Calcutta High Court
H-Energy Private Limited vs Kolkata Port Trust & Anr on 13 February, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
AP 538 OF 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
H-ENERGY PRIVATE LIMITED
Versus
KOLKATA PORT TRUST & ANR.
............
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA Date : 13th February, 2019.
Mr. Utpal Bose, Sr. Adv., Mr. P. Gharai, Ms. D. Ganguli, Mr. K. Das, advs......for petitioner.
Mr. Abhrajit Mitra, Sr. Adv., Mr. Somnath Bose, adv...for respondents.
The Court : Mr. Bose, learned senior advocate appears on behalf of petitioner in this arbitration petition for interim measure. He submits, even taken place will not allow him to press for interim measure but objection to maintainability of this petition must be adjudicated as otherwise remedy by arbitration will be taken away from his client. He demonstrates Notice Inviting Tender [NIT] carries arbitration clause by clause 9 therein. Respondent by letter dated 18th August, 2015 issued Letter of Acceptance [LOA] against tender submitted by his client.
He relies on paragraph 2 in the said letter as reproduced below :
"Kolkata Port Trust is pleased to inform that the tender under reference has been accepted and the Board of Trustees have approved of granting permission to the Consortium comprising H-Energy Private Limited and Excelerate Energy Limited Partnership to operate a Floating Storage and Regasification Unit (FSRU)/Floating Storage 2 Unit (FSU) at Latitude 20º46'30"N and Longitude 87º45'00"E for receiving, storing, regasifying (optional) and transporting LNG from mother vessels to suitable landfall point, against quoted Minimum Guaranteed Throughput of 1.15 million tonnes of LNG per annum, subject to compliance with all the terms and conditions of NIT No.Admn/T/134 dated 16.02.2015. This communication may please be treated as LOA."
He demonstrates from next disclosure being letter dated 14th August, 2015, that his client, in turn, accepted the LOA by saying as follows :
"We would like to sincerely thank you for issuance of the LOA in favour of our Consortium we request you to kindly treat this letter as our formal acceptance to the LOA in terms of Clause No.XV 1(a) of the referenced NIT."
Thus, according to him, there is an arbitration agreement for reference of disputes raised by his client regarding, inter alia, wrongful invocation of earnest money bank guarantee.
Mr. Mitra, learned senior advocate appears on behalf of respondents. He relies on clause 8 in NIT to submit, disputes or differences arisen must first be subject of attempt at amicable settlement. As such, disputes or differences or claim of any kind arisen between the parties must be in connection with interpretation or application of any term or condition in connection with or arising out of contract. His submission is, there is no contract. Also referring to his client's letter dated 10th August, 2015 he relies on paragraph 4 therein, which says as follows :
"You are also requested to submit copies of Certificate of Incorporation, Memorandum and Article of Association, etc. to KoPT after formation of Joint Venture Company as SPV, within 90 days of issuance of the LOA and execute Agreement as per NIT within 135 days of issuance of LOA."3
He submits, there was no agreement executed. Hence, there is no contract. On query from court he submits, relevant clause regarding earnest money and guarantee is clause 6 in NIT. He relies on judgment of Supreme Court in Bharat Sanchar Nigam Limited vs. Telephone Cables Limited, reported in (2010) 5 SCC 213, inter alia, paragraphs 21 and 26.
Parties will be further heard. List on 26th February, 2019.
(ARINDAM SINHA, J.) pkd.