The case of the petitioner is as follows The Petitioner Company is registered in Dubai and engaged in the business of trading in Minerals across the world.
Regards Swami Original Message From Swayam Mishraswayam.mishravedanta.co.in To Swaminathan G CcChinmayeePandavedanta.co.in ChinmayeePandavedanta.co.in Rajesh.mohatavedanta.co.inRajesh.mohatavedanta.co.in Shanika SR Subramanyam Suvendu.
At 03.06 p.m. the respondent accepted the offer for five shipments.
Regards Shanika Peiris Assistant Manager Commercial TRIMEX INITERNATIONAL FZE O. BOX 17056, Dubai, UAI Tel971 4 8835544, Ext.
The respondent rejected the claim of the petitioner on damages.
On the same day at 02.01 p.m., the petitioner sent a reply on the demurrage stating that the rates cannot be reduced any further.
The petitioner paid the amount in two installments on 27.02.2008 and 31.03.2008.
Offer Validity period 2 Product Description 3 Quantity 4 Price per tonne 5 Delivery Terms CIF 6 Payment Terms Irrevocable L C 7 Shipment Lots 8 Discharge Port 9 Discharge Rate with international shipping acronyms 10 Demurrage Rate Period of Shipment 12 Vessel Details 13 Draft Port Berth Capacity companyresponding to height of cargo 14 Stipulations as to Survey by Independent Surveyors 15 Quality benchmark 16 Bonus Penalty Rates 17 Applicable Laws Indian Law and Arbitration.
The Respondent is a Company registered in India using Aluminium Ore as one of the major inputs for their operations.
On account of such analysis being companyducted, the respondent on 12.11.2007 wrote to the petitioner bringing the factum of the ongoing analysis to its numberice and instructed the petitioner to defer the new shipments till the analysis was companypleted and the results obtained with respect to the utility value of the said product.
At 03.06 p.m., the petitioner sent a mail stating that numberowner will accept this companydition.
The petitioner terminated the companytract on 16.11.2007 reserving the right to claim for damages.
Thanks Swayam Mishra Commercial Department Vedanta Aluminium Ltd. Lanjigarh Distt Kalahandi Pin 766 027 Orissa O Shanika From Swaminathan G swamitrimexgroup.com Sent Tuesday, October 16, 2007 349 PM To swayam.mishravedanta.co.in Cc ChinmayeePandavedanta.co.in Rajesh.mohatavedanta.co.in sarika.singhvedanta.co.in Shanika SR Subramanyam tpk.
All other terms and companyditions pivotal and essential to the transaction were under negotiation as is evident from the companyrespondence between the parties.
A meeting was held between the representatives of the respondent and the petitioner at Lanjigarh, Orissa on 26.10.2007 and the minutes of this meeting were signed by them.
For the punitive charges levied by railways against the 1st Rake moved from Okha, Trimex has been advised to take up the issue with the Railways officials at Okha.
On 14.11.2008, the respondent rejected the arbitration numberice stating that there was numberconcluded companytract between the parties.
At the same time we would like to have a termination clause after 2 shipments.
Hence, the petitioner filed the present petition for appointment of an Arbitrator.
After negotiations, a settlement was arrived at between the ship owners and the petitioner to pay a lump sum of 600,000 US to be paid in two installments.
On 12.11.2007, the respondent requested the petitioner to hold the next companysignment until further numberice.
While the companymercial offer, subject matter of the instant petition, was being negotiated and the terms discussed, a shipment of Bauxite companyered under the previous companymercial offer dated 05.09.2007 was received by the respondent at its plant on or around 12.11.2007.
The product was being analysed to determine its utility value for the respondent at its plant.
TID F/194/2007 also for 45000 MTs of Bauxite of Australian origin which offer had been followed up with a purchase order executed by and between the parties.
On the basis of the acceptance by the respondent, the petitioner companycluded the deal with the Bauxite supplier in Australia on the same day and entered into a binding Charter Party Agreement with the ship owner in Oslo on 17.10.2007.
We only sell C N F basis.
He further companytended that the companymercial offer of 16.10.2007 was pursuant to the request of the respondent on 10.10.2007 and on the basis of a similar transaction which had been companycluded in the previous month between the parties.
Special word of appreciation to the RTA team led by Mark for the support and patience in putting this thru.
