JUDGMENT :

Pradeep Nandrajog, J.

1. On 28th February 2008 an agreement was entered into between the appellants (A company incorporated under the Laws of Liberia and thereby outside the territorial jurisdiction of India) and the respondent, a Company incorporated in India. Under the agreement, the respondent, was to supply bunker fuel to the appellants’ vessel M.T. Antikeros at Mudra Port. On 5th March 2008 the respondent supplied the fuel. 12 days latter, on 17th March 2008 a dispute arose between the parties regarding the quantity and quality of the fuel supplied. On 3rd June 2008 the appellant raised a demand towards damages in sum of $1,040,400.00. The respondent denied liability vide reply dated 25th August 2008 and raised a Counter-Claim in sum of $90,325.00 towards the adjusted cost of the fuel which was offloaded in United Arab Emirates where the vessel was diverted. The agreement dated 28th February 2008 envisaged resolution of the dispute at Mumbai as per the Arbitration and Conciliation Act, 1996 (“Act”) before a Tribunal comprising three Arbitrators. One each to be nominated by the contracting parties and the 3rd to be appointed by the said two Arbitrators.

2. On 19th March 2009 the appellant invoked the arbitration clause and on 21st March 2009, with a view to save arbitration costs, proposed a sole Arbitrator. There was no response. On 13th May 2009 the appellant appointed Mr. R.S. Cooper as its Arbitrator and called upon the respondent to do likewise. The respondent failed to respond to appoint an Arbitrator. On 28th February 2011 the appellant filed Arbitration Application No. 57/2011 under Section 11 of the Act in this Court praying that the Arbitrator on behalf of the respondent be appointed. In spite of being served the respondent did not appear and thus on 21st April 2011 a learned Single Judge of this Court disposed of Arbitration Application No. 57/2011 and on behalf of respondent appointed Ms. J.K. Bhatt as an Arbitrator. Mr. R.S. Cooper and Ms. J.K. Bhatt appointed Mr. T.V. Shanbhag, the Presiding Arbitrator. The Arbitral Tribunal came to be constituted.

3. On 5th July 2012 the appellant filed its Statement of Claim before the Arbitral Tribunal. On 15th October 2012 the respondent filed an application before the Arbitral Tribunal seeking disclosure of documents by the appellant. On 23rd October 2012 the respondent filed its Statement of Defence and raised a Counter-Claim before the Arbitral Tribunal and while doing so raised no objection to the constitution of the Arbitral Tribunal or its jurisdiction to decide the disputes.

4. On 1st February 2013 the respondent filed an application before the Arbitral Tribunal challenging its jurisdiction on the plea that the appellant being a company incorporated outside India the High Court had no jurisdiction under Section 11 of the Act to appoint an Arbitrator because it was a case of an international commercial arbitration.

5. On 3rd July 2013 the Arbitral Tribunal rejected the respondent’s challenge to its jurisdiction holding that the Tribunal had been constituted by an order of this Court and if the respondent was aggrieved by the order dated 21st April 2011 passed in Arbitration Application No. 57/2011 it could have challenged the said order before an appropriate forum.

6. On 19th September 2013 the Arbitral Tribunal settled the issues which arose for determination. Parties proceeded to lead evidence, both oral and documentary.

7. Recording of evidence concluded on 26th April 2018. 13th, 14th, 20th and 21st July 2018 were the dates fixed by the Arbitrarily Tribunal for the parties to commence oral arguments which were rescheduled to 20th, 21st, 27th and 28th July 2018 as requested by the respondent. The appellant’s counsel commenced arguments on 20th July 2018 and continued on 21st July 2018. The appellant’s counsel concluded oral arguments on merits of the dispute on 27th July 2018, on which date respondent’s counsel opened his arguments challenging the jurisdiction