JUDGMENT : (Sunita Agarwal, CJ.) : 1. The instant petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short as "the Act, 1996) raises a question with regard to the applicability of the Arbitration Clause 3.4 contained in the Request for Proposal (RFP) document for selection of Mine Developer and Operator (MDO) for development and operation of Gare Palma Sector-I, Coal Block, Mand Raigarh Coalfield, Dist. Raigarh, Chhattisgarh. The claim of the petitioner is against the Gujarat State Electricity Corporation Ltd. (GSECL), incorporated under the provisions of the Companies Act, 1956. 2. Upon a notice under Section 21 of the Act, 1996 received by the respondent GSECL, they have taken a stand that no Letter of Acceptance (LOA) was issued to the petitioner and the conditional LOA does not create any right or liabilities of the parties. The claim of the petitioner to refer the dispute under Section 11 of the Act, 1996 is, thus, unacceptable. 3. The petitioner is claiming reference of the dispute arising out of the conditional Letter of Acceptance (LOA), issued by the respondent GSECL dated 15.12.2018, which was issued with reference to RFP bid document, as noted hereinabove. 4. To deal with this controversy, certain facts are relevant to be noted hereunder :- 5. The petitioner M/s. Adani Enterprises Limited is a Company incorporated under the Companies Act, which is engaged in generation of power from Coal, Lignite, Gas, Solar and Wind. The respondent GSECL had entered into an agreement with the Ministry of Coal, Government of India for allocation of the Gare Palma Sector-I (Phase I), Coal Block, Mand Raigarh Coalfields, Dist. Raigarh, Chhattisgarh, for production and utilisation of the coal from the Coalmine. The respondent issued a Request for Qualification (RFQ) on 22.01.2016 for selection of Mine Developer and Operator for the development and operation of the said Coalmine through international competitive bidding, an RFP document was issued on 23.02.2017 to RFQ stage qualified bidders. 6. The petitioner Company entered into a Consortium agreement dated 29.03.2016 and formed a Consortium with Sainik Mining and Allied Services Limited (SMASL) for the purpose of submission of bid for the project including planning, engineering, financing, construction, development, operation and maintenance, etc. It is stated in the petition that the petitioner had duly authorised SMASL to initiate arbitration proceedings by filing the present proceeding for and on behalf of the Consortium. 7. It is stated in the petition that the petitioner had duly authorised SMASL to initiate arbitration proceedings by filing the present proceeding for and on behalf of the Consortium. 7. As per the facts disclosed in the writ petition, the consortium participated in the bidding process and submitted its proposal for development and operation of the the Coalmine on 27.03.2017. It emerged as a successful bidder. A Bank Guarantee worth Rs. 37 crores was submitted by the petitioner M/s. Adani Enterprises Limited and the Bank Guarantee of Rs. 13 crores had been submitted by SMASL with the respondent as Earnest Money Deposit on 30.03.2016 and 29.03.2016, respectively. 8. Several discussions and meetings for negotiation had taken place between the parties. It is stated that during the said period, from selection of the petitioner as a successful bidder, till the respondent had decided to surrender the Coal block to the concerned Ministry, an intimation in this regard has been given to the petitioner on 09.09.2021. The petitioner had extended the bid validity and the validity of the EMD, Bank guarantee from time to time on the request letters given by the respondent. Further, after a lapse of more than 19 months from the date on which the Consortium emerged as successful bidder, a conditional LOA was issued only on 15.12.2018, which talks of certain approvals from the concerned authorities. It is contended by the petitioner that it was an obligation of the respondent to procure the approvals as mentioned in the conditional LOA and in anticipation that such approvals will be obtained by the respondent, the petitioner, on behalf of the consortium, had accepted the conditional LOA by issuing a letter dated 19.12.2018 for executing the Coal Mining Services Agreement (CMSA) as per the RFP document. Reference has been made to Clause 5.1 of the RFP document whereunder, the respondents are obliged to execute CMSA within 30 days of the issuance of the LOA. 9. It is vehemently argued by Mr. Devang Nanavati, learned Senior Advocate appearing for the petitioner that there have been inordinate and unprecedented delay on the part of the respondent in executing the CMSA and they are in breach of the terms of the RFP document. Even after the issuance of conditional LOA on 15.12.2018, the respondent GSECL kept on asking the petitioner to extend the validity of the EMD Bank Guarantee. Even after the issuance of conditional LOA on 15.12.2018, the respondent GSECL kept on asking the petitioner to extend the validity of the EMD Bank Guarantee. The petitioner had started project related activities after issuance of the conditional LOA on 15.12.2018 and has incurred substantial expenses of manpower, infrastructure and administrative expenses, etc. The petitioner had also incurred cost and expenses towards extension of EMD-Bank Guarantee for more than 4 years. Moreover, unilateral decision of the respondent GSECL to surrender the GP-1 Coal Block to the Ministry of Coal, Government of India, caused huge loss to the petitioner. The decision of the respondent for scrapping/cancellation of the tender and the conditional LOA is in breach of the tender and the conditional LOA. 10. For the acts and omissions on the part of the respondent, various disputes, differences and claims have arisen between the parties and, as such, the petitioner on behalf of the Consortium, vide letter dated 21.06.2023, notified the respondent of the said dispute and requested to amicably resolve the same in terms of clause 3.4 of the RFP document. The clauses pertaining to dispute resolution process, viz. clauses 3.4 and 3.5 of the RFP document have been placed before us. It is further stated that a conciliation meeting had been conducted on 05.08.2023, but the issue could not be amicably settled in terms of Clause 3.4 of the RFP documents. The submission, thus, is that the cause of action for filing the arbitration petition under Section 11(6) of the Act, 1996 arose for this reason. 