- (1.) The appellant/petitioner filed the instant appeal assailing the order dated 23.07.2014 passed by the Hon'ble Single Judge in A.P. No.194 of 2011.
(2.) The facts of the case is that the appellant/petitioner is an Austrian Company having its place of business in Austria. The respondent/claimant is an Indian Company having its registered office at 35, Chittaranjan Avenue, Kolkata. The appellant/petitioner and the respondent/claimant entered into a contract dated 4th September, 2008 whereby the respondent/claimant agreed to sell and the appellant/petitioner agreed to buy 4000 MT more or less 10 % at the claimant's/respondent's option high carbon silico manganese. The agreed price was US$ 2060 per M.T., FOB Haldia, Kolkata. The said contract contained an arbitration clause in Serial No.15 which is quoted below:- "Arbitration Clause : All disputes or difference arising between the parties out of or relating to the construction, meaning and operation or effect of this contract or the breach thereof shall be finally settled under the rules of conciliation and arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The language of the arbitration will be English. The venue of arbitration shall be Kolkata, India."
(3.) The appellant/petitioner alleged that by its letter dated 16th October, 2008 the respondent repudiated the contract. The appellant/petitioner then informed the claimant/respondent not to produce any more goods and thereby treating the contract as terminated upon expiry of September, 2008 or latest by 16th October, 2008. According to the claimant/respondent they had already produced the entire quantity of the goods as per contract, therefore, on 21st November, 2008 the claimant/respondent through their lawyer wrote to the appellant/petitioner to perform the contract otherwise the claimant/respondent would "mitigate their losses" for non-performance of the contract. It was also stated in the said letter that the appellant/petitioner was required under the contract to receive the goods @ 1000 MT per months between September and December, 2008. Therefore, breach on the part of the appellant/petitioner was illegal and the claimant/respondent also informed that they were unable to hold the goods already manufactured as per contract for any longer period. Further, on 16th January, 2009, the claimant's/respondent's lawyer wrote to the appellant/petitioner as follows :- JUDGEMENT_28_LAWS(CAL)2_2015.htm;