Delhi High Court
Nordic Intertrade As (Norway) vs Steel Authority Of India Ltd on 17 July, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.07.2017
+ O.M.P. (COMM) 16/2015
NORDIC INTERTRADE AS (NORWAY) ..... Petitioner
Versus
STEEL AUTHORITY OF INDIA LTD ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Jayant Mehta, Mr Sumeet Lall and Ms
Yashasvi Singh.
For the Respondent: Mr Arvind Nigam, Senior Advocate with Mr
Ashish Kumar, Mr Mikhil Sharda and Mr
Rameez Raja.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. Nordic Intertrade AS (hereafter „Nordic‟) - a company incorporated
under the laws of Norway having its principal place of business located in
that country - has filed the present petition under Section 34 of the
Arbitration and Conciliation Act, 1996 (hereafter „the Act‟), impugning an
arbitral award dated 23.01.2012 (hereafter „the impugned award‟) passed
by the sole arbitrator, Mr P.S. Bawa appointed by the Indian Council of
Arbitration.
2. The impugned award was rendered in the context of disputes that
had arisen between the parties in respect of a contract dated 01.02.2008
(hereafter „the Agreement‟) whereby the respondent (hereafter „SAIL‟) had
agreed to sell 5000 MT of Prime Mild Steel, Hot Rolled Plates (Non-
Alloy) from India to Nordic.
3. The dispute between the parties essentially concerned the question
whether Nordic would be liable to pay export duties that were imposed on
export of the goods in question. Nordic claimed that in terms of the
Agreement, it was not liable to pay any export duties. SAIL disputed the
same. It claimed that on failure of Nordic to indicate a vessel during the
agreed laycan before the expiry of the term of the Agreement, SAIL had
invoked clause 9 (the Red Clause) of the Agreement, the effect of which
was that the title of the goods passed from SAIL to Nordic. According to
SAIL, since the export duties were notified after the title of the goods had
passed to Nordic, it alone was responsible for payment of such duties.
4. In view of SAIL's refusal to load the cargo without securing receipt
of the export duty, Nordic opened the letter of credit (L/C) for the amount
of export duties under protest, which was encashed by SAIL. In its claim
before the arbitral tribunal, Nordic claimed the amount of export duty as
well as other costs and damages incurred. SAIL also raised counter claims
for costs incurred by it in respect of litigation instituted by Nordic. The
arbitral tribunal considered the claims and counterclaims and rejected the
same by the impugned award. Nordic claims the decision of the arbitral
tribunal to be perverse and contrary to the terms of the Agreement.
5. Briefly stated, the relevant facts necessary in respect of which the
aforesaid controversy arises are as under:-
5.1 Nordic and SAIL entered into the Agreement dated 01.02.2008,
pursuant to which, SAIL agreed to sell to Nordic, 5000 MT of Prime Mild
Steel, Hot Rolled Plates (Non-Alloy). In terms of the Agreement, the terms
and conditions as contained in the "General Terms and Conditions of
Export Contract (FOB)" were also applicable as an integral part of the
Agreement. In terms of the Agreement, Nordic opened a L/C on
06.02.2008 for payment of the goods in question.
5.2 On 09.04.2008, SAIL issued a notice of readiness (NOR) of cargo
and also called upon Nordic to nominate a suitable vessel within laycan
period of 25.04.2008 to 29.04.2008. The Indian agent of Nordic, by an
email dated 15.04.2008, advised the availability of a vessel MV
"Rickmers, Chennai" with laycan of 07.05.2008 to 15.05.2008. SAIL
responded to the said email on 17.04.2008. The controversy as to whether
SAIL agreed to revised laycan, as suggested on behalf of Nordic, was a
subject matter of dispute before the arbitral tribunal. On 06.05.2008, SAIL
invoked clause 9 (the Red Clause) of the General Terms and Conditions of
Export Contract (FOB) and negotiated the documents under the L/C
opened by Nordic.
