Bombay High Court

M/S. Jcl International Ltd vs Companies Act on 13 December, 2012

Bench: Anoop V.Mohta

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    dgm
             IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                     
                 ARBITRATION PETITION NO. 456    OF 2010


    M/s. JCL International Ltd.




                                                    
    a company incorporated under the
    Companies Act, 1956 and having
    its registered office at 206,
    South Extension Plaza, 389, Masjid Moth,




                                         
    South Extension Part II,
    New Delhi 110 049       ig                                 ....   Petitioners
           vs
    Bharat Petroleum Corporation Ltd.
    a Company incorporated under the
                          
    Companies Act, 1913 having its
    registered office at Bharat Bhavan,,
    4 & 6, Currimbhoy Road, Ballard
    Estate, Mumbai 400 001                                     ....    Respondents
        


    Mr. Vatsal J. Shah i/by Mr. Chetan Mehta for the petitioners.
     



    Mr.   Pankaj  Savant   along with Mr. Pratik Majumdar i/by M/s. M. P. 
    Savla & Co. for respondents. 





                                        CORAM:   ANOOP V. MOHTA, J.

                             RESERVED ON   :   November 23,   2012





                        PRONOUNCED ON   :   December  13,  2012

    JUDGMENT:

The Petitioners have challenged Award dated 17 September,

2009, under Section 34 of the Arbitration and Conciliation Act, 1996

(for short, "Arbitration Act"). The operative part of the Award is as

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under:

"To sum up, I hold that

letter dated 28th June 1999 modified the terms

(a)

and condition of agreement dated 1st May 1999 and

(b) recoveries and adjustments can be made in

accordance with letter dated 31st October 2000."

The basic events, as per the Petitioners, are as under :

On 01.05.1999, the Petitioners entered into a contract with the

Respondent for supply of LPG Cylinders during the financial year

1999-2000. The Contract was incorporated in writing in the Purchase

Order No. PG/EQPT/9/2055 dated 1.5.1999 and annexure thereto

(hereinafter referred to as the "Purchase Order"). Under the Purchase

Order the price was kept provisional at Rs. 679.67 ps. Per cylinder. A

letter was forwarded to emphasize that the price of cylinder was

provisional.

3 On 30.07.1999, the Respondent issued amendment to the

Purchase Order which was signed by both parties fixing the price of

cylinder at Rs. 702.98 ps. The rest of the conditions were same.

The Petitioner sold and delivered contracted quantity of cylinders for

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which the Respondent paid at fixed price of Rs. 702.98. The Contract

came to an end and fresh contract was entered into for supply of

cylinders during the financial year 2000-2001. The Respondent

released the Bank Guarantees of Rs. 7,00,000/- and Rs. 30,000/-

given by the Petitioner inter alia for due performance of contract for

the year 1999-2000. The contract stood completed by supply of goods

and receipt of consideration at the fixed price and in any event by

efflux of time.

4 On 31.10.2000, the Respondent issued a Circular/Letter alleging

that the Industry/Committee was reviewing the price of cylinders with

the assistance of M/s. Price Waterhouse Cooper and pending

finalization the Respondent purported to revise the price of the

cylinder supplied during the previous year, from the fixed price of Rs.

702.98 ps to provisional price of Rs. 645/- on the alleged ground that

pursuant to a letter dated 26 June, 1999, the price of cylinder was

kept provisional. Pursuant to the aforesaid circular/letter the

Respondent alleged to have unlawfully, arbitrarily retained/deducted

about Rs. 28.69 lakh from the amount payable in respect of cylinders.



    5      On 30.06.2001, the Advocate for the Petitioner issued a Notice 




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to appoint arbitrator under the Arbitration Clause contained in the

contract. On 06.08.2001, the Director (Marketing) of the

Respondent nominated Mr. V.V. Ramamurthy the then Executive

Director (Corporate Affairs) of the Respondent to act as Sole

Arbitrator. He conducted the Arbitration till the stage of evidence. On

being transferred he expressed inability to continue with the

Arbitration proceedings. On 03.05.2003 The Director (Marketing)

appointed Shri A.C. Sen as the sole Arbitrator. On 27.04.2006, Shri

A. C. Sen published his Award inter alia dismissing the claim of the

Petitioner.

