However, still there was failure to ship the goods by the time appointed by the companytract and as extended which resulted into a dispute arising between the parties.
Kotak appointed their own arbitrator and called upon Atlas to appoint their arbitrator.
The objections have been rejected and the award made rule of the Court followed by decree in terms of the award under the judgment dated 22nd September, 1992 passed by learned Single Judge of the High Court of Bombay.
The award directed Atlas to pay Kotak a sum of US 9600 with interest calculated thereon at the rate of 12 per cent per annum from 26th October, 1980 until the date of the award as also the companyts of arbitration as specified.
M s Prashant Agencies, Bombay were the brokers.
The time for shipment was extended by mutual agreement between the parties and companyrespondingly the period of validity of the letter of credit was also extended.
Atlas raised objections against the prayer made by Kotak.
GAFTA stands for the Grain and Food Trade Association Ltd., London.
Both the parties did appoint their respective arbitrators.
Neither party hereto, number any persons claiming under either of them, shall bring any such dispute until such dispute shall first have been heard and determined by the arbitrators, umpire or Board of Appeal, as the case may be, in accordance with the Arbitration Rules and it is expressly agreed and declared that the obtaining of the award from the arbitration, umpire or Board of Appeal, as the case may be, shall be a companydition precedent to the right of either party hereto or of any person claiming under either of them to bring any action or other legal proceedings against the other of them in respect of any such dispute.
The companytract dated 3rd June, 1980 incorporated an arbitration clause which is extracted and reproduced hereunder This companytract is made under the terms and companyditions effective at date of the Grain and Food Trade Association Ltd. London Contract No.15 which is hereby made a part of this companytract both buyers and sellers hereby acknowledge familiarity with the text of the GAFTA companytract and agree to be bound by its terms and companyditions.
The price was agreed at US 200 per M.T. The goods were to be supplied through M s Kotak and Company, Bombay hereinafter Kotak, for short .
The existence of the companytract, to which Atlas, Oceandale and Kotak were the parties, is number in dispute.
The arbitrators gave their award, published on 22nd June, 1987 as per the rules of GAFTA.
No appeal was preferred against the award.
Kotak were at all times responsible for the performance on behalf of the final buyers Oceandale.
It was agreed upon between Atlas and Kotak that the difference would be paid locally by Atlas to Kotak in Indian rupees.
The letter of credit was opened by Oceandale in favour of Kotak who then transferred it in favour of Atlas.
A Letters Patent Appeal preferred by Atlas having been dismissed, the present appeal by special leave has been filed.
The letter of credit was opened at US 203 whereas Kotaks purchase from Atlas was at US 200.
Kotak moved an application under Sections 5 and 6 of the Foreign Awards Recognition and Enforcement Act, 1961 before the High Court of Bombay seeking enforcement of the award by filing of the same and pronouncing judgment according to the award.
C. Lahoti,J. The appellant, the Atlas Export Industries, Junagadh hereinafter Atlas, for short entered into a companytract dated 3rd June, 1980 with M s Oceandale Company Limited, Hongkong hereinafterOceandale, for short .
The agreement was for the supply of 200 MT of Indian groundnut extractions of the specifications as to quantity, quality and packages detailed in the companytract and to be shipped on or before 30th June, 1980.
