# TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA ALUMINIUM LIMITED, INDIA

- **Citation:** [2010] 1 S.C.R. 820
- **Court:** Supreme Court of India
- **Decided:** 2010-01-22
- **Case number:** Arbitration Petition No. 10 of 2009
- **Bench:** P. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/trimex-international-fze-ltd-dubai-v-vedanta-aluminium-limited-india-26544
- **Pages:** 49

## Headnote

Contract Act, 1872: ss. 4, 7 -
Concluded contract
containing arbitration clause - If respondent accepts the offer
C of petitioner following a very strict time schedule, he cannot
escape from the obligations that flowed from such an action
- Arbitration clause can be .inferred from various documents
duly approved and signed by the parties in the form of
exchange of e-mails, letter, telex, telegrams and other means
D of tele-communication even in the absence of signed
agreement - If no inference can be drawn from the facts that
the parties intended to be bound only when a formal
agreement had been executed, the validity of the agreement
would not be affected by its lack of formality - On facts, the
E Commercial Offer carried no clause making the conclusion
of the contra.ct incumbent upon the Purchase Order -
Therefore, the moment commercial offer was accepted by the
respondent, the contract came into existence - Since the
contract contained arbitration clause, petitioner made out case
F for appointment of arbitrator - Arbitration.
Petitioner's case was that on 15.10.2007, it submitted
a commercial offer through e.-mail for supply of Bauxite
to the respondent. After exchange of several e-mails,
respondent conveyed acceptance of offer through e-mail
G on 16.10.2007 confirming the supply of 5 shipments of
Bauxite. Dispute arose and petitioner served arbitration
notice on the respondent. Respondent rejected the
arDitration notice stating that there was no concluded
contract between them. Petitioner filed arbitration petition
H
820
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 821
ALUMINIUM LTD, INDIA
for appointment of arbitrator.
Allowing the arbitration petition, the Court
A
B
HELD: 1.1. On 15.10.2007 at 4.26 p.m. the petitioner
submitted commercial offer wherein clause 6 contained
arbitration clause i.e. "this contract is governed by Indian
law and arbitration in Mumbai courts". At 5.34 p.m. though
respondents offered their comments, no comments were
made in respect oL'arbitration clause'. At 6.04 p.m. the
petitioner sent a reply to the comments made by the
respondent. Again on 16.10.2007, at 11.28 a.m. though
C
respondents suggested certain additional information on
the offer note, again no suggestion was made with regard
to arbitration clause. At 11.48 a.m. the petitioner sent an
e-mail extending validity of the offer by another one hour.
At 01.38 p.m., the respond.en( made certain suggestions
D
on the demurrage asking the petitioner to either reduce
the freight rate or the demurrage rate. On the same day
at 02.01 p.m., the petitioner sent a reply on the demurrage
stating that the rates cannot be reduced any further. At
02.41 p.m., the respondent informed the petitioner that
E
they would like to have a termination clause after two
shipments. At 03.06 p.m., the petitioner sent a mail stating
that "no owner will accept this condition. Respondent
may accept two or five quickly". At 03.06 p.m. the
respondent accepted the offer for five shipments. In
response to the same at 03.49 p.m., the petitioner thanked
F
the respondent for acceptance and conveyed that it was
"just in time" to go to the ship owners. At 03.57 p.m. the
petitioner finalized the contract with the bauxite supplier
in Australia. Apart from the minute to minute G
correspondences exchanged between the parties
regarding offer and acceptance, the offer of 15.10.2007
contained all essential ingredients for a valid acceptance
by the respondents. The correspondence exchanged
between the parties clearly go to show that after
understanding all the details and the confirmation by the
H
822
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A respondent, the petitioner sent a reply stating that
"thanks for the confirmation, just in time to go to the ship
owners". All these details clearly establish that both the
parties were aware of various conditions and understood
the terms and finally the charter was entered into a
B contract by the parties on 17.10.2007. (Para 7) (859-H; 860A-H; 861

## Text

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[2010] 1 S.C.R. 820
A
TRIMEX INTERNATIONAL FZE LTD. DUBAI
B
v.
VEDANTA ALUMINIUM LIMITED, INDIA
Arbitration Petition No. 10 of 2009
JANUARY 22, 2010
[P. SATHASIVAM, J.)
Contract Act, 1872: ss. 4, 7 -
Concluded contract
containing arbitration clause - If respondent accepts the offer
C of petitioner following a very strict time schedule, he cannot
escape from the obligations that flowed from such an action
- Arbitration clause can be .inferred from various documents
duly approved and signed by the parties in the form of
exchange of e-mails, letter, telex, telegrams and other means
D of tele-communication even in the absence of signed
agreement - If no inference can be drawn from the facts that
the parties intended to be bound only when a formal
agreement had been executed, the validity of the agreement
would not be affected by its lack of formality - On facts, the
E Commercial Offer carried no clause making the conclusion
of the contra.ct incumbent upon the Purchase Order -
Therefore, the moment commercial offer was accepted by the
respondent, the contract came into existence - Since the
contract contained arbitration clause, petitioner made out case
F for appointment of arbitrator - Arbitration.
Petitioner's case was that on 15.10.2007, it submitted
a commercial offer through e.-mail for supply of Bauxite
to the respondent. After exchange of several e-mails,
respondent conveyed acceptance of offer through e-mail
G on 16.10.2007 confirming the supply of 5 shipments of
Bauxite. Dispute arose and petitioner served arbitration
notice on the respondent. Respondent rejected the
arDitration notice stating that there was no concluded
contract between them. Petitioner filed arbitration petition
H
820
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 821
ALUMINIUM LTD, INDIA
for appointment of arbitrator.
