BALASORE ALLOYS LIMITED versus MEDIMA LLC on 16 September 2020

SUPREME COURT REPORTS

[2020] 6 S.C.R.

ABALASORE ALLOYS LIMITED

v.

MEDIMA LLC

(Arbitration Petition (Civil) No. 15/2020)

BSEPTEMBER 16, 2020

[S. A. BOBDE, CJI, A. S. BOPANNA ANDV. RAMASUBRAMANIAN, JJ.]

Arbitration and Conciliation Act, 1996:

Cs.11 – Application under – Seeking appointment of solearbitrator – Sustainability of – 37 Purchase Orders placed byrespondent in favour of applicant – Parties also entered intoagreement dated 31.03.2018 relating to same transaction –Application for appointment of arbitrator by applicant relying onClause 7 of the 37 Purchase Orders – Plea of respondent that entireDtransaction was governed by agreement dated 31.03.2018 whichwas an ‘Umbrella Agreement’ and as per Clause 23 thereof, ArbitralTribunal had already been constituted by International Chamberof Commerce (ICC) – Held: In view of the nature of dispute that hasbeen raised by the applicant with regard to the price and terms ofEpayment including recovery etc., the parties would be governed byClause 23 of the agreement dated 31.03.2018 and not by Clause 7of Purchase Orders – Therefore, Special leave Petition as regardsthe applicant’s grievance against Constitution of Arbitral Tribunalby ICC is also not liable to be entertained.

FDismissing the Arbitration Application and the SpecialLeave Petition, the Court

HELD:

Arbitration Petition (Civil) No. 15 of 2020:

G1. Since the transaction entered into between the partiesand the dispute having arisen not being in dispute; furtherarbitration Clause 7 of the 37 separate purchase orders beingexplicit; in a normal circumstance no other consideration wouldhave been necessary in the limited scope for consideration in anapplication under Section 11 of the Act, 1996. However, in theH

present case the fact remains that undisputedly an Agreementdated 31.03.2018 is also entered into between the parties relatingto the very same transaction which is referred to as the “UmbrellaAgreement” by the respondent and as “Pricing Agreement” bythe applicant. The said agreement also makes provision forresolution of disputes through arbitration in the manner asindicated therein. [Para 7][1042-G-H; 1043-A]

2. A perusal of the documents reveals that in the presentcase the applicant had not initiated the process of invoking thearbitration clause. On the other hand a notice dated 13.03.2020(Annexure A-41) was issued on behalf of the respondent by itsattorney to the applicant referring to the breach of the agreementdated 31.03.2018 (Umbrella agreement/Pricing agreement) andas per the procedure provided under Clause-23 of the saidagreement an opportunity was provided to amicably resolve thematter; failing which it was indicated that the respondent wouldapproach the International Chamber of Commerce (ICC) in 30days. It is in reply to the said notice dated 13.03.2020 issued bythe Respondent on 13.04.2020, the applicant herein disputed theclaim put forth by the respondent under the Agreement dated31.03.2018 referring to it as the Pricing Agreement. Further, theapplicant thereafter referred to the nature of their claim andthereon proceeded to indicate that the constitution of the ArbitralTribunal and conduct of arbitration proceeding shall be inaccordance with Clause-7 of the contract terms forming part ofand governing all individual contracts. [Para 9][1045-C-F]

3. In the above backdrop, when both, the purchase orderas also the Pricing Agreement subsists and both the saiddocuments contain the arbitration clauses which are not similarto one another, in order to determine the nature of the arbitralproceedings the said two documents will have to be read inharmony or reconciled so as to take note of the nature of thedispute that had arisen between the parties which would requireresolution through arbitration and thereafter arrive at theconclusion as to whether the instant application filed under Section11 of the Act, 1996 would be sustainable so as to appoint anarbitrator by invoking Clause-7 of the purchase order; more AB

