Important Point—Specific relief can be granted in respect of contract for non-performance of which compensation in money is an adequate relief.

R.D. DHANUKA, J.

1. By this petition filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the said Act”) the petitioner has impugned the order dated 17th December 2015 passed by the arbitral tribunal in the application filed under Section 17 of the said Act thereby granting various interim measures in favour of the respondent (original claimant) i.e. (i) directing the petitioner to allow the respondent to export upto 300 TMT of naphtha for the duration of the contract subject to the respondent submitting its annual plan/quarterly plan/monthly plan as required from time to time within 15 days from the date of the order to enable the petitioner to accommodate the requirement of the respondent; (ii) granting liberty to the petitioner if berths are available to provide additional export purely within the discretion of the petitioner; (iii) temporary injunction in terms of prayer clauses (a) and (b) of the application under Section 17 is granted subject to the directions issued in clauses (i) and (ii) aforesaid for the duration of the contract and/or the arbitral proceedings if they are disposed of before the term of the contract comes to an end and (iv) the petitioner is directed by a temporary injunction to provide port clearance in terms of the plan submitted by the respondent and approved by the petitioner pending the hearing and final disposal of the arbitral proceedings or the end of the contractual period, whichever is earlier. The petitioner herein is the original respondent whereas the respondent herein is the original claimant in the arbitral proceedings. Some of the relevant facts for the purpose of deciding this arbitration petition are as under.

2. It is the case of the petitioner that the petitioner was constructing Port Terminal facilities at Dahej, Village-Lakhigam, District Bharuch. The petitioner was also constructing tanks for handling, storing and exporting/importing various chemical products including petroleum products while setting up the entire Port Terminal.

3. On or about 15th December 2006, the respondent approached the petitioner for obtaining four dedicated tanks at the said Port Terminal for storage and export of naphtha (white oil) from the said Port Terminal. The parties accordingly executed an Agreement termed as “Terminalling Service Agreement” on various terms and conditions recorded therein. The tenure of the said document was for five years which could be extended by the parties on the terms to be agreed upon mutually. The respondent agreed to construct a pipeline from its refinery at Koyali to the Port Terminal at Dahej. The petitioner agreed to construct four dedicated tanks for storage of naphtha which was to be pumped by the respondent through its pipeline from refinery of the respondent to the said storage tanks.

4. It was agreed that the said naphtha stored in the dedicated tanks would be exported from the said Dahej Port Terminal to various places by using jetty and other facilities at the said Port Terminal at Dahej. The respondent agreed to provide in advance its annual plan and thereafter, quarterly and monthly plan of handling (export) of naphtha to enable the petitioner to plan jetty utilisation. The respondent agreed to pay consideration under the said agreement to the petitioner only on the basis of the quantity of actual export (throughput) of naphtha handled and not on the basis of storage of naphtha. In those four dedicated tanks, the respondent commenced activity under the said agreement from 2007 onwards and exported naphtha from the port of the petitioner.

5. On 9th March 2012, the negotiations were held between the parties and by Amendment/ Extension of Agreement, the parties renewed the period of agreement for a further period of five years from 29th December 2011 till 28th December 2016 on the revised terms and conditions set out therein. Under the said amended agreement, it was provided that the petitioner shall provid