Allowing the arbitration petition, the Court
A
B
HELD: 1.1. On 15.10.2007 at 4.26 p.m. the petitioner
submitted commercial offer wherein clause 6 contained
arbitration clause i.e. "this contract is governed by Indian
law and arbitration in Mumbai courts". At 5.34 p.m. though
respondents offered their comments, no comments were
made in respect oL'arbitration clause'. At 6.04 p.m. the
petitioner sent a reply to the comments made by the
respondent. Again on 16.10.2007, at 11.28 a.m. though
C
respondents suggested certain additional information on
the offer note, again no suggestion was made with regard
to arbitration clause. At 11.48 a.m. the petitioner sent an
e-mail extending validity of the offer by another one hour.
At 01.38 p.m., the respond.en( made certain suggestions
D
on the demurrage asking the petitioner to either reduce
the freight rate or the demurrage rate. On the same day
at 02.01 p.m., the petitioner sent a reply on the demurrage
stating that the rates cannot be reduced any further. At
02.41 p.m., the respondent informed the petitioner that
E
they would like to have a termination clause after two
shipments. At 03.06 p.m., the petitioner sent a mail stating
that "no owner will accept this condition. Respondent
may accept two or five quickly". At 03.06 p.m. the
respondent accepted the offer for five shipments. In
response to the same at 03.49 p.m., the petitioner thanked
F
the respondent for acceptance and conveyed that it was
"just in time" to go to the ship owners. At 03.57 p.m. the
petitioner finalized the contract with the bauxite supplier
in Australia. Apart from the minute to minute G
correspondences exchanged between the parties
regarding offer and acceptance, the offer of 15.10.2007
contained all essential ingredients for a valid acceptance
by the respondents. The correspondence exchanged
between the parties clearly go to show that after
understanding all the details and the confirmation by the
H
822
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A respondent, the petitioner sent a reply stating that
"thanks for the confirmation, just in time to go to the ship
owners". All these details clearly establish that both the
parties were aware of various conditions and understood
the terms and finally the charter was entered into a
B contract by the parties on 17.10.2007. (Para 7) (859-H; 860A-H; 861-A-D]
1.2. Once the contract is concluded orally or in
writing, the mere fact that a formal contract has to be
C prepared and initialed by the parties would not affect
either the acceptance of the contract so entered into or
implementation thereof, even if the formal contract has
never been initialed. When petitioner opened the email of
the respondent at 3:06 PM on 16.10.2007, it came to his
knowledge that an irrevocable contract was concluded.
D Apart from this, the mandate of Section 7 of the Indian
Contract Act stipulated that an acceptance must be
absolute and unconditional has also been fulfilled. It is
true that in the first acceptance conveyed by the
respondent contained a rider, namely, cancellation after
E 2 shipments which made acceptance conditional.
However, taking note of the said condition, the petitioner
requested the respondent to convey an unconditional
acceptance which was readily done through his email
sent at 3:06 PM with the words "we confirm the deal for
F 5 shipments", which is unconditional and unqualified.
The respondent was wholly aware of the fact that its
agreement with the petitioner was interconnected with the
ship owner. In other words, once the offer of the
petitioner was accepted following a very strict time
G schedule, the respondent could not escape from the
obligations that flowed from such an action. [Paras 9 and
10) (861-G-H; 862-A-G]
Shankarlal Narayandas Mundade v. The New Mofussi/
H Co. Ltd. & Ors. AIR 1946 PC 97, relied on.
TRI MEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 823
ALUMINIUM LTD, INDIA
Pagnan SPA v. Feed Products Ltd. 1987 Vol. 2, Lloyd's
A
Law Reports 619; Mamidoil-Jetoil Greek Petroleum Co. S.A.
v. Okta Crude Oil Refinery AD (2001) Vol. 2 Lloyd's Law
Reports 76 at p. 89; Wilson Smithett & Cape (Sugar) Ltd. v.
Bangladesh Sugar and Food Industries Corporation (1986)
Vol. 1 Lloyd's Law Reports 378, referred to.
B
1.3. Unless an inference can be drawn from the facts
that the parties intended to be bound only when a formal
agreement had been executed, the validity of the
agreement would not be affected by its lack of formality.
C
In the present case, where the Commercial Offer carries
no clause making the conclusion of the contract
incumbent upon the Purchase Order, it is clear that the
basic and essential terms have been accepted by the
respondent, without any option but to treat the same as
a concluded contract. A specific order for 5 shipments
D
was placed and only some minor details were to be
finalized through further agreement. After the suggested
modifications had crystallized over several emails. The
moment the commercial offer was accepted by the .
respondent, the contract came into existence. [Para 1 ~ E
[864-B-E]
Dresser Rand S.A. v. Bindal Agro Chem Ltd. (2006) 1
sec 751, distinguished.
F
2. It is essential that the intention of the parties be
considered in order to conclude whether parties were ad
idem as far as adopting arbitration as a method of dispute
resolution was concerned. In the absence of signed
agreement between the parties, it would be possible to
infer arbitration clause from various documents duly G
approved and signed by the parties in the form of
exchange of e-mails, letter, telex, telegrams and other
means of tele-communication. [Paras 14 and 17] [865-EF; 866-C]
H
824
SUPREME COURT REPORTS
[2010] 1 S C.R
A
Smita Conductors Ltd. vs. Ewa Alloys Ltd. (2001) 7 SCC
728; Shakti Bhog Foods Limited vs. Kola Shipping Limited
(2009) 2 sec 134, relied on.
