2024:BHC-OS:6233 jsn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION COMM ARBITRATION PETITION NO.342 OF 2020 Tema India Ltd. …Petitioner Versus Seok-am-Tech Co. Ltd. (also known as Satco) …Respondent ----------

Mr. Mustafa Doctor, Senior Counsel, Karl Shroff, K.R. Daviervala and Yazdi P Jijina i/b. Mulla and Mulla & Craigie Blunt and Caroe for the Petitioner.

Mr. Firoz Bharucha, Ziyad Madon, Mahek Kamdar, Karshil Shah and Hersh Choksi i/b. Kanga and Co. for the Respondent.

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CORAM :R.I. CHAGLA J.

DATE :10TH APRIL, 2024.

ORDER :

1. By this Arbitration Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short “the Arbitration Act”), impugned Award dated 18th October, 2019 has been challenged. By the impugned Award, the Petitioner has been directed to pay an amount of US$ 632,100 plus interest thereon @ 6% per annum from 1st January, 2015 till payment and / or realization.

2. The limited issue which arises in the Arbitration Petition and which was noticed by this Court vide Order dated 6th January, 2023 is the issue of limitation and accordingly this Court had directed that the Petition shall be heard at the stage of admission.

3. It is necessary to reproduce the certain material dates of events which are as under:-

(i) The Petitioner (buyer) on 15th September, 2008 placed a purchase order for forgings for US$ 1,360,000 with the Respondent (Seller);

(ii) The Petitioner (buyer) on 30th September, 2008 placed a further purchase order for forgings for US$ 735,280 with the Respondent (Seller);

(iii) On 14th January, 2009, the Petitioner paid US$ 1,150,460 for the above forgings leaving a balance of US$ 719,710;

(iv) The Petitioner further made payment of the US$19,801.55 on 5th February, 2010;

(v) The Petitioner further made part payment of US$

18,232.17 on 12th February, 2010;

(vi) After 12th February, 2019 and prior to 12th February, 2013, no other payments or acknowledgments of any kind were made / executed.

(vii) A meeting was held on 4th February, 2013 between the Petitioner and Respondent where there was a discussion regarding the issue of outstanding payment of US$ 719,710. It is necessary to note that there are no minutes of the meeting in writing.

(viii) On 12th February, 2013, according to the Petitioner limitation expired even if last payment of February, 2010 is considered;

(ix) The Petitioner addressed an email to the Respondent on

18th February, 2013 regarding the discussion which took place at the meeting on 4th February, 2013.

(x) Thereafter, in June, 2013 payment of US$77,610 was made by the Petitioner to the Respondent.

(xi) On 24th December, 2014, the Petitioner by email asked the Respondent to provide the Petitioner’s Auditor a balance confirmation.

(xii) The Respondent by the email dated 30th December, 2014 forwarded the balance outstanding according to it.

(xiii) On 9th and 20th January, 2015, it is the contention of the Respondent that the Petitioner made part payment of US$ 10,000. It is necessary to note that the Petitioner clarified in evidence of its witness Mr Anil Bhave (RW-1) that no payment / adjustment was made by the Petitioner.

(xiv) A winding up Petition was initiated by the Respondent against the Petitioner in August, 2014.

(xv) The Petitioner having contested said proceedings had consented with the Respondent on 26th September, 2017 to have the dispute referred to arbitration.

(xvi) The learned Arbitral Tribunal after adjudicating the dispute, rendered the impugned Award on 18th October, 2019. The entire claim of the Respondent was decreed with interest thereon on 6%

per annum from 1st January, 2015.

(xvii) In the application for stay on execution of the impugned Award, an Order dated 6th January, 2023 came to be passed granting a conditional stay on the impugned Award in favour of the Petitioner. The Petitioner informed this Court that it was restricting its challenged to the impugned Award on the issue of limitation. The findi