 that the Contractor shall remove the advertisement displayed from all the buses within a period of 15 days after the expiry of the contract i.e. upto 15.3.2018 subject to condition as mentioned therein. 37. The aforesaid terms and conditions of the agreement clearly postulates that the agreement was for a period of only one year commencing w.e.f. 16th day of March 2017 till 15th day of March 2018. 37. The aforesaid terms and conditions of the agreement clearly postulates that the agreement was for a period of only one year commencing w.e.f. 16th day of March 2017 till 15th day of March 2018. In case of extension, validity of agreement was to change accordingly. So far as the question of extension of agreement is concerned, it can only be extended with the mutual consent of the parties and since the respondents were not intending to extend the agreement, the appellant does not have any right to get the same extended. Therefore, the contention of the learned counsel for the appellant that since there was an agreement for 1+1=2 years, therefore, the agreement should have been extended and the appellant should have been awarded the contract for a further period of one year is misconceived and is liable to be repelled. The first right of refusal (ROFR) in the next tender to be floated was with the appellant as per the agreement. 38. The Hon’ble Apex Court, in the case of Bank of India v. K. Mohandas, (2009) 5 SCC 313 , has held as under: “28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties”. 32. The fundamental position is that it is the banks who were responsible for formulation of the terms in the contractual Scheme that the optees of voluntary retirement under that Scheme will be eligible to pension under the Pension Regulations, 1995, and, therefore, they bear the risk of lack of clarity, if any. It is a well-known principle of construction of a contract that if the terms applied by one party are unclear, an interpretation against that party is preferred (verba chartarum fortius accipiuntur contra proferentem).” 39. In the case of Alstom Hydro France v. Tehri Hydro Development Corporation; 2009 SCC OnLine Utt 474, the High Court of Uttaranchal has held as under: “87. In the case of Alstom Hydro France v. Tehri Hydro Development Corporation; 2009 SCC OnLine Utt 474, the High Court of Uttaranchal has held as under: “87. It may be stated here that the principle of contra proferentem is derived from a Latin maxim which reads as follows : “Verba fortius accipiuntiur contra proferentem”, which means that words are interpreted more strongly against the party who puts them forward. The principle of contra proferentem would therefore mean that where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This principle has been applied recently in the judgment of the Apex Court in United India Insurance Co. Ltd. v. Pushpalaya Printers, (2004) 3 SCC 694 .” 40. The Hon’ble Apex Court has held as under in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818: “15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.” 41. We have also examined the conditions of the agreement and we do not find any confusion or ambiguity in the agreement. The agreement has to be seen as it has been construed and no other interpretation can be made. Our view is also fortified by the decision of the Hon’ble Apex Court, in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.; (2016) 16 SCC 818 : 2016 SCC OnLine SC 940. The relevant paragraph 16 is reproduced as under: “16. Our view is also fortified by the decision of the Hon’ble Apex Court, in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.; (2016) 16 SCC 818 : 2016 SCC OnLine SC 940. The relevant paragraph 16 is reproduced as under: “16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by Nmrcl to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by Nmrcl was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court” 42. Now coming to the question of first right of refusal (ROFR) of the appellant, it has not been denied by the respondents. As per the agreement dated 3rd of March 2017 UPSRTC will invite tenders for display of advertisement before completion of one year of the contract. Accordingly the respondents had issued E-tender on 5.3.2018 i.e. before completion of one year of the contract on 15.3.2018 as per the terms and conditions. In the said tender at point No. 4 of note of clause 1.0 it was provided that M/s.Proactive in & Out Advertising Ltd., Mumbai will have the First right of refusal on the offered H-1 rates according to their existing agreement for 4214 buses of forteen regions as per annexure-1. Therefore the E-tender issued by the respondent was in accordance with the agreement entered into between the parties and the first right of refusal was also given to the appellant. But the appellant had failed to avail the same by not participating in it. 43. The appellant in its wisdom did not apply/submit its complete bid against the tender, however it raised an objection regarding removal/deletion of certain depots and sought clarification from the respondent vide letter dated 14th of March 2018. 