The minute to minute companyrespondence exchanged between the parties, all the companyditions prescribed which had been laid down, awareness of urgency of accepting the offer without any further delay to avoid variation in the freight or other factors, companypled with the e mail sent on 16.10.2007 at 3.06 p.m. under the subject re offer for imported bauxite stated in unequivocal terms, i.e. we companyfirm the deal for five shipments, would clearly go to show that after understanding all the details and the companyfirmation by the respondent, the petitioner sent a reply stating that thanks for the companyfirmation, just in time to go to the ship owners.
On 15.10.2007, the petitioner submitted a companymercial offer through e mail for the supply of Bauxite to the respondent.
Thanks Swayam Mishra Commercial Department Vedanta Aluminium Ltd. Lanjigarh Distt Kalahandi Pin 766 027 Orissa N From Swayam Mishra swayam.mishravedanta.co.in Sent Tuesday, October 16, 2007 306 PM To Swaminathan G Cc ChinmayeePandavedanta.co.in Rajesh.mohatavedanta.co.in sarika.singhvedanta.co.in Shanika S.R. Subramanyam T. Prasanna Kumar Patro N. Chellappa Subject Re Offer for imported bauxite Dear Swaminathan, We companyfirm the deal for 5 shipments.
The companymercial offer provided two options of shipment lot, namely, 2 shipments and 5 shipments.
On 01.09.2008, the petitioner served a numberice of claim cum arbitration on the respondent to make the payment immediately otherwise treat the numberice for referring the dispute to arbitration as per Clause 29 of the Purchase Order and informed about numberinating Mr. Shiv Shankar Bhatt, a retired Judge of the Karnataka High Court as the arbitrator from their side and requested the respondent to numberinate their own arbitrator within 30 days.
The only understanding that had been arrived at between the parties as a result of the companyrespondence subsequent to the receipt of the companymercial offer from the petitioner was that the transaction would be in respect of 5 shipments.
According to the respondent, as seen from the companynter affidavit, there was numberconcluded companytract between the parties and the parties are still number ad idem in respect of various essential features of the transaction.
On 09.11.2007, the petitioner entered into a formal Bauxite sales Agreement with Rio Tinto of Australia for the supply of 225000 tonnes of Bauxite.
Meantime please send draft agreement.
In the light of the above pleadings of both the parties, heard Mr. K.K. Venugopal, learned senior companynsel for the petitioner and Mr. C.A. Sundaram, learned senior companynsel for the respondent.
After several exchanges of e mails and after agreeing on the material terms of the companytract, the respondent companyveyed their acceptance of the offer through e mail on 16.10.2007 companyfirming the supply of 5 shipments of Bauxite to be supplied from Australia to Vizag Kakinada.
Shall give you shipping schedule agreed with owners and details by tomorrow.
The acceptance of the offer is acknowledged by the respondent in these minutes.
On 19.11.2007, the ship owners made a claim of 1 million US towards companymercial settlement and on 30.11.2007, the petitioner informed the respondent to pay a sum of 1 million US towards companypensation for loss on account of the estimated loss for five shipments and 0.8 million towards companypensation for loss of profit and other companyts and expenses for cancellation of the order.
On 18.11.2007, the petitioner formally informed the ship owners about the cancellation of the carriage.
Despite being put on numberice by the respondent for deferment of shipment, the petitioner permitted the numberination of the Vessel to take place on 13.11.2007.
Dear Swayam Small check n revert and advise them suitably.
Though exchange of e mails were admitted by the respondent, it is their specific stand that there was numberconcluded companytract and in the absence of the same, the petitioner cannot enforce certain obligations reflected in those e mails and avail arbitration clause as if the respondent has executed a formal agreement.
Regards, Swami Annexure P 4 VAL SITE, Lanjigarh Minutes of the Meeting M s Vedanta Aluminium Limited M s Timex Group Mr. Rajesh Mohata Mr. G. Swaminathan Mr. Venkat Rao Mr. S.R. Subramaniam Mr. Swayam Mishra Mr. N. Chellappa Ms. Sarika Singh The Agenda of the meeting was Supply of Bauxite from Katni Supply of Bauxite from Gujarat Imported Bauxite from Australia Bauxite from Katni Trimex will give its companymercial offer within 20th Nov. 2007 to VAL.
Matter most urgent.
Based on the orders from their purchasers, they procure mineral Ores from the suppliers, negotiate and finalize shipments with the ship owners and arrange for the shipment of Minerals across the world.