5.3 Thereafter, on 10.05.2008, SAIL submitted an NOR. On the same
date, the Government of India, by a notification (Notification No.66 of
2008 - Customs) imposed an export duty of 15% ad valorem on the goods
in question. The nominated vessel, MV "Rickmers, Chennai" arrived at
Vizag Port on 12.05.2008. However, SAIL did not load the cargo but sent a
letter dated 12.05.2008 requesting the agent to hold the berthing of the
vessel till further advice from SAIL in view of "some commercial
settlements due from receiver of the cargo". SAIL also sent a letter to
Nordic calling upon Nordic to pay the export duty imposed by virtue of the
aforementioned notification dated 10.05.2008. Thereafter, there was an
exchange of correspondence between the parties; SAIL continued to
demand the export duties and Nordic disputed its liability to pay the same.
Finally, Nordic opened the L/C for the amount of export duties payable on
the goods on 28.05.2008. Nordic also sent a letter dated 29.05.2008 placing
on record that it had paid the export duty under protest. The total amount of
export duty paid by Nordic under protest amounted to ₹2,88,21,737/-
(equivalent to € 460,779.18).
6. Nordic also claims that it paid detention charges of US$ 242,414
equivalent to € 179,565 (to the shipper). On receipt of the L/C, SAIL
loaded the goods onto the vessel.
7. Nordic sent legal notice dated 09.10.2009 calling upon SAIL to
make a payment of € 724237 (equivalent to ₹4,98,99,929/-, calculated at
the exchange rate of Euro 1 equal to ₹68.90). SAIL responded to the legal
notice by its letter dated 21.11.2009 refuting Nordic's claim. Thereafter, on
31.03.2010, Nordic filed its application for arbitration with the Indian
Council of Arbitration (ICA). The arbitration proceedings stood culminated
into the passing of the impugned award.
Submissions
8. Mr Mehta, learned counsel appearing for Nordic advanced
contentions on three fronts.
8.1 First, he stated that the decision of the arbitral tribunal that the
parties had not agreed to revised laycan was ex facie contrary to the record
and thus the impugned award is perverse and unsustainable.
8.2 Second, he contended that in terms of the Agreement, the liability to
pay all custom duties lay squarely on SAIL. He referred to clause 9.3 of
the Agreement and contended that the same clearly provided that the seller
(SAIL) was obliged to deliver the goods FOB (SLSD) at its cost. He stated
that in terms of clause 1.1 of the Agreement, all commercial terms and
abbreviations used in the Agreement were to be interpreted by applying the
rules of the 'ICC INCOTERMS 2000'. He next referred to the meaning of
FOB under the ICC INCOTERMS 2000 (hereafter 'the INCOTERMS') and
submitted that payment of all duties on export was SAIL's liability and the
arbitral tribunal had grossly erred in denying Nordic's claim for
reimbursement of detention charges, bank charges and legal expenses.
8.3 Third, he submitted that SAIL had deliberately delayed the loading
of goods onto the vessel with the view to economically coerce Nordic into
furnishing a L/C for the amount of export duty. He submitted that SAIL
had after indicating its willingness to load cargo, prevented berthing of the
vessel, thus resulting in heavy demurrages and costs. He argued that
subject to adjudication of the disputes, SAIL could have loaded the cargo
and afterwards pursued the matter regarding recovery of export duty. Even
assuming that such duty was the liability of Nordic, however, SAIL's
conduct of delay in loading of the cargo till Nordic furnished the L/C was
wholly unjustified and the arbitral tribunal erred in not appreciating the
same.
9. Mr Nigam, learned Senior Counsel appearing for SAIL countered
the submissions made on behalf of Nordic. He submitted that the terms of
the INCOTERMS did not apply where contracts indicated to the contrary.
He referred to the INCOTERMS and drew the attention of this Court to the
contents of the chapter captioned "Introduction". He submitted that the
purpose of the INCOTERMS is to provide rules for interpretation of terms
of general trade and not to replace the contract between the parties;
therefore, its application would have to be considered in the context of the
Agreement.
10. Next, he submitted that the arbitral tribunal considered the
contentions advanced on behalf of Nordic, which mainly related to the
interpretation of the Agreement, and had rejected the same. He contended
that the question of interpretation of the Agreement was within the
jurisdiction of the arbitral tribunal and thus, no interference with the
impugned award was called for.