44. But the appellant had failed to avail the same by not participating in it. 43. The appellant in its wisdom did not apply/submit its complete bid against the tender, however it raised an objection regarding removal/deletion of certain depots and sought clarification from the respondent vide letter dated 14th of March 2018. 44. In the meantime the respondents issued the corrigendum/addendum dated 18th of March 2018 amending note point No. 4 to the effect that M/s. Proactive in & Out Advertising Ltd., Mumbai will have the first right of refusal on the offered H-1 rates according to their existing agreement for 4214 buses of fourteen regions as per annexure-1. However, after the acceptance of M/s. Proactive in & Out Advertising Ltd., Mumbai on the offered H-1 rate in the financial bid if the firm offering H-1 rate expresses his desire for the further negotiation then the tender will be allotted to the firm offering highest rate after the negotiation. It appears that the aforesaid corrigendum/addendum was issued with a view to augment the maximum revenue from the advertisement on the buses in favour of the Corporation. The appellant raised objection against the aforesaid condition of the tender by means of the letter dated 26.3.2018. We are of the opinion that there was no illegality in the corrigendum/addendum because firstly; it was to maintain the sanctity of bidding process so that the right of any bidder who wants to bid higher may not be affected, secondly; it was in the interest of corporation and public exchequer. 45. The Hon’ble Apex Court has held in the case of Ravi Development v. Shree Krishna Prathisthan and others; (2009) 7 SCC 462 , that there is no provision for allowing other tenderer to raise the bid further, when initiator of proposal accepts to raise upto the highest bid and the ROFR is beneficial to the Government also. The relevant paragraphs 44 and 54 are reproduced as under: “44. As pointed out earlier, in the Swiss Challenge method, there is no provision for allowing other tenderers to raise the bid further, when “initiator of proposal” accepts to raise up to the highest bid. It was brought to our notice that even there was no such request by Shree Ostwal Builders Ltd. after Ravi Development accepting to match the highest bid by their letter dated 14-6-2007. 54. It was brought to our notice that even there was no such request by Shree Ostwal Builders Ltd. after Ravi Development accepting to match the highest bid by their letter dated 14-6-2007. 54. The Swiss Challenge method is transparent inasmuch as all the parties were well aware of the “right of first refusal” accorded to the “originator of proposal”. As per the method which was known to all the parties the originator of the proposal must in consideration of his vision and his initiative be given to the benefit of matching the highest bid submitted. As pointed out earlier, the said method is beneficial to the Government inasmuch as the Government does not lose any revenue as it is still getting the highest possible value.” 46. The Hon’ble Apex Court, in the case of Percept D’Mark (India) (P) Ltd. v. Zaheer Khan; (2006) 4 SCC 227 , held as under in paragraph 66: “66. In our view, clause 31(b) of the agreement merely provides for an obligation of Respondent 1 to give an opportunity to the appellant to match the offer, if any, received by Respondent 1 from the third party. This clause does not per se restrict or prohibit Respondent 1 to enter into any contract with a third party but at best it provides the appellant with an opportunity to gain from the advertisements the appellant has made in the process of marketing and creation of the image of Respondent 1 which was gradually built up by the appellant. This clause does not restrict the right of Respondent 1 to accept any offer for endorsement, promotion, advertising or other affiliation either on his own or through any party in the event of failure of the appellant to match the offer of the third party from whom Respondent 1 would receive any offer, Respondent 1 would be free to contract with such third party. Further, the said clause does not restrict the right of Respondent 1 to appoint an agent of his choice or restrict his liberty to carry on his affairs in the manner he likes, with the persons he chooses, in the manner he thinks best. Further, the said clause does not restrict the right of Respondent 1 to appoint an agent of his choice or restrict his liberty to carry on his affairs in the manner he likes, with the persons he chooses, in the manner he thinks best. The restriction, if any, is on account of voluntary obligations undertaken by Respondent 1 and assurances made by him to the appellant wherefor, Respondent 1 cannot be permitted to renege his promises under the garb of an alleged restriction violative of Section 27 of the Contract Act. Clause 31(b) of the agreement is an independent clause which survives the expiry of the agreement and any dispute between the parties regarding the enforceability of the said clause would come under the provision of clause 32(g) of the agreement which provides for resolution of any claim or controversy pertaining to the agreement through the process of arbitration.” 