Al Jazeera Steel
Products Company SAOG Vs. MID India Power & Steel Ltd.
No.6 of 2009]
O R D E R
petition under Sections 11(5) and (9) of the Arbitration and Conciliation Act, 1996
read with paragraphs 2 and 3 of the appointment of the Arbitrators by the Chief
Justice of India Scheme, 1996 seeks appointment of an independent and impartial
person as an Arbitrator.
applicant is a Company incorporated in Oman having Registration No.1550438 and
having its registered office at Sohar Industrial Estate, PO Box 40, PC 327, Sohar,
Sultanate of Oman. The respondent is an Indian Company incorporated under the
provisions of the Companies Act, 1956 and having its registered office at Shanti
Heights, 32/2, South Tukoganj, 2nd Floor, Above Cosmos Bank, Indore 452001
applicant entered into a Sale Purchase Contract dated 18th June, 2008 bearing No.MIPSL/BILLET/EXP/08-09/003
(hereinafter referred to as the ‘Contract’) with the respondent for supply of
2000 metric ton Prime Alloy Steel Billets of specific chemical composition and physical
specifications more particularly described in Article 3 of the Contract. In
accordance with the terms and conditions of the Contract, the applicant had opened
a Letter of Credit bearing No. DC BAF 080939 through HSBC Bank Middle East
The Letter of Credit
was encashed by the respondent on 21st August, 2008 through its bankers, State
Bank of Travancore. On 23rd August, 2008, the applicant took delivery of first
shipment of 243.2 Metric Ton of Billets at Sohar Port. Upon unloading the containers,
the applicant noticed that far from complying with the specifications mentioned
in the Contract, the Billets supplied by the respondents were of a very poor quality.
The Billets had cracks which were visible to naked eyes. Even then, to confirm the
defects, the applicant chose some random Billets and sent the same to two independent
laboratories for testing. Both the laboratories, after conducting the requisite
tests, confirmed that the Billets supplied by the respondent did not comply with
the specifications mentioned in the Contract.
The applicant sent an
e-mail dated 31st August, 2008, informed the respondent about the
non-conformity and made it clear that the same were not acceptable. On the same
day, i.e., 31st August, 2008, another e-mail was sent setting out in detail the
defects in the Billets. It was also mentioned that the applicant had done random
cross verifications on chemical composition, and the respondents will be
intimated after getting results. It is further stated that the applicant has stopped
de-stuffing of containers, the respondent was requested to kindly arrange to
take back the rejected goods urgently and arrange for the refund of the amount paid
at the earliest. The applicant informed the respondent that all unloading, loading
and demurrage at Port and with the shipping company will be to your account.
respondent by its letter dated 1st September, 2008 stated that the complaint
has been noted and they were equally and greatly concerned. The applicant was informed
that the complaint was being accorded highest priority by the respondent that
they were investigating at their end the reasons for the same. The letter states
that it was never the intention of the respondent to send substandard material
to any of their esteemed customers. It notes that we understand your concern and
deeply regret the inconvenience caused to you. However, we would like to assure
you that we will sort out this problem to your entire satisfaction.
We wish to assure
that we believe in ethical business practices and strive hard for customer satisfaction.
The applicant was further informed that in order to ascertain the intensity of
the problem and discuss the various issues involved for an amicable resolution of
the same, it is planned to send a high level delegation to your site within the
next few days. In the meanwhile, the applicant was requested to carry out de-stuffing
of the containers and take delivery of lot 2, 3 and 4 as the same will
unnecessarily incur charges on account of detention and demurrage.
The applicant was once
again re- assured that the issue would be resolved to their entire satisfaction.
Pursuant to the aforesaid assurances, the respondent cleared the remaining
1234.63 MT of the Billets which, according to the applicant, were defective. On
10th September, 2008, there was a meeting between the representatives of the
applicant and the respondent. It was decided that the joint inspection would be
undertaken to have the sample analyzed from independent recognized laboratories
in Dubai on 13th September, 2008.