11. Contesting the claim of the respondent GSECL that the conditional LOA dated 15.12.2018 did not confer any right and liability on the respondent, it has been vehemently argued by learned the senior counsel with the submissions that :- 1) The conditional LOA dated 15.12.2018 had been issued with reference to the RFP document, as a result of which the relevant clauses 3.4 and 3.5 of the RFP document stood incorporated in the conditional LOA dated 15.12.2018 by implication; 2) Clause 3.4 of the RFP document which pertains to Dispute Resolution Process states that any dispute, differences or controversy of whatsoever nature, howsoever, arising under or out of or in relation to the document (including the conditional LOA by incorporation), have to be resolved by the process prescribed in clauses 3.4 and 3.5 of the RFP document. The submission is that the expression "arising out of" or "in relation to the document" are to be given wider meaning so as to include any agreement arrived at between the parties in furtherance of RFP document; 3) It is argued that the issuance of the conditional LOA and its withdrawal by the respondent is itself a dispute which has to be referred to the Arbitrator; 4) The contention of the respondent GSECL that there was no concluded contract and, hence no claim for damages can be looked into, is completely wrong. Reference has been made to the communication made by the petitioner to GSECL with reference to the meeting dated 05.08.2023 to assert that GSECL had treated the situation as a force majeure during the discussion in the conciliation meeting held under clause 3.4 of the RFP document, which itself shows that the contract conferring liability on the respondent was in existence when the Coalmine was unilaterally surrendered to the Coal Ministry. 12. The judgment of the Apex Court in M/s. Unissi (India) Pvt. Ltd vs Post Graduate Institute Of Medical Education & Research [ (2009) 1 SCC 107 ] has been placed before us to submit that the arbitration clause contained in the tender document has been held to be a valid arbitration agreement between the parties and the Apex Court has concluded that the dispute between the parties would be referred to an arbitrator for decision, although no formal agreement was executed. 13. Reliance is further placed on the decision of the High Court of Delhi in Mahindra Susten Private Limited vs NHPC Ltd. [2021 SCC Online Del 3273] wherein it is held that the question as to whether the very issuance of the Letter of Acceptance indicated acceptance of the bid documents, which included the condition of the contract, on which reliance has been placed by the petitioner therein, to lay its claim to seek appointment of arbitrator is an arguable issue, which ought to be examined by the Arbitral Tribunal. The argument of the learned advocate appearing for the respondent therein regarding maintainability of the proceedings, especially regarding the existence of the arbitration agreement, has been turned down with the observation that on all aspects, including the existence of arbitration agreement as well as the arbitrability of the dispute, the arbitrator would be free to take an independent view. The argument of the learned advocate appearing for the respondent therein regarding maintainability of the proceedings, especially regarding the existence of the arbitration agreement, has been turned down with the observation that on all aspects, including the existence of arbitration agreement as well as the arbitrability of the dispute, the arbitrator would be free to take an independent view. This judgment has been upheld by the Apex Court with the dismissal of the Special Leave to Appeal (C) No(s).5466-5467/2021 by judgment and order dated 20.07.2021. 14. The judgment of the High Court of Orissa in M/s. Jhar Mining Infra Private Ltd. vs. CMD, Managing Coalfields Ltd. passed in Arbitration Petition No. 24 of 2022 dated 27.09.2022 has been pressed into service to argue that the High Court of Orissa keeping in view the decision of the Apex Court in Vidya Drolia v. Durga Trading Corporation [ (2021) 2 SCC 1 ] has held that the dispute pertaining to cancellation of the tender after the issuance of LOI and the request of the petitioner therein to resolve the dispute in terms of the arbitration clause contained in the tender document, has to be referred to the arbitrator, as the petitioner has an arguable case as regards the existence of an arbitration agreement between the parties and the conditions for its invocation of having prima facie been fulfilled. This decision of the High Court of Orissa has also been upheld by the Apex Court with the dismissal of the Special Leave Petition (C) No.(s) 22562 of 2022. 15. With the above decisions, it was, thus, vehemently agitated that the issue pertaining to the existence of arbitration agreement between the parties as a result of issuance of conditional LOA dated 15.12.2018 cannot be permitted to be raised by the respondent in the pre-referral proceedings under Section 11(6) of the Act, 1996. 16. This Court in the limited exercise of jurisdiction of referral court will not examine the said issue in view of the decision of the Apex Court in Vidya Drolia (supra) as the guiding principles about the limit of the extent of jurisdiction exercisable by a Court under Section 8 or under Section 11 of the Act, 1996. 