3. The petitioner has made out a case for
8 appointment of an Arbitrator in accordance with Clause
6 of the Purchase Order dated 15.10.2007 and
subsequent materials exchanged between the parties.
Inasmuch as in respect of the earlier contract between
the same parties, Justice B.N. Srikrishna, former Judge
C of this Court was adjudicating the same as an Arbitrator
at Mumbai, it is but proper and convenient for both
parties to have the assistance of the same Hon'ble
Judge. Accordingly, Hon'ble Mr. Justice B.N. Srikrishna,
former Judge of this Court is appointed as an Arbitrator
to resolve the dispute between the parties. [Paras 20 and
D 21] [868-8-F]
Great Offshore Ltd. v. Iranian Offshore Engg. &
Construction Co., (2008) 14 SCC 240, relied on.
E
Case Law Reference:
1987 Vol. 2, Lloyd's
referred to
Para 11
Law Reports 619
(2001) Vol. 2
Lloyd's Law Reports 76
referred to
Para 11
F
(1986) Vol. 1 Lloyd's
Law Reports 378
referred to
Para 11
(2006) 1 sec 151
distinguished
Para 12
G
AIR 1946 PC 97
relied on
Para 11
(2001) 1 sec 12a
relied on
Para 15
(2009) 2 sec 134
relied on
Para 16
(2008) 14 sec 240
relied on
Para 19
H
TRI MEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 825
ALUMINIUML TD, !NOIA
CIVIL ORIGINAL JURISDICTION : Arbitration Petition No.
A
10 of 2009.
K.K. Venugopal, Gopal Sankara Narayanan, R.
Subramanian, Vikas Mehta, Rohit Bhat for the Appellant.
C.A. Sundaram, Rohini Muea, Abhishek Gupta, Zafar
8
lnayat, Anandh Kannan, Binu Tamta for the Respondent.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. In this petition the PetitionerC
Company seeks to invoke arbitration clause under Section
11 (6) of the Arbitration & Conciliation Act, 1996 for appointment
of an arbitrator as per the Arbitration Agreement contained in
clause 6 of the Commercial Offer (purchase order) dated
15.10.2007 and clause 29 of the Agreement exchanged
0
between the parties on 08.11.2007.
2. The case of the petitioner is as follows:
The Petitioner-Company is registered in Dubai and
engaged in the business of trading in Minerals across the world.
E
Based on the orders from their purchasers, they procure
mineral Ores from the suppliers, negotiate and finalize
shipments with the ship owners and arrange for the shipment
of Minerals across the world. The Respondent is a Company
registered in India using Aluminium Ore as one of the major
F
inputs for their operations.
3. On 15.10.2007, the petitioner submitted a commercial
offer through e-mail for the supply of Bauxite to the respondent.
After several exchanges of e-mails and after agreeing on the
material terms of the contract, the respondent conveyed their
G
acceptance of the offer through e-mail on 16.10.2007
confirming the supply of 5 shipments of Bauxite to be supplied
from Australia to Vizag/Kakinada. On the basis of the
acceptance by the respondent, the petitioner concluded the deal
with the Bauxite supplier in Australia on the same day and
H
826
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A entered into a binding Charter Party Agreement with the ship
owner in Oslo on 17.10.2007. A meeting was held between the
representatives of the respondent and the petitioner at
Lanjigarh, Orissa on 26.10.2007 and the minutes of this
meeting were signed by them. The acceptance of the offer is
B acknowledged by the respondent in these minutes. A formal
contract containing a detailed arbitration clause was also sent
by the respondent to the petitioner on 08.11.2007 which was
accepted by the petitioner with some changes and returned the
same to the respondent the same evening. On 09.11.2007, the
c petitioner entered into a formal Bauxite sales Agreement with
Rio Tinto of Australia for the supply of 225000 tonnes of
Bauxite. On 12.11.2007, the respondent requested the
petitioner to hold the next consignment until further notice. On
13.11.2007, the petitioner informed the respondent that it was
0 not possible to postpone the cargo and requested them to sign
the Purchase Agreement. On 13.11.2007 itself, the ship owners
nominated the ship for loading the material on 28.11.2007. The
petitioner terminated the contract on 16.11.2007 reserving the
right to claim for damages. On 18.11.2007, the petitioner
E formally informed the ship owners about the cancellation of the
carriage. On 19.11.2007, the ship owners made a claim of 1
million US$ towards commercial settlement and on 30.11.2007,
the petitioner informed the respondent to pay a sum of 1 million
US$ towards compensation for loss on account of the estimated
loss for five shipments and 0.8 million towards compensation
F for loss of profit and other costs and expenses for cancellation
of the order. The respondent rejected the claim of the petitioner
on damages. On compensation not being paid, the ship
owners served a notice on the petitioner. After negotiations, a
settlement was arrived at between the ship owners and the
G petitioner to pay a lump-sum of 600,000 US$ to be paid in two
installments. The petitioner paid the amount in two installments
on 27.02.2008 and 31.03.2008. On 01.09.2008, the petitioner
served a notice of claim-cum-arbitration on the respondent to
make the payment immediately otherwise treat the notice for
H referring the dispute to arbitration as per ClausP 23 of the
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 827
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
Purchase Order and informed about nominating Mr. Shiv
A
Shankar Bhatt, a retired Judge of the Karnataka High Court as
the arbitrator from their side and requested the respondent to
nominate their own arbitrator within 30 days. On 14.11.2008,
the respondent rejected the arbitration notice stating that there
was no concluded contract between the parties. Hence, the
B
petitioner filed the present petition for appointment of an
Arbitrator.