The joint inspection
was not arranged. The applicant issued several reminders informing the respondent
that the defective Billets stood rejected, and they were requested to remove the
same. Since the joint inspection was not carried out, the applicant got an
inspection conducted through one of the reputed firms in Dubai on 9th October, 2008.
The Expert, known as SGS Dubai, in its report dated 16th October, 2008
concluding that the lot is having lot of serious visual defects and that all
the analyzed samples were not complying with provided contractual specification.
All efforts and settlements having failed, the applicant invoked the
arbitration clause in terms of Article 10 of the Contract, through its notice dated
17th December, 2008.
reply was received from the respondent. The applicant, therefore, nominated the
Sole Arbitrator (Hon.Mr.Justice S.N.Variava, a former Judge of this Court). Since
the respondent did not reply to the aforesaid letter, the applicant was left
with no alternative but to move the present petition.
the reply, the respondent claimed that it was issued inspection certificates
dated 28th July, 2008 and 31st July, 2008 of quality and quantity by
Inspectorate Griffith India Pvt. Ltd., an independent third party inspection agency
of international repute, with respect to the goods that were to be dispatched
to the applicant as per the said Contract. The goods were duly accepted by the applicant.
The Letter of Credit had been opened by the applicant in accordance with
Article 5 of the Contract.
The applicant took
delivery of the first shipment on 27th August, 2008. It accepts that applicant had
sent e-mail dated 31st August, 2008 to the representative of the respondent alleging
that the Billets were defective and making the demands, as noticed earlier. The
respondent gave another version as to why the joint inspection was not carried
out. According to the respondents, all efforts to persuade the applicant had
failed. They had a cursory meeting with the CEO of the applicant which lasted two
minutes. The applicant insisted that the respondent lift the material and
refund the money.
The applicant, according
to the respondent, is arbitrarily calling upon the respondent to pay
warehousing charges @ US $ 20 per metric ton per day after 30th September, 2008.
The respondent claimed that the application is not maintainable in view of the
fact that the dispute sought to be referred to arbitration is not a dispute
arising out of contract but rather a dispute which has been deliberately planted
post the completion of the Contract to escape a liability that the applicant
has already incurred, i.e., payment of price for the goods supplied.
According to the respondents,
it is not a dispute in real sense but a moon shine dispute. Further it is a dispute
that has been raised after the Contract has been validly completed. The dispute
about the defective goods is a belated attempt by the applicant to evade its
liability under the Contract. The real reason for trying to avoid the Contract is
the downfall of the price in the international market of steel Billets.
applicant in its rejoinder has reiterated the averments made in the
application. It is stated that the inspection notes mentioned by the respondent
had come to the knowledge of the applicant only from the reply filed by the respondent
to the application. The applicant denies that the material supplied by the
respondent was in accordance with the specifications given in the Contract. It
is stated that the applicant has not tried to evade the liability under the
Contract. It is also denied that the Contract has become commercially unviable.
The applicant also denied that the respondent has made attempts to resolve the
issues raised by the applicant. The further details given by the applicant need
not be noticed at this stage.
have heard the learned counsel for the parties.
Viswanathan, learned senior counsel appearing for the applicant submits that
the matter herein is specifically covered by the judgment of this Court in SBP &
Co. Vs. Patel Engineering Ltd. & Anr. and National Insurance Company
Limited Vs. Boghara Polyfab Private Limited In reference to the arbitration clause,
Mr. Viswanathan submits that the disputes have arisen between the parties. The
disputes relate to live claims which are not belated. The disputes fall within the
scope and ambit of the arbitration clause which are worded very widely. The arbitration
clause clearly states that all disputes and differences whatsoever arising
between the buyer and seller out of or relative to the construction meaning and
operation of effect of this Contract or any breach thereof shall be settled by
counsel also relied on Nandan Biomatrix Limited Vs. D 1 Oils Limited and Visa
International Limited Vs. Continental Resources (USA) Limited and Reva Electric
Car Company Private Limited Vs. Green Mobil.
the other hand, counsel for the respondent submits that the petition is not
maintainable as the condition precedent for invoking arbitration, as agreed in
the agreement, has not been satisfied. Since there has been no joint inspection
of the material, no reliance can be placed on the expert reports submitted by the
applicant. In this case, it was agreed that the parties shall try to settle the
dispute amicably, which was a condition precedent for invoking the arbitration.