16. This Court in the limited exercise of jurisdiction of referral court will not examine the said issue in view of the decision of the Apex Court in Vidya Drolia (supra) as the guiding principles about the limit of the extent of jurisdiction exercisable by a Court under Section 8 or under Section 11 of the Act, 1996. It was argued that it has been clarified by the Apex Court from time to time that in exercise of its limited scope of authority to examine the questions of existence of the arbitration agreement and the arbitrability of the dispute at the pre-referral stage, the Court has to be careful not to usurp the jurisdiction of the Arbitral Tribunal, which ideally should examine these aspects. It was held that the scope of examination of the power of the referable court under Section 11(6) into the aspects of existence of the arbitral agreement or arbitrability of the dispute, is strictly prima facie. It is only if prima facie, the Court finds that no valid arbitration agreement exists, it would be right in refusing to refer the dispute to arbitration in such cases. 17. Reliance has also been placed to the decision of the Apex Court in Bharat Sanchar Nigam Ltd.& Anr vs Motorola India Pvt.Ltd [ (2009) 2 SCC 337 ] to submit that the unilateral decision of the GSECL to surrender the Coalmine is in violation of the provisions of the Indian Contract Act. 18. Reference has been made to the judgment of the Apex Court in Renusagar Power Company Ltd vs General Electric Company [ 1984 (4) SCC 679 ], to impress upon the Court about the applicability of the arbitration clause 3.5 of RFP document to the conditional LOA dated 15.12.2018 by submitting that the expression "arising out of", "in connection of", "in relation to" or "in respect of" in a contract are of widest possible amplitude and content. By giving a purposive meaning to the expression "arising under" or "out of", "in relation" to the RFP documents have to be given a wider meaning so as to incorporate the arbitration clause 3.5 of RFP document, into the conditional LOA dated 15.12.2018 to cover "any dispute or difference which arose between the parties in relation to or arising under or out of the conditional LOA", for reference to the arbitrator. 19. 19. In rebuttal, the learned counsel appearing for the respondent GSECL referring to the decision of the Apex court in NTPC Ltd. vs M/s. SPML Infra Ltd. [ 2023 (9) SCC 385 ] would submit that at the pre-referral stage, the Courts under Section 11(6) of the Act, 1996 inheres two inquiries. The primary inquiry is about the existence and the validity of an arbitration agreement, which also includes an inquiry as to the parties to the agreement and the applicant's privity to the said agreement. These inquiries are to be made thoroughly by the referral court at the pre-referral stage. It was urged that the Apex Court has held that as a general rule and a principle, the arbitral tribunal is the preferred first authority to determine and decide all questions of non-arbitrability of the dispute, which is a secondary nature of inquiry that may arise at the reference stage. The referral court as an exception to the said rule and rarely as a demurrer, may reject the claims which are manifestly and ex facie nonarbitrary. The submission is, thus, that the 'Eye of the Needle' principle propounded by the Apex Court in NTPC Ltd. (supra) prescribes the standard of scrutiny being limited, but necessary and compelling, inasmuch as, it is the duty of the referral court to protect the parties from being forced to arbitrate when the matter is demonstrably non-arbitrable. 20. Placing the facts of the case in NTPC Ltd. (supra), it is submitted that it was noted by the Apex Court that No- Demand Certificate was issued and the final payment was realised. The Apex Court has noted that there was nothing on record about any pending claim during the subsistence of the contract or till the realisation of the final payment. The act of the NTPC in withholding the bank guarantee on the ground that there was certain dispute with the parties with respect to other projects was found to be justified and it was held that following the release of the bank guarantees as per the settlement agreement arrived between the parties, no dispute subsists. It was held that the claim of the respondents therein fits in the description of an attempt to initiate “ex facie meritless, frivolous and dishonest litigation”. 21. It was held that the claim of the respondents therein fits in the description of an attempt to initiate “ex facie meritless, frivolous and dishonest litigation”. 21. Reliance is placed on the decision of the Apex Court in NBCC (India) Limited vs. Zillion Infraprojects Pvt Ltd. [2024 SCC Online SC 323] to submit that mere general reference of a document into the contract between the parties would not have the power of incorporating the arbitration clause. The arbitration clause from another contract can be incorporated into the contract (where such reference is made), only by specific reference to arbitration clause where the contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract unless there is a specific reference to the arbitration clause also. With reference to Section 7(5) of the Act, 1996, it was held therein that a perusal of the said provision provides for a conscious acceptance of the arbitration clause from another document, by the parties, as a part of their contract, before such arbitration clause could be read as part of the contract between the parties. It is, thus, clear that the reference to the document in contract should be such that shows the intention of the parties to incorporate the arbitration clause contained in the document into the contract. 