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1984 Supreme(SC) 217

Supreme Court Of India
Decided On : (August 16, 1984)
RENUSAGAR POWER COMPANY LIMITED
Versus
GENERAL ELECTRIC COMPANY

Advocates:
referred to : Government of Gibraltar v. Kenney
Heyman v. Darwins Ltd.
Dhanrajamal Gobindram v. Shamji Kalidas and Co., AIR 1961 SC 1285
Khardah Company Ltd. v. Raymon and Co., AIR 1962 SC 1810
Willesford v. Watson
Jawahar Lal Burman v. Union of India, AIR 1962 SC 378
Balabux Agarwalla v. Sree Lachminarain Jute Mfg. Co. Ltd.
Waverly Jute Mills Co. Ltd. v. Raymon and Co., AIR 1963 SC 90
relied on : Astro Vencedor, Compania Naviera SA of Panama v. Mabanaft GmbH
Union of India v. Salween Timber Construction (India), AIR 1969 SC 488
Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar, AIR 1952 SC 119
approved : C.I.T. v. Kameshwar Singh
Keshav Mills Co. Ltd. v. C.I.T.
distinguished : C.I.T. v. Ogale Glass Works Ltd., AIR 1954 SC 429
H.P. Gupta v. Hiralal, 1970 1 SCC 437
referred to : Radha Bihari Diwan Singh v. G.B. Alexander
Dhiraj Lal Ram Prasad v. Sir Jacob Behrens and Sons
Vasanji Navji and Co. v. K.P.C. Spinners
relied on : Russell on Arbitration
approved : Woolf v. Collis Removal Service
Alliance Jute Mills Co. Ltd. v. Lalchand Dharamchand
relied on : Union of India v. Salween Timber Construction (India), AIR 1969 SC 488
Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar, AIR 1952 SC 119
distinguished : Monro v. Bognor Urban District council
Ghewarchand Rampuria v. Shiva Jute Bailing Ltd.
referred to : Russell on Arbitration, Treatise of New York Convention
Shiva Jute Bailing Ltd. v. Hindley and Co. Ltd., AIR 1959 SC 1357
R.N. Ganekar and Co. v. Hindustan Wires Ltd., 1974 1 SCC 309
V/O Tractoro-export v. Tarapore and Co., 1969 3 SCC 562
approved : Dalmia Dairy Industries Ltd. v. National Bank of Pakistan
Vallabh Pitti v. Narsinghdas Govindram Kalani
Brown v. Oesterreichischer Waldbesitzer R. GmbH
Luanda Exportadora v. Tamari and Sons
Pannallal Sagoremull v. Fatey Chand Muralidhar
Fertilizer Corporation of India v. Chemical Construction Corporation
relied on : Jawahar Lal Burman v. Union of India, 1962 3 SCR 769
Heyman v. Darwins Ltd.
Willesford v. Watson
Reliable Water Supply Service of India v. Union of India, 1972 4 SCC 168
explained : Anderson Wright Ltd. v. Moran and Co., AIR 1955 SC 53
approved : Bhagwandas v. Atmasing
Modem Buildings Wales Ltd. v. Limmer and Trinidad Co. Ltd.
referred to : Khusiram v. Hantumal Boid
Attorney-General for Manitoba v. Kelly
Dalmia Dairy Industries Ltd. v. National Bank of Pakistan
Backer Auto Radio case
Municipal Board v. Eastern U.P. Electric Supply Co. Ltd.
Jagan Nath Phool Chand v. Union of India
R. Prince and Co. v. governor-General in council
Vallabh Pitti v. Narsingdas Govindram Kalani
Strauss and Co. v. Raghubar Dayal

Headnote:

