Pradeep Nandrajog, J.

1. AMCI Australia Pty Ltd. (AMCI), a company incorporated in Australia and owning coal mines entered into Agreement No.217/2007 dated April 23, 2007 with Steel Authority of India Ltd. (SAIL) for sale of One Million Metric Ton of Hard Coking Coal as per specifications contained in the agreement. The company was later on re-named CVRD Australia Pty Ltd. after the CVRD Group acquired the shares of AMCI Holding Australia Pty Ltd. and is currently known as VALE Australia Pty Ltd. Since under the agreement, AMCI Australia Pty Ltd. was acting both as the coal producer and the seller and as a result of name being changed upon shareholding of the Holding company’s changing VALE Australia Pty Ltd. become the producer and AMCI Pty Ltd. the seller of the coal.

2. The litigation has been jointly fought by the two companies for the reason the rights and liabilities of the two entities are joint as per a supplementary agreement dated June 07, 2007.

3. As per the agreement, One Million Metric Ton of coal had to be supplied during the delivery period July 2007 to June 2008. The coal had to be of the specification as in clause 1.1 read with Annexure-II and II-A of the agreement. As per clause 1.2 of the agreement the shipment had to be evenly spread during the delivery period with right in SAIL to postpone deliveries by up to three months. As per clause 2.1 the price fixed was US$ 96.45 per Metric Ton (free on board). The port of loading had to be one of the Australian ports listed in clause 2.1. As per clause 2.2, by mutual consent the parties could extend the time for delivery of the coal.

4. As per clause 7.1 the period of delivery was expressly stated to be of the essence of the agreement and as per clause 8.1 if supply was not made within the agreed time SAIL had the right to seek liquidated damages at a sum equivalent to 1% of the price of the coal; but subject to a maximum of 10%.

5. Since much was debated on clause 9.1, on the subject of DEFAULT AND RISK PURCHASE, we note the same. It reads:-“9.1 If the SELLER in any manner or otherwise neglects or fails to perform the Agreement, the PURCHASER after having come to know of such negligence or non-performance after giving a notice shall take such action as it considers fit including taking risk purchase action for supply of similar MATERIALS at the risk and cost of the SELLER.”

6. Clause 10.1 empowered SAIL to require the supplier to remedy breach of any provision of the agreement within a reasonable period and if no remedial action was taken to terminate the agreement and as per clause 12 the parties could foreclose the contract. As per clause

17.1 it was mandated that ‘no change in respect of the terms covered by this agreement shall be valid unless the same is agreed to in writing by the parties hereto specifically stating the same as an amendment to this agreement.’As per clause 21 the governing law of the contract had to be the law in India. Disputes, as per clause 20.1, had to be settled under the Rules of Arbitration of the International Chambers of Commerce, Paris by a Sole Arbitrator.

7. As per the agreement, at mutually agreed rates and quantities, the parties agreed to enter into similar agreement for two more years.

8. On June 07, 2007 the agreement dated April 23, 2007 was amended in view of the acquisition of M/s.AMCI Australia Pty Ltd. by CVRD Australia Pty Ltd.; the amendment being to note and record that for the purposes of the agreement dated April 23, 2007 M/s.AMCI Australia Pty Ltd. would be treated as the seller and M/s.CVRD Australia Pty Ltd. as the producer and that the rights and liabilities of the two would be joint.

9. As noted, the delivery period had to commence on July 2007. But before that, on May 18, 2007 AMCI Pty Ltd. informed SAIL by e-mail its inability to supply any coal in the months of July, October and November. Reason stated was the undergoing expansion facilities at the Dalrymple Bay Coal Terminal from where the coal