47. In the case of M/s. Holdings Limited v. Shyam Madanmohan Ruia and others;2010 SCC OnLine Bom 1284, the High Court of Bomaby in respect of right of first refusal has held that the understanding arrived at as per this clause is that as and when the plaintiffs or defendant No. 1 intended to sell entire or any part of the shares of the company held or acquired by it, it shall first offer such shares to the other party. Only in the event of the other party not agreeing to purchase the shares so offered for the price and other terms and conditions, it would be open to sell the said shares to any person other than the competitors of the offeree. 48. The respondent Corporation cannot lay down any arbitrary or capricious standard for the choice of persons. Therefore, the provision made by the respondent in the agreement and the tender cannot be said to be arbitrary or illegal as it seems to be in the interest of Corporation and Public exchequer. 49. The Hon’ble Apex Court, in the case of Ramana Dayaram Shetty v. International Airport Authority of India; (1979) 3 SCC 489 , held as under in paragraph 12: “12. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala [ AIR 1969 Ker 81 ] that: “The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala [ AIR 1969 Ker 81 ] that: “The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.” The same point was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengal [ (1975) 1 SCC 70 : (1975) 2 SCR 674 ] where the question was whether blacklisting of a person without giving him an opportunity to be heard was bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that blacklisting of a person not only affects his reputation which is, in Poundian terms, an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the Government, like any other private individual, has the absolute right to enter into contract with any one it pleases. But the Court, speaking through the learned Chief, Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largesse and it cannot, without adequate reason, exclude any person from dealing with it or take away largesse arbitrarily. The learned Chief Justice said that when the Government is trading with the public, “the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. . . The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure”. . . The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure”. This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.” 50. The appellant wrote a letter dated 17th of April 2018 to the respondent making a request to allow it to continue the contract for further three years at the same rate, terms and conditions. It reiterated its request by means of letter dated 26th of May 2018 with a request to award the contract at Rs. 986/- per bus per month. Since the respondent had already floated E-tender as per terms and conditions of the agreement providing ROFR for the appellant, the request of the appellant for extension of the agreement was the one sided effort of appellant for the contract at Rs. 986/- per bus per month, which was not accepted by the respondent, therefore the appellant was not entitled for extension of the agreement. As discussed above it is not in the interest of the corporation also as higher bids were coming in other similar segments. 51. 986/- per bus per month, which was not accepted by the respondent, therefore the appellant was not entitled for extension of the agreement. As discussed above it is not in the interest of the corporation also as higher bids were coming in other similar segments. 51. Being aggrieved the appellant approached to the learned District Judge under Section 9 of the Arbitration and Conciliation Act 1996 for interim relief in view of the Arbitration clause vide clause No. 21 of the agreement with a prayer to restrain the respondents from entering into a contract with third party for 4200 buses as per the terms of the agreement and further restrain the respondents from re-tendering the work allotted to the appellant and/or from creating any third party interest in the same, which was registered as Arbitration Case No. 49 of 2018. 52. During pendency of the said petition, since no bids were submitted against the E-tender dated 5.3.2018, the respondents issued another tender on 13.7.2018. The appellant approached to this Court by means of writ petition Misc.Bench No. 21442 of 2018 challenging the tender dated 13.7.2018, however the same was withdrawn with liberty to approach the District Judge by filing an application for interim relief in context to the prayer made in the writ petition. Accordingly the said writ petition was dismissed as withdrawn on 27.7.2018. Thereafter the appellant moved an application in the pending arbitration petition for stay with respect to the tender issued by the respondent on 13.7.2018. 53. The Arbitration Petition under Section 9 of the Arbitration and Conciliation Act 1996 has been dismissed by the learned Commercial Court vide judgment and order dated 28.8.2018, which has been challenged by the appellant in the present appeal with a further prayer for directing the respondents to issue ROFR in favour of the appellant in the tender process issued on 13.7.2018. 