To invoke the arbitration clause and make it operational, there must be a
concluded contract between the parties as envisaged under Section 7 of the
Contract Act, 1872, this remarkable stand was forwarded by Odisha HC in the writ
appeal case of Forum Projects Private Limited, Kolkata v. Berhampur
[ARBA No.38 OF 2019], chaired by Justice K.R.
Mohapatra, who dismissed the arbitration appeal, thereby disposing off the case
and consequently the.
The brief summary of the relevant facts necessary for proper adjudication of
this appeal are that pursuant to a ‘Request for Proposal’ (RFP) by the
Respondent for development of Integrated Commercial – cum – Residential Complex
in Berhampur, the Appellant had participated in the bid and became the highest
bidder having quoted an amount of Rs.9.40 crore.
The project was decided to be undertaken on a Public Private Partnership (PPP)
basis. Upon compliance of initial formalities and deposit of 25% of the bid
amount, i.e., Rs.2.35 crore, the Respondent-BDA issued Letter of Intent (LOI) on
16.06.2008 in favour of the Appellant-Company requesting the Appellant to
deposit the balance contractual bid amount within a period of 180 days and to
execute the agreement.
But, the Appellant could not deposit the balance contractual bid amount of
Rs.7.05 crore within a stipulated period of 180 days. Hence, the LOI issued in
favour of the Appellant was cancelled vide Order No.250/BeDA Berhampur dated
03.03.2015. Assailing the same, the Appellant filed W.P.(C) No.8653 of 2015
before this Court. This Court by order dated 11.05.2015, while issuing notice in
the matter, passed the following interim order. However, the Appellant could not
deposit the said amount. Subsequently, the Appellant moved learned District
Judge, Berhampur in Arbitration Case No.04 of 2018 under Section 9 of the
This appeal under Section 37 of the Arbitration Conciliation Act, 1996 (for
short, the Arbitration Act’) has been filed against the order dated 18.10.2019
passed by learned District Judge, Ganjam, Berhampur in Arbitration Petition No.4
of 2018, whereby he dismissed a petition filed by the present Appellant-Company
under Section 9 of the Arbitration Act, holding it to be not maintainable.
After examining all the submissions, arguments and evidences forwarded by the
councils, the Hon’ble HC opined that:
…As has been discussed earlier there is no concluded contract between the
parties. Thus, the Appellant could not have invoked the jurisdiction of learned
District Judge under Section 9 of the Arbitration Act, more particularly when an
interim protection in respect of the lis has already been granted by this Court
in W.P.(C) No.8653 of 2015.
In lieu of the above made considerations and observations, Justice Mohapatra in
this present case dismissed the arbitration appeal stating that:
learned District Judge has committed no error in holding the petition under
Section 9 of the Arbitration Act not maintainable. Accordingly, this appeal
being devoid of any 13 merit stands dismissed, but in the circumstances there
shall be no order as to costs.
Written By: Prime Legal Law Firm
Off Address: 39/2, 2nd floor, K G Road, Bengaluru, Karnataka-560001
Phone no: +9986386002, Email: [email protected]