4. According to the respondent, as seen from the counter
affidavit, there was no concluded contract between the parties
C
and the parties are still not ad idem in respect of various
•essential features of the transaction. Further the draft contract
-received from the petitioner was yet to be accepted/confirmed
•by the respondent. The commercial offer provided two options
•Of shipment lot, namely, 2 shipments and 5 shipments. The only
•understanding that had been arrived at between the parties as
D
1a result of the correspondence subsequent to the receipt of the
commercial offer from the petitioner was that the transaction
.would be in respect of 5 shipments. All other terms and
conditions pivotal and essential to the transaction were under
inegotiation as is evident from the correspondence between the
E
:iarties. The product specifications, price, inclusions in the
:ontract price, delivery point, insurance, commencement and
:onclusion dates of the contract, transfer of title, quality check
end demurrage are all factors that are at large and remain
Jndecided. In such a scenario, where the parties were not in
F
Jne mind with respect to any aspect of the transaction, the
;ontention of the petitioner that there existed a binding contract
)etween the parties as also a binding arbitration agreement
·S wholly erroneous and misleading. Apart from the commercial
I
Jffer dated 15.10.2007, subject matter of the instant G
xoceedings, the petitioner had sent another commercial offer
Jn 05.09.2007 bearing No. TID/F/194/2007 also for 45000 MTs
Jf Bauxite (of Australian origin) which offer had been followed
JP with a purchase order executed by and between the parties.
l\/hile the commercial offer, subject-matter of the instant
H
828
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A petition, was being negotiated and the terms discussed, a
shipment of Bauxite covered under the previous commercial
offer dated 05.09.2007 was received by the respondent at its
plant on or around 12.11.2007. The product was being analysed
to determine its: utility value for the respondent at its plant. On
B account of such analysis being conducted, the respondent on
12.11.2007 wrote to the petitioner bringing the factum of the
ongoing ana)ysis to its notice and instructed the petitioner to
defer the new shipments till the analysis was completed and
the results obtained with respect to the utility value of the said
c product. Despite being put on notice by the respondent for
deferment of shipment, the petitioner permitted the nomination
of the Vessel to take place on 13.11.2007. Apart from there
being no valid and binding contract/arbitration agreement
between the parties, it is the stand of the respondent that in this
0 petition, the petitioner seeks to commence proceedings to
fasten a liability on to the respondent for which the respondent
was not responsible in any manner whatsoever having informed
the petitioner prior to the occurrence of the event giving rise to
the alleged liability.
E
5. In the light of the above pleadings of both the parties,
heard Mr. K.K. Venugopal, learned senior counsel for the
petitioner and Mr. C.A. Sundaram, learned senior counsel for
the respondent.
F
6. Mr. K.K. Venugopal, learned senior counsel for the
petitioner, after taking me through the sequence of events which
took place on 15.10.2007 and 16.10.2007, submitted that the
contract between the petitioner and the respondent stood
concluded by acceptance of the offer for five shipments by the
G respondent at 3.05 p.m. on 16.10.2007. He further contended
that the commercial offer of 16.10.2007 was pursuant to the
request of the respondent on 10.10.2007 and on the basis of
a similar transaction which had been concluded in the previous
month between the parties. By taking me through v::>rious emails exchanged between the parties, he contended th::it t: 1e
H
TRIMEX INTERNATIONAL1FZE LTD. DUBAI v. VEDANTA 8Q9
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
charter was entered into a contract by the parties on
A
17.10.2007 i.e. the next day. He finally submitted that from the
materials it was established beyond doubt that the intention of
parties in case of any dispute between them arising out of the
contract which was concluded on 16.10.2007 at 3.06 p.m. shall
be settled through arbitration. On the other hand, Mr. C.A.
B
Sundaram, learned senior counsel for the respondent
contended that there was no concluded contract between the
parties and that the agreement between the petitioner and the
respondent was only in respect of the number of shipments
(two or five) and nothing more. According to him, there is no c
arbitration agreement and that clause 6 is vague and
ambiguous. He further contended that even in the legal notice
dated 01.09.2008 issued by the petitioner's counsel, there is
. no specific reference to clause 6 of the commercial offer but
mentioned only clause 29 of the purchase order exchanged 0
between the ,parties on 08.11.2007 but the present petition
before this Court mentions both of them. He also pointed out
that the Charter Party Agreement (CPA) entered into between
the petitioner and the ship owner is only a draft. Further, there
were differences in the purchase orders exchanged between
E
the parties on 08.11.2007 and that it is only a draft form and
prayed for dismissal of the present petition.
7. It is the categorical claim of the petitioner that a
commercial offer containing an arbitration clause conveyed
through e-mail dated 15.10.2007 for the supply of bauxite to . F
the respondent is a valid offer. This offer was to expire by noon
the following day i.e. on 16.10.2007. It is the definite case of
the petitioner that after several exchanges of e-mails and
agreeing on the material terms of the contract, the respondent
conveyed their acceptance of the offer through e-mail on
G
16.10.2007 confirming the supply of five shipments of bauxite
to be supplied from Australia-Vizag/Kakinada. Based on the
acceptance by the respondent, it is the claim of the petitioner
that they conclud~p the deal with the Bauxite supplier in
Australia on 16.10':2007 and entera1 into a binding Charter
H
'JI/ ,"ii f
.
