Holding

The arbitration clause in the main (umbrella) agreement (Clause 23) governs the dispute, rendering the Section 11 application under the purchase‑order clause unsustainable.

Summary

Balasore Alloys Ltd filed an arbitration petition under Section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of a sole arbitrator based on Clause 7 of 37 purchase orders. Medima LLC contended that the parties were bound by an earlier ‘Umbrella’ (Pricing) Agreement dated 31‑03‑2018, which contained a different arbitration clause (Clause 23) and that an ICC arbitral tribunal had already been constituted under that clause. The Court examined whether the two arbitration clauses could coexist and which one governed the dispute, emphasizing that the nature of the dispute (price and payment terms) fell within the scope of the main agreement. Referring to the principle of harmonising conflicting clauses, the Court held that the arbitration clause in the main agreement prevailed and that the Section 11 application invoking the purchase‑order clause was not maintainable. Consequently, both the arbitration petition and the related Special Leave Petition were dismissed.

Issues considered

The applicability of the arbitration clause in the purchase orders versus the clause in the umbrella (Pricing) Agreement.
Whether a Section 11 application for appointment of an arbitrator is maintainable when an arbitral tribunal has already been constituted under another agreement.
Whether purchase orders issued before the execution of the umbrella agreement are covered by that agreement.

Legislation cited

Arbitration and Conciliation Act, 1996s. 11(12)(a), s. 11(6)

Subjects

Arbitration clauseSection 11 applicationUmbrella agreementPurchase orderICC arbitral tribunalHarmonisation of arbitration clausesContract interpretation

Judgment

1036 [2020]REPORTS
SUPREME COURT 6 S.C.R. 1036 [2020] 6 S.C.R.

A BALASORE ALLOYS LIMITED
v.
MEDIMA LLC
(Arbitration Petition (Civil) No. 15/2020)
B SEPTEMBER 16, 2020
[S. A. BOBDE, CJI, A. S. BOPANNA AND
V. RAMASUBRAMANIAN, JJ.]
Arbitration and Conciliation Act, 1996:
C s.11 – Application under – Seeking appointment of sole
arbitrator – Sustainability of – 37 Purchase Orders placed by
respondent in favour of applicant – Parties also entered into
agreement dated 31.03.2018 relating to same transaction –
Application for appointment of arbitrator by applicant relying on
Clause 7 of the 37 Purchase Orders – Plea of respondent that entire
D
transaction was governed by agreement dated 31.03.2018 which
was an ‘Umbrella Agreement’ and as per Clause 23 thereof, Arbitral
Tribunal had already been constituted by International Chamber
of Commerce (ICC) – Held: In view of the nature of dispute that has
been raised by the applicant with regard to the price and terms of
E payment including recovery etc., the parties would be governed by
Clause 23 of the agreement dated 31.03.2018 and not by Clause 7
of Purchase Orders – Therefore, Special leave Petition as regards
the applicant’s grievance against Constitution of Arbitral Tribunal
by ICC is also not liable to be entertained.
F Dismissing the Arbitration Application and the Special
Leave Petition, the Court
HELD:
Arbitration Petition (Civil) No. 15 of 2020:

G 1. Since the transaction entered into between the parties
and the dispute having arisen not being in dispute; further
arbitration Clause 7 of the 37 separate purchase orders being
explicit; in a normal circumstance no other consideration would
have been necessary in the limited scope for consideration in an
application under Section 11 of the Act, 1996. However, in the
H
1036
BALASORE ALLOYS LIMITED v. MEDIMA LLC 1037