22. With these judgments, the attention of the Court is invited to certain communications between the parties prior to issuance of conditional LOA dated 15.12.2018 by respondent GSECL. The attention of the Court is invited to page 239' of the paper book, which is a letter dated 23.10.2018 as also the reply dated 30.10.2018 to the same by the petitioner to GSECL. It was placed before us that the said communications were made by the parties before the issuance of conditional LOA. The attention of the Court is invited to page 239' of the paper book, which is a letter dated 23.10.2018 as also the reply dated 30.10.2018 to the same by the petitioner to GSECL. It was placed before us that the said communications were made by the parties before the issuance of conditional LOA. On a perusal of the letter dated 23.10.2018 indicates that with reference to the points raised by the representative of the petitioner, while giving clarification, it was communicated therein that :- "(4) Conditional LOA, shall be subject to approvals of following statutory administrative authorities: (i) Nominated Authority (NA), Ministry of Coal (MOC): - Approval for optimal utilization of Coal from Gare Palma Sector-1 Coal Block through Independent Power Producers (IPPs), in line with Case-4 Notification Issued by Ministry of Power (MOP). (ii) Nominated Authority, Ministry of Coal - Granting exemption to GSECL from Clause No. 3.2.3 of Allotment Document, for surrendering the existing coal linkage and allowing to use coal produced from Gare Palma Sector-l Coal Mine in Power Plant near to mine. (5) Till signing of CMSA, you have to agree to extend the Validity of BG submitted towards EMD, at no extra cost to GSECL. (6) The purpose for Issuing the conditional LoA is to start preliminary activities of the project and this shall not be utilized for any such purpose against the interest of GSECL and also not in the courts of law, for enforcing any claim over the Project directly or indirectly till the definitive Coal Mining Service Agreement (CMSA) is executed. Your liability towards this project if any shall arise only after signing of CMSA and CMSA shall be signed after all conditions of Conditional LoA are fulfilled. (7) GSECL may review to issue final LoA, if any additional burden arises due to consideration/ incorporation of any conditions/suggestion from any of Govt. authority." 23. In reply thereto vide dated 30.10.2018 the petitioner had agreed to the following :- "(4) We hereby confirm that the conditions LoA shall be subject to the two (2) conditions mentioned in the point no (4). (5) We hereby confirm to extend the Validity of BG submitted towards EMD at no extra cost to GSECL provided no coercive action including encashment of EMD (Bank Guarantee) will be taken by GSECL against AEL-SMASL till the signing of CMSA. (5) We hereby confirm to extend the Validity of BG submitted towards EMD at no extra cost to GSECL provided no coercive action including encashment of EMD (Bank Guarantee) will be taken by GSECL against AEL-SMASL till the signing of CMSA. (6) We fiereby confirm that the purpose for issuing the conditional LoA is to start preliminary activities of the project and this shall not be utilized for any such purpose against the interest of GSECL and also not in the courts of law, for enforcing any claim over the Project directly or indirectly till the definitive Coal Mining Service Agreement (CMSA) is executed. As already clarified in point no.2, the liability of MDO will commence after execution of CMSA and CMSA shall be signed after all conditions of Conditional LoA are fulfilled. (7) We hereby confirm that GSECL may review to issue final LoA, if any additional burden arises due to consideration/Incorporation of any condition/suggestion of any Govt. authority. However, GSECL shall not ask AEL-SMASL to share any such additional burden." 24. The terms incorporated in the conditional LOA are as under:- "With reference to our published RFP Bid document with CMSA for Selection of Mine Developer cum Operator (MDO) for Development and Operation of Gare Palma Sector 1 (Phase 1) Coal Block, Gujarat State Electricity Corporation Ltd. (GSECL) hereby awards Conditional Letter of Acceptance (LoA) against the proposal submitted by consortium of Adani Enterprises Limited and Sainik Mining & Allied Services Limited (AEL-SMASL), at negotiated total Mining Charge of Rs. 1250/- per tonne of Raw Coal (i.e. Raw Coal Mining Charge per MT of Raw Coal 'A' + Transportation Charge per MT of Raw Coal 'C'), against quoted price of Rs. 1295/- per MT of Raw Coal. The conditional LoA is subject to receipt of following three approvals i.e. two from Ministry of Coal, Govt. of India at sr. no, (i) & (ii), one from Managing Director, GUVNL at Sr. no. (iii) and as agreed by M/s Consortium of Adani Enterprises Limited and Sainik Mining & Allied Services Ltd for sr. no: (iv): (i) Nominated Authority (NA), Govt. of India (Gol), Ministry of Coal (MoC): Approval for optimal utilization of Coal from Gare Palma Sector-1 Coal Block through Independent Power Producers (IPPs), in line with Case-4 Notification Issued by Ministry of Power (MoP). (ii) Nominated Authority, Govt. no: (iv): (i) Nominated Authority (NA), Govt. of India (Gol), Ministry of Coal (MoC): Approval for optimal utilization of Coal from Gare Palma Sector-1 Coal Block through Independent Power Producers (IPPs), in line with Case-4 Notification Issued by Ministry of Power (MoP). (ii) Nominated Authority, Govt. of India, Ministry of Coal - Granting exemption to GSECL from Clause No. 3.2.3 of Allotment Document, for surrendering the existing coal linkage. (III) Managing Director, GUVNL: - In the bid invited by GUVNL for procurement of Power, if tariff discovered under the Gare Palma-l, Phase-l, category of bid, based on coal from GP-I (approximately 15 MMTPA), qualifies under bucket filling for 3000 MW capacity. (iv) AEL-SMASL has agreed to review the two clauses of CMSA