6 The Petitioner filed Arbitration Petition No. 367 of 2006 and

challenged the aforesaid Award. On 09.10.2006, the Petition was

allowed and award was set aside. Shri A.C. Sen was re-nominated as

sole Arbitrator. On 23.04.2008, Shri G. S. Baveja was appointed as

sole Arbitrator in place and stead of Shri Sen. On 17.09.2009, the

present Award was published. There is no dispute that the parties

entered into a contract on 1 May 1999 for supply of LPG Cylinder for

the financial year 1999-2000. The terms were incorporated in

purchase order and the annexure thereto. The provisional price of

cylinders effective from 1 April 1999 was Rs. 679.67 ps. The price

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formula was MOP and NG approved pricing formula. The price was

also irrespective of source of body steel used. Both the parties, being

in the field since long, know the trade, practice and procedure

including fixation of provisional price for supply of LPG cylinders. It

was well known that the revision in price of cylinder would follow and

that will be binding to the parties. A security deposit was also the part

of the agreement.

7 The contents of the letter dated 28 June 1999 is reproduced as

under :

" As you are aware, pricing of LPG cylinders is based

on MOP & NG approved escalation formulae arrived at after a study by; the Industry Task Force. The escalation

formulae as above need to be reviewed and Industry is in the process of a study for the same. The Indian Economy and particularly the banking sector have seen far renching reforms with liberalized credit structures and so on. Also

new steel majors such as Ispat and Salem Steel are entering the scene.

Keeping the variables as above, it has now been

decided by the Industry that the price of cylinders shall be kept provisional from 1/7/99 onwards. The firm prices will be advised to you on completion of the review by the Industry Task Force."

The letter therefore intimates that :

(i ) pricing of cylinders w.e.f 1st July, 1999 is under review;

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(ii) until the review is complete, supplies would be at provisional price;

(iii) once the review is complete, revised price would be

intimated and the same would be effective between the parties."

The contents of this letter are not in dispute. Neither its receipt. The

crucial letter is dated 30 July 1999.

The Respondents by letter dated 30 July 1999, referring to the

purchase order, amended the price clause in the following words, "The

price applicable per cylinder as on 1 April 1999 is Rs.702.98 ps.". In

the same letter/communication, it is specifically noted, "All other

terms and conditions of the original contract remained unaltered".

There is no denial to the letter as well as its contents. The Petitioners

accordingly sold other quantity of cylinders and received the amount

at the rate of Rs.702.98 ps per cylinder.

9 For the financial year 2000-2001, a fresh contract was entered

into for supply cylinders. The provisional cylinder price was same as

that of the purchase order of the year 1999. The Bank Guarantees

were also released by the Respondents for the due performance of

contract in the year 1999-2000.

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    10    The   Respondents   by   letter   dated   31   October   2000

communicated, based upon the review of the existing cylinder pricing

with effect from 1 July 1999 fixed to Rs.645/-, thereby gave notice to

the Petitioners that they would be recovering the differential amount

from the bills. It was also mentioned that the final adjustment would

be made later on after finalising the cylinder price. It was clarified

that all supplies to the Respondents with effect from 1 November,

2000 would have the provisional basic price of Rs.645/- per cylinder.

There is no denial to the receipt as well as the contents of this letter.

11 The letter dated 29 March, 2000 mentioned about 28 June,

1999 letter. The Petitioners, without any objection, proceeded to

supply on such provisional price and on such condition with effect

from 1 September 2000. Therefore, merely because reference was

not made of the letter dated 28 June, 1999 in the letter dated 30 July

1999, in no way, dislocate the terms and conditions so agreed upon by

the Petitioners. The learned Arbitrator therefore, taking overall view

of the matter and in view of the remand order passed by this Court,

held that the parties agreed to modify the terms of the purchase order

dated 1 May 1999 by letter dated 28 June 1999 and, therefore,

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decided the issues A, B and C accordingly.

12 It is necessary to consider the effect of entering into such type of

contracts without fixed price and/or on the basis of provisional price.

For this, section 9 of Sale of Goods Act is relevant which reads as

under :

"9 Ascertainment of price. - (1) The price in a contract of sale may be fixed by the contract or may be left

to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties.