present case the fact remains that undisputedly an Agreement A
dated 31.03.2018 is also entered into between the parties relating
to the very same transaction which is referred to as the “Umbrella
Agreement” by the respondent and as “Pricing Agreement” by
the applicant. The said agreement also makes provision for
resolution of disputes through arbitration in the manner as
B
indicated therein. [Para 7][1042-G-H; 1043-A]
2. A perusal of the documents reveals that in the present
case the applicant had not initiated the process of invoking the
arbitration clause. On the other hand a notice dated 13.03.2020
(Annexure A-41) was issued on behalf of the respondent by its
C
attorney to the applicant referring to the breach of the agreement
dated 31.03.2018 (Umbrella agreement/Pricing agreement) and
as per the procedure provided under Clause-23 of the said
agreement an opportunity was provided to amicably resolve the
matter; failing which it was indicated that the respondent would
approach the International Chamber of Commerce (ICC) in 30 D
days. It is in reply to the said notice dated 13.03.2020 issued by
the Respondent on 13.04.2020, the applicant herein disputed the
claim put forth by the respondent under the Agreement dated
31.03.2018 referring to it as the Pricing Agreement. Further, the
applicant thereafter referred to the nature of their claim and
E
thereon proceeded to indicate that the constitution of the Arbitral
Tribunal and conduct of arbitration proceeding shall be in
accordance with Clause-7 of the contract terms forming part of
and governing all individual contracts. [Para 9][1045-C-F]
3. In the above backdrop, when both, the purchase order
as also the Pricing Agreement subsists and both the said F
documents contain the arbitration clauses which are not similar
to one another, in order to determine the nature of the arbitral
proceedings the said two documents will have to be read in
harmony or reconciled so as to take note of the nature of the
dispute that had arisen between the parties which would require G
resolution through arbitration and thereafter arrive at the
conclusion as to whether the instant application filed under Section
11 of the Act, 1996 would be sustainable so as to appoint an
arbitrator by invoking Clause-7 of the purchase order; more

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1038 SUPREME COURT REPORTS [2020] 6 S.C.R.

A particularly in a situation where the Arbitral Tribunal has already
been constituted in terms of Clause-23 of the agreement dated
31.03.2018. [Para 10][1045-G-H; 1046-A]
4. A close perusal of Paras 6, 7, 8 and 9 of the reply by the
applicants dated 13.4.2020 would indicate that the reference made
B by the applicant with regard to the price and the terms of the
payment governing individual contracts is with reference to the
Pricing Agreement which in fact is the Agreement dated
31.03.2018. In that context, the terms 5, 8, 9 and 10 of the Pricing
Agreement would indicate that it provides for the mechanism
relating to purchases and sales; final price, payment of provisional
C price and adjustment of advance, determination of the final sale
price and monthly accounting and payment. On taking note of
the same, a perusal of the contract terms in the purchase order
relied upon by the applicant does not provide for such
determination of pricing except the purchase order referring to
D the price of the quantity ordered for and the special terms relating
to provisional price etc. Therefore, in that circumstance the
nature of dispute raised by the applicant themselves in the reply
notice dated 13.04.2020 will indicate that those aspects are to be
determined in terms of the provisions contained in the Agreement
dated 31.03.2018 which resultantly will be relevant for payment
E to be made under each of the purchase order. Therefore, even if
disputes are raised relating to the contract terms, the pricing,
deductions etc. will relate to the main agreement and the Arbitral
Tribunal constituted thereunder can go into other issues if any
arises under the contract terms of the individual purchase order
F as well. [Para 12][1047-C-F]
5. It is not correct to say that the Pricing Agreement dated
31.03.2018 cannot be deemed to have applied to the earlier
purchase orders, as the transaction in fact had commenced as far
back as on 08.08.2017 and 21 purchase orders were placed up to
G 30.03.2018 i.e. prior to 31.03.2018 i.e. the date on which the
Pricing Agreement was executed. Clause-20(a) of the Agreement
dated 31.03.2018 provides that the Agreement shall commence
on 31.03.2017 and end on 31.03.2021. This clearly indicates that
it was the intention of the parties that the terms contained in the
Agreement would govern all transactions, including those which
H
BALASORE ALLOYS LIMITED v. MEDIMA LLC 1039