830
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A Party Agreement with the ship owner in Oslo on 17.10.2007. It
was also pointed out that a formal contract containing further
detailed arbitration clause was also sent by the respondent to
the petitioner on 08.11.2007 which was accepted with some
minor changes by the petitioner in the same evening. Though
B exchange of e-mails were admitted by the respondent, it is their
specific stand that there was no concluded contract and in the
absence of the same, the petitioner cannot enforce certain
obligations reflected in those e-mails. and avail arbitration
clause as if the respondent h~s executed a formal agreement.
c In the light of the controversy and in view of the fact that copies
of e-mails exchanged between the officers of the petitioner and
respondent on various dates which are placed in the form of
annexures, it is useful to refer the relevant correspondence in
order to understand their claim:
D
E
F
G
H
A)
Annexure P 1
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Tuesday, October 09, 2007 2:37 PM
To: Rajesh Mohata; Swayam Mishra
Cc: SR Subramanyam; Shanika
Subject: LM Grade Bauxite specs '1 (2). Doc
Importance: High
Attachments: LM Grade Bauxite specs'1 (2). Doc
Dear Rajesh,
This has a reference to our earlier mails regarding
the specs for the fresh cargoes. After discussions with RTA
their comments are reproduced.
"Quote"
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 831
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.)
We maintain our position that we are not able to
A
accurately measure reactive silica at our Weipa lab for us
to place a bonus/penalty on and that any rejection criteria
on silica is unreasonable. It is for this reason that we are
only prepared to revise our offer on total silica with a Base
Grade of 4.5%. We are prepared to increase this bonus/
B
penalty to US$1.50 per % total silica either side the Base
Grade. This we believe is a fair compensation to Vedanta
and is our final offer.
Unfortunately we cannot make this an open ended
offer as we need to fill our shipping slots set aside for these
C
cargoes in November and December. We have already
lost the October opportunity. Freight and spot prices for
bauxite have all moved up since we started this
negotiation and we are making offers for 2008 cargoes
at $4 higher than your offer. Therefore, we have to put a D •
validity on this until close of business Friday, 12 October
after which this offer will be subject to re-confir111atia{l.
"Unquote"
We have prepared a revised schedule of specs
which is attached. This is not yet confirmed with RTA but
once you agree to go by this then we can take up with them.
Rejection points are also to be agreed by them. Further
the freights have gone up substantially since we last made
the shipment. Hence we have to freeze the quality specs
first and then take up with RT A for confirmation and then
get the vessel freight.
·
Hence we request you to revert urgently before
E
F
closing today as this area is all closed from Thursday
G
Best regards
Swaminathan
H
A
B
c
D
E
F
G
H
832
SUPREME COURT REPORTS
(2010) 1 S.C.R.
Parameter
Trihydrate
alumina
(THA)
Monohydrate
alumina
MHA)
Total Silica
Range
Low Monohydrate Grade Bauxite
Typical Analysis
Base spec Bonus/Penalty
42-46% 45% Min.
Bonus US
$0.50 per tonne
per percentage
point fraction
pro-rate above 45%
Penalty US$
0.50 per tonne' per·
percentage point
fraction pro-rate
below45%
Penalty US
$1.00 per tonne
per percentage
point fraction
pro-rate below 42%
3-5%
4.5% Max.
Bonus US $0.50
per tonne per
percentage point
fraction pro-rate
below4.5%.
Penalty US$ 0.50
per tonne per
percentage point
fraction pro-rate
above 4.5%.
4-6%
4.5% Max.
Bonus US $1.50
per tonne per
percentage point
fraction pro-rata
below4.5%.
Penalty US$ 1.50
per tonne per
percentage point
fraction pro-rata
above 4.5%
Rejection
Below
41%
Above
5.0%
N/A
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 833
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
B}
Shanika
From: Swayam Mishra [swayam.mishra@vedanta.co.in]
Sent: Wednesday, October 10, 2007 11:16 AM
To: Swaminathan G
Cc: Rajesh Mohata; Shanika; SR Subramanyam;
Chinmayee Panda; N. Chellappa; Hukum Chand Dahiya
Subject: Re: LM Grade Bauxite specs '1 (2). Doc
Attachments: LM Grade Bauxite specs'1 (2). Doc
Dear Mr. Swaminathan,
Please find our observation in the attached sheet. Kindly
A
B
c
give your confirmation for the same.
D
Thanks
Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd., Lanjigarh
Dist: Kalahandi
Pin: 766027
Orissa
9937251390
C)
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Wednesday, October 10, 2007 1:30 PM
To: Swayam Mishra
Cc: Rajesh Mohata; Shanika; SR Subramanyam;
Chinmayee Panda; N. Chellappa; Hukum Chand Dahiya
Subject: Re: LM Grade Bauxite specs '1 (2). Doc
Importance: High
E
F
G
H
834
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A
Dear Swayam,
B
c
D
We reviewed the reply below and this not acceptable
to RT A or by ourselves.
We are unable to improve on the proposal given
from our side which itself needs to be ratified by RT A.
Please also keep in mind the time limit and we need
to have time for obtaining freights which is the most difficult
aspect in the present market.
Your final reply may be given to us before close of
office hours today.
Regards
Swami
D)
Shanika
From: Swayam Mishra (swayam.mishra@vedanta.co.in]
Sent: Wednesday, October 10, 2007 7:17 PM
E
To: Swaminathan G
Cc: Chinmayee Panda; Hukum Chand Dahiya N.
Chellappa; Rajesh Mohata; Shanika; SR Subramanyam;
Subject: Re: LM Grade Bauxite specs '1 (2). Doc
F
Dear Mr. Swaminathan,
G
H
Please send your rates at your proposed quality
parameters on FOB basis and on CIF basis, separately.