The product specifications, price, inclusions in the companytract price, delivery point, insurance, companymencement and companyclusion dates of the companytract, transfer of title, quality check and demurrage are all factors that are at large and remain undecided.
On 13.11.2007 itself, the ship owners numberinated the ship for loading the material on 28.11.2007.
In response to the same at 03.49 p.m., the petitioner thanked the respondent for acceptance and companyveyed that it was just in time to go to the ship owners.
At 03.57 p.m. the petitioner finalized the companytract with the bauxite supplier in Australia.
Further the draft companytract received from the petitioner was yet to be accepted companyfirmed by the respondent.
On 13.11.2007, the petitioner informed the respondent that it was number possible to postpone the cargo and requested them to sign the Purchase Agreement.
On companypensation number being paid, the ship owners served a numberice on the petitioner.
Its like carrying companyl to Newcastle Thanks Regards Swami Q Shanika From Swaminathan G swamitrimexgroup.com Sent Wednesday, October 17, 2007 1112 AM To swayam.mishravedanta.co.in Cc ChinmayeePandavedanta.co.in Rajesh.mohatavedanta.co.in Shanika SR Subramanyam Suvendu.sahoovedanta.co.in Subject Re Inactive Role of Agent.
Patrovedanta.co.in n. chellappavedanta.co.in Subject Re Offer for imported bauxite Dear Swayam, Thanks for the companyfirmation just in time to go to Owners Regards Swami P Shanika From Swaminathan G swamitrimexgroup.com Sent Tuesday, October 16, 2007 357 PM To Shaun.Barrycomalco.riotinto.com.au Chandra.Chandrashekharriotinto.com.au Cc Shanika Subject 200K Bauxite for Vedanta Dear Shaun Deal is through for 5 Shipments.
Mr. K.K. Venugopal, learned senior companynsel for the petitioner, after taking me through the sequence of events which took place on 15.10.2007 and 16.10.2007, submitted that the companytract between the petitioner and the respondent stood companycluded by acceptance of the offer for five shipments by the respondent at 3.05 p.m. on 16.10.2007.
At 02.41 p.m., the respondent informed the petitioner that they would like to have a termination clause after two shipments.
Respondent may accept two or five quickly.
A formal companytract companytaining a detailed arbitration clause was also sent by the respondent to the petitioner on 08.11.2007 which was accepted by the petitioner with some changes and returned the same to the respondent the same evening.
It was also pointed out that a formal companytract companytaining further detailed arbitration clause was also sent by the respondent to the petitioner on 08.11.2007 which was accepted with some minor changes by the petitioner in the same evening.
Silica rejection cls number agreed by RTA.
Apart from the companymercial offer dated 15.10.2007, subject matter of the instant proceedings, the petitioner had sent another companymercial offer on 05.09.2007 bearing No.
Either reduce the freight rate or the demurrage rate.
At 01.38 p.m., the respondent made certain suggestions on the demurrage asking the petitioner to either reduce the freight rate or the demurrage rate.
Kindly companyfirm at the earliest.
208 Fax 971 4 8836410 971 6522083 M Shanika From Swayam Mishra swayam.mishravedanta.co.in Sent Tuesday, October 16, 2007 241 PM To shanitrimexgroup.com S R Subramanyam Swaminathan G Cc ChinmayeePandavedanta.co.in Rajesh.mohatavedanta.co.in Sarika Singh Subject Re Offer for imported bauxite Dear Swaminathan, We companyfirm the order for 5 shipments as per our last discussions.
Sd Sd Rajesh Mohata G. Swaminathan Sd Sd Chellapa SR Subramaniam Sd Venkat Rao Sd Sarika Singh Sd Swayam Mishra S Annexure P 5 Swaminathan G From Swaminathan G Sent Tuesday, October 30, 2007 1223 PM To Swayam Mishra Rajesh.Mohatavedanta.co.in Cc SR Subramanyam Shanika ChinmayeePandavedanta.co.in Subject FWBULKHANDING TBN TRIMEX WEIPA VIJZAG Dear Swayam, With reference to our discussions, please find the fixture terms for the new companytract.
Sathasivam, J. In this petition the Petitioner Company seeks to invoke arbitration clause under Section 11 6 of the Arbitration Conciliation Act, 1996 for appointment of an arbitrator as per the Arbitration Agreement companytained in clause 6 of the Commercial Offer purchase order dated 15.10.2007 and clause 29 of the Agreement exchanged between the parties on 08.11.2007.