Reasoning and Conclusion
11. The first and foremost question to be addressed is whether the
decision of the arbitral tribunal that the laycan period of 07.05.2008 to
15.05.2008 was not accepted by SAIL, is perverse and unsustainable.
12. The arbitral tribunal referred to clause 2.1 of the Shipping Terms
and Conditions, which reads as under:-
"Keeping in view the contract delivery period and the
quantity of the Materials received at the load port(s), the
Seller serve on the Buyer, by Fax/e-mail, the Notice of
readiness of Materials for shipment (i.e. Seller's NOR)
indicating the laycan during which the vessel should arrive,
to nominate suitable vessel for shipment of the Materials."
13. The arbitral tribunal held that the opening words, "keeping in view
the contract delivery period ....." clearly required SAIL, to issue NOR
within the contract period; that is, that the shipment be made by April
2008. In terms of the Agreement, SAIL had indicated laycan as 25.04.2008
to 29.04.2008. Nordic has sought to revise the same by its communication
dated 15.04.2008. Mr Mehta had referred to this communication and
contended that SAIL had agreed to the same. However, a bare perusal of
the e-mail dated 17.04.2008 sent by SAIL, in response to Nordic's e-mail
dated 15.04.2008 plainly indicates that SAIL had reiterated the laycan
period as 25.04.2008 to 29.04.2008 against the laycan period of 07.05.2008
to 15.05.2008, as suggested by Nordic. Although SAIL had stated that the
L/C must be extended upto 15.06.2008, it specified the last date of
shipment as 30.04.2008. The arbitral tribunal considered the above
exchange of e-mails and rejected the contention that SAIL had agreed to
the revised laycan, as suggested by Nordic.
14. Mr Mehta contended that SAIL had clearly indicated that the L/C be
extended upto 15.06.2008 and such extension was contemplated under
clause 4.2 of the Agreement and, this clearly indicated that SAIL had
agreed to the revised laycan.
15. In these proceedings, this Court is not called upon to sit as an
appellate court in respect of the decision rendered by the arbitral tribunal
and thus it is not necessary to re-appreciate the evidence produced. The
scope of consideration in these proceedings is limited and this Court's
scrutiny of the impugned award is limited to examine whether the arbitral
tribunal's view is patently illegal or perverse. Plainly, the view expressed
by the arbitral tribunal is a plausible one. The e-mail dated 17.04.2008,
which is relied upon by Nordic to contend that SAIL had agreed to the
revised laycan, plainly indicates SAIL‟s observations against the
suggestion of laycan from 07.05.2008 to 15.05.2008 as „C6529--25-29
APRIL O8‟ . Thus, the decision of the arbitral tribunal that SAIL had not
agreed to the laycan as suggested by Nordic, cannot by any stretch, be
considered as perverse or unreasonable on the touchstone of the
wednesbury principle. In this view, no interference with the said decision is
called for.
16. The next contention to be considered is whether the decision of the
arbitral tribunal that Nordic was liable for payment of export duty is
contrary to the Agreement, perverse or otherwise unsustainable.
17. Admittedly, SAIL had invoked clause 9 of the Agreement (the Red
Clause) which is set out below:-
"9.0 Red Clause
9.1 In the event of:
(a) The failure of the Buyer to nominate a
suitable vessel within the specified
laydays, as mentioned in the Seller's
Notice of Readiness (NOR)
Or
(b) The vessel nominated by the Buyer and
accepted by the Seller failing to arrive at
the designated load port within the
agreed laycan for reasons other than
Force Majeure, as defined under Clause
10 herein below:
Or
(c) The vessel (nominated by the Buyer and
accepted by the Seller) being found
unsuitable after its arrival at the
designated loadport, as certified by
independent marine surveyor(s),
the seller shall be entitled to negotiate their
Commercial Invoice against the L/C opened
by the Buyer and realise 100% of the value of
the materials ready for shipment on the basis
of certificate issued by the Pre-shipment
Inspection agency certifying that the
contracted materials and quantity are ready for
shipment and also that the materials are in
good condition.