I.e. clause no. 21.2.3 for less off take of coal and clause no. 28.7 for stock piling at Mine, due to any Force Majeure event claimed by Independent Power Producers (IPPs), under various conditions as mentioned in their letter dated 10/09/2018 and for changes in no. of days from 3 to 7 days, to Intimate any Force Majeure event claimed by IPP, as mentioned in their letter dated 22/10/2018." This Conditional Letter of Acceptance is awarded considering the confirmation given by M/s AEL vide letters No. AEL/GSECL/10092018 DTD 10/09/2018, No. AEL/GSECL/22102018 dtd 22/10/2018 and No AEL/GSECL/30102018 dtd 30/10/2018 in response to GSECL letter No. CE (Fuel)/MDO Selection/GP- Phase- 1/1110 dated 23/10/2018, (copy of all these four letters are enclosed here with, are part of this LOA) and agree without any prejudice to all other terms & conditions of RFP Bid Documents including CMSA." 25. Placing the contents of these documents, it is submitted by the learned counsel for the respondent that it is evident that the conditional agreement, viz. LOA was a separate agreement preceded with the conditions laid down therein. As none of the conditions were fulfilled for issuance of LOI, there was no question to proceed further. The Bank Guarantees furnished by the petitioner had expired in the year 2021 and it has not been extended further. The Coalmine has been surrendered by the respondent on 26.05.2022 and, at no stage, a concluded contract can be perceived. The claim of the petitioner is, thus, ex facie meritless and dishonest. 26. It was contended that the communications between the parties, as noted hereinbefore, are part of the conditional LOA, as referred therein. 27. The Coalmine has been surrendered by the respondent on 26.05.2022 and, at no stage, a concluded contract can be perceived. The claim of the petitioner is, thus, ex facie meritless and dishonest. 26. It was contended that the communications between the parties, as noted hereinbefore, are part of the conditional LOA, as referred therein. 27. In rejoinder, the learned senior counsel appearing for the petitioner reiterated that reference of tender document in the conditional LOA would lead to incorporation of the arbitration clause 3.5 in RFP document, inasmuch, the conditional LOA was issued on evaluation of RFP document and in furtherance thereof. The arbitration clause, thus, stood incorporated in the conditional LOA. Moreover, any issue with regard to the dispute raised by the respondent as regard to the existence of the agreement or non-arbitrability of the dispute can only be looked into by the arbitrator within the limited scope of scrutiny. The referral court will not enter into such issues. 28. Having carefully gone through the submissions made by the learned counsels for the parties, before dealing with the same, we may refer to three judgments of the Apex Court in the matter of incorporation of the arbitration clause in the agreement out of which the dispute has arisen. 29. In Dresser Rand S.A vs Bindal Agro Chem Ltd And K. G. Khosla [ 2006 (1) SCC 751 ], the question before the Apex Court was as to whether general conditions of purchase orders may be operated as an agreement between the parties, where letter of intent issued by another party or the purchase orders placed on behalf of the Company. Referring to the clause containing arbitration agreement of the general conditions of purchase, it was observed that :- "27. The tender document or the invitation to bid of BINDAL (containing the "instructions to bidders" and the "general conditions of purchase"), by itself, is neither an agreement nor a contract. The instructions to bidders informed the intending bidders how the bid should be made and laid down the procedure for consideration and acceptance of the bid. The process of bidding or submission of tenders would result in a contract when a bid or offer is made by a prospective supplier and such bid or offer is accepted by BINDAL. The instructions to bidders informed the intending bidders how the bid should be made and laid down the procedure for consideration and acceptance of the bid. The process of bidding or submission of tenders would result in a contract when a bid or offer is made by a prospective supplier and such bid or offer is accepted by BINDAL. The second part of the Invitation to Bid consists of the 'General Conditions of Purchase', that is, the conditions subject to which the purchase order will be placed or offer will be accepted. The 'General Conditions of Purchase' were made available as a part of the Invitation to bid, so as to enable the prospective suppliers to ascertain their obligations and formulate their offers suitably. 28. Where a tenderer is not willing to make his offer subject to the 'General Conditions of Purchase' prescribed and stipulated by the purchaser, he would either suggest his own terms and conditions or suggest modifications to the 'General Conditions of Purchase' prescribed by the intending purchaser (person inviting the offers). Many 'Invitations to Bid' contain a condition that the tenderers will not be entitled to make any changes in the 'General Conditions of Purchase', in which event he is required to mould his offer strictly in accordance with the 'General Conditions of Purchase' stipulated by the purchaser. The reason for insisting upon adherence to Purchaser's 'General Conditions of Purchase' is not far to seek. If several persons submit their offers subjecting them to different terms and conditions of supply, it will be difficult or virtually impossible to evaluate them with reference to a common denominator. The general conditions of purchase act as a common denominator for all tenderers to base their offers and for evaluation of such offers. Further, the said General Conditions stipulated by the purchaser enable the tenderer to assess his obligations and calculate the offer price