We would also be interested to have separate rates
for 2 shipments and for the complete offer of 2 Lac MT.
Thanks
Swayam Mishra
Commercial Department
TRI MEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 835
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
Vedanta Aluminium Ltd. Lanjigarh
A
Distt: Kalahandi
Pin: 766 027
Orissa
E)
B
Annexure P-2
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Monday, October 15, 2007 4:46 PM
To: Rajesh Mohata; Swayam Mishra
C
Cc: S R Subramanyam; Shanika
Importance: High
Attachments: Offer for Mono Bxt.Pdf
Dear Rajeshji,
D
Please find attached our offer for the two options as
desired by you. Please note the validity of the offer until
1200 IST tomorrow. Freights are going up continuously and
have jumped since we last gave you the offer. A quick
E
decision will be helpful otherwise we may lose this freight
offer too.
Awaiting an early response.
Best regards
G. Swaminathan
General Manager
Trimex International
P.O. Box 17056
Dubai~U.A.E.
Tel:971-4-8835544 Ext. 209
F ax:-971-4-8836410
Mob:-971-50-6455819
F
G
TRIM EX
The Mineral People
H
836
SUPREME COURT REPORTS
[201 OJ 1 S.C.R.
A
COMMERCIAL OFFER
Company: Mis Vedanta Alumina
Offer No: TID/F/223/2007
Ltd. Lanjigarh
Date: October 15, 2007
Kind Attn: Mr. Rajesh Mohata
Valid Until: October 16, 2007
B
General Manager (Commercial)
1200 noon IST
Product
Quantity
Price per
Delivery
Payment
Description*
tonne
Terms
Terms
Low
OPTION
US$93.50 CIF Free Out Irrevocable
Monohydrate 1 (2)
pmt (US
VisakhapatLie
Grade
Shipments Dollars
nam, lndia(C) for 100%
c
Bauxite
of 45,000 Ninety
clause
Invoice value
(Australian
mt+/-
Three and Cargo cover
to be
Origin)
10% at
Cents Fifty
established
Shipper's
only)
30 days
Option
before each
shipment
D
OPTION II
(5)
Shipments
-92.5%
of 45, 000
payable at
E
mt+/- 10%
sight-7.5%
at
payable
Shipper's
within 30
option
days after
completion of
discharge
F
*Please see attached Annexure I for detailed product specifications
Shipment
Discharge Discharge
Demurrage/ Shipment
Lot
port
rate
Desp.
G OPTION I
(Non Oil
8000mt PD
US$ 75,000 OPTION I
(2)
Mooring at SHINC.
per day pro
In Nov. &
Shipments Visakhapa NOR
rata Half
Dec. 2007
OPTION II tnam,
ATON
Despatch
5)
India)
SHINC
H
Shipments
WISON,
OPTION II
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 837
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
WIPON,
From Nov.
WCCON
07 to March
WIFPON
08.
12 hrs
turntime USC
Anytime
used to count
Additional Information/Comments:
Vessel details (all about): age-Not over 25 years, 4 x 20
A
B
mt gears, 8-10 cbm grabs
C
Draft: buyers to guarantee draft of 12 mtrs, at discharge
port
Quantity: Draft survey at discharge port by mutually agree
independent surveyor will be final.
D
Quality: Invoice for initial payment as per Producer's Quality
Certificate Balance 7.5% payment will be based on
analysis done by Independent surveyor
Bonus/Penalty: As per Annexure I
Wherever applicable any charges payable at discharge
port (custom duty, taxes etc.) other than our stated sales
conditions will be to buyers account.
Conditions of sale- all sales are concluded on the following
terms, unless varied by written agreements between us.
Neither our agents nor our associated companies are
authorized to vary these terms.
E
F
1. We shall not be liable by reason of any defect (including
G
non-conformity with specification or sample) unless we
receive written notice of the defect within 15 days of
delivery. Our liability in that event will be limited to product
related compensation after discussions and suitable joint
H
838
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
analysis wherever applicable. In case of joint analysis
·'
being agreed upon for confirming the product quality/
penalty determination, the above should be arranged by
the buyer within 30 days of product delivery to the
customer.
B
2. We shall have no liability under this contract or by
reason of any representation, warranty or duty for any
direct, indirect, special or consequential loss or damage,
costs or expenses arising out of the composition, supply,
c
packaging, handling or use of products.
3. Unless stated otherwise, products are sold strictly to the
offered sale condition and payments are due on the dates
as applicable.
D
4. Prices are valid upto 1200 hrs IST 16.10.2007 unless
withdrawn by notice from us during that period.
5. Interest may be charged on overdue amount wherever
applicable as per our terms mentioned in commercial/
E
payment invoice.
6. This contract is governed by Indian Law & Arbitration
in Mumbai courts.
For Trimex International FZE
Name: G. Swaminathan
F
(computerized offer-Signature not required)
TRIMEX INTERNATIONAL FZE
P.O. BOX 17056,
Jabel Ali,
G
Dubai, UAI
Tel:971-4-8835544
Fax:-971-4-8836410
Telex: (893) 47804
Email Trimexc@emiratesnet.ac.
H
www.trimexgrou12.com
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 839
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
F)
Annexure P-3
Shanika
From: Swayam Mishra [swayam.mishra@vedanta.co.in]
Sent: Monday, October 15, 2007 5:34 PM
To: Swaminathan G
Cc: Rajesh Mohata; Shanika; SR Subramanyam;
Chinmayee Panda
Subject: Qffer for imported Bauxite
Dear Mr. Swaminathan,
We have the following observations related to your offer:
1.