Remarks such as "materials partly rust
stained/rusty edges/wet before shipment/rust
stained/ some rusty edges' and/ or "stored in
open area prior to loading" and/or
"unprotected cargo" appearing in the Pre-
Shipment Inspection Certificate are
acceptable.
9.2 The title having already passed on to the
buyer, the materials will thereafter be held in
custody by the seller at the risk and
responsibility of the buyer at the storage yard
of the seller. The materials will be covered by
tarpaulin at the buyer's request and cost at the
storage yard of the seller.
The cost of holding materials shall be as
follows till the date of acceptance of vessel's
NOR, when the vessel finally calls at the
loadport :
US $ PMT
i] For the first 15 days from the
date of expiry of NOR Nil
ii] For any subsequent week(s)
Buyer to ensure that payment towards
Ground Rent and/or Tarpaulin cost is
remitted and remittance Instruction duly
forwarded by SWIFT message, before
actual shipment, against the debit invoice.
9.3 The Buyer shall however nominate [another]
suitable vessel within reasonable time from
the date of realisation of payment, as
mentioned above, for taking delivery of the
cargo and subject to such vessel arriving at
the designated loadport, the seller shall at his
cost deliver the materials FOB [SLSD] in
terms of Contract.
9.4 The Letter of Credit established by the buyer
in favour of the seller shall make specific and
unconditional provision to the above [9.1 to
9.3] effect.
L/C to be opened with First Class
International Bank having Correspondent
relationship with State Bank of India, Name
of the Banks can be obtained by the buyer
from SAIL."
18. In terms of clause 9.1(a) of the Agreement, the failure of Nordic to
nominate a suitable vessel within the specified laydays, as mentioned in
SAIL's NOR would entitle SAIL to invoke the Red Clause and negotiate
the L/C opened by Nordic. Since Nordic did not nominate the vessel during
the laycan period indicated by SAIL in its NOR (25.04.2008 to
29.04.2008), SAIL's action to negotiate the L/C cannot be faulted.
19. Concededly, with the Red Clause being invoked, the title in the
goods in question transferred from SAIL to Nordic. In terms of clause 9.2
of the Agreement, the attendant risk and responsibility for the materials
also stood transferred to Nordic. During the course of arguments, Mr
Mehta had readily conceded that in the event any damage was caused to
the goods after SAIL had invoked the Red Clause, the same would have to
be borne by Nordic and not SAIL. Thus, there is no dispute that the
responsibility for risks in relation to the goods in question rested with
Nordic. The only question to be addressed is whether despite the transfer of
title, responsibility and risks in relation to the goods to Nordic, the
responsibility to pay the export duties levied for the first time, after the title
in the goods had passed, would have to be borne by SAIL?
20. There is no dispute that it was SAIL's liability to pay custom duties
that were in vogue prior to the invocation of the Red Clause as SAIL was
responsible for bearing all duties. However, it was SAIL's case that it was
not responsible for imposition of any cost resulting from any subsequent
supervening event, including levy of export duties that were imposed after
SAIL had invoked the Red clause.
21. The arbitral tribunal considered the issue and rejected Nordic's
contention that notwithstanding the transfer of risk and responsibility
relating to the goods, the liability to pay the export duty imposed for the
first time after Nordic had acquired the title of the goods, would continue
to be that of SAIL. The arbitral tribunal held as under:-
"The provision of clause 9.2 of the Red clause makes it
amply clear that the title of the goods passes on the buyer
on negotiating the documents and realizing 100% payment
and thereafter the goods are to be held in the custody of the
seller at the risk and responsibility of the buyer. M/s.
SAIL as such after having realized 100% value of the
goods on 7/5/2008 was holding the goods at their
stockyard entirely at the risk of the buyer and any
subsequent development effecting the cost structure of the
contract was, accordingly, to the account of the buyer. In
the present case, the export duty imposed by GOI on
10/5/2008 was therefore liable to be borne by the
claimant."
22. This Court finds no infirmity with the aforesaid view and in any
event the said decision cannot be stated to be perverse or patently illegal.
The contention that the said view is contrary to the plain language of the
Agreement is also unpersuasive.
