Vipin Sanghi, J.

C.M. No. 19921/2012 (exemption)

Exemption is allowed, subject to all just exceptions.

FAO(OS) No. 572/2012

1. The appellant by the present appeal seeks to assail the common order passed by the learned Single Judge in O.M.P. No. No. 389/2006 and 243/2008. The appellant- Cinergy Corporation PTE. Ltd. preferred a petition, being O.M.P. No. 389/2006, under Sections 47 and 48 of the Arbitration and Conciliation Act, 1996 (the Act) to seek enforcement of the Foreign First Tier Arbitration Award No. 3906 dated 11.04.2005 (the `First Tier Arbitration Award') and Arbitration Appeal Award No. 927 dated 16.11.2005 (the `Appellate Award') followed by the Final Foreign Arbitration Award dated 08.05. 2006 (the `Foreign Award') wherein the appellant sought to realize the amount awarded in its favour against the respondent - National Agricultural Co-operative Marketing Federation of India Limited (`NAFED'). Upon issuance of notice, in the said petition of the appellant, the respondent NAFED preferred objections under Section 48 of the Act, being O.M.P. No. 243/2008. By the impugned judgment, the learned Single Judge has allowed those objections of the respondent NAFED and concluded that there was no valid arbitration agreement subsisting between the parties within the meaning of Section 7 read with Section 47(1)(b) of the Act and, consequently, the First Tier Arbitration Award, the Appellate Award and the Foreign Award have been held to be not enforceable. The petition preferred by the appellant being O.M.P. No. 389/2006 has been dismissed with costs of Rs. 30,000/-.

2. It appears that on 16.09.2004, an email titled, "trade confirmation" was sent by one Global Commodities (M) SDN BHD (referred to as, "Global") to the appellant purporting to confirm that the trade mentioned therein had been concluded, wherein Global acted as the broker. This trade purported to show the appellant as the Seller, and NAFED as the buyer in respect of 6000 M.T. of crude palm oil in bulk at a price of US$ 440.00 PMT CIF Kandla, apart from the other terms. It stated that the payment is to be made by a `Letter of Credit' ("L/C") from 1st Class Indian Bank. This was followed by a message sent by one Earthtech Enterprises Ltd. (Earthtech) to Global on 18.09.2004 purporting to confirm the transaction aforesaid.

3. On the basis of the aforesaid communications, the appellant contended that a concluded contract had come into being between itself and the respondent as contained in these documents. The appellant claimed that it required the respondent to establish the L/C through message sent to Global. Global advised the appellant on 11.10.2004 that respondent required time up to 15.10.2004 to consider it taking up the shipment or to wash out the contract. The appellant claims that on 15.10.2004, it placed the respondent in default for non-performance. Thereafter, the appellant sought reference of disputes to arbitration under the Federation of Oils, Seeds and Fats Associations Limited (`FOSFA') Rules.

4. The respondent claimed that Earthtech entered into negotiations for purchase of crude palm oil from the appellant through their broker Global without, in any manner, involving NAFED. NAFED had no notice of so called trade confirmation of 16.09.2004 or Earthtech's reply to Global on 18.09.2004. The respondent claimed that it received notice dated 16.09.2004 only on 19.10.2004 alleging default on its part. The respondent also claimed that upon it getting in touch with Earthtech on 09.11.2004, Earthtech addressed a communication dated 09.11.2004, through its counsel Mr. Parvinder Khatra to the appellant stating that, on coming to know of the identity of the Director of Cinergy, Earthtech had immediately and forthwith cancelled the said trade confirmation dated 18.09.2004 as they were not comfortable in having trade relations with him because of his past antecedents. Earthtech further stated in this communication:

"5. That from the correspondence received from your bro