Bonus/Penalty Clause for THA: Penalty US $ 1.00
A
B
c
per tonne per percentage point fraction pro-rata
D
below 42%.
2.
Rejection Criteria for Total Silica:-Since the range
is between (4-6%), so rejection will be for Total
Silica > 6%.
E
I 3.
Please let us have the FOB rates as well.
4.
As you are stating that the freight market is
expected to go up in the coming months, so the rate
for the supply of 2 shipments should be less than
F ·
the present rate quoted by you for 5 rates.
Looking forward for your positive response.
· Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd. Lanjigarh
Distt: Kalahandi
Pin: 766 027
Orissa Shanika
G
H
840
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A
G)
From: Swaminathan G [swami@trimexgroup.com]
Sent: Monday, October 15, 2007 6:04 PM
To: swayam.mishra@vedanta.co.in
Cc: Rajesh.mohata@vedanta.co.in; Shanika; SR
B
Subramanyam; ChinmayeePanda@vedanta.co.in
c
D
Subject: Re: Offer for imported bauxite
Dear Swayam,
THA penalty rate is as agreed/ratified by RTA.
Silica rejection els not agreed by RT A. Given at our
risk but we cannot make it coincide with maxm of range
as it is too risky for us. In fact, we also refused rejn els but
Mr. SRS argued on this and persuaded us to put it in for
your comfort.\
We only sell C N F basis.
Freight rates presently are even more firm than next
E
year. But overall we have this package from ship owners.
Trust this clarifies.
Best regards
F
Swami
H)
From: Swayam Mishra (swayam.mishra@vedanta.co.in]
Sent: Tuesday, October 16, 2007 11 :28 AM
G
To: Swaminathan G
Cc:ChinmayeePanda@vedanta.co.in;
Rajesh.mohata@vedanta.co.in;
Shanika;
SR
Subramanyam
H
Subject: Re: Offer for imported bauxite
TRIMEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 841
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
Dear Mr. Swaminathan,
A
As assured by Mr. SRS that the material is
homogeneous in nature, and looking at the result of the
present shipment, we do not think that keeping a rejection
limit at 6% is a risk for you.
B
Please let us
have the
cost
break-up
(Material+Coastal Freight). We would also like to have a
rate for CIF Kakinada port.
Thanks
Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd. Lanjigarh
Distt: Kalahandi
Pin: 766 027
Orissa
I)
Shanika
From: Swaminathan G [swami@trimexgroup.com]
c
D
Sent: Tuesday, October 16, 2007 11 :48 AM
E
To: Rajesh.-Mohata@vedanta.co.in; Swayam Mishra
Cc: SR Subramanyam; Shanika
Subject: Offer for bauxite
Importance: High
Urgent
F
Dear Swayam,
The time has just expired. We still have a little more than
1 hour before our offer from Owners expires. Hence we
G
can extend this by another 1 hour which is 1300 hrs IST
today.
Please let us know your decision either way as we
would like to keep all parties informed in time about the
H
842
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A
developments.
B
c
Regards
Swami
J)
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Tuesday, October 16, 2007 11 :54 AM
To: Swayam Mishra
Cc: ChinmayeePanda@vedanta.co.in;
Rajesh.mohata@vedanta.co.in
S R Subramanyam; Shanika
Subject: Offer for imported bauxite
o
Swayam,
Where will you discharge and store in Kakinada
port? Is it permissible to take it to Berth and if so what is
the draft you can guarantee?
E
If it is anchorage, it is heavily congested and also you
F
G
H
cannot achieve the discharge rate of even 4000t per day.
Freight will shoot up and it will be unworkable.
Regards
Swami
K)
Shanika
From: Swayam Mishr.. [swayam.mishra@vedanta.co.in]
Sent: Tuesday, October 16, 2007 1:38 PM
To: Swaminathan G
Cc: ChinmayeePanda@vedanta.co.in;
Rajesh.mohata@vedanta.co.in;
Shanika; S R Subramanyam; Sarika Singh
Subject: Offer for imported bauxite
TRI MEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 843
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
Dear Mr. Swaminathan,
The Demurrage rate should be decreased and made
as per last shipment. Please negotiate the same with the
Vessel Owners. Either reduce the freight rate or the
demurrage rate.
Kindly confirm at the earliest.
Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd. Lanjigarh
Distt: Kalahandi
Pin: 766 027
Orissa
L)_
Shanika
From: Shanika[shani@trimexgroup.com]
Sent: Tuesday, October 16, 2007 2:01 PM
To:
'Swayam Mishra' Swaminathan G'
A
B
c
D
Cc:
C h i n m a ye e P a n d a @ v e d a n t a . c o . i n ;
Rajesh.mohata@vedanta.co.in; S R Subramanyam;
E
Sarika Singh
Subject: RE: Offer for imported Bauxite
Dear Mr. Swayam,
As confirmed by Mr. Swaminathan the Demurrage
F
rate is US$ 69,000 per day. This is the offer given by
owners and cannot be reduced any turther.
Regards
Shanika Peiris
Assistant Manager-Commercial
TRIMEX INITERNATIONAL FZE
P.O. BOX 17056,
Dubai, UAI
Tel:971-4-8835544, Ext. 208
G
H
844
SUPREME COURT REPORTS
{2010] 1 S.C.R.
