Delhi High Court Pec Limited vs Adm Asia Pacific Trading Pte Ltd. on 13 July, 2016 * % Judgment reserved on: 29th March, 2016 Judgment pronounced on: 13th July, 2016 + O.M.P. No.1102/2014 PEC LIMITED ..... Petitioner Through Mr.Alok Krishna Agarwal, Adv.with Mr.Mayank Bughani, Adv. versus ADM ASIA PACIFIC TRADING PTE LTD. ..... Respondent Through Mr.Sandeep Sethi, Sr. Adv. with Mr.Amitava Majumdar, Mr.Arvind Gupta & Mr.Arjun Mital, Advs. HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. The petitioner has filed the present petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the "Act") challenging an unanimous Award passed on 28th May, 2014 by the Arbitral Tribunal comprising of Justice (Retd.) Rekha Sharma, Justice (Retd.) Usha Mehra and Mr.G.P. Khot. 2. The Tribunal after detailed consideration of pleadings, oral arguments and written submissions filed by both the parties passed an unanimous Award awarding demurrage to the respondent a sum of USD391,823 under two contracts of sale being Contract No.PEC/YPEAS/2008/IXA/TOEPFER and Contract No.PEC/YPEAS/ 2008/IXB/TOEPFER both dated 30th July, 2008. The Tribunal also awarded interest at 5% on the sum awarded from 15th November, O.M.P. No.1102/2014 Page 1 of 30 2011 upto the date of final payment. The Tribunal rejected the counterclaim of the petitioner for despatch in the sum of USD30,712. 3. The undisputed facts already recorded by the Arbitral Tribunal in the award are that the petitioner M/s PEC Limited (respondent before the Tribunal) had floated a tender for import of 100,000 mts of Canadian Yellow Peas on 18th July, 2008. The respondent M/s. Toepfer International Asia Pte Ltd. (claimant therein) offered to supply 40,000 mts (+/ 10%) of Canadian Yellow Peas. After some rounds of negotiations on terms, the petitioner awarded the contract to the respondent for supply of 40,000 mts (+/ 10%) on C&F Free out basis on 30th July, 2008. The petitioner split the contract quantity in 2 parts of 20,000 mts (+/ 10%) of cargo under the understanding that both parts of the contract would be treated as composite contract in relation to the performance of the terms and conditions and the respondent would discharge its obligation under both parts of the contract simultaneously by shipping a total of 40,000 mts of cargo on C&F Free out basis with discharge ports at Vishakhapatnam (Vizag) and Kolkata on one vessel. The shipment period of the contracts was September to 15th October, 2008. The respondent loaded a quantity of 42,000 mts. of the cargo on vessel MV Tu Qiang (the said "vessel") in Vancouver, Canada and the vessel arrived in Vishakhapatnam on 14th October, 2008. The vessel discharged 21,000 mts. of cargo at Vizag and sailed for Kolkata on 21st October, 2008. The vessel arrived at Kolkata on 22nd October, 2008 and completed discharge of the balance quantity of 21,000 mts. of the cargo on 22nd November, 2008. 4. As the disputes between the parties arose with regard to the calculation of lay time and demurrage, the respondent invoked arbitration on 15th November, 2011 under clause 20 of the composite O.M.P. No.1102/2014 Page 2 of 30 contract and nominated Mr.G.P.Khot as its Arbitrator. The petitioner nominated Ms. Justice Usha Mehra (Retd. Judge of this Court) as its Arbitrator and the Arbitration Committee of the ICA appointed Ms. Justice Rekha Sharma (Retd. Judge of this Court) as the Presiding Arbitrator of the Tribunal under Rule 23(b) of the Council. 5. After completion of pleadings, the Tribunal framed the following issues: (1) Whether the claim of the Claimant is barred by limitation? (2) Whether the Claimant is entitled to the claim amount as per the Statement of Claim? (3) Whether the Respondent is entitled to the counter claim? (4) Whether the parties are entitled to interest, if so, at what rate and from what date? 6. After hearing both the parties and having gone through their written submissions, the Tribunal had passed the award while holding that the respondent is entitled to demurrage of 15 days 16 hours and 9 minutes amounting to a sum of USD391,823 along with interest @ 5% to be payable by the petitioner. 7. The petitioner