had commenced from 08.08.2017. Further it is noticed that the A
parties were earlier governed by an Agreement dated 19.06.2017
which was for a fixed quantity of 2000 MT of the produce while
the present agreement, according to the parties was on a long
term basis fixing the time period for which it was valid and the
individual purchase orders will have to be taken note for the
B
specific quantity ordered for under each of the transactions, the
price of which was to be ultimately determined as provided under
the Pricing Agreement. [Para 13][1047-G-H; 1048-A-C]
6. Thus, when admittedly the parties had entered into the
agreement dated 31.03.2018 and there was consensus ad-idem
to the terms and conditions contained therein which is C
comprehensive and encompassing all terms of the transaction
and such agreement also contains an arbitration clause which is
different from the arbitration clause provided in the purchase
order which is for the limited purpose of supply of the produce
with more specific details which arises out of Agreement dated D
31.03.2018; the arbitration clause contained in Clause-23 in the
main agreement dated 31.03.2018 would govern the parties
insofar as the present nature of dispute that has been raised by
them with regard to the price and the terms of payment including
recovery etc. In that view, it would not be appropriate for the
applicant to invoke Clause-7 of the purchase orders more E
particularly when the arbitration clause contained in the
Agreement dated 31.03.2018 has been invoked and the Arbitral
Tribunal has already been appointed on 22.06.2020. [Para
14][1048-D-F]
Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan F
& Ors. (1999) 5 SCC 651 : [1999] 3 SCR 490 – relied
on.
SLP (C) NO. 10264 OF 2020:
7. The petitioner claiming to be aggrieved by the G
constitution of the Arbitral Tribunal under the Agreement dated
31.03.2018, has filed the suit seeking a decree of declaration
that the arbitration clause-23 of the Pricing Agreement dated
31.03.2018 is null and void and in that context has sought for the
ancillary relief in the suit. In the said suit the petitioner has moved
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1040 SUPREME COURT REPORTS [2020] 6 S.C.R.

A the ‘Notice of Motion’ seeking for an interlocutory order of
injunction against the Arbitral Tribunal constituted by the ICC.
The prayer for interim order has been rejected and the ‘Notice
of Motion’ has been dismissed. The appeal to the Division Bench
has been admitted for consideration though the plea for grant of
interim order was declined. There is no reason to interfere with
B
the same, more particularly keeping in view conclusion on the
same subject matter while addressing the rival contentions in
the Arbitration Application No.15/2020. [Paras 15-16][1049-A-
D]
Case Law Reference
C
[1999] 3 SCR 490 relied on Para 8
CIVIL ORIGINAL/APPELLATE JURISDICTION: Arbitration
Petition (Civil) No. 15 of 2020.
Application under Section 11(6) read with section 11(12)(a) of
D the Arbitration and Conciliation Act, 1996.
With
Special Leave Petition (Civil) No. 10264 of 2020
Maninder Singh, S. N. Mookherjee, Ritin Rai, Sr. Advs., Gautam
E Mitra, Gaurav Mitra, Ms. Anusha Nagarajan, Rishad Medora, Prabhas
Bajaj, Mrs. Pragya Baghel, Shaunak Mitra, Ms. Nandini Khaitan, Rajat
Jariwal, Anupinder Jassal, Ms. Shreya Singh, Aakash Bajaj, Sanjeev
Kumar, Advs. for the appearing parties.
The following Judgment of the Court was delivered:
F JUDGMENT
1. The Applicant - Balasore Alloys Limited is before this Court in
this petition filed under Section 11(6) read with Seciton 11(12)(a) of the
Arbitration and Conciliation Act, 1996 (‘Act, 1996’ for short) praying
that a sole arbitrator be appointed to adjudicate upon all disputes that
G have arisen between the parties in connection with the 37 purchase
orders referred to in the application. Alternatively, it is prayed that the
second arbitrator be appointed on account of the failure of the respondent
– Medima LLC to nominate an arbitrator in terms of the contracts.
2. The applicant is a manufacturer of High Carbon Ferro Chrome.
H The applicant and the respondent accordingly, entered into transactions
whereby the applicant agreed to supply the High Carbon Ferro Chrome
BALASORE ALLOYS LIMITED v. MEDIMA LLC 1041