accordingly. For example, there will be a marked difference in the responsibility of a supplier and the pricing, if the purchaser seeks a three year warranty instead of one year warranty, or seeks delivery of machinery at site instead of at supplier's factory, or seeks delivery to be expedited instead of the normal period. For example, there will be a marked difference in the responsibility of a supplier and the pricing, if the purchaser seeks a three year warranty instead of one year warranty, or seeks delivery of machinery at site instead of at supplier's factory, or seeks delivery to be expedited instead of the normal period. Many a time the supplier is able to persuade the purchaser to agree for modification of the 'conditions of purchase' stipulated by the purchaser, particularly where a supplier is in a position of strength and the purchaser is keen to purchase a particular product of that supplier. There are also several suppliers who stipulate their own 'conditions of sale' and refuse to go by the conditions of purchase stipulated by the purchaser. The intending purchaser and the intending supplier are at liberty to negotiate and agree upon the terms subject to which offers will be made and accepted. As contrasted from sale of ready Goods sold off the shelf across the counter, sale/purchase of complex machinery/ equipment made to order, to suit particular requirements of the purchaser, have several facets relating to pricing, period of delivery, mode of delivery, period and nature of warranty, suitability for the intended purpose, patent rights, packing, insurance, incidental services, consequences of delay and breach, rejection/replacement force mejeure etc. Agreeing upon the terms subject to which offer is to be made and accepted, is itself a complicated and time consuming process. But, reaching an agreement as to the terms subject to which a purchase will be made, is not entering into an agreement to purchase." 30. While dealing with further question as to whether the Letter of Intent issued therein contained an arbitration clause, it was observed in paragraphs 39' and 40', as under :- "34. It is now well-settled that a Letter of Intent merely indicates a party's intention to enter into a contract with the other party in future. A Letter of Intent is not intended to bind either party ultimately to enter into any contract. This Court while considering the nature of a Letter of Intent, observed thus in Rajasthan Cooperative Dairy Federation Ltd. V. Maha Laxmi Mingrate Marketing Service Pvt. Ltd. [ 1996 (10) SCC 405 ] : "... The Letter of Intent merely expressed an intention to enter into a contract. This Court while considering the nature of a Letter of Intent, observed thus in Rajasthan Cooperative Dairy Federation Ltd. V. Maha Laxmi Mingrate Marketing Service Pvt. Ltd. [ 1996 (10) SCC 405 ] : "... The Letter of Intent merely expressed an intention to enter into a contract. There was no binding legal relationship between the appellant and Respondent 1 at this stage and the appellant was entitled to look at the totality of circumstances in deciding whether to enter into a binding contract with Respondent 1 or not." 35. It is no doubt true that a Letter of Intent may be construed as a letter of acceptance if such intention is evident from its terms. It is not uncommon in contracts involving detailed procedure, in order to save time, to issue a letter of intent communicating the acceptance of the offer and asking the contractor to start the work with a stipulation that the detailed contract would be drawn up later. If such a letter is issued to the contractor, though it may be termed as a Letter of Intent, it may amount to acceptance of the offer resulting in a concluded contract between the parties. But the question whether the letter of intent is merely an expression of an intention to place an order in future or whether is a final acceptance of the offer thereby leading to a contract, is a matter that has to be decided with reference to the terms of the letter. Chitty on Contracts (Para 2.115 in Volume 1- 28th Edition) observes that where parties to a transaction exchanged letters of intent, the terms of such letters may, of course, negative contractual intention; but, on the other hand, where the language does not negative contractual intention, it is open to the courts to hold the parties are bound by the document; and the courts will, in particular, be inclined to do so where the parties have acted on the document for a long period of time or have expended considerable sums of money in reliance on it. Be that as it may." 31. Be that as it may." 31. Reading of the terms of the Letter of Intent harmoniously, with reference to various provisions of the general conditions of purchase, it was held therein that though the General Conditions of Purchase, in entirety, were intended to be treated as a part to the purchase order as and when the purchase order was placed, but neither the General Conditions of purchase form part of invitation of bid nor the Letter of Intent contained any arbitration clause and there is no document or correspondence, which can be read as containing a provision that can be interpreted as an agreement to resolve the disputes by arbitration. It was held that there was no arbitration agreement. 