C

DE

F

G

H

Aparticularly in a situation where the Arbitral Tribunal has alreadybeen constituted in terms of Clause-23 of the agreement dated31.03.2018. [Para 10][1045-G-H; 1046-A]

4. A close perusal of Paras 6, 7, 8 and 9 of the reply by theapplicants dated 13.4.2020 would indicate that the reference madeBby the applicant with regard to the price and the terms of thepayment governing individual contracts is with reference to thePricing Agreement which in fact is the Agreement dated31.03.2018. In that context, the terms 5, 8, 9 and 10 of the PricingAgreement would indicate that it provides for the mechanismrelating to purchases and sales; final price, payment of provisionalCprice and adjustment of advance, determination of the final saleprice and monthly accounting and payment. On taking note ofthe same, a perusal of the contract terms in the purchase orderrelied upon by the applicant does not provide for suchdetermination of pricing except the purchase order referring to Dthe price of the quantity ordered for and the special terms relatingto provisional price etc. Therefore, in that circumstance thenature of dispute raised by the applicant themselves in the replynotice dated 13.04.2020 will indicate that those aspects are to bedetermined in terms of the provisions contained in the Agreementdated 31.03.2018 which resultantly will be relevant for paymentEto be made under each of the purchase order. Therefore, even ifdisputes are raised relating to the contract terms, the pricing,deductions etc. will relate to the main agreement and the ArbitralTribunal constituted thereunder can go into other issues if anyarises under the contract terms of the individual purchase orderFas well. [Para 12][1047-C-F]

5. It is not correct to say that the Pricing Agreement dated31.03.2018 cannot be deemed to have applied to the earlierpurchase orders, as the transaction in fact had commenced as farback as on 08.08.2017 and 21 purchase orders were placed up toG30.03.2018 i.e. prior to 31.03.2018 i.e. the date on which thePricing Agreement was executed. Clause-20(a) of the Agreementdated 31.03.2018 provides that the Agreement shall commenceon 31.03.2017 and end on 31.03.2021. This clearly indicates thatit was the intention of the parties that the terms contained in theAgreement would govern all transactions, including those whichH

had commenced from 08.08.2017. Further it is noticed that theparties were earlier governed by an Agreement dated 19.06.2017which was for a fixed quantity of 2000 MT of the produce whilethe present agreement, according to the parties was on a longterm basis fixing the time period for which it was valid and theindividual purchase orders will have to be taken note for thespecific quantity ordered for under each of the transactions, theprice of which was to be ultimately determined as provided underthe Pricing Agreement. [Para 13][1047-G-H; 1048-A-C]

6. Thus, when admittedly the parties had entered into theagreement dated 31.03.2018 and there was consensus ad-idemto the terms and conditions contained therein which iscomprehensive and encompassing all terms of the transactionand such agreement also contains an arbitration clause which isdifferent from the arbitration clause provided in the purchaseorder which is for the limited purpose of supply of the producewith more specific details which arises out of Agreement dated31.03.2018; the arbitration clause contained in Clause-23 in themain agreement dated 31.03.2018 would govern the partiesinsofar as the present nature of dispute that has been raised bythem with regard to the price and the terms of payment includingrecovery etc. In that view, it would not be appropriate for theapplicant to invoke Clause-7 of the purchase orders moreparticularly when the arbitration clause contained in theAgreement dated 31.03.2018 has been invoked and the ArbitralTribunal has already been appointed on 22.06.2020. [Para14][1048-D-F]

Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan& Ors. (1999) 5 SCC 651 : [1999] 3 SCR 490 – relied on.

