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2. An appeal came to be preferred against the said Award. In the appeal a preliminary issue was raised and argued. In the opening submission before the Appellate forum it was pointed that the proper identity of sellers in arbitration proceedings was Ruchi International Limited and they are treated as the Sellers for the purposes of the appeal. The respondents agreed. Consequently finding was given that RUCHI INTERNATIONAL LIMITED, as sellers are appellants. In so far as the claimant were concerned, it was contended that the claimants were incorrectly described as Agrimar France SARL. That should be corrected to Agri Marketing Co. SARL., because on 27th January, 1997 Agrimar France SARL had assigned its claim in Arbitration No. 12040 to Agri Marketing Co. SARL. Notice of the assignment had been given to GAFTA, Mr. Scott, (Buyers' appointed Arbitrator) and to RUCHI by AGRIMAR's fax on 12th February, 1997. The appellants RUCHI INTERNATIONAL LIMITED, for short hereinafter referred to RUCHI contended before the Appellate Board that Agrimar France SARL commenced voluntary dissolution which was completed on 31st January, 1997 and it was deleted from the Versailles Trade Registry on that date. Various documents apart from the Versailles Trade Register and