- (1.) The Plaintiffs application made on Notice of Motion dated I3th March, 2009 is for basically for obtaining order of injunction against both the Defendants from proceeding with Arbitration agreement. This application is taken out in connection with the above suit which is filed for following reliefs: a) The communication dated 25th February, 2009 being Annexure "F" hereto be adjudged void, delivered up and cancelled; b) Perpetual injunction restraining the Respondent No. 1 from taking any step or further step on the basis of the request for arbitration dated 23rd January, 2009 or any other similar request: c) Perpetual injunction restraining the Respondent No. l from taking any step or further step by way of commencement of arbitration arising out of the 4 (four) proposed sales contracts dated 22nd July, 2008, 23rd July, 2008, 6th August, 2008 and 7th August, 2008; d) Perpetual injunction restraining the Respondent No. 1 from taking any step or further step in connection with the reference commenced by them on the basis of the alleged arbitration agreement in the said 4 (four) proposed sales contracts; e) Decree for Rs. 10 crores as pleaded in paragraphs 27 above; f) The proposed sale contracts dated 22nd July, 2008, 23rd July 2008, 6th August 2008 and 7th August, 2008 being Nos. SG/08/0556/07B04, 615/08B04 and 622/08BOI being Annexure "A" hereof and the letters issued in furtherance thereof be adjudged void and be delivered up and cancelled; g) Receiver; h) Injunction; i) Attachment; j) costs; k) Such further and/or other relief or reliefs.
(2.) The case made out by the Plaintiffs in the petition is summarized hereunder: The Plaintiff/Petitioner has been carrying on business of import and sale of fats oil of diverse nature. The first Respondent is engaged in the business of various kinds of fats and oils having its base in Singapore. In usual course of business between the period of December 2007 to July 2008 the Petitioner had imported from the first Respondent about 2000 mt. tons of various kinds of oils into India. For such purpose there has been a contractual agreement and after completion of the aforesaid import the Plaintiff never did enter into any further business with the first Defendant. Thereafter the first Defendant through the brokers wanted to enter into further transaction for sale of edible oils with the Petitioner in or about 22nd July, 23rd July, 28th July, 6th August, 7th August 2008. The first Respondent made correspondences with the Plaintiff. By those correspondences merely a proposal was made for sale of further 2000 mt. tons palm oil at a price mentioned in the said proposal. In the said four proposals it was mentioned if the Plaintiffs agrees then the confirmation with the signature of the Plaintiff should be mailed back to the first Defendant. The Plaintiff/ Petitioner never accepted such proposal with confirmation as asked for. In spite of such factual position the first Defendant unilaterally on 27th August, 23rd September, 25th September and 9th October, 2009 through the said brokers again forwarded vessel-nomination to the Plaintiff, but the Petitioner did not accept the same, on the contrary over telephone the brokers were informed that since there was no contract between the parties nor had the Petitioner purchased any goods from the first Respondent there is no point of acting upon such vessel-nomination. In spite of the aforesaid communication to the broker over telephone the said two brokers once again on 23rd September, 2008 forwarded e-mails purported to have been sent by first Respondent concerning the said proposed contract whereby the shipment to be so extended. On receipt of the said e-mails dated 24th September, 2008, the Plaintiff/Petitioner intimated to the said broker that there has been no contract, as such question of shipment did not and could not arise. It was thought that both the Respondents would put all things at rest unfortunately first Respondent as well as two brokers wrote letters alleging breach of obligation on the part of the Plaintiff. On 28th February, 2009 the Plaintiff received a communication dated 25th February, 2009 from the Respondent No. 2, namely The Palm Oil Refineries Association of Malayasia requested Plaintiff/Petitioners to nominate an Arbitrator. The Petitioner was surprised to receive such letter as the Respondent No. 2 had no authority to make such request to the Plaintiff. Therefore such letter of request for nomination of Arbitrator issued by the Respondent No. 2 is illegal, null and void in as much as the Respondent No. 1 had no right to refer alleged dispute to arbitrator by reason of the fact that there had and still has not been concluded contract nor there has been any existence of Arbitration agreement.
(3.) The said application was moved ex parte on 20th March, 2009 before the learned Interlocutory Judge, and Hon'ble Justice Patherya was pleased to pass a restrain order prima facie observing that there was no arbitration agreement existing between the parties. However, on returnable date after hearing the parties the said interim order of injunction was vacated. The Plaintiff/Petitioner being aggrieved by the said order of vacating interim injunction preferred appeal and the Appeal Court by its judgment and ordered dated 7th September, 2009 dismissed the same and affirm the order of vacating interim order.;