SLP (C) NO. 10264 OF 2020:

7. The petitioner claiming to be aggrieved by theconstitution of the Arbitral Tribunal under the Agreement dated31.03.2018, has filed the suit seeking a decree of declarationthat the arbitration clause-23 of the Pricing Agreement dated31.03.2018 is null and void and in that context has sought for theancillary relief in the suit. In the said suit the petitioner has moved AB

C

D

E

F

G

H

Athe ‘Notice of Motion’ seeking for an interlocutory order ofinjunction against the Arbitral Tribunal constituted by the ICC.The prayer for interim order has been rejected and the ‘Noticeof Motion’ has been dismissed. The appeal to the Division Benchhas been admitted for consideration though the plea for grant ofinterim order was declined. There is no reason to interfere withBthe same, more particularly keeping in view conclusion on thesame subject matter while addressing the rival contentions inthe Arbitration Application No.15/2020. [Paras 15-16][1049-A-D]

Case Law ReferenceC[1999] 3 SCR 490relied on relied onPara 8

CIVIL ORIGINAL/APPELLATE JURISDICTION: ArbitrationPetition (Civil) No. 15 of 2020.

Application under Section 11(6) read with section 11(12)(a) ofDthe Arbitration and Conciliation Act, 1996.

With

Special Leave Petition (Civil) No. 10264 of 2020

Maninder Singh, S. N. Mookherjee, Ritin Rai, Sr. Advs., GautamEMitra, Gaurav Mitra, Ms. Anusha Nagarajan, Rishad Medora, PrabhasBajaj, Mrs. Pragya Baghel, Shaunak Mitra, Ms. Nandini Khaitan, RajatJariwal, Anupinder Jassal, Ms. Shreya Singh, Aakash Bajaj, SanjeevKumar, Advs. for the appearing parties.

The following Judgment of the Court was delivered:

F

JUDGMENT

1. The Applicant - Balasore Alloys Limited is before this Court inthis petition filed under Section 11(6) read with Seciton 11(12)(a) of theArbitration and Conciliation Act, 1996 (‘Act, 1996’ for short) prayingthat a sole arbitrator be appointed to adjudicate upon all disputes thatGhave arisen between the parties in connection with the 37 purchaseorders referred to in the application. Alternatively, it is prayed that thesecond arbitrator be appointed on account of the failure of the respondent– Medima LLC to nominate an arbitrator in terms of the contracts.

2. The applicant is a manufacturer of High Carbon Ferro Chrome.HThe applicant and the respondent accordingly, entered into transactionswhereby the applicant agreed to supply the High Carbon Ferro Chrome

manufactured by them to the respondent for sale of the same in theterritory of USA and Canada. Initially an Agreement dated 19.06.2017limited to the sale of 2000 MT was entered into. Pursuant to suchtransaction 37 purchase orders were placed by the respondent in favourof the applicant specifying details of the supply to be made under eachof the purchase orders. The parties had also entered into an Agreementdated 31.03.2018 relating to the same transaction whereunder certainterms as enumerated therein were agreed upon. In respect of the saidtransactions certain disputes have arisen between the parties which isrequired to be resolved through arbitration.

3. The applicant, therefore, while seeking for appointment of anarbitrator to resolve such disputes has sought to rely on Clause-7 in thesaid 37 purchase orders providing for resolution of disputes througharbitration by the Arbitral Tribunal to be constituted as provided therein.Since according to the applicant, the respondent had failed to appointtheir arbitrator, despite the petitioner having nominated Mr. JusticeAmitava Lala, Retired High Court Judge, the applicant is before thisCourt seeking the appointment of an arbitrator.

4. The respondent, on being notified in this petition has enteredappearance and filed its detailed counter affidavit. The nature oftransaction entered into between the parties is not disputed. The factthat certain arbitrable disputes have arisen between the parties is alsonot controverted. However, it is the case of the respondent that theentire transaction is governed under the Agreement dated 31.03.2018which is referred to by the respondent as an “Umbrella Agreement”. Itis their further case that the said agreement dated 31.03.2018 vide Clause-23 thereof provides for resolution of disputes through arbitration in themanner as indicated therein and as such the respondent had alreadyinvoked the same by issue of notice. Further, as per the procedurecontemplated in Clause-23 the respondent had filed a petition before theInternational Chamber of Commerce (‘ICC’ for short) and the ArbitralTribunal has been duly constituted. The respondent, therefore, contendsthat the instant application filed by the applicant seeking appointment ofthe Arbitral Tribunal in terms of Clause-7 of the purchase order is notbonafide; the application is liable to be dismissed. The applicant has filedthe rejoinder to the counter affidavit filed on behalf of the respondentwhereby the contentions put forth by the respondent is sought to bedisputed and the averments in the application are reiterated.