According to the learned counsel, in the present case, the applicant has not even
raised a proper claim, which can be referred to arbitration.
have considered the submission made by the learned counsel for the parties. I
am of the considered opinion that the applicant has clearly raised bonafide disputes
arising out of or relative to the construction of the contract which contains
the arbitration clause. Article 10 of the contract contemplates resolution of
disputes between the applicant and respondent through arbitration, as per the procedure
laid down under the Arbitration and Conciliation Act, 1996. The clause reads as
under:- All disputes and differences whatsoever arising between buyer and
seller out of or relative to the construction meaning and operation of effect
of this contract or any breach thereof, shall be settled amicably, failing
which it shall be settled as per the Indian Arbitration and Conciliation Act,
1996. The place of arbitration would be Mumbai, India the decision made by the
arbitration organization shall be taken as final and binding upon both parties.
The arbitration expenses shall be borne by the loosing party unless otherwise awarded
by the arbitration organizations.
bare perusal of the aforesaid clause is sufficient to indicate that it covers
all disputes and differences of any kind arising between the parties. The applicant
has clearly raised a number of issues, which can be summarized as follows:- (a)
Failure of the respondent to remove the defective Billets supplied by the respondent
and lying at applicant’s premises (b) Failure to remit the amount drawn by respondent
against the Letter of Credit (c) Failure to pay interests and costs incurred by
the applicant (d) Failure to pay warehousing charges @ USD 20 per Metric Ton per
day on and from 1st October, 2009 till the actual removal of defective Billets from
the premises of the applicant.
such circumstances, it can not be said that the applicant has failed to raise
bonafide dispute which cannot be referred to arbitration.
noticed earlier, the applicant through its e-mail dated 31st August, 2008 had informed
the respondent about defective material. In the second e-mail on the same date,
the applicant had set out the details in the Billets and informed the
respondent that it has stopped de-stuffing of containers. The respondent was
called upon to take back the rejected goods urgently and arrange to refund the amount
paid at the earliest.
In response to the aforesaid
e-mail, the respondent on 1st September, 2008 had indicated its concern and the
inconvenience caused to the applicant was deeply regretted. The applicant was
also assured that the problem would be sorted out to the entire satisfaction of
the applicant. Thereafter, the respondents have proposed a joint inspection, which
according to the applicant was never arranged. On the other hand, the respondent
claims that the applicant had rebuffed all the efforts made by the respondents
to resolve the issue. The applicant was intent on claiming the refund.
my opinion, the aforesaid facts and circumstances are sufficient to show that
the bonafide disputes have arisen between the parties, which are within the
scope and ambit of the arbitration clause and need to be resolved through arbitration.
I do not find any substance in the submission of the learned counsel for the
respondent that the disputes are either belated or raised only to avoid
liability under the contract. The disputes having arisen in September, 2008 and
the present application having been filed on 4th February, 2009, the petition
can not be said to be belated.
in view the facts and circumstances narrated above, the application is allowed.
All the disputes that have arisen between the parties are hereby referred to arbitration.
I hereby appoint Hon. Mr. Justice S.N. Variava, Former Judge of this Court, as
the Sole Arbitrator to adjudicate upon all the disputes and differences that have
arisen between the parties, on such terms and conditions as the learned Sole Arbitrator
deems fit and proper. Undoubtedly, the learned Sole Arbitrator shall decide all
the disputes arising between the parties without being influenced by any prima
facie opinion expressed in this order, with regard to the respective claims of the
registry is directed to communicate this order to the Sole Arbitrator to enable
him to enter upon the reference and decide the matter as expeditiously as
Arbitration Petition is accordingly disposed of.
[Surinder Singh Nijjar]