MMTC LIMITED (INDIA) Vs. ALCARI, SA (SWITZERLAND)

JUDGEMENT

(1.) THIS is an appeal against the order of the learned Single Judge in CS(OS) No. 379A/2002 upholding the arbitral award dated 17.02.2000 and directing it to be made as rule of the Court. The Appellant MMTC Ltd., (hereafter "MMTC") is a public sector undertaking engaged, inter alia, in the import of urea. It entered into a contract with the Respondent (Alcari, SA (Switzerland), now Hinduja Bank (Switzerland) Ltd., hereafter " the Claimant") for the supply of 15,000 MT of urea pursuant to a tender issued by it for the import of 4,00,000 MT.

(2.) MMTC formally accepted the Claimant's offer on 7th July, 1992, with the date of shipment under the contract being 10th July, 1992. Clause 26 of the contract provided as under:

(3.) FURTHER , on 21st July, the Claimant informed MMTC that the vessel had sailed from the load port with cargo on 18th July, 1992. MMTC responded by fax on the same date, reiterating that the vessel, being over 20 years of age, was not acceptable to the DoF in terms of clause 26 of the contract. The Claimant, by telex message on 21st July, 1992 informed MMTC that the vessel had already sailed on 17th July and it had proceeded in the belief that the vessel would be "accepted by the Department of Fertilizers if discharge rate guaranteed the cd\basis of minimum 600 MT/WWD" and that it accepted this condition despite its conviction that the vessel was capable of handling the contractual discharge rate.