' MUHAMMAD AKHTAR SHABBIR, J.--- This petition for leave to appeal is directed against the judgment dated 26-2-2002 passed by the Lahore High Court, Lahore in F.A.O. No,308 of 1999.
2. The facts giving rise to the present petition are to the effect that the Privatization Commission/respondent No,1 had put to auction "Malam Jabba Resort Limited" on 20-8-1996. The petitioner participated in the bid and was the highest bidder. The Commission had issued him Letter of Intent bearing No,7(6)B.K.G-PC-94 dated 10-9-1996. Later on, the petitioner came to know that the Privatization Commission was not inclined to extend liquor licence as agreed between the parties, which substantially reduced the usefulness of the project. The petitioner filed an application under sections 8 and 20 of the Arbitration Act, 1940, before Civil Judge, Islamabad, for appointment of Arbitrator in view of the arbitration clause in the instructions to the bidder. This application had been contested by the respondent and was dismissed by the Court on 29-6-1999.
The said order has been assailed by the petitioner before the High Court through F.A.O. No,308 of 1999, which was dismissed by a learned Judge in Chambers of the Lahore High Court, vide the impugned judgment.
3. Learned counsel for the petitioner contended that the learned Judge in Chambers has erred in law in not considering the definition of `arbitration agreement' provided in section 2(a) of the Arbitration Act, 1940; that the letter of intent issued by the respondent shall be presumed a written agreement; that the learned Judge has also failed to consider the law declared by this Court in Mst. Shamim Akhtar v. Najma Baqai and 3 others PLD 1977 SC 644, which says that a written agreement as envisaged in section 2(a) of the Act, means any writing, whether it be correspondence, directly embodying the agreement to refer differences to arbitration; that the petitioner has accepted the offer/letter of intent, issued by the respondent and deposited the first instalment; that the learned Judge has also erred in law while treating the 'instructions to bidders' as a mere proposal enabling the highest bidder to know as to what shall be the terms and conditions of the agreement whereas the intent of clause (13) of the instructions to bidders coupled with the acceptance of bid was an enforceable agreement. The learned counsel placed reliance on Messrs Progressive Constructions Ltd. v. Bharat Hydro Power Corporation Ltd. AIR 1996 Delhi 92 and Messrs M.A. Khan and Co. Through Sole Proprietor Muhammad Ali Khan v. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. Through its Principal Officer/Secretary Karachi 2006 SCM R 721.
4. While, on the other hand, the learned counsel for the respondent contended that no written agreement has been signed by the parties and the matter cannot be referred to the arbitrator; that the petitioner by withdrawing the amount of first instalment deposited by him, has rescinded the letter of intent and presently no agreement was existing between the parties.
5. We have heard the arguments of the learned counsel for the parties, perused the record of the case. The arbitration agreement had been defined in section 2(a) of the Arbitration Act, 1940, which reads as under:--- "arbitration agreement" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not."
' The dispute arose when the Commission/respondent, as agreed between the parties, had declined to extend liquor license of the resort, which has substantially reduced the usefulness of the project. The question that boils down for determination by this Court is whether there was an arbitration agreement between the parties and the matter under the said agreement could be referred to the Arbitrator?
6. The learned counsel for the petitioner has made the 'letter of intent' and the 'Instructions to bidders' basis of his arguments. He has drawn our attention to paragraph/clause No,13 of the 'Instructions to bidders' which are available at pages 63-64 of the paper book (hereinafter referred to as the former document). He submitted that this document was part of the 'letter of intent' issued by the Commission/respondent to the petitioner, accepting his highest bid. We do not find any original 'letter of intent' on the record. There is a letter dated 12-11-1997 issued by the Commission/respondent, the subject of which is "letter of Intent (LOl) of Malam Jabba Resort Ltd.," paragraph No,1 whereof is re-produced as under:- "Kindly refer to the LOI issued to you by this Commission dated September 10, 1996 in respect of the above-mentioned Company, whereafter certain disputes arose between yourselves and Mr. Sarfraz Bhatti, the other co-bidder."
' It would mean that this letter is not the original letter of intent rather it is only the continuation letter of the letter of intent already issued. Paragraph No,4 of this letter indicates the consent of the petitioner to obtain the liquor permit from the Government of N.-W.F.P which for the sake of convenience is re-produced hereunder:--- "(4) The third instalment of Rs,7.00 million being 14% of the sale price and Bank Guarantee for the balance 60% thereof shall accordingly be made/submitted by you within 16 days of the payment of the second instalment and 30 days of acceptance of the terms and conditions of this letter respectively. Kindly also note that as agreed by you, you shall be responsible for obtaining a liquor permit from the Government of N.-W.F.P ."