32. In Bharat Sanchar Nigam Limited vs. Telephone Cables [ (2010) 5 SCC 213 ], referring to Dresser Rand S.A (supra), it was held that Clause 20 of the General Conditions of Contract, looking to the language therein, shall apply only in regard to any contract awarded by BSNL by placing a purchase order and will not apply in regard to any dispute in regard to the tender or bid or non-placing of purchase order. Relevant paragraph 29' be noted hereunder :- "29. Therefore, only when a purchase order was placed, a `contract' would be entered; and only when a contract was entered, the General Conditions of Contract including the arbitration clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed." 33. In South Eastern Coalfields Limited and Ors. vs. S. Kumar's Association AKM (JV) [ (2021) 9 SCC 166 ], the Apex Court has held that the issue whether a concluded contract had been arrived at inter se the parties, would be dependent on the "Notice Inviting Tenders, the LOI and the conduct of the parties". The observations in paragraph 22' of the said decision are noted herein under: - "22. The observations in paragraph 22' of the said decision are noted herein under: - "22. We would like to state the issue whether a concluded contract had been arrived at inter se the parties is in turn dependent on the terms and conditions of the NIT, the LoI and the conduct of the parties. The judicial views before us leave little doubt over the proposition that an LoI merely indicates a party’s intention to enter into a contract with the other party in future.12 No binding relationship between the parties at this stage emerges and the totality of the circumstances have to be considered in each case. It is no doubt possible to construe a letter of intent as a binding contract if such an intention is evident from its terms. But then the intention to do so must be clear and unambiguous as it takes a deviation from how normally a letter of intent has to be understood. This Court did consider in Dresser Rand S.A. case that there are cases where a detailed contract is drawn up later on account of anxiety to start work on an urgent basis. In that case it was clearly stated that the contract will come into force upon receipt of letter by the supplier, and yet on a holistic analysis – it was held that the LoI could not be interpreted as a work order." 34. Noticing the above decisions, it can be discerned that to decide the issue as to whether there exists a concluded contract, the documents relied by the petitioner herein, viz. RFP document, conditional Letter of Acceptance and the communications between the parties placed by the respondents indicating the conduct of the parties, are to be looked into. On a careful reading of the said documents, on a holistic analysis thereof, the issue can be answered. 35. We may further note that RFP document is a document containing schedule timeline, the description of the selection process, the proposal requirements, evaluation methodology and instructions to the bidders. It starts with the disclaimer in Clause 1.0 that this document is not an agreement or an offer by GSECL to bidders and the purpose of this document is to provide interested parties with information to facilitate the formulation of their bid proposal. It starts with the disclaimer in Clause 1.0 that this document is not an agreement or an offer by GSECL to bidders and the purpose of this document is to provide interested parties with information to facilitate the formulation of their bid proposal. Clause 3.4 of the RFP document contains Arbitration Clause which states that any dispute, difference or controversy of whatsoever nature howsoever arising under, or out of, or in relation to this Document (RFP Document) shall be attempted to be resolved in accordance with the arbitration procedure set forth in Clause 3.5. 36. The conditional Letter of Acceptance and the last paragraph of the said letter, as extracted hereinabove, is very much relevant, which says that the conditional LOA is awarded considering the confirmation given by the petitioner vide letter dated 10.09.2018, 22.10.2018 and 30.10.2018 in response to the GSECL letter dated 23.10.2018. It also states that copies of all these four letters are enclosed along with the Letter of Acceptance and are treated as part of this LOA. The said clause further clarifies that the above conditions have been agreed without any prejudice to all other terms and conditions of RFP Bid documents including CMSA. 37. The extract of the communications dated 23.10.2018 and 30.10.2018 between the parties indicate that the purpose of issuance of the conditional LOA was to start preliminary activities of the project. The GSECL in its communication dated 23.10.2018 has clarified that the conditional LOA shall not be utilised for any such purpose against the interest of GSECL, in enforcing any claim over the project directly or indirectly till the definitive CMSA is executed. It was clarified that the liability of the petitioner towards the project, if any, shall arise only after signing of CMSA and CMSA shall be signed only after all conditions of the LOA have been fulfilled. The petitioner has confirmed the acceptance of the above conditions laid down in the communication dated 23.10.2018. The conditional LOA also incorporates the confirmation letter dated 30.10.2018 issued by the petitioner as a condition for award of LOA. The said communication, thus, has been made part of the conditional LOA. The petitioner has confirmed the acceptance of the above conditions laid down in the communication dated 23.10.2018. The conditional LOA also incorporates the confirmation letter dated 30.10.2018 issued by the petitioner as a condition for award of LOA. The said communication, thus, has been made part of the conditional LOA. It is, thus, evident that the Conditional LOA dated 15.12.2018 was issued on the confirmation given by the petitioner that it will not raise any claim for issuance of CMSA and no claim can be made by it with regard to the project till the CMSA was executed. The parties were, thus, clear that no claim or liability would arise with the award of Conditional Letter of Acceptance (LOA) for issuance of CMSA. It is admitted that none of the conditions mentioned in the conditional LOA were fulfilled and the stage of execution of CMSA did not arise. The bank guarantees furnished by the petitioner had expired in the year 2021. The respondent had surrendered the Coal Mine in the month of May, 2022. 