54. Learned Commercial Court in respect of the maintainability of the Arbitration Case held that since the appellant has not moved for arbitration, therefore, it goes against the appellant. In regard to it Section 9 of the Arbitration and Conciliation Act, 1996 are required to be considered. 54. Learned Commercial Court in respect of the maintainability of the Arbitration Case held that since the appellant has not moved for arbitration, therefore, it goes against the appellant. In regard to it Section 9 of the Arbitration and Conciliation Act, 1996 are required to be considered. Section 9 provides that a party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court for an interim measure of protection in respect of the matters mentioned therein. It nowhere provides that for moving under Section 9, a reference for Arbitration is a pre-requisite. Therefore, the findings recorded in this regard by the learned Commercial Court are not tenable and hereby rejected. It appears that the appellant has also sent a notice dated 31.8.2018 to the respondent for arbitration. 55. Learned Commercial Court after considering the law laid down by the Hon’ble Apex Court has rightly held that since the appellant had not participated in the tender process it is not entitled for the ROFR. We are in agreement with the findings recorded by the learned Commercial Court in this regard. 56. So far as the question of providing ROFR in the second tender dated 13.7.2018 is concerned, the contention of the respondents is that the provision for ROFR was made in the E-tender dated 5.3.2018, but since the appellant had chosen not to apply against the said tender he is not entitled for further ROFR because it is not in perpetuity. In this regard the condition of agreement dated 3rd of March 2017 would be relevant, which provides that UPSRTC will invite tender for the display of advertisement before completion of one year of the contract and for awarding the tender, the first right of refusal will be with the appellant. But no exemption was granted that this right will be available without participating in the tender. The agreement provides that “UPSRTC will invite tender for the display of advertisement before the completion of one year of the contract. For awarding the tender, the first right of refusal will be with M/s. Proactive In & Out Advertising Ltd. for the contract”, which itself indicates that this right will be available only on participation in tender. The agreement provides that “UPSRTC will invite tender for the display of advertisement before the completion of one year of the contract. For awarding the tender, the first right of refusal will be with M/s. Proactive In & Out Advertising Ltd. for the contract”, which itself indicates that this right will be available only on participation in tender. In the present case first tender was floated on 5.3.2018 before completion of one year of agreement and the provision of ROFR was rightly made, against which the appellant had not submitted its bid otherwise he could have been the highest bidder and got the agreement, therefore, in our opinion the appellant is not entitled for further ROFR in the next tender as the agreement nowhere provides that ROFR would be for a period of one year. Otherwise also since the appellant has not applied in the second tender he is not entitled for any relief. 57. Our view is also fortified by the judgment of the Hon’ble Apex Court in the case of National Highways Authority of India v. Gwalior-Jhansi Expressway Ltd.; (2018) 8 SCC 243 : 2018 SCC OnLine SC 688. The relevant paragraph 22 is reproduced as under: “22. It is not the case of the respondent that an express exemption has been granted to the respondent, from participating in the bidding process. In the matter of tender process, there can be no tacit or implied exemption from participating. In the first place, whether such direction can be issued by the Arbitral Tribunal under Section 17 of the Act itself is debatable. However, since the order dated 23-7-2016 has remained unchallenged, we do not wish to dilate on that aspect. Indeed, the appellant accepted the order with a sanguine hope that a proper tender process can be resorted to, wherein the respondent would also participate, for awarding the contract of unfinished and balance works of the subject project. For effectuating that order, tender documents were issued by the appellant on 28-11-2016 which, as aforesaid, explicitly stipulated that the respondent was expected to submit its bid within the specified time. Admittedly, the fact that tender notice was issued, came to be disclosed before the Arbitral Tribunal on 10-12-2016. Surprisingly, the respondent neither took any clue nor bothered to follow up the tender documents which were placed in public domain (as is done in respect of any other tender process). Admittedly, the fact that tender notice was issued, came to be disclosed before the Arbitral Tribunal on 10-12-2016. Surprisingly, the respondent neither took any clue nor bothered to follow up the tender documents which were placed in public domain (as is done in respect of any other tender process). Further, the respondent waited till the opening of