23. Mr Mehta had referred to clause 9.3 of the Agreement and stated that
in terms of the said clause, SAIL was obliged to deliver the materials FOB.
He had further submitted that in terms of the INCOTERMS, in a FOB
contract, the liability to pay all costs and custom duties are that of the
seller. He relied on the definition of 'FOB' as provided under the
INCOTERMS 2000 which reads as under:-
"FOB
Free on board (... named port of shipment)
"Free on Board" means that the seller delivers when the
goods pass the ship's rail at the named port of shipment.
This means that the buyer has to bear all costs and risks of
loss of or damage to the goods from that point. The FOB
terms requires the seller to clear the goods for export. This
term can be used only for sea or inland waterway transport.
If the parties do not intend to deliver the goods across the
ship's rail, the FCA term should be used."
24. He then referred to clause A6 relating to FOB terms (as given in the
INCOTERMS) and submitted that all costs relating to the goods were
payable by the seller. The relevant clauses: clauses A6 and B6 are set out
below:-
"A6 Division of costs
The seller must, subject to the provisions of B6, pay
- all costs relating to the goods until such time as
they have passed the ship's rail at the named
port of shipment; and
- where applicable, the costs of customs
formalities necessary for export as well as all
duties, taxes and other charges payable upon
export.
B6 Division of costs
The buyer must pay
- all costs relating to the goods from the time
they have passed the ship's rail at the named
port of shipment; and
- any additional costs incurred, either because the
vessel nominated by him fails to arrive on time
or is unable to take the goods, or closes for
cargo earlier than the time notified in
accordance with B7, or because the buyer has
failed to give appropriate notice in accordance
with B7, provided, however, that the goods
have been duly appropriated to the contract,
that is to say, clearly set aside or otherwise
identified as the contract goods; and
- where applicable, all duties, taxes and other
charges as well as the costs of carrying out
customs formalities payable upon import of the
goods and for their transit through any
country."
25. Admittedly, SAIL was liable to pay customs duty relating to the
goods till such time as they passed the ship's rail. However, the question is
not of customs duty , which were otherwise in contemplation of the parties,
but the additional export duty levied for the first time after the title of the
goods passed to Nordic and after SAIL had realised the entire
consideration. The export duty of 15% was imposed by virtue of a
notification issued by the Government of India on 10.05.2008 and,
admittedly, the process of clearing the goods had commenced on
08.05.2006, after SAIL had invoked the Red Clause and received the
consideration for the same. The arbitral tribunal thus considered that such
duties which altered the cost structure after the title of the goods had
passed were payable by Nordic. In effect, the arbitral tribunal held that
such duties formed a part of additional costs incurred after the title and risk
had passed to Nordic and which would also include additional costs
incurred on account of any supervening event. The expression 'FOB' as
used in clause 9.3 of the Agreement, must be understood in the context of
the Red Clause.
26. The FOB shipment as explained under INCOTERMS is to be
applied under normal circumstances and not in cases where any breach of
contract is alleged. In the introduction to INCOTERMS, it is expressly
stated as under:-
".... Although Incoterms are extremely important for the
implementation of the contract of sale, a great number of
problems which may occur in such a contract are not
dealt with at all, like transfer of ownership and other
property rights, breaches of contract and the
consequences following from such breaches as well as
exemptions from liability in certain situations. It should
be stressed that Incoterms are not intended to replace
such contract terms that are needed for a complete
contract of sale either by the incorporation of standard
terms or by individually negotiated terms.
Generally, Incoterms do not deal with the consequences
of breach of contract and any exemptions from liability
owing to various impediments. These questions must be
resolved by other stipulations in the contract of sale and
the applicable law."
27. It stands to reason that in the context of the Agreement between the
parties, the expression 'FOB' as used in clause 9.3 cannot be understood in
the manner as canvassed on behalf of Nordic. The definition of FOB as
provided under the INCOTERMS and as quoted above, clearly indicates
that the risk of loss or damages to the goods after the goods have passed
the ship's rails, are with the buyer. Thus implying that risk prior to that
point are with the seller. However, concededly, the risk of loss or damage
to the goods would stand transferred to Nordic once SAIL had invoked the
Red Clause. Thus, in the context of the Red Clause, the expression 'FOB'
would only imply that, notwithstanding the invocation of the Red Clause,
SAIL would be liable to deliver the goods onto the vessel but it does not
mean that the risk of loss or damage remained with SAIL even after the
title of the goods had passed to Nordic. It also stands to reason that
payment for additional costs resulting from imposition of additional levy
after the transfer of title of goods would also be Nordic's liability.