manufactured by them to the respondent for sale of the same in the A
territory of USA and Canada. Initially an Agreement dated 19.06.2017
limited to the sale of 2000 MT was entered into. Pursuant to such
transaction 37 purchase orders were placed by the respondent in favour
of the applicant specifying details of the supply to be made under each
of the purchase orders. The parties had also entered into an Agreement
B
dated 31.03.2018 relating to the same transaction whereunder certain
terms as enumerated therein were agreed upon. In respect of the said
transactions certain disputes have arisen between the parties which is
required to be resolved through arbitration.
3. The applicant, therefore, while seeking for appointment of an
arbitrator to resolve such disputes has sought to rely on Clause-7 in the C
said 37 purchase orders providing for resolution of disputes through
arbitration by the Arbitral Tribunal to be constituted as provided therein.
Since according to the applicant, the respondent had failed to appoint
their arbitrator, despite the petitioner having nominated Mr. Justice
Amitava Lala, Retired High Court Judge, the applicant is before this D
Court seeking the appointment of an arbitrator.
4. The respondent, on being notified in this petition has entered
appearance and filed its detailed counter affidavit. The nature of
transaction entered into between the parties is not disputed. The fact
that certain arbitrable disputes have arisen between the parties is also E
not controverted. However, it is the case of the respondent that the
entire transaction is governed under the Agreement dated 31.03.2018
which is referred to by the respondent as an “Umbrella Agreement”. It
is their further case that the said agreement dated 31.03.2018 vide Clause-
23 thereof provides for resolution of disputes through arbitration in the
manner as indicated therein and as such the respondent had already F
invoked the same by issue of notice. Further, as per the procedure
contemplated in Clause-23 the respondent had filed a petition before the
International Chamber of Commerce (‘ICC’ for short) and the Arbitral
Tribunal has been duly constituted. The respondent, therefore, contends
that the instant application filed by the applicant seeking appointment of G
the Arbitral Tribunal in terms of Clause-7 of the purchase order is not
bonafide; the application is liable to be dismissed. The applicant has filed
the rejoinder to the counter affidavit filed on behalf of the respondent
whereby the contentions put forth by the respondent is sought to be
disputed and the averments in the application are reiterated.
H
1042 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 5. In the above background, we have heard Shri Maninder Singh,
learned senior counsel for the applicant, Shri S.N. Mookherjee and Shri
Ritin Rai, learned senior counsel for the respondent and perused the
application papers.
6. Having taken note of the averments contained in the pleading
B and the contentions urged by the learned senior counsel for the respective
parties,it is evident that the parties having entered into a business
transaction; certain disputes have arisen between them which is to be
resolved through arbitration. To that extent the parties are also in
agreement.The issue for consideration however, is with regard to the
appropriate clause that will operate providing for arbitration and will be
C applicable in the factual matrix herein. Since the applicant is before this
Court invoking the arbitration clause in the purchase order (37 separate
purchase orders), it is necessary to take note of the arbitration clause
relied upon, which reads as hereunder:
“7. ARBITRATION:Disputes and differences arising out of or in
D connection with or relating to the interpretation or implementation
of this contract/order shall be referred to the Arbitral Tribunal
consisting of 3 Arbitrators of which each party shall appoint one
Arbitrator, and the two appointed Arbitrators shall appoint the third
Arbitrator who shall act as the Presiding Arbitrator as per the
E provisions of the Arbitration and Conciliation Act, 1996 and any
modification or re-enactment thereto. The venue of the arbitration
proceedings shall be at Kolkata and language of the arbitration
shall be English. The arbitration award shall be final and binding
upon the parties and the parties agree to be bound thereby and to
act accordingly. When any dispute has been referred to arbitration,
F except for the matters in dispute, the parties shall continue to
exercise their remaining respective rights and fulfil their remaining
respective obligations.”
7. Since the transaction entered into between the parties and the
dispute having arisen not being in dispute; further the above extracted
G arbitration clause being explicit;in a normal circumstance no other
consideration would have been necessary in the limited scope for
consideration in an application under Section 11 of the Act, 1996.
However, in the case on hand the fact remains that undisputedly an
Agreement dated 31.03.2018 is also entered into between the parties
H relating to the very same transaction which is referred to as the “Umbrella
BALASORE ALLOYS LIMITED v. MEDIMA LLC 1043

