GROUPE CHIMIQUE TUNISIEN S A Vs. SOUTHERN PETROCHEMICALS INDUSTRIES CORPN LTD
LAWS(SC)-2006-5-19
SUPREME COURT OF INDIA (FROM: MADRAS)
Decided on May 24,2006

GROUPE CHIMIQUE TUNISIEN Appellant
VERSUS
SOUTHERN PETROCHEMICALS INDUSTRIES CORPN. LTD. Respondents





Cited Judgements :-

DJANGO NAVIGATION LTD VS. INDO FERRO METAL PRIVATE LTD [LAWS(RAJ)-2018-2-17] [REFERRED TO]
MERIT RESORTS PVT LTD VS. CANARA BANK TEYNAMPET BRANCH [LAWS(MAD)-2009-8-113] [REFERRED TO]
JAYANT KUMAR AGARWAL VS. K SUBBA REDDY [LAWS(ORI)-2008-4-31] [REFERRED TO]
STELLAR INDUSTRIES VS. INTERNATIONAL COMBUSTION INDIA LTD [LAWS(BOM)-2008-9-69] [REFERRED TO]
MANISH TRADING COMPANY VS. UNION OF INDIA [LAWS(PAT)-2015-7-131] [REFERRED TO]
H.P. MAHILA VIKAS NIGAM VS. JERATH ELECTRONICS AND ALLIED INDUSTRIES [LAWS(HPH)-2010-11-191] [REFERRED TO]
WELSPUN ENTERPRISES LTD. VS. NCC LTD. [LAWS(DLH)-2022-10-182] [REFERRED TO]
M R ENGINEERS AND CONTRACTORS PVT LTD VS. SOM DATT BUILDERS LTD [LAWS(SC)-2009-7-122] [REFERRED TO]
TRADE SWIFT DEVELOPERS PRIVATE LIMITED VS. GOPAL PRASAD KANORIA SON OF LATE HANUMAN DAS KANORIA RESIDING AT KANORIA COTTAGE, 32Q NEW ROAD, ALIPORE, KOLKATA (WEST BANGAL) AND OTHERS [LAWS(RAJ)-2016-10-109] [REFERRED TO]
ANIK INDUSTRIES LTD VS. DCM SHRIRAM CONSOLIDATED LTD [LAWS(MPH)-2018-11-64] [REFERRED TO]
ANJALI DEBNATH VS. STATE OF TRIPURA [LAWS(GAU)-2011-9-46] [REFERRED TO]
LAKHVIR SINGH VS. CHANAN MASIH [LAWS(P&H)-2009-4-140] [REFERRED TO]
CARAVEL SHIPPING SERVICES PVT. LTD. VS. PREMIER SEA FOODS EXIM PVT. LTD. [LAWS(KER)-2015-9-34] [REFERRED TO]
RAM SWAROOP MEENA VS. UNION OF INDIA [LAWS(RAJ)-2006-7-28] [REFERRED TO]
SHARAD S/O RAJNIKANT KATHRANI VS. HEMANTKUMAR S/O NARSHIBHAI PARMAR [LAWS(BOM)-2018-5-21] [REFERRED TO]
INEOS COMMERCIAL SERVICES UK LTD VS. ESSAR OIL LTD [LAWS(GJH)-2012-10-135] [REFERRED TO]
PREM POWER CONSTRUCTION (PVT.) LTD VS. NATIONAL HYDROELECTRIC POWER CORP. LTD [LAWS(DLH)-2008-12-83] [REFERRED TO]
SMT. KRISHNA MITTAL VS. MUNICIPAL CORPORATION OF DELHI AND ANR. [LAWS(DLH)-2010-5-285] [REFERRED TO]
LOUIS DREYFUS COMMODITIES ASIA PTE LTD VS. GOVIND RUBBER LIMITED [LAWS(BOM)-2013-2-3] [REFERRED TO]
Y BHASKARA RAJU RAILWAY CONTRACTOR VS. UNION OF INDIA [LAWS(APH)-2009-2-39] [REFERRED TO]
ASHOKA BULIDCON LTD VS. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD [LAWS(BOM)-2008-5-41] [REFERRED TO]
ORISSA STEVEDORES LIMITED VS. THE ORISSA MINERALS DEVELOPMENT COMPANY LTD. AND ANR. [LAWS(CAL)-2010-2-160] [REFERRED TO]
SHREE KRISHNA PAPER MILLS VS. WEST BENGAL STATE ELECTRICITY DISTRIBUTION CO LTD [LAWS(CAL)-2009-6-7] [REFERRED TO]
SIDDHI REAL ESTATE DEVELOPERS VS. METRO CASH AND CARRY [LAWS(BOM)-2014-6-14] [REFERRED TO]