(2) Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular

case."

13 The Apex Court in M. S. Madhusoodhanan and another v.

Kerala Kaumudi Pvt. Ltd. and others,1 has elaborated this aspect in

the following terms :

"28 Section 4 read with Section 2(10) of the Sale of

Goods Act, 1930 require that the contract of sale must provide for the payment of money as a consideration for the transfer of goods, or to put it differently, that a price must be paid. But Section 9 of the 1930 Act allows the parties not to fix the price at the time of the transfer and to leave the determination of the amount of consideration to a later date. An agreement which provides for the future fixation of price either by the parties themselves or by a third party

1 AIR 2004 SC 909

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is capable of being made certain and is not invalid as provided under Section 29 of the Contract Act, 1872 (See

Illustration (e)). In view of such categoric and clear statutory provisions, the submission of learned counsel

representing Mani that such a contract is void for uncertainly because the price was not fixed, is unacceptable. The passage from Banjamin's Sale of Goods (1874 Edn.) relied on which says:

"If the price is left to be agreed upon subsequently between the parties, there will ordinarily be no binding contract, on the grounds of uncertainty, unless and until

they later reach agreement on a price. Moreover, an agreement to leave the price open to further negotiation

will normally exclude any inference that the price should be a reasonable price in accordance with the provisions of Section 8(2)."

may be an exposition of the law as it is in England and cannot be seen as an authority on the interpretation of Section 9(1) of the Sale of Goods Act. Besides, the same

passage cited goes on to say:

"But in accordance with the principle that the Courts will endeavour to uphold bargains which the parties believe themselves to have concluded, especially in the case of executed or partially executed contracts, it may sometimes

be possible either to infer an intention that at any rate a reasonable price should be paid if no price is later settled, or to have regard to other circumstances, such as the course of dealing between the parties."

It is not the case that the price was re-fixed or revised without due

notice and/or in breach of terms and conditions of the contract and/or

any statutory provisions.

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    14     Therefore, considering the provisions of Sale of Goods Act and

the Contract Act, the fixation of provisional price cannot be stated to

be impermissible. In the present case, both the parties were aware of

the fixation of price in such type of supply of cylinders of which basic

material is steel, apart from fluctuation in the market. In the present

case, though price was provisionally agreed, but changed subsequently

that itself, no way, in my view, create any right in favour of the

Petitioners to claim lastly announced provisional price as final price.

Every time rider was that it is a provisional price. This itself means, as

per the terms of the original contract, subject to review, the price

would be finalised and fixed. The Petitioners supplied the goods,

based upon the price provisionally fixed, the amounts were paid from

time to time.

15 The action of deduction, therefore, after finalisation of the price,

in no way, can be stated to be illegal and/or unauthorised. The term

"provisional" itself means it was never fixed and finalised.

16 The dictionary meaning of the word "provisional", as per

Advanced Law Lexicon, 3rd Edn., is as under :

"Provisional - Temporary, preliminary; tentative;

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taken or done by way of precaution or ad interim.

Not final, temporary in nature. (S. 7,

Companies (Profits) Surtax Act (7 of 1964)."

17 In normal circumstances, the Court could have maintained the

last provisional price of Rs. 702.98 ps as determined and/or fixed

price for the agreement in question, but for the supply of cylinder in

question and for the specific agreed clause of provisional price read

with the regular practice of the trade and the parties have been

entering into such contract regularly and as such clauses/agreements

are permissible, I see there is no reason to interfere with the reasoned

Award passed by the learned Arbitrator.

18 There is no counter challenge raised by the Respondents. The

learned Arbitrator, considering the evidence led by the parties, right in

observing as under :

"(c) I have considered the pleadings and arguments put forward by both the parties. From cross examination of BPCL witness, it appears that after discussion on consultant's draft report, OITF had come to conclusion that price of cylinder should be Rs.645/-. Once the competent body has come to a conclusion, it intimated the same to the supplier, and in accordance with the letter dated 28th June, 1999, the same becomes binding on the parties. Based on the price so determined, BPCL had adjusted the amount that had

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been paid to JCL, over and above the actual price for cylinders as determined by OITF. In view of the same,

BPCL is fully justified in making such adjustment. These issues are therefore decided in favour of BPCL.