Agreement” by the respondent and as “Pricing Agreement” by the A
applicant. The said agreement also makes provision for resolution of
disputes through arbitration in the manner as indicated therein. It would
be appropriate to take note of the arbitration clause which reads as
hereunder:
“23. GOVERNING LAW; DISPUTES B
This Agreement shall be governed by and construed in accordance
with the laws of the United Kingdom. Any claim, controversy or
dispute arising out of or in connection with this Agreement or the
performance hereof, after a thirty calendar day period to enable
the parties to resolve such dispute in good faith, shall be submitted C
to arbitration conducted in the English language in the United
Kingdom in accordance with the Rules of Arbitration of the
International Chamber of Commerce by 3 (Three) arbitrators
appointed in accordance with the said Rules, to be conducted in
the English language in London in accordance with British Law.
Judgment on the award may be entered and enforced in any court D
having jurisdiction over the party against whom enforcement is
sought.”
8. At this stage, it is necessary for us to refer to the decision
rendered in the case of Olympus Superstructures Pvt. Ltd. vs. Meena
Vijay Khetan & Ors. (1999) 5 SCC 651 wherein this Court was E
confronted with the issue of there being two different arbitration clauses
in two related agreements between the same parties. This Court while
dealing with the same had harmonised both the clauses and had on
reconciliation held that the parties should get the disputes resolved under
the main agreement. In that context it was held as hereunder: - F
“30. If there is a situation where there are disputes and differences
in connection with the main agreement and also disputes in regard
to “other matters” “connected” with the subject-matter of the
main agreement then in such a situation, in our view, we are
governed by the general arbitration clause 39 of the main G
agreement under which disputes under the main agreement and
disputes connected therewith can be referred to the same arbitral
tribunal. This clause 39 no doubt does not refer to any named
arbitrators. So far as clause 5 of the Interior Design Agreement is
concerned, it refers to disputes and differences arising from that
H
1044 SUPREME COURT REPORTS [2020] 6 S.C.R.

A agreement which can be referred to named arbitrators and the
said clause 5, in our opinion, comes into play only in a situation
where there are no disputes and differences in relation to the
main agreement and the disputes and differences are solely
confined to the Interior Design Agreement. That, in our view, is
the true intention of the parties and that is the only way by which
B
the general arbitration provision in clause 39 of the main agreement
and the arbitration provision for a named arbitrator contained in
clause 5 of the Interior Design Agreement can be harmonised or
reconciled. Therefore, in a case like the present where the disputes
and differences cover the main agreement as well as the Interior
C Design Agreement, - (that there are disputes arising under the
main agreement and the Interior Design Agreement is not in
dispute) – it is the general arbitration clause 39 in the main
agreement that governs because the questions arise also in regard
to disputes relating to the overlapping items in the schedule to the
main agreement and the Interior Design Agreement, as detailed
D
earlier. There cannot be conflicting awards in regard to items
which overlap in the two agreements. Such a situation was never
contemplated by the parties. The intention of the parties when
they incorporated clause 39 in the main agreement and clause 5
in the Interior Design Agreement was that the former clause was
E to apply to situations when there were disputes arising under both
agreements and the latter was to apply to a situation where there
were no disputes or differences arising under the main contract
but the disputes and differences were confined only to the Interior
Design Agreement. A case containing two agreements with
arbitration clauses arose before this Court in Agarwal Engg. Co.
F
v. Technoimpex Hungarian Machine Industries Foreign Trade Co.
There were arbitration clauses in two contracts, one for sale of
two machines to the appellant and the other appointing the appellant
as sales representative. On the facts of the case, it was held that
both the clauses operated separately and this conclusion was based
G on the specific clause in the sale contract that it was the “sole
repository” of the sale transaction of the two machines. Krishna
Iyer, J. held that if that were so, then there was no jurisdiction for
travelling beyond the sale contract. The language of the other
agreement appointing the appellant as sales representative was
prospective and related to a sales agency and “later purchases”,
H
BALASORE ALLOYS LIMITED v. MEDIMA LLC 1045

other than the purchases of these two machines. There was A
therefore no overlapping. The case before us and the above case
exemplify contrary situations. In one case the disputes are
connected and in the other they are distinct and not connected.
Thus, in the present case, clause 39 of the main agreement applies.
Points 1 and 2 are decided accordingly in favour of the
B
respondents.”
9. Having taken note of the arbitration clause existing in two
different set of documents between the same parties relating to the same
transaction; in order to harmonise or reconcile and arrive at a conclusion
as to which of the clauses would be relevant in the instant facts; it would
be necessary for us to refer to the manner in which the arbitration clause C
was invoked and the nature of the dispute that was sought by the parties
to be resolved through arbitration. In that regard a perusal of the
documents will reveal that in the case on hand the applicant had not
initiated the process of invoking the arbitration clause. On the other hand
a notice dated 13.03.2020 (Annexure A-41) was issued on behalf of the D
respondent by its attorney to the applicant referring to the breach of the
agreement dated 31.03.2018 (Umbrella agreement/Pricing agreement)
and as per the procedure provided under Clause-23 of the said agreement
an opportunity was provided to amicably resolve the matter; failing which
it was indicated that the respondent would approach the International
Chamber of Commerce (ICC) in 30 days. It is in reply to the said notice E
dated 13.03.2020 issued by the Respondent on 13.04.2020, the applicant
herein disputed the claim put forth by the respondent under the Agreement
dated 31.03.2018 referring to it as the Pricing Agreement. Further, the
applicant thereafter referred to the nature of their claim and thereon
proceeded to indicate that the constitution of the Arbitral Tribunal and F
conduct of arbitration proceeding shall be in accordance with Clause-7
of the contract terms forming part of and governing all individual
contracts.
10. In the above backdrop, when both, the purchase order as also
the Pricing Agreement subsists and both the said documents contain the G
arbitration clauses which are not similar to one another, in order to
determine the nature of the arbitral proceedings the said two documents
will have to be read in harmony or reconciled so as to take note of the
nature of the dispute that had arisen between the parties which would
require resolution through arbitration and thereafter arrive at the
H
1046 SUPREME COURT REPORTS [2020] 6 S.C.R.

