A prima facie arbitration agreement exists where an email and related documentation indicate acceptance of terms by the parties involved.

ORDER

% 08.02.2024

1. This is a petition seeking appointment of an Arbitral Tribunal to adjudicate the disputes between the parties.

2. As per Mr. Dutta, learned senior counsel for the petitioner, a Purchase Order dated 21.06.2021 bearing No. 4800019319 was executed between the parties for handling the transportation of coal from Kandla Port to Bhachau Plant and Bedi Port to Khambalia Plant (“Purchase Order”). The parties also executed the Standard Terms and Conditions for Transport Agreement to the Purchase Order (“Appendix”), (collectively referred to as “Contract”).

3. Since there were shortfalls in the amount which was contracted to be transported and the amount actually transported and since there were disputes, the petitioner invoked the Arbitration Clause.

4. The Arbitration Resolution clause is contained in Clause 10 of Annexure B of the Appendix, which reads as under:-

“10. ARBITRATION

10.1 Any dispute or difference whatsoever arising between the parties out of or relating to the interpretation, meaning, scope, operation or effect of this Agreement or the existence, validity, breach or anticipated breach thereof or determination and enforcement of respective rights, obligations and liabilities of the parties thereto shall be amicably settled by way of mediation. If the dispute is not conclusively settled within a period of twenty-one (21) days from the date of commencement of mediation or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the (Indian) Arbitration and Conciliation Act, 1996 (as amended from time to time), which are deemed to be incorporated by reference into this clause. The arbitration shall be conducted as follows:

(i) A sole arbitrator shall be appointed in case the value of claim under dispute is less than 5,000,000 (Rupees Five Million Only) / $ 100,000 (Hundred Thousand United States Dollars) and in any other event by a forum of three arbitrators with one arbitrator nominated by each Party and the presiding arbitrator selected by the nominated arbitrators.

(ii) The language of the mediation and arbitration proceedings shall be English. The seat of arbitration shall be [Local Jurisdiction in Goa / Local Jurisdiction Karnataka /Delhi], India.

(iii) The award made in pursuance thereof shall be final and binding on the parties.”

5. Mr. Pahwa, learned senior counsel for the respondent states that there is no arbitration agreement between the parties. He also states that the Purchase Order was never accepted by the respondent. Paragraph 7 of the reply affidavit in this regard is important and reads as under:- “7. It is submitted that a Purchase Order dated 21.06.2021 was issued by the Petitioner and sent through post to the Respondent. The contract was to commence from 21.06.2021 and end at 31.10.2021. That before the terms of the Purchase order could even be read, the Respondent had started the unloading/ handling and delivery process of the coal since the first vessel had already arrived in the said time period carrying the Petitioner's coal. The Purchase order carries the same terms and conditions as LOI. However, an arbitration clause came to be included under the head "Annexure-B Standard terms and conditions for Transport Agreement" as Clause 10.1. It is submitted that the purchase order is not signed bv the Respondent and the Respondent had never agreed to be bound bv any arbitration process. It is submitted that in the name of general terms and conditions, the Respondent is saddled with the responsibility of undergoing arbitration. However, the purchase order was never negotiated nor was it signed by the Respondent.”

6. He further states t