28. In view of the above, this Court is unable to accept that the decision
of the arbitral tribunal suffers from any patent illegality or is perverse.
29. Even if it is accepted that the decision of the arbitral tribunal is
erroneous, it is apparent that such error is within the exercise of its
jurisdiction and does not invites any interference in these proceedings.
(See: Associate Builders v. Delhi Development Authority: (2015) 3 SCC
49 and Steel Authority of India Ltd. v. Gupta Brother Steel Tubes Ltd.:
(2009) 10 SCC 63).
30. The dispute between the parties relates to interpretation of the
Agreement and it is well settled that the question as to interpretation of a
contract between the parties is clearly within the jurisdiction of the arbitral
tribunal. In Mcdermott International Inc. v. Burn Standard Co. Ltd and
Others.: (2006) 11 SCC 181, the Supreme Court held as under:-
"112. It is trite that the terms of the contract can be
express or implied. The conduct of the parties would also
be a relevant factor in the matter of construction of a
contract. The construction of the contract agreement is
within the jurisdiction of the arbitrators having regard to
the wide nature, scope and ambit of the arbitration
agreement and they cannot be said to have misdirected
themselves in passing the award by taking into
consideration the conduct of the parties. It is also trite that
correspondences exchanged by the parties are required to
be taken into consideration for the purpose of
construction of a contract. Interpretation of a contract is a
matter for the arbitrator to determine, even if it gives rise
to determination of a question of law. [See Pure Helium
India (P) Ltd. v. Oil & Natural Gas Commission: AIR
2003 SC 4519 and D.D. Sharma v. Union of India :
(2004) 5 SCC 325].
113. Once, thus, it is held that the arbitrator had the
jurisdiction, no further question shall be raised and the
court will not exercise its jurisdiction unless it is found
that there exists any bar on the face of the award."
The aforesaid view was reiterated by the Supreme Court in Sumitomo
Heavy Industries Limited v. Oil and Natural Gas Corporation Limited:
(2010) 11 SCC 296 and Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram
Saran: (2012) 5 SCC 306.
31. Although the decisions in Steel Authority of India Ltd. (supra) and
Sumitomo Heavy Industries Limited (supra) were rendered in the context
of the Arbitration Act, 1940, the view expressed therein continues to be
applicable as the scope of interference under the Act has not been widened
but has only been narrowed down considerably.
32. The contention that the arbitral tribunal had erred in not accepting
the claims for expenses and costs incurred by Nordic on account of SAIL's
delay in loading the goods, is largely premised on the basis that Nordic was
not liable to pay the export duties in question and thus, was rejected by the
arbitral tribunal.
33. It was contended that even if Nordic was liable to pay the duties,
SAIL ought to have paid the same and loaded the goods onto the vessel
and, thereafter pursue Nordic for recovery of the additional duties paid by
SAIL; since SAIL failed to do so, Nordic had to suffer additional costs on
account of the vessel being on standby and SAIL is, therefore, liable for
damages. This contention is unpersuasive. It was equally open for Nordic
to immediately open the L/C for the additional duty imposed and make its
claim for recovery against SAIL thereafter, as it has now done. If Nordic
had done so, it would have mitigated its costs.
34. The parties had transacted for sale and purchase of goods on the
understanding that delivery would be made against L/C and in the
circumstances, the insistence on the part of SAIL to not to deliver goods
without receipt of a L/C is understandable.
35. In any view of the matter, this Court cannot accept that any
interference with the impugned award is called for on account of the
arbitral tribunal rejecting Nordic's claim for cost and expenses arising from
delay in loading of goods.
36. In view of the above, the present petition is dismissed. The parties
are left to bear their own costs.
VIBHU BAKHRU, J
JULY 17, 2017
RK