A conclusion as to whether the instant application filed under Section 11 of
the Act, 1996 would be sustainable so as to appoint an arbitrator by
invoking Clause-7 of the purchase order; more particularly in a situation
where the Arbitral Tribunal has already been constituted in terms of
Clause-23 of the agreement dated 31.03.2018.
B 11. To determine this aspect, apart from the fact that the respondent
was the first to invoke the arbitration clause with reference to the
Agreement dated 31.03.2018, it is noticed that in the reply dated
13.04.2020 issued by the applicant it is in the nature of invocation of the
arbitration clause by the applicant. It would be appropriate to take note
of the contents in paras 6, 7, 8 and 9 thereof which is the crux of the
C dispute that would require resolution through arbitration and reads as
hereunder:
“6. Under the Pricing Agreement, which contains the price and
terms of payment governing individual contracts, the Products
are purchased by Medima at the Provisional Sales Price arrived
D at by applying a discount on CRU/Ryan’s notes. Where the Final
Sales Price to the customer after deduction of expenses and fees
as specified in the Pricing Agreement is higher than the Provisional
Price, Medima is liable to remit the difference between the two.
However, the Pricing Agreement unequivocally stipulates that all
E risks for sale to customers shall be borne by Medima and as such,
confers no right upon Medima to recover losses from Balasore.
7. Balasore is, on the other hand, entitled to recovery of 100% of
the Provisional Price and any amount recovered by Medima in
addition thereto.
F 8. In this context, Balasore has repeatedly pointed out to Medima
that the statements issued by Medima are incomplete and do not
contain necessary details customer-wise for the purposes of
reconciliation.
9. Even on the basis of the incomplete and inaccurate statements
G provided by Medima from time to time, it is clear that Medima
has been making much high deductions than permissible under
the Pricing Agreement and thereby depriving Balasore of amounts
lawfully owing to it under the individual contracts. Some of the
issues repeatedly raised by Balasore are:
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BALASORE ALLOYS LIMITED v. MEDIMA LLC 1047

1. The allegedly actual secondary costs are nearly twice as A
high as the budgets and estimates projected by Medima at the
time of booking the contracts;
2. The quantity and quality of Products invoiced by Medima
to the customers are different from the contracts signed by
Medima and Balasore; B
3. Interest for availing credit for delay in recovery beyond
60 days cannot be deducted as an expense;
4. Commission has to be charged on the net sales price and
not the Final Sales Price.”
C
12. A close perusal of the extracted portion would indicate that
the reference made by the applicant with regard to the price and the
terms of the payment governing individual contracts is with reference to
the Pricing Agreement which in fact is the Agreement dated 31.03.2018.
In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement would
indicate that it provides for the mechanism relating purchases and sales; D
final price, payment of provisional price and adjustment of advance,
determination of the final sale price and monthly accounting and payment.
On taking note of the same, a perusal of the contract terms in the
purchase order relied upon by the applicant does not provide for such
determination of pricing except the purchase order referring to the price E
of the quantity ordered for and the special terms relating to provisional
price etc. Therefore, in that circumstance the nature of dispute raised
by the applicant themselves in the reply notice dated 13.04.2020 will
indicate that those aspects are to be determined in terms of the provisions
contained in the Agreement dated 31.03.2018 which resultantly will be
relevant for payment to be made under each of the purchase order. F
Therefore, even if disputes are raised relating to the contract terms, the
pricing, deductions etc. will relate to the main agreement and the Arbitral
Tribunal constituted thereunder can go into other issues if any arises
under the contract terms of the individual purchase order as well.
13. However, in an attempt to dispel such understanding, Mr. G
Maninder Singh, learned senior counsel sought to contend that while the
respondent relies on the Pricing Agreement dated 31.03.2018, the
transaction in fact had commenced as far back as on 08.08.2017 and 21
purchase orders were placed up to 30.03.2018 i.e. prior to 31.03.2018,
the date on which the Pricing Agreement was executed and as such the
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1048 SUPREME COURT REPORTS [2020] 6 S.C.R.