AB

CD

E

F

G

H

A5. In the above background, we have heard Shri Maninder Singh,learned senior counsel for the applicant, Shri S.N. Mookherjee and ShriRitin Rai, learned senior counsel for the respondent and perused theapplication papers.

6. Having taken note of the averments contained in the pleadingBand the contentions urged by the learned senior counsel for the respectiveparties,it is evident that the parties having entered into a businesstransaction; certain disputes have arisen between them which is to beresolved through arbitration. To that extent the parties are also inagreement.The issue for consideration however, is with regard to theappropriate clause that will operate providing for arbitration and will beCapplicable in the factual matrix herein. Since the applicant is before thisCourt invoking the arbitration clause in the purchase order (37 separatepurchase orders), it is necessary to take note of the arbitration clauserelied upon, which reads as hereunder:

“7. ARBITRATION:Disputes and differences arising out of or inDconnection with or relating to the interpretation or implementationof this contract/order shall be referred to the Arbitral Tribunalconsisting of 3 Arbitrators of which each party shall appoint oneArbitrator, and the two appointed Arbitrators shall appoint the thirdArbitrator who shall act as the Presiding Arbitrator as per theEprovisions of the Arbitration and Conciliation Act, 1996 and anymodification or re-enactment thereto. The venue of the arbitrationproceedings shall be at Kolkata and language of the arbitrationshall be English. The arbitration award shall be final and bindingupon the parties and the parties agree to be bound thereby and toact accordingly. When any dispute has been referred to arbitration,Fexcept for the matters in dispute, the parties shall continue toexercise their remaining respective rights and fulfil their remainingrespective obligations.”

7. Since the transaction entered into between the parties and thedispute having arisen not being in dispute; further the above extractedGarbitration clause being explicit;in a normal circumstance no otherconsideration would have been necessary in the limited scope forconsideration in an application under Section 11 of the Act, 1996.However, in the case on hand the fact remains that undisputedly anAgreement dated 31.03.2018 is also entered into between the partiesHrelating to the very same transaction which is referred to as the “Umbrella Agreement” by the respondent and as “Pricing Agreement” by theapplicant. The said agreement also makes provision for resolution ofdisputes through arbitration in the manner as indicated therein. It wouldbe appropriate to take note of the arbitration clause which reads ashereunder:

“23. GOVERNING LAW; DISPUTES

This Agreement shall be governed by and construed in accordancewith the laws of the United Kingdom. Any claim, controversy ordispute arising out of or in connection with this Agreement or theperformance hereof, after a thirty calendar day period to enablethe parties to resolve such dispute in good faith, shall be submittedto arbitration conducted in the English language in the UnitedKingdom in accordance with the Rules of Arbitration of theInternational Chamber of Commerce by 3 (Three) arbitratorsappointed in accordance with the said Rules, to be conducted inthe English language in London in accordance with British Law.Judgment on the award may be entered and enforced in any courthaving jurisdiction over the party against whom enforcement issought.”

