The Tribunal has been thorough with regards to facts and has done a commendable job in contractual facilitation while keeping disputes for future deliberation: Calcutta High Court

The above-mentioned was opined by the Calcutta High Court in the case Gainwell Commosales Private Limited v. Minsol Limited, APO / 74 /2022 before the Honourable Justice Shekhar B. Sharaf on 15th December 2022. 


With the respondent, the petitioner entered into a “Contract for Supply of Gainwell High Wall Mining System” on May 10, 2019. The petitioner was required to provide a cutter module and a high-wall mining system. On June 26, 2021, the respondent submitted an application under Section 17 of the Act, asking the Tribunal to appoint an impartial third party, technical person, or representative of Caterpillar Inc., in whose presence the HWM System and cutter module would be inspected and tested.

The petitioner’s representative, Mr S. N. Mitra, a knowledgeable senior counsel, has presented the following arguments: A bank guarantee for payment of 50% of the basic contract value and 100% of the taxes and duties to be paid against despatch of the HWM System could not have been added by the Tribunal. According to the Agreement, the aforementioned payment was to be given without any restrictions upon shipment. Such a requirement is outside the scope of the contract, so the Tribunal was unable to fulfil it, even after noting that it was unable to rewrite the Agreement.


The Court looked into the following issues-

Whether the Tribunal violated the Agreement when it issued the contested order? Whether the contested order should be annulled?

The petitioner strenuously argued before the Court that the Impugned Order was issued by the Tribunal in flagrant disregard of the Agreement because no bank guarantee was required for the payment that was due at the time of despatch. There are no limitations, in the Court’s view, that limit the Tribunal to adhere to the contract alone while providing temporary relief. As long as the relief does not directly violate the contract, the broad powers granted under Section 17 of the Act are intended to prevent the arbitral processes from becoming infructuous.

Without naming any parties at fault, the impugned order describes the dispute’s background in great detail. The Tribunal has mentioned the concerns of both parties in the section where it discusses the payment of 50% of the basic contract value plus 100% of taxes and duties payable on the HWM System. The apprehensions are, however, only briefly detailed for each side. The implication that neither party received a chance is not made by this.

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