A same cannot be deemed to have applied to the earlier purchase orders.
Though such contention is put forth we are unable to accept the same
since Clause-20(a) of the Agreement dated 31.03.2018 provides that
the Agreement shall commence on 31.03.2017 and end on 31.03.2021
which clearly indicates that it was the intention of the parties that the
terms contained in the Agreement would govern all transactions, including
B
those which had commenced from 08.08.2017. Further it is noticed that
the parties were earlier governed by an Agreement dated 19.06.2017
which was for a fixed quantity of 2000 MT of the produce while the
present agreement, according to the parties was on a long term basis
fixing the time period for which it was valid and the individual purchase
C orders will have to be taken note for the specific quantity ordered for
under each of the transactions, the price of which was to be ultimately
determined as provided under the Pricing Agreement.
14. In that view of the matter, when admittedly the parties had
entered into the agreement dated 31.03.2018 and there was consensus
D ad-idem to the terms and conditions contained therein which is
comprehensive and encompassing all terms of the transaction and such
agreement also contains an arbitration clause which is different from
the arbitration clause provided in the purchase order which is for the
limited purpose of supply of the produce with more specific details which
arises out of Agreement dated 31.03.2018; the arbitration clause contained
E in Clause-23 in the main agreement dated 31.03.2018 would govern the
parties insofar as the present nature of dispute that has been raised by
them with regard to the price and the terms of payment including recovery
etc.In that view, it would not be appropriate for the applicant to invoke
Clause-7 of the purchase orders more particularly when the arbitration
F clause contained in the Agreement dated 31.03.2018 has been invoked
and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr.
Gourab Banerji and Ms. Lucy Greenwood has already been appointed
on 22.06.2020.
SLP(C) No.10264/2020
G 15. The instant Special Leave Petition is filed by the petitioner
who is the plaintiff in the Commercial Suit No.59/2020 pending before
the High Court of Calcutta. The petitioner herein is the petitioner in
Arbitration Application No.15/2020 which is dealt with hereinabove. The
facts noticed above while dealing with Arbitration application also
H discloses that the Arbitral Tribunal comprising of three arbitrators has
BALASORE ALLOYS LIMITED v. MEDIMA LLC 1049

been appointed by the ICC through the communication dated 22.06.2020. A
The Tribunal has been constituted based on the clause providing for
arbitration under the Agreement dated 31.03.2018. The petitioner claiming
to be aggrieved by the constitution of the Arbitral Tribunal has filed the
suit seeking a decree of declaration that the arbitration clause-23 of the
Pricing Agreement dated 31.03.2018 is null and void and in that context
B
has sought for the ancillary relief in the suit. In the said suit the petitioner
has moved the ‘Notice of Motion’ seeking for an interlocutory order of
injunction against the Arbitral Tribunal constituted by the ICC. The learned
Single Judge through a detailed judgment dated 12.08.2020 has rejected
the prayer for interim order and the ‘Notice of Motion’ has been
dismissed. The petitioner claiming to be aggrieved by the said order had C
preferred an appeal to the Division Bench, which on consideration has
declined grant of interim order though the appeal has been admitted for
consideration.
16. Having heard the learned senior counsel and having perused
the orders impugned we see no reason to interfere with the same, more D
particularly keeping in view our conclusion on the same subject matter
while addressing the rival contentions in the Arbitration Application No.15/
2020.
17. In the result, the Arbitration Application No.15/2020 and SLP
No.10264/2020 stand dismissed with no order as to costs. E

Kalpana K. Tripathy Arbitration application and SLP dismissed.

F

G

H