AANCHAL CEMENT LTD. Vs. GIMPLEX PVT. LTD.

JUDGEMENT

(1.) Aggrieved over the Order dtd. 9/11/2020 passed by the sole Arbitrator O.P.Nos.471 of 2020 and 216 of 2021, O.A.No.266 of 2020 and A.Nos.1542, 1543 and 2589 of 2020 the Petitioner/ Respondent before the Arbitral Tribunal, filed O.P.No.471 of 2020 to set aside the Award. The Claimant before the Arbitral Tribunal also filed O.P.(Comm.)No.216 of 2021 insofar as it disallows the portion of interest on the amount awarded under Issue Nos.4 and 8 of the Arbitration Award.

(2.) The brief facts leading to file these Original Petitions are as follows:

(3.) (a) The Respondent raised preliminary objection as to the maintainability of the proceedings. It is the contention that actual transaction took between the parties only on the Joint Venture Agreement which was commenced much prior to the date of execution of High Seas Sale Agreements. It is further contention that the High Seas Sale Agreements were actually sham and nominal documents and never intended to be acted upon by the parties. Only by way of Joint-Venture Agreement, the parties agreed to share the profits and losses, in equal to 50:50 ratio and not under the HSSAs. Therefore, Arbitration clause contained in HSSAs never came into existence and there is no arbitration agreement is in existence between the parties. HSSAs were brought into existence only to aid the interest of the Joint Venture and was never acted upon as the same were abandoned by the parties. Hence the Arbitration Clause contained in HSSAs became inoperative and the reference to arbitration itself is qualified by a reference to an enactment, that is not in force and had been repealed. It is the contention that the HSSAs stood novated by the Joint Venture deal, which was subsequently agreed between the parties. HSSAs also stood novated by reason of Deed of Compromise, having been executed at the instance of the Claimant and the Arbitration Clause perished upon the extinguishment of HSSAs. It is stated that HSSAs entered only for a limited purpose to enable the Respondent to sell the same in the market. There was no sale of the cement to the Respondent, as alleged by the Claimant.