8. At this stage, it is necessary for us to refer to the decisionrendered in the case of Olympus Superstructures Pvt. Ltd. vs. MeenaVijay Khetan & Ors. (1999) 5 SCC 651 wherein this Court wasconfronted with the issue of there being two different arbitration clausesin two related agreements between the same parties. This Court whiledealing with the same had harmonised both the clauses and had onreconciliation held that the parties should get the disputes resolved underthe main agreement. In that context it was held as hereunder: - “30. If there is a situation where there are disputes and differencesin connection with the main agreement and also disputes in regardto “other matters” “connected” with the subject-matter of themain agreement then in such a situation, in our view, we aregoverned by the general arbitration clause 39 of the mainagreement under which disputes under the main agreement anddisputes connected therewith can be referred to the same arbitraltribunal. This clause 39 no doubt does not refer to any namedarbitrators. So far as clause 5 of the Interior Design Agreement isconcerned, it refers to disputes and differences arising from that A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

agreement which can be referred to named arbitrators and thesaid clause 5, in our opinion, comes into play only in a situationwhere there are no disputes and differences in relation to themain agreement and the disputes and differences are solelyconfined to the Interior Design Agreement. That, in our view, isthe true intention of the parties and that is the only way by whichthe general arbitration provision in clause 39 of the main agreementand the arbitration provision for a named arbitrator contained inclause 5 of the Interior Design Agreement can be harmonised orreconciled. Therefore, in a case like the present where the disputesand differences cover the main agreement as well as the InteriorDesign Agreement, - (that there are disputes arising under themain agreement and the Interior Design Agreement is not indispute) – it is the general arbitration clause 39 in the mainagreement that governs because the questions arise also in regardto disputes relating to the overlapping items in the schedule to themain agreement and the Interior Design Agreement, as detailedearlier. There cannot be conflicting awards in regard to itemswhich overlap in the two agreements. Such a situation was nevercontemplated by the parties. The intention of the parties whenthey incorporated clause 39 in the main agreement and clause 5in the Interior Design Agreement was that the former clause wasto apply to situations when there were disputes arising under bothagreements and the latter was to apply to a situation where therewere no disputes or differences arising under the main contractbut the disputes and differences were confined only to the InteriorDesign Agreement. A case containing two agreements witharbitration clauses arose before this Court in Agarwal Engg. Co.v. Technoimpex Hungarian Machine Industries Foreign Trade Co.There were arbitration clauses in two contracts, one for sale oftwo machines to the appellant and the other appointing the appellantas sales representative. On the facts of the case, it was held thatboth the clauses operated separately and this conclusion was basedon the specific clause in the sale contract that it was the “solerepository” of the sale transaction of the two machines. KrishnaIyer, J. held that if that were so, then there was no jurisdiction fortravelling beyond the sale contract. The language of the otheragreement appointing the appellant as sales representative wasprospective and related to a sales agency and “later purchases”, other than the purchases of these two machines. There wastherefore no overlapping. The case before us and the above caseexemplify contrary situations. In one case the disputes areconnected and in the other they are distinct and not connected.Thus, in the present case, clause 39 of the main agreement applies.Points 1 and 2 are decided accordingly in favour of therespondents.”

9. Having taken note of the arbitration clause existing in twodifferent set of documents between the same parties relating to the sametransaction; in order to harmonise or reconcile and arrive at a conclusionas to which of the clauses would be relevant in the instant facts; it wouldbe necessary for us to refer to the manner in which the arbitration clausewas invoked and the nature of the dispute that was sought by the partiesto be resolved through arbitration. In that regard a perusal of thedocuments will reveal that in the case on hand the applicant had notinitiated the process of invoking the arbitration clause. On the other handa notice dated 13.03.2020 (Annexure A-41) was issued on behalf of therespondent by its attorney to the applicant referring to the breach of theagreement dated 31.03.2018 (Umbrella agreement/Pricing agreement)and as per the procedure provided under Clause-23 of the said agreementan opportunity was provided to amicably resolve the matter; failing whichit was indicated that the respondent would approach the InternationalChamber of Commerce (ICC) in 30 days. It is in reply to the said noticedated 13.03.2020 issued by the Respondent on 13.04.2020, the applicantherein disputed the claim put forth by the respondent under the Agreementdated 31.03.2018 referring to it as the Pricing Agreement. Further, theapplicant thereafter referred to the nature of their claim and thereonproceeded to indicate that the constitution of the Arbitral Tribunal andconduct of arbitration proceeding shall be in accordance with Clause-7of the contract terms forming part of and governing all individualcontracts.