SURYA NEWS PRINT AND PAPERS PRIVATE LTD. GHANTASALA VS. BRANCH MANAGER, STATE BANK OF INDIA [LAWS(ORI)-2008-8-85] [REFERRED TO]
UNION OF INDIA VS. MOHINDER SINGH [LAWS(J&K)-2010-4-21] [REFERRED TO]
STERLITE TECHNOLOGIES LTD VS. ASTER (P) LTD, [LAWS(TLNG)-2020-2-188] [REFERRED TO]
M/S POOJA INFOTECH PVT. LTD. VS. M/S PRABHUPREM INFOTECH PVT. LTD. [LAWS(DLH)-2021-10-14] [REFERRED TO]
ASHOK LEYLAND LIMITED REP BY ITS AUTHORISED SIGNATORY VS. STATE EXPRESS TRANSPORT CORPORATION TAMIL NADU LIMITED (SETC) REP BY ITS MANAGING DIRECTOR [LAWS(MAD)-2017-8-297] [REFERRED TO]
STERLITE TECHNOLOGIES LIMITED VS. ASTER PRIVATE LIMITED [LAWS(TLNG)-2020-1-180] [REFERRED TO]
CHHOTEY LAL KASERA VS. KANHAIYA LAL KASERA [LAWS(ALL)-2014-8-299] [REFERRED TO]
P S JOHN VS. VOLTAS LTD [LAWS(BOM)-2007-10-205] [REFERRED TO]
KOTAK SECURITIES LTD. VS. ALICE FRANCIS [LAWS(KER)-2019-2-117] [REFERRED TO]
PREMILA GRUBB AIR MARSHALL L.P. PEREIRA VS. STATE [LAWS(KAR)-2013-4-90] [REFERRED TO]
RITES LIMITED VS. JMC PROJECTS INDIA LTD [LAWS(DLH)-2009-3-68] [REFERRED TO]
R.P. INFOSYSTEMS PRIVATE LIMITED VS. REDINGTON (INDIA) LIMITED [LAWS(CAL)-2023-11-14] [REFERRED TO]
HARINARAYAN & CO VS. SOUTH EASTERN COALFIELDS LTD [LAWS(CHH)-2013-11-32] [REFERRED TO]
PURE DIETS INDIA LIMITED VS. LOKMANGAL AGRO INDUSTRIES LTD. [LAWS(DLH)-2023-7-206] [REFERRED TO]
SHIV OM POLYNETS PRIVATE LTD. VS. MARINE FABRICE & ANR. [LAWS(CAL)-2013-1-74] [REFERRED TO]
UNION OF INDIA VS. ELECTRO FERRO ALLOYS PVT LTD [LAWS(GJH)-2013-2-185] [REFERRED TO]
MERIT RESORTS PVT LTD VS. CANARA BANK TEYNAMPET BRANCH [LAWS(MAD)-2009-11-243] [REFERRED TO]
ARUN MALIK VS. SECRETARY PUBLIC HEALTH DEPARTMENT [LAWS(P&H)-2010-11-142] [REFERRED TO]
ELITE ENGINEERING AND CONSTRUCTION (HYD.) PRIVATE LIMITED VS. TECHTRANS CONSTRUCTION INDIA PRIVATE LIMITED [LAWS(SC)-2018-2-59] [REFERRED TO]
SURYA NEWS PRINT AND PAPERS PVT. LTD. VS. STATE BANK OF INDIA [LAWS(ORI)-2009-8-18] [REFERRED TO]
MRS. PREMILA GRUBB VS. AIR MARSHALL L.P. PEREIRA, P.V.S.M. (RETD.) AND ANOTHER [LAWS(KAR)-2013-4-208] [REFERRED TO]
EMPEE DISTILLERIES LTD VS. S.S.ENTERPRISES PVT. LTD [LAWS(DLH)-2011-7-539] [REFERRED TO]
ORISSA STEVEDORES LIMITED VS. ORISSA MINERALS DEVELOPMENT COMPANY LTD [LAWS(CAL)-2010-2-48] [REFERRED TO]
H K DHRUVA VS. UNION OF INDIA [LAWS(GJH)-2007-9-54] [REFERRED TO]
UJWALA RAJE SHAH VS. VEER CORPORATION [LAWS(BOM)-2013-3-8] [REFERRED TO]
TANDAV FILM ENTERRAINMENT PVT LTD VS. FOUR FRAME PICTURES [LAWS(DLH)-2009-12-167] [REFERRED TO]
S LAKSHMI VS. RELIANCE BUILDERS, HYDERABAD [LAWS(APH)-2014-12-98] [REFERRED TO]
IVRCL INFRASTRUCTURES AND PROJECTS LTD VS. BHANU CONSTRUCTION COMPANY LTD [LAWS(APH)-2007-7-27] [REFERRED TO]
PRIME MARKET REACH PVT. LTD. VS. SUPREME ADVERTISING PVT LTD. [LAWS(DLH)-2019-12-127] [REFERRED TO]


