1 68.rpl.164.10 arbap.50.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION (LODGING) NO.164 OF 2010 IN ARBITRATION APPLICATION NO. 50 OF 2007 The Tata Power Company Limited ...Petitioner V/s. United Shippers Limited ....Respondent Mr.Janak Dwarkadas, Senior Counsel with Mr.Parag Kabadi i/b Doijode Associ.for the Petitioner. Mr.Prashant Pratap i/by Manoj Khatri for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 20 th DECEMBER, 2010. P.C. :- 1 There is no ground for reviewing the order and judgment dated 15th October 2010. 2 The findings in paragraphs 4 to 7 do not conclude the Review Petitioner's case on the aspect whether there was a full and final settlement before the Arbitral Tribunal. 3 I will presume that it was argued that the e-mails with respect to the shipments after the second contract established that the parties never intended to act upon the Memorandum of Understanding dated 6th April 2005 as in the e-mail, the Respondent to this Review Petition has 2 68.rpl.164.10 arbap.50.07 insisted upon a clean confirmation of the Memorandum of Understanding, which was never furnished by the Petitioner. 4 In any event, what I have said in respect of the Memorandum of Understanding namely that it was acted upon by the parties would apply equally to this submission. This submission is in any event unsustainable. The Respondent to the Review Petition who had forwarded the e-mail performed the contract despite the clean confirmation of the Memorandum of Understanding not having been furnished. It is the Respondent, therefore, who could have had cause for grievance regarding the clean confirmation not having been furnished and thereby refused to make further shipments. They were entitled to waive the condition which they obviously did. The parties, therefore performed the contract without reference to the Respondent’s requirement of a clean confirmation of the Memorandum of Understanding. 5 As rightly pointed out by Mr.Pratap, these e-mails were in response to the nomination of the vessels made by the Review Petitioner. The nominations were made under clause 7 of the terms of the contract. It is in response to these nominations that the e-mail relied upon by Mr.Dwarkadas were addressed by the Respondent to the Review Petition seeking a clean conformation of the Memorandum of Understanding, dated 6th April 2005. That the shipments were made without a clean confirmation would not establish that the Memorandum of Understanding was not acted upon. 3 68.rpl.164.10 arbap.50.07 6 Further, these e-mails, in fact, support the Respondent’s case and militate against the Petitioner’s case. It is obvious that if the Memorandum of Understanding was not to operate between the parties, the Review Petitioner would immediately have been responded to the e- mails by stating that there is no question of any confirmation of the Memorandum of Understanding as the same did not operate between the parties. 7 In view of the above findings and in view of the findings in the order sought to be reviewed, there was no question of granting the parties liberty of leading evidence. 7 The Petition is, therefore, dismissed. The stay is extended up to and including 27th January 2011. -