Enforcement of foreign arbitral awards requires a valid arbitration agreement, which necessitates a concluded contract; absence of such contracts renders the awards unenforceable under public policy.

COMMON ORDER

The above execution petitions have been filed under Sections 47 to 49 of the Arbitration and Conciliation Act, 1996 (for short, the Act) read with Order XXI Rule 46 of the Civil Procedure Code (CPC) for recognition and enforcement of two foreign arbitral awards both dated 04.2.2021 and for a declaration that the same should be deemed to be the decrees of this Court.

2. Heard both.

3. The facts leading to filing of these execution petitions are as follows:

(i) In E.P.No.68 of 2021, the petitioner/award holder and the respondent/award debtor had a long standing business relationship for the sale of crude palm oil and refined, bleached and deodorised palm olein from Indonesia/Malaysia to India. Earlier, the parties had concluded around 89 transactions between 2017 and 2019. On 07.1.2020, the agent of the respondent-one Mr.Ramamoorthy Ramakrishna informed the petitioner that M/s.YENTOP would need 8,000 MT RBD Olein in the same laycan 10 to 20 every month. The Marketing Executive and the Director of the respondent were privy to the said communication and they also participated in the negotiations that ensued.

(ii) Thereafter, on 13.1.2020, the agent of the respondent sent a communication to the petitioner requiring them to confirm as to whether they would be able to provide 8,000 MT crude palm oil between 15.3.2020 and 25.3.2020. The petitioner confirmed the same. As a consequence, the petitioner and the respondent entered into a contract dated 13.1.2020 for the sale of 4,000 MT crude palm oil from Indonesia to India at USD 779 per MT.

(iii) On 16.1.2020, the agent of the respondent sent two confirmation notes to the petitioner confirming 2,000 MTs and 6,000 MTs separately. Accordingly, on 20.1.2020, the petitioner sent two frame contracts respectively for 2,000 MTs and 6,000 MTs of cargo to the respondent. These agreements also contained an arbitration clause. On 28.1.2020, it was agreed between the parties that the purchase price could be fixed at USD 779 per MT for the cargo. On 11.2.2020, the agent of the respondent wrote to the petitioner asking for the details of the vessel and the possible laycan for the shipment. The respondent also informed the petitioner that they would be covering the insurance themselves and asked for the frame contracts to be amended to reflect the same.

(iv) As per the contract, the letter of credit was to be issued by the respondent/buyer before the vessel's arrival at the load port. Therefore, the respondent was required to issue a letter of credit at the time of receipt of the vessel's nomination and in any event, by not later than three days before the estimated time of arrival of the vessel at the port of discharge.

(v) Accordingly, the petitioner nominated the vessel 'Yue You 902' to deliver the cargo to Tuticorin and the same was communicated to the agent of the respondent vide e-mail dated 21.2.2020. The petitioner requested the respondent to open a letter of credit covering 100% of the contract value immediately upon receipt of the vessel nomination. But, the respondent failed to open any letter of credit nor responded to the e-mail dated 21.2.2020.

(vi) On 27.2.2020, the agent of the respondent wrote to the petitioner asking for the quantity of cargo to be split equally between the two frame contracts. The respective respondent also asked for the name of the buyer for EO/S/00257/20 to be changed from M/s.Manickavel Edible Oils Private Limited (respondent in E.P.No.68 of 2021) to M/s.Yentop Manickam Edible Oils Private Limited (respondent in E.P.No.69 of 2021).

(vii) According to the petitioner,