With regard to the issue as to whether I have jurisdiction to entertain the dispute or claim for recovery from the supplies made w.e.f 1 st November,

2000, which are obviously under a different agreement and not the agreement dated 1st May, 1999."

19 The learned Arbitrator is also right in coming to the conclusion

with regard to the issue of jurisdiction to adjudicate all the claim in

the following words :

"I find that factually, only agreement dated 1 st May 1999 has been referred to me for adjudication. As such, claim relating to supplies w.e.f 1st November, 2000 would be beyond the scope of this arbitration.

However, there is merit in the argument of JCL that

because BPCL did not question this by filing Section 16 Application, they would be deemed to have waived such objection under Section 4 of the Arbitration Act. Moreover, since the parties have filed detailed pleadings,

led evidence, cross-examination and argued the matter in detail and over the last several years for the recoveries made from November, 2000, they are deemed to have mutually enlarged the scope of arbitration to include

2000-2001 supplies and agreement too.

Therefore, I decide that I have jurisdiction to adjudicate the claim."

The award is within the scope of submissions, documents and

the reference. [Puyvast Chartering B.V. And Puyvast Maritime India

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Ltd. Vs. KEC International Ltd.]2

20 The learned counsel appearing for the Petitioners has relied on a

judgment of Apex Court in Bhupendra Singh Bhatia vs. State of M.P.

and others,3 and thereby contended that the Supreme Court has

deprecated the practice of not fixing the price of commodity at the

time of and/or before the sale. He has also relied on the observations

made by the Supreme Court that "A sale/purchase price to be fixed

subsequent to the sale is unknown in the world". That was a case of

invocation of Articles 14 and 226 of the Constitution of India. The

Court is required to consider the action of the State while awarding

the contract without fixing the price. There is nothing pointed out

from the judgment that there was such clause of provisional price. In

the present case, as noted, parties being in the market for so long

entered into the commercial contract without any objection and even

supplied the goods accordingly. I am not inclined to accept, therefore,

the submission so raised by the learned counsel appearing for the

Petitioners on behalf of the Apex Court judgment in Bhupendra Singh

Bhatia (supra) as the facts and circumstances were totally different.

The parties to the commercial contract is bound by its clauses as well

2 MANU/MH/0901/2011 3 2006 (13) SCC 700

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as the arbitration proceedings so initiated,based upon such contract.

The Award so passed, therefore, cannot be faulted with on this ground

specifically when Section 9 of the Sale of Goods Act read with

Supreme Court judgment in M. S. Madhoosudhnan (supra) whereby

it is permissible for the parties to enter into contract without fixing the

price on the date of the agreement. It is permissible in such type of

contract to fix/determine/ascertain the price, based upon the

Competent Authority/Review Committee's report or finding on pricing

of such cylinder during the relevant financial year. I am, therefore,

inclined to observe that the price was, as never fixed and the

payments were made to the Petitioners, based upon the provisionally

fixed price, the Respondents therefore were entitled to recover the

excess amount, if paid after getting revised/review of the price fixed

from the Competent Authority. In a given case, the price would have

been more than the provisional one also. The Petitioners having once

agreed to supply on provisional price and accordingly acted upon, by

both the parties, is not entitled to challenge and/or object to such

deduction. I am also inclined to observe that the deduction so made is

well within the purview of the law and the record. There is no

perversity.

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    21    The   learned   counsel   appearing   for   the   Respondents   has   also

relied on the following Judgments, (i) Jigar Vikamsey vs. Bombay

Stock Exchange Limited [ 2010(1) Bom. C.R. 908] and (ii) Puyvast

Chartering B.V. (supra) and submitted that no case is made out to

interfere with the reasoned award as contemplated under Section 34

of the Arbitration Act. He has pointed out that in other similarly

placed Arbitration Petition No. 365/2008 (M/s. Lite Containers

Pvt.Ltd. vs. Bharat Petroleum Corporation Ltd.) decided on

10.03.2011 wherein, this Court has also rejected such Petition by

observing that "The Petitioner could not have raised any objection to

down pricing of the contract because as per the terms of the contract,

the price mentioned in the contract was a provisional price and the

final price was to be determined after the price was to be fixed by the