Campos Brothers Farms v. Matru Bhumi Supply Chain Pvt. Limited & Ors

NAVIN CHAWLA, J MAY 02, 2019 RN/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P.(EFA)(COMM.) 1/2017 & IA No. 680-681/2017, 5164- 5167/2017, 5169/2017, 5171/2017, 7939/2017, 7957/2017, 12465/2017, 12471/2017, 12503/2017 & 12533/2017 Reserved on: 14.12.2018 Date of decision : 02.05.2019 CAMPOS BROTHERS FARMS ..... Decree Holder Through: Mr.Tanmaya Mehta, Mr.Siddhant Kr. Singh, Mr.Raghav Wadhwa, Mr.Anurag Sahay & Ms.Mallika Bhatia, Advs. versus MATRU BHUMI SUPPLY CHAIN PVT. LIMITED & ORS. ..... Judgment Debtors Through: Mr.Jayant Mehta, Mr.Sulabh Rewari, Mr.Kaustav Saha & Ms.Drishti Harpalani, Advs. for R- 1, R-3 to R-9 Mr.Amit Agrawal, Adv. for R-2. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioner under Sections 48 and 49 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") seeking enforcement of a Foreign Award dated 25.07.2016 passed by the Sole Arbitrator under the Arbitration Rules of Combined Edible Nut Trade Association (CENTA), now known as The Nut Association(TNA). 2. The petitioner had entered into three Contracts with the respondent no.1 (being contract Nos.10377, 10413 and 10428) and one Agreement Page 2 with the respondent no.2 (being contract no.10529) for the sale of Non- Pareil In-shell Almonds(NPIS). 3. One of the conditions of the contract was that the parties agree to abide by the Uniform Almond Export Contract (UAEC 2007) terms and conditions. 4. UAEC 2007 in Clause 42 thereof provides for arbitration in accordance with the Arbitration Rules of CENTA. Clause 41 further provides for the contract to be governed by the English Law. 5. There were to be ten shipments in all under the contracts between the petitioner and the respondent no.1. Of these five were delivered: invoices for two of them were raised in the name of respondent no.1 and invoices for 3 were raised in the name of respondent no.2 at the request of respondent no.1. Three shipments were delivered at the port, however, respondent no.1 refused to take delivery thereof on account of fall in prices. Out of these, for one shipment the invoice was in the name of respondent no.2. 6. As far as the contract between the petitioner and respondent no.2 is concerned, there were supposed to be two shipments, out of which one was made, however, respondent no.2 refused to accept the same on account of fall in prices, while for the second one, the shipment was not made by the petitioner at the request of respondent no.2. 7. As the respondents did not pay the price for the quantity shipped and accepted by them and the petitioner claimed losses for the shipments Page 3 that were made but not accepted by the respondents and for the shipment that was cancelled, disputes arose between the parties. 8. I may only note that for the shipments that were made but not accepted by the respondent nos.1 and 2, the petitioner alleged that to mitigate its losses, the petitioner sold these shipments to a third party, however, before doing so a No Objection Certificate (NOC) was required to be issued by the respondent nos.1 and 2. Respondent nos.1 and 2 used this as a ransom and refused to issue the NOCs without payment of costs that they had allegedly incurred in relation to local taxes and import charges. Having been left with no alternative, the petitioner agreed to provide credit notes for such claims, on the condition that the respondent nos.1 and 2 will make full payment for the five shipments that they have taken possession of. 9. In the meantime, parties also entered into negotiations, with the respondent nos.1 and 2 admitting to a liability of USD 494,676 vide their e-mail dated 24.02.2016, whereas the petitioner replied vide e-mail dated 24.02.2016 stating that it would not settle for an amount lower than USD 675,000 to be paid immediately and the remaining differential between USD 844,367.01 and USD 675,000 being added to the price of NPIS to be shipped from 2016 crop. 10. As the parties could not arrive at a settlement, the