Foreign Awards Act, 1961 - Section 3 - Arbitration Act, 1940 - Section 33 - Companies Act, 1956 - Recognition and Enforcement - Whether under S 3 of Act, 1961, having regard to its scope, a suit in nature of petition under S. 33 of Arbitration Act, 1940 could be stayed? If so, whether the first respondents have made out a case for staying appellants Suit Whether the three claims referred by the first respondents to the court of Arbitration of the second respondents are 687 beyond scope of Arbitration Clause being Article XVII contained in the contract dated 24/08/1964 or they are "arising out of or related to" said contract - Appellant, Renusagar Power Company Limited are a company incorporated under Companies Act, 1956 having their registered office at Renukoot, in Uttar Pradesh - First respondents. General Electric Company are a company incorporated under the laws of the State of New York and carry on their business inter alia at 570, Lexington Avenue, New York - Second respondents are International Chamber of Commerce (Court of Arbitration) having their registered office in Paris, France - Held, Courts view, and this distinction is neither valid nor relevant to the question under consideration. Not valid because the only issue which the suit raised was whether there was binding arbitration agreement between the parties or not and an adverse decision thereon in a S. 34 application would have had effect of disposing of the suit for all practical purposes, the consequential relief automatically falling to the ground along with such adverse decision. Not relevant because the question of (sic at) issue is whether a S. 34 application is proper stage for deciding such issue though it may have the effect of the issue becoming resjudicata in the suit. What is of significance is that the decision of this court does show that notwithstanding the fact that a finding on the issue that the respondent was a party to the contracts would have operated as resjudicata in the respondents suit, the court directed that issue to be decided in a S. 34 petition for stay – Order accordingly

( 27 ) TURNING to aspect (b) which is really the crux of the matter on merits, we shall have to ascertain the precise nature of the three claims in order to determine whether they fall within the Arbitration Clause which uses expressions of the widest possible amplitude and content. While narrating the chronological events in the earlier part of our Judgment we have indicated what these three claims are and how they have arisen. The three claims are: (a) 2. 1 million U. S. dollars being the Unpaid Regular Interest, (b) U. S. $7,84,151. 84 being the Delinquent Interest and (c) 4. 1 million U. S. dollars being the Compensatory Damages. As explained earlier the first claim represents the quantum of 73% of the regular interest which was wrongly deducted and wrongly withheld and retained by Renusagar from 1970 onwards allegedly for payment of income-tax not withstanding the Delhi High court's judgment in effect retrospectively restoring the tax exemption granted in favour of G. E. C. ; the second claim. represents interest claimed by G. E. C. on account of the delay that occurred in the payment of four instalments of purchase price together with interest on their due dates as per the original Schedule of Payment, while the third claim is by way of compensation for illegally and wrongfully retaining and enjoying the use of the first two funds by Renusagar and depriving G. E. C. the use thereof for 12 long years. Whereas Renusagar has contended that none of these claims falls within the purview of the Arbitration Clause G. E. C. has claimed that all of them do within the wide language of that clause.

( 28 ) AS regards the first two claims counsel for Renusagar have pointed out that admittedly the first claim substantially (approx. 80%) and the second claim entirely are for interest due after 30/06/1967 (i. e. after thirtieth month from the Contract Effective Date) and according to counsel since the underlying commercial contract (IGE-9584) for supply and sale of goods and services contains no obligation to pay any interest after 30/06/1967 and since only the promissory notes provide for payment of such interest after 30/06/1967, these two claims do not "arise out of" the contract. nor are they "in relation thereto" but arise under the promissory notes and hence fall outside the scope of Arbitration Clause. Counsel further urged that the promissory notes executed by Renusagar were in complete discharge of obligation to pay price and interest thereon under the contract and since these notes constitute independent and separate contracts by themselves the liability arising thereunder cannot he regarded as any arising out of the contract or in relation thereto and in this behalf strong reliance was placed by counsel on the fact that in its notice of intention to arbitrate G. E. C. has described these claims as arising "under the promissory notes". Counsel pointed out that Article III of the contract provides for payment of the total purchaseprice in three modes, the third mode being by executing promissory notes and urged that since the requisite promissory notes were executed by Renusagar these notes must be regarded as having been executed in the complete discharge and satisfaction of the obligation under the contract and that the sole obligation which survives since after the execution of the notes is the one which arises under the notes. In support of this contention counsel relied upon two decisions of this court, namely (1) Ogle Glass Works Ltd. case where the posting of cheques by a purchaser by way of remitting the bills payable to the seller was held to amount to payment (that is, in discharge of the obligation to pay the price for goods purchased) and (2) H. P. Gupta v. Hiralal where the posting of a dividend - warrant (cheque) by a company at Delhi for dispatching it to a shareholder at his registered address (which was Meerut) as per Article 132 of the Articles of Association was deemed as payment to the shareholder in dischar



























































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