2010 Supreme(SC) 98

SUPREME COURT OF INDIA
P Sathasivam
TRIMEX INTERNATIONAL FZE LTD., DUBAI - PETITIONERS
v.
VEDANTA ALUMINIUM LTD., INDIA - RESPONDENTS.
Arbitration Petition No. 10 of 2009
Decided on : January 22, 2010.

Headnote:

Indian Contract Act, 1872 - Section 4 - Arbitration & Conciliation Act, 1996 - Section 11(6) - Claim for damages - Appointment Arbitrator - petitioner submitted a commercial offer through e-mail for the supply of Bauxite to respondent - After several exchanges of e-mails and after agreeing on material terms of contract respondent conveyed their acceptance of offer through e-mail confirming supply shipments Bauxite to supplied from Australia Vizag/Kakinada - On basis of the acceptance by respondent petitioner concluded deal with Bauxite supplier in Australia on same day and entered into binding Charter Party Agreement with ship owner in Oslo - A meeting was between representatives of respondent and petitioner Lanjigarh Orissa and minutes of this meeting were signed them acceptance offer acknowledged respondent in these minutes - A formal contract containing a detailed arbitration clause was also sent by respondent to petitioner which was accepted by the petitioner with some changes and returned same to respondent the same evening petitioner entered into formal Bauxite sales Agreement with Rio Tinto Australia for supply tonnes of Bauxite - On respondent requested the petitioner to hold next consignment until further notice - Petitioner informed respondent that was not possible to postpone cargo and requested them sign Purchase Agreement - Itself ship owners nominated ship for loading material petitioner terminated contract reserving the right claim for damages –Held, Court Dresser Rand S.A - (supra) rejected contention that acceptance of modification General Conditions would not constitute conclusion of the contract itself - On other hand present case after suggested modifications had crystallized over several emails - Further in para Dresser Rand S.A. (supra) this Court held that parties agreeing upon terms subject which contract will be governed when made not same as entering into the contract itself whereas in case on hand moment commercial offer was accepted by respondent contract came into existence - Though in of Dresser Rand S.A. (supra) is recorded that neither Letter of Intent nor General Conditions contained any arbitration agreement case on hand arbitration agreement is found in clause Commercial Offer case was entered into on next Certain minor modifications could go on from either side on mutual agreement but in absence of any further modification originally agreed terms CoA are binding on both parties - Till agreement is actually signed by both parties term draft is used - This does not mean that terms are not binding as between Petitioner and Shipowners - Further according to him existence Charter Party various international shipping practices etc - which are to be pleaded in detail before Arbitral Tribunal once it constituted and not before Court since this means extensive quoting of shipping laws and decided cases which cannot done in the present arbitration petition above submissions cannot be under estimated position and conclusion based on acceptable documents Court hold that petitioner has made out case for appointment an Arbitrator in accordance with Clause Purchase Order subsequent materials exchanged between parties - Inasmuch as in respect earlier contract between same parties former Judge Court is adjudicating same as an Arbitrator at Mumbai is but proper and convenient for both parties have assistance of same Honble Judge - Accordingly former Judge this Court is appointed as an Arbitrator to resolve the dispute between parties - It made clear this Court has not expressed anything on merits of the claim made by both parties and whatever conclusion arrived at is confined to appointment of an Arbitrator - It is further made clear that it is for the Arbitrator to decide issue on merits after affording adequate opportunity both parties - In terms of Arbitration clause place Arbitration is fixed Mumbai - Arbitrator at liberty fix his remuneration and other expenses which shall borne equally by both parties - Petition allowed