' This letter shows that there was no undertaking by the respondent to get extended the liquor license for the petitioner, but it was the responsibility of the petitioner to obtain the same from the Government of N.-W.F.P. We cannot say 'whether there was any such clause in letter of intent dated 10-9-1996 as the said original letter has not been placed on record by the petitioner. There is another document appearing at pages 67 to 72 of the paper book (hereinafter referred to as the latter document) with the heading "instructions to bidders", from the plain reading whereof, we do not find any arbitration clause in it Now there are two documents viz. The former (pages 63 to 64) and the latter with the heading of "instructions to bidders" (pages 67-72). Both the documents are invitations of tenders from the individuals, groups, firms, Companies and Corporations in the private sector, both local and foreign, to submit bids for the purchase of shares/net assets of State-owned Enterprise namely `Malam Jabba Resort Ltd." The former document being without signatures or date is incomplete. From minute scrutiny of the former document, it reveals that two pages are not the pages of one document rather they are part of different documents. While the latter, in the end, shows the date as 7-9-1995, for opening of bids containing 16.3 clause,. Clause 13 of the former document indicates the arbitration clause for referring the matter to the Secretary Finance Division, Government of Pakistan in case of any difference or dispute arising out of the agreement but this clause is not available in the latter document. Both the documents with heading of 'Instructions to Bidders" relate to invitation of bids for purchase of the 'Resort'. The question arises whether the instructions and invitation of tenders is an agreement between the parties. It has been laid down by this Court in the case of Messrs M.A. Khan and Co. (supra), 2006 SCM R 721, referred by the learned counsel for the petitioner, that tender notice is only an invitation which is extended for making offer and it is not an offer or proposal and similarly the offer made by a person without acceptance does not create any promise or agreement but acceptance of an offer or proposal by the person who called for tender would constitute an agreement, and acceptance of the offer may be express or implied or it can be gathered from the conduct of the parties and the circumstances of the case.
7. The letter of intent issued on 10-9-1996 accepting the bid of the petitioner was accepted by the petitioner, and as per the learned counsel for the petitioner, first instalment thereof has been deposited. Dispute arose for obtaining the liquor permit and the petitioner did not deposit other instalments, and for non-compliance of the terms and conditions of the auction, the petitioner's contract was cancelled by the respondent. After the acceptance of petitioner's bid by the respondent no written agreement has been executed and signed and in the letter dated 12-11-1997, there is no mention of arbitration clause. As observed by this Court in the case of Messrs M.A. Khan and Co., (supra) 2006 SCM R 721, the instructions to bidders is mere a notice of tender and the same cannot be termed as an agreement containing the arbitration clause. As laid down in case of Messrs Progressive Constructions Ltd, (supra) AIR 1996 Delhi 92, if a bid is accepted, the letter of acceptance issued, and formal agreement is not signed, the correspondence letters would sufficiently constitute the contract. Be that as it may, the petitioner has failed to establish any such agreement which contained the arbitration clause. The argument of the petitioner that 'instructions to bidders' contained the -arbitration clause, would not mean to be an agreement between the parties, as such, no arbitrator could be appointed for the resolution of the dispute merely on the basis of 'invitation notice' and that too prior to the period of execution of the agreement.
8. Even otherwise, the original letter of intent has been issued to the petitioner on 10-9-1996, who deposited the first installment, but as per the Instructions to the bidders, no further installment of the project had been deposited by the petitioner. As stated by the learned counsel for the respondent, the petitioner has withdrawn the first installment, which would mean that the petitioner himself has rescinded the contract, so it is proved that the agreement had bilaterally been cancelled. As the petitioner was dissatisfied for non-extension of the liquor permit of the resort, therefore, it did not deposit the subsequent installment, and has not bothered to refer the matter to the arbitration through the Court till 3-1-1998, when it filed the application under sections 8 and 20 of the Arbitration Act, 1940 i,e, after about 14 months of the letter of acceptance issued to the petitioner by the respondent. The letter of intent issued to the petitioner on 9-10-1996 contained certain conditions which the petitioner was bound to fulfill before the final agreement could be executed between the parties and the petitioner failed to do so, therefore, the letter of intent issued by the respondent on 10-9-1996 had been withdrawn vide letter dated 24-1-1998, cancelling the contract of the 'Malam Jabba Resort' but the said letter has not been challenged anywhere by the petitioner which would mean that the petitioner has impliedly admitted the cancellation of the contract. In view of the above, we do not find any illegality, infirmity in the impugned judgment.
9. For the foregoing reasons, this petition being devoid of any substance is dismissed and leave to appeal refused.