technical bids on 5-1-2017 and financial bids on 29-3-2017 and rushed to the Arbitral Tribunal by way of an application under Section 17 of the Act, only on 25-4-2017 stating that on the previous day, it had come to its notice that the appellant was likely to issue letter of intent to the lowest bidder, without giving opportunity to the respondent to match the lowest bid or exercise ROFR. To oppose the said application, the appellant in the reply-affidavit had asserted that the respondent was fully aware about the terms and conditions of the tender documents and yet chose not to participate in the bidding process. The respondent did not think it necessary to counter the said assertion by filing any rejoinder thereto. Notwithstanding that, the Arbitral Tribunal was impressed by the plea taken by the respondent and allowed the application of the respondent vide order dated 24-5-2017. The relevant extract of the said order has been reproduced in para 14 above. The Arbitral Tribunal was more impressed by the fact that the respondent had completed substantial works of the project and it would be just and proper to allow the respondent to complete the balance work. The Arbitral Tribunal made no effort to ascertain as to whether the order dated 23-7-2016 was a blanket and unconditional order entitling the respondent to straightaway exercise ROFR without participating in the bidding process. The Arbitral Tribunal merely adverted to the objection of the appellant and rejected the same on the finding that involvement of a third party in the project would create serious problems. It took the view that giving option to the respondent to match the lowest bid and to complete the balance work, with a condition to periodically submit the progress report to the Arbitral Tribunal for monitoring whether the balance work was successfully completed to the satisfaction of NHAI, would be a proper and equitable arrangement. This approach is not in conformity with the fundamental policy of Indian law.” 58. This approach is not in conformity with the fundamental policy of Indian law.” 58. The scope of judicial review in regard to the Government Contracts or the tenders thereof is limited as held by the Apex Court in the several decisions. The Hon’ble Apex Court, in the case of Ravi Development v. Shree Krishna Prathisthan, (2009) 7 SCC 462 : (2009) 3 SCC (Civ) 172 at page 476, held as under in paragraph 45: “45. It is a well-settled principle that in the matters of Government contract, the scope for judicial review is very limited and that the Court cannot substitute its own decision for that of the Government vide Tata Cellular v. Union of India [ (1994) 6 SCC 651 ] and Air India Ltd. v. Cochin International Airport Ltd. [ (2000) 2 SCC 617 ].” 59. The tenderer on the basis of participating in the tender process have no other right except the right of equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner. The petitioner who has not participated in the tender process cannot claim a right over and above the bidders who have tendered their bids which will be in violation of Articles 14 and 16 of the Constitution of India. 60. The Hon’ble Apex Court, in the case of Meerut Development Authority v. Assn. of Management Studies, (2009) 6 SCC 171 : (2009) 2 SCC (Civ) 803 at page 181, held as under in paragraph 26 & 27: “26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. 27. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. 27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the abovestated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.” 61. The Hon’ble Apex Court, in the case of U.P. Avas Evam Vikas Parishad v. Om Prakash Sharma, (2013) 5 SCC 182 : (2013) 2 SCC (Civ) 737 : 2013 SCC OnLine SC 367 at page 195, held as under in paragraph 29: “29. This Court in Meerut Development Authority case [ (2009) 6 SCC 171 : (2009) 2 SCC (Civ) 803] has laid down the legal principle that the bidder who has participated in tender process has no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to the notice inviting tenders in a transparent manner and free from hidden agenda. The relevant paragraphs are extracted hereunder: (SCC p. 182, paras 27 & 29) “27.The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the abovestated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. *** 29. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. *** 29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority’s action in accepting or refusing the bid must be free from arbitrariness or favouritism.” 62. In view of above, we do not find any illegality or infirmity in the judgment and order dated 28.8.2018, passed in Arbitration Case No. 49 of 2018 ; M/s.Proactive In & Out Advertising Ltd. v. U.P.State Road Transport Corporation by the Commercial Court, Lucknow except indicated above, rather the same has been passed in accordance with law after considering the relevant material and law. Therefore, the First Appeal From Order is misconceived and it is liable to be dismissed. 63. The First Appeal From Order is dismissed. There shall be no order as to costs.

PROACTIVE IN & OUT ADVERTISING LTD v. U. P. STATE ROAD TRANSPORT CORPORATION, LKO.