10. In the above backdrop, when both, the purchase order as alsothe Pricing Agreement subsists and both the said documents contain thearbitration clauses which are not similar to one another, in order todetermine the nature of the arbitral proceedings the said two documentswill have to be read in harmony or reconciled so as to take note of thenature of the dispute that had arisen between the parties which wouldrequire resolution through arbitration and thereafter arrive at the AB

C

D

E

F

G

H

Aconclusion as to whether the instant application filed under Section 11 ofthe Act, 1996 would be sustainable so as to appoint an arbitrator byinvoking Clause-7 of the purchase order; more particularly in a situationwhere the Arbitral Tribunal has already been constituted in terms ofClause-23 of the agreement dated 31.03.2018.

B11. To determine this aspect, apart from the fact that the respondentwas the first to invoke the arbitration clause with reference to theAgreement dated 31.03.2018, it is noticed that in the reply dated13.04.2020 issued by the applicant it is in the nature of invocation of thearbitration clause by the applicant. It would be appropriate to take noteof the contents in paras 6, 7, 8 and 9 thereof which is the crux of theCdispute that would require resolution through arbitration and reads ashereunder:

“6. Under the Pricing Agreement, which contains the price andterms of payment governing individual contracts, the Productsare purchased by Medima at the Provisional Sales Price arrivedDat by applying a discount on CRU/Ryan’s notes. Where the FinalSales Price to the customer after deduction of expenses and feesas specified in the Pricing Agreement is higher than the ProvisionalPrice, Medima is liable to remit the difference between the two.However, the Pricing Agreement unequivocally stipulates that allErisks for sale to customers shall be borne by Medima and as such,confers no right upon Medima to recover losses from Balasore.

7. Balasore is, on the other hand, entitled to recovery of 100% ofthe Provisional Price and any amount recovered by Medima inaddition thereto.

F

8. In this context, Balasore has repeatedly pointed out to Medimathat the statements issued by Medima are incomplete and do notcontain necessary details customer-wise for the purposes ofreconciliation.

9. Even on the basis of the incomplete and inaccurate statementsGprovided by Medima from time to time, it is clear that Medimahas been making much high deductions than permissible underthe Pricing Agreement and thereby depriving Balasore of amountslawfully owing to it under the individual contracts. Some of theissues repeatedly raised by Balasore are:

H

1. The allegedly actual secondary costs are nearly twice ashigh as the budgets and estimates projected by Medima at thetime of booking the contracts;

2. The quantity and quality of Products invoiced by Medimato the customers are different from the contracts signed byMedima and Balasore;

3. Interest for availing credit for delay in recovery beyond60 days cannot be deducted as an expense;

4. Commission has to be charged on the net sales price andnot the Final Sales Price.”

12. A close perusal of the extracted portion would indicate thatthe reference made by the applicant with regard to the price and theterms of the payment governing individual contracts is with reference tothe Pricing Agreement which in fact is the Agreement dated 31.03.2018.In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement wouldindicate that it provides for the mechanism relating purchases and sales;final price, payment of provisional price and adjustment of advance,determination of the final sale price and monthly accounting and payment.On taking note of the same, a perusal of the contract terms in thepurchase order relied upon by the applicant does not provide for suchdetermination of pricing except the purchase order referring to the priceof the quantity ordered for and the special terms relating to provisionalprice etc. Therefore, in that circumstance the nature of dispute raisedby the applicant themselves in the reply notice dated 13.04.2020 willindicate that those aspects are to be determined in terms of the provisionscontained in the Agreement dated 31.03.2018 which resultantly will berelevant for payment to be made under each of the purchase order.Therefore, even if disputes are raised relating to the contract terms, thepricing, deductions etc. will relate to the main agreement and the ArbitralTribunal constituted thereunder can go into other issues if any arisesunder the contract terms of the individual purchase order as well.

