JUDGMENT

Rajiv Shakdher, J.

Preface

1. The captioned execution petition seeks enforcement of foreign award dated 12.3.2012 (hereafter referred to as `Final Award') and the cost of the reference awarded in favour of the decree holder i.e. Glencore International AG. (hereafter referred to as `Glencore') which was passed by the arbitral tribunal after the final award on 12.5.2015 (hereafter referred to as `Cost Award').

2. Notice in the execution petition was issued on 23.3.2015. The judgment debtor i.e. India Potash Ltd. (hereafter referred to as `IPL') entered appearance through its counsel on 29.4.2015. On that date, IPL was granted two weeks to file its objections to the award.

3. As would be evident, up until that stage, the cost award had not been rendered by the arbitral tribunal.

4. The record shows that on 22.5.2015, IPL's application i.e. EA(OS) No.523/2015 seeking an extension of time for filing objections was allowed by the Court. IPL was thus granted further three weeks from that date to file its objections in the matter. Glencore, on the other hand, was given two weeks to file its rejoinder thereafter. The application was disposed of in the aforesaid terms.

5. The record also shows that IPL filed an application i.e. EA(OS) No.709/2015 for issuance of directions to Glencore to file the complete arbitral record. On this application, notice was issued on 23.7.2015. The application was dismissed by the Joint Registrar (Judicial) on 25.8.2015. The Joint Registrar (Judicial) took the view that on earlier occasions time had been sought by IPL to file objections without adverting to the plea that in order to prefer objections the arbitral record was required. Furthermore, the Joint Registrar (Judicial) took the view, given the nature of the proceedings, that Glencore was not required to file the arbitral record and what was necessary to proceed in the matter was only a decree sheet which has been filed by Glencore.

6. As indicated at the very outset, the Cost Award came to be rendered by the arbitral tribunal post the pronouncement of the Final Award and due to this circumstance obtaining, Glencore moved an application i.e. EA(OS) No.870/2015 to bring on record the Cost Award dated 12.5.2015 passed by the Registrar, Singapore International Arbitration Centre (hereafter referred to as `SIAC'). Consequently, the application seeking amendment of the execution petition for bringing on record the Cost Award was allowed on 8.1.2016 and the amended execution petition was taken on record. As a result of this development, IPL was granted four weeks to file objections to the amended execution petition. The record shows that objections to the unamended petition were filed on 16.7.2015. However, though an opportunity was given, objections to the amended petition were not brought on record.

Backdrop

7. Given this preface, the following facts are required to be noticed to give the background as to how the captioned petition and the objections came to be filed. On 5.2.2010, Glencore executed an agreement with IPL (hereafter referred to as `Contract'). As per this agreement, IPL was required to deliver 40,000 Wet Metric Tonnes (WMT) iron ore. One of the conditions incorporated in the Contract was that the iron ore should have iron (hereafter referred to as `Fe') content equivalent to at least 61 percent and that if Fe content was below 60 percent, Glencore was to reject the cargo in terms of the penalty specifications obtaining in Schedule 1 of the contract obtaining between the parties.

8. Having executed the contract, Glencore entered into a sub-sale agreement with an entity by the name Hebei Tianxhu & Steel (Group) Co. Ltd. (in short `Hebei') on 16.3.2010 in the hope that it would receive iron ore from IPL having the specified Fe content. The base price at which Glencore had entered into a sub-sale agreement with Hebei was USD 129/DMT. Apparently, on the date when the cargo was shipped by IPL to Glencore, which was on 31