38. It could, thus, be seen that as a second thought, the petitioner had initiated the proceeding invoking Clause 3.5 of the RFP document on the premise that they had incurred expenditure pursuant to issuance of conditional LOA, though it was accepted by it that the purpose to issue the conditional LOA was to start preliminary activities of the project. From the holistic reading of the Conditional LOA along with the documents/communications which are made part of the Conditional LOA, from the conduct of the parties, it is evident that the award of Conditional LOA did not confer any liability upon the GSECL. 39. As noted hereinabove, in view of the decision of the Apex Court in Bharat Sanchar Nigam Limited (supra), the clause containing arbitration clause in the general conditions of contract will apply only in regard to any contract awarded by the GSECL. As the respondent GSECL had not even expressed its intention to execute Coal Mining Services Agreement (CMSA) in favour of the petitioner by issuance of conditional LOA and it was clarified that the Letter of Acceptance cannot be issued unless the pre-conditions in the Conditional LOA are fulfilled, no concluded contract between the parties herein could be said to be in existence. 40. 40. We find substance in the submission of the learned counsel for the respondent GSECL that the petitioners have no claim or equity arising out of the Conditional Letter of Acceptance and the Arbitration Clause 3.5 in the RFP document cannot be invoked to make any reference to the arbitrator for the act of the respondent in surrendering the Coal Mine to the Ministry of Coal. No claim towards expenses incurred by the petitioner in extension of the bank guarantee can be realised from the respondent in view of the contents of the LOA and the communications between the parties, which are part of the same. 41. Applying the Eye of the Needle principle, to examine the claims of the petitioner at the pre-referral stage, within the limited scope of scrutiny, this Court finds that the claims of the petitioner are ex facie meritless, frivolous and dishonest. On a prima facie consideration of the claim of the petitioner without looking to any disputed question, it is evident that there does not exist an arbitration agreement, which can be said to come into being with the award of the conditional LOA dated 15.12.2018. The preliminary inquiry permissible within the scope of jurisdiction under Section 11(6) of the Act, 1996, is necessary and compelling, to protect the respondent from being forced to arbitrate when the dispute is demonstrably non-arbitrable as there is no concluded contract between the parties. 42. As held by the Apex Court in NTPC Ltd. (supra), it is the duty of the referral court to refuse reference in such cases in order to prevent wastage of public and private resources. Further, as noted by the Apex Court in NTPC Ltd. (supra) with reference to Vidya Drolia (supra), if this duty within the limited compass is not exercised and the Court becomes too reluctant to intervene, it may undermine the effectiveness of both the arbitration and the Court. The Court while exercising the jurisdiction under Section 11(6) of the Act, 1996 is not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen arbitrator. 43. With the above, we do not find any substance in the arguments of the learned Senior Counsel for the petitioner that mere reference to the RFP document in the conditional LOA would amount to incorporation of arbitration clause in clause 3.5 of the RFP document. 43. With the above, we do not find any substance in the arguments of the learned Senior Counsel for the petitioner that mere reference to the RFP document in the conditional LOA would amount to incorporation of arbitration clause in clause 3.5 of the RFP document. The contention of the learned Senior Counsel with regard to existence of arbitration clause and the non-arbitrability of the dispute, as resisted by the respondent, to refer to the arbitrator and that only the arbitrator can decide the existence of a concluded contract and the arbitration agreement, is liable to be turned down for the above discussion. Mere award of conditional LOA to the petitioner, that too on the assurance given by the petitioner that it will not press any claim against the respondent GSECL, would not give rise to any liability of the respondent by mere reference of the RFP document in the Conditional LOA. 44. The last submission of the learned counsel for the petitioner that the petitioner had been forced to write letter of confirmation dated 30.10.2018 and such Letters of Acceptance are being violative of Section 28 of the Indian Contract Act, is liable to be ignored, as it is too flimsy, inasmuch as, it could not be demonstrated by the petitioner that any contract could be entered into by the respondent without the approval granted by the concerned Ministry, as indicated in the conditional LOA. The petitioner knew and was well aware of the conditions for execution of CMSA and the necessary conditions to be fulfilled prior to the same. The confirmation letter dated 30.10.2018 has been issued by the petitioner with an open eye and, moreover, from the content of the Conditional LOA itself, it is clear that there was no contract and the petitioner was aware in the year 2018 itself that it cannot raise any dispute, in case, the contract (CMSA) is not awarded. Nothing could happen in furtherance of the Conditional LOA as no approval was granted by the concerned Ministry/Department. 45. For the above discussion, no merit is found in the claim of the petitioner to refer the matter to the Arbitrator to decide the purported dispute under the Conditional Letter of Acceptance dated 15.12.2018. 46. The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking for appointment of Arbitrator, therefore, stands rejected.