LUDWING WUNSCHE AND CO Vs. RAUNAQ INTERNATIONAL LIMITED

JUDGEMENT

(1.) Plaintiff Ludwing Wunsche and Company, a foreign company has filed this suit under the provisions of Foreign Awards (Recognition and Enforcement) Act, 1961 for the enforcement of an award made on September, 1979. Plaintiff is engaged in the business at Hamburg, West Germany and deals, inter-alia, in grain and cattle feed. Defendant No. 1 Raunaq International Limited, New Delhi, as seller and the plaintiff as buyer entered into a contract dated 15th January, 1979. Defendant No. 2 Wllhelmn Meinschausen GMBH is a firm of brokers carrying on business at Hamburg, West Germany, and in its capacity of broker negotiates contracts between buyers in general and sellers in the exporting countries. Defendant No. 2 acted as a broker in the transaction between plaintiff and defendant No. 1. Defendant No. 2 has been added as performa defendant.

(2.) Plaintiff's case is that defendant No. 1 failed to deliver the goods under the contract and committed a breach thereof and consequently the plaintiff made a demand by a letter dated 1-3-1979 claiming $ 50.000 as dead freight and sent a debit note to defendant No. 1 for the payment of that amount. The contract was subject to an arbitration agreement which is as follows:

(3.) The plaintiff by telex dated 20-3-79 called upon defendant No. 1 for settlement of the invoice for a $ 50,000 and further notified that in the event of non settlement, on or before 27-3-79. the plaintiff would crave arbitration. Further notice was given by the plaintiff defendant No. 1 that in case of arbitration it would also claim the difference between the contract price and the market price. On 3-5-79 plaintiff drew the attention of defendant No. 1 to its earlier telex message dated 20-3-79 and informed defendant No. 1 about plaintiff's having appointed its arbitrator and called upon the defendant No. 1 to appoint its arbitrator in terms of the arbitration agreement. It was Further stated that in the event of its failure to nominate an arbitrator the plaintiff would ask the Grain and Feed Trade Association Ltd. (for short 'GEFTA') to nominate and appoint an arbitrator on behalf of the defendant No. 1 the terms of the arbitration agreement. Plaintiff by its letter dated 15th May, 1979 wrote to GEFTA requesting it to appoint an arbitrator on behalf of defendant No. 1 in terms of the arbitration rules. By a letter dated 1-6-79 GEFTA appointed one Mr. P.B. Kersey, to act as arbitrator for defendant No. 1. The hearing of the arbitration was fixed for 11 -7-79 and defendant No. 1 was called upon to put in a written statement by 5.7-79. The plaintiff filed a claim before the arbitrators on or about 14-6-79 enclosing various documents.