13. However, in an attempt to dispel such understanding, Mr.Maninder Singh, learned senior counsel sought to contend that while therespondent relies on the Pricing Agreement dated 31.03.2018, thetransaction in fact had commenced as far back as on 08.08.2017 and 21purchase orders were placed up to 30.03.2018 i.e. prior to 31.03.2018,the date on which the Pricing Agreement was executed and as such the A

B

C

D

E

F

G

H

Asame cannot be deemed to have applied to the earlier purchase orders.Though such contention is put forth we are unable to accept the samesince Clause-20(a) of the Agreement dated 31.03.2018 provides thatthe Agreement shall commence on 31.03.2017 and end on 31.03.2021which clearly indicates that it was the intention of the parties that theterms contained in the Agreement would govern all transactions, includingBthose which had commenced from 08.08.2017. Further it is noticed thatthe parties were earlier governed by an Agreement dated 19.06.2017which was for a fixed quantity of 2000 MT of the produce while thepresent agreement, according to the parties was on a long term basisfixing the time period for which it was valid and the individual purchaseCorders will have to be taken note for the specific quantity ordered forunder each of the transactions, the price of which was to be ultimatelydetermined as provided under the Pricing Agreement.

14. In that view of the matter, when admittedly the parties hadentered into the agreement dated 31.03.2018 and there was consensusDad-idem to the terms and conditions contained therein which iscomprehensive and encompassing all terms of the transaction and suchagreement also contains an arbitration clause which is different fromthe arbitration clause provided in the purchase order which is for thelimited purpose of supply of the produce with more specific details whicharises out of Agreement dated 31.03.2018; the arbitration clause containedEin Clause-23 in the main agreement dated 31.03.2018 would govern theparties insofar as the present nature of dispute that has been raised bythem with regard to the price and the terms of payment including recoveryetc.In that view, it would not be appropriate for the applicant to invokeClause-7 of the purchase orders more particularly when the arbitration Fclause contained in the Agreement dated 31.03.2018 has been invokedand the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr.Gourab Banerji and Ms. Lucy Greenwood has already been appointedon 22.06.2020.

SLP(C) No.10264/2020

G

15. The instant Special Leave Petition is filed by the petitionerwho is the plaintiff in the Commercial Suit No.59/2020 pending beforethe High Court of Calcutta. The petitioner herein is the petitioner inArbitration Application No.15/2020 which is dealt with hereinabove. Thefacts noticed above while dealing with Arbitration application alsoHdiscloses that the Arbitral Tribunal comprising of three arbitrators has been appointed by the ICC through the communication dated 22.06.2020.The Tribunal has been constituted based on the clause providing forarbitration under the Agreement dated 31.03.2018. The petitioner claimingto be aggrieved by the constitution of the Arbitral Tribunal has filed thesuit seeking a decree of declaration that the arbitration clause-23 of thePricing Agreement dated 31.03.2018 is null and void and in that contexthas sought for the ancillary relief in the suit. In the said suit the petitionerhas moved the ‘Notice of Motion’ seeking for an interlocutory order ofinjunction against the Arbitral Tribunal constituted by the ICC. The learnedSingle Judge through a detailed judgment dated 12.08.2020 has rejectedthe prayer for interim order and the ‘Notice of Motion’ has beendismissed. The petitioner claiming to be aggrieved by the said order hadpreferred an appeal to the Division Bench, which on consideration hasdeclined grant of interim order though the appeal has been admitted forconsideration.

16. Having heard the learned senior counsel and having perusedthe orders impugned we see no reason to interfere with the same, moreparticularly keeping in view our conclusion on the same subject matterwhile addressing the rival contentions in the Arbitration Application No.15/2020.

17. In the result, the Arbitration Application No.15/2020 and SLPNo.10264/2020 stand dismissed with no order as to costs.

Kalpana K. Tripathy

Arbitration application and SLP dismissed.

ABC

DE

F

G

H