A
Fax:-971-4-8836410
8
c
D
E
F
971-6522083
M)
Shanika
From: Swayam Mishra [swayam.mishra@vedanta.co.in]
Sent: Tuesday, October 16, 2007 2:41 PM
To:
shani@trimexgroup.com S R Subramanyam';
'Swaminathan G'
Cc: C h i n m a ye e P a n d a @ v e d a n ta . co . i n ;
Rajesh.mohata@vedanta.co.in; Sarika Singh
Subject: Re: Offer for imported bauxite
Dear Swaminathan,
We confirm the order for 5 shipments as per our last
discussions. At the same time we would like to have a
termination clause after 2 shipments.
Thanks
Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd. Lanjigarh
Distt: Kalahandi
Pin: 766 027
Orissa
N)
From: Swayam Mishra (swayam.mishra@vedanta.co.in)
Sent: Tuesday, October 16, 2007 3:06 PM
To:
Swaminathan G'
G
Cc: C h i n m a y e e P a n d a @ v e d a n t a . c o . i n ;
Rajesh.mohata@vedanta.co.in;
sarika.singh@vedanta.co.in; Shanika; S.R.
Subramanyam; T. Prasanna Kumar Patro; N.
Chellappa
H
Subject: Re: Offer for imported bauxite
TRI MEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 845
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.]
Dear Swaminathan,
We confirm the deal for 5 shipments.
Thanks
Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd. Lanjigarh
Distt: Kalahandi
Pin: 766 027
Orissa
0)
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Tuesday, October 16, 2007 3:49 PM
To:
swayam.mishra@vedanta.co.in
Cc: ChinmayeePanda@vedanta.co.in;
Rajesh.mohata@vedanta.co.in;
sarika.singh@vedanta.co.in
Shanika;
SR
Subramanyam; tpk. Patro@vedanta.co.in; n.
chellappa@vedanta.co.in
Subject: Re: Offer for imported bauxite
Dear Swayam,
Thanks for the confirmation just in time to go to Owners
Regards
Swami
P)
A
B
c
D
E
F
Shanika
G
From: Swaminathan G [swami@trimexgroup.com]
Sent: Tuesday, October 16, 2007 3:57 PM
To: Shaun.Barrv@comalco.riotinto.com.au;
Chandra.Chandrashekhar@riotinto.com.au
Cc: Shanika
H
846
SUJ:>REME COURT REPORTS
[2010] 1 S.C.R.
A
Subject: 200K Bauxite for Vedanta
Dear Shaun
B
c
D
Deal is through for 5 Shipments.
Shall give you shipping schedule agreed with owners and
details by tomorrow.
Special word of appreciation to the RT A team led by Mark
for the support and patience in putting this thru. It's like
carrying coal to Newcastle!!!
Thanks & Regards
Swami
Q)
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Wednesday, October 17, 2007 11:12 AM
To: swayam.mishra@vedanta.co.in
E
Cc: ChinmayeePanda@vedanta.co.in
Rajesh.mohata@vedanta.co.in;
Shanika;
SR
Subramanyam; Suvendu.sahoo@vedanta.co. in
Subject: Re: Inactive Role of Agent.
F
Dear Swayam
Small check n revert and advise them suitably.
Meantime please send draft agreement.
G
Regards
Swami
---Original Message,--
H
From: Swayam Mishraswayam.mishra@vedanta.co.in
TRI MEX INTERNATIONAL FZE LTD. DUBAI v. VEDANTA 84 7
ALUMINIUM LTD, INDIA [P. SATHASIVAM, J.)
To: Swaminathan G
Cc:ChinmayeePanda@vedanta.co.in;
<ChinmayeePanda@vedanta.co. in>
A
Rajesh.mohata@vedanta.co.in;<RajeSh.mohata@vedanta.co.in;>
Shanika; SR Subramanyam; Suvendu.Sekhar Sahoo
B
Suvendu.Sahoo@vedanta.co.in
Sent: Wed Oct 17 10:56:43 2007
Subject: Inactive role of Agent
Dear Mr. Swaminathan,
On one hand where we are going to do 5 future shipments
c
of imported bauxite, it is sad to notice that your agent at
Vizag port is not taking enough initiative to handle the first
0
shipment even!!!
While our stevedores and representatives are constantly
following up with the port authorities to grant us a berth,
your agent is being too noncommittal. Please advice your
agent to play a more active role in the whole process.
E
Thanks
Swayam Mishra
Commercial Department
Vedanta Aluminium Ltd. Lanjigarh
Distt: Kalahandi
Pin: 766 027
Orissa
R)
Shanika
From: Swaminathan G [swami@trimexgroup.com]
Sent: Saturday, October 20, 2007 09:08 AM
To: swayam.mishra@vedanta.co.in
Cc: Shanika; SR Subramanyam;
F
G
H
848
'SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
Subject: Contract for bauxite shipments Importance: High
Dear Swayam,
B
c
D
E
As per the agreements with Owners the following is the
schedule of shipments:
(1) Laycan agreed with owners:
November 2007-15th/30th
December 2007-Suggested 5th/20th (to be agreed)
January 2008-15th/30th
February 2088-14th/28th
March 2008-15th/30th
In view of this, we need to quickly complete the
execution of agreement and establishing of Lie as
discussed on Thursday. I am awaiting the draft agreement
so that we can move forward. Also please confirm if you
have surrendered the Original B/L for the present
consignment to Master as vessel is likely to finish soon.
Matter most urgent.
Regards,
Swami
Annexure P-4
VAL SITE, Lanjigarh
F ·
Minutes of the Meeting
M/s Vedanta Aluminium Limited M/s Timex Group
Mr. Rajesh Mohata
Mr. G. Swaminathan
Mr. Venkat Rao
Mr. S.R. Subramaniam
Mr. Swayam Mishra
G
Mr. N. Chellappa
Ms.