JUDGEMENT

- (1.)The petitioner has filed this petition u/s. 11 (4) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of an Arbitral Tribunal for adjudication of its claims and settlement of the disputes between the parties.
(2.)The facts, in brief, as stated by petitioner are as follows:
2.1. Petitioner is a company incorporated under the laws of Tunisia. The respondent placed purchase orders dated 10.11.2000, 17.11.2000, 4.12.2000, 20.12.2000 and 13.7.2001 on the petitioner for supply of various quantities of Phosphoric Acid. Each purchase order stipulated the quantity to be supplied, the price, the payment terms and shipment particulars. All the purchase orders stated that all other terms and conditions are as per FAI terms (that is, the "Fertilizer Association of India Terms and Conditions for Sale and Purchase of Phosphoric Acid"). Clause 15 of FAI terms provided for settlement of disputes by arbitration.

2.2. The petitioner effected the supplies in pursuance of the purchase orders and raised invoices for such supplies. The respondent failed to pay the invoice amounts aggregating to US $ 1,50,15,913.38 in respect of the supplies against the said purchase orders, and went on seeking extension of time for making payment on the ground of financial difficulties.

2.3. The petitioner, therefore, filed a suit in the Amman Court of First Instance, Jordan, in Case No. 223/2002 for recovery of the amounts due; The respondent contested the jurisdiction of the said court, firstly, on the ground that the courts at Jordan did not have jurisdiction and, secondly, on the ground that there was an arbitration agreement between the parties, as per cl. 15 of the FAI terms. The Amman Court of First Instance, dismissed the petitioner's case on 20.3.2003 on the ground of lack of jurisdiction. The petitioner challenged the same before the Amman Court of Appeal in case No.1229/2003 which was also dismissed on 25.6.2003.

2.4. The petitioner issued a statutory notice dated 2.8.2004 demanding payment of the amount due with interest @ 7.5% per annum. On respondent's failure to pay, the petitioner filed a petition for winding up in Company Petition No. 276/2004 on the file of the High Court of Madras, which is pending. The petitioner also issued a notice dated 30.8.2005 through its counsel informing the respondent that the disputes and differences between the parties on account of non-payment of amounts due by the respondent shall have to be settled by arbitration in terms of cl. 5 of FAI terms and appointed Mr. Justice D.P. Wadhwa, former Judge, Supreme Court of India, as its Arbitrator, and called upon the respondent to appoint its Arbitrator in terms of the arbitration clause within 30 days of the receipt of the notice. The petitioner also informed the respondent that if the respondent failed to comply, appropriate proceedings will be initiated. In spite of it, the respondent did not comply, necessitating the filing of this petition for appointment of an second Arbitrator to the Arbitral Tribunal for adjudication and settlement of the claims.

(3.)The respondent entered appearance and has filed its counter, resisting the petition on the following grounds :
(i) The petitioner, having denied before the Jordanian Courts (Amman Court of First Instance and Amman Court of Appeals), the existence of arbitration agreement between the parties, is estopped from contending in this petition, that there is an arbitration agreement between the parties, or that the disputes should be settled by arbitration.

(ii) The claim of the petitioner is barred by limitation as the amounts claimed are in respect of goods dispatched as per the Bills of Lading dated 19.11.2000, 28.11.2000, 10.12.2000, 22.12.2000 and 13.7.2001, and the last of the correspondence from respondent was on 17.4.2002.

(iii) The petitioner's contention that there is an arbitration agreement between the parties in accordance with cl. 15 of the FAI terms is not tenable. Without prejudice to the said contention, the respondent has submitted that in the event of this Court coming to the conclusion that there is a binding arbitration agreement, Mr. Justice S. Ratnavel Pandian, former Judge of the Supreme Court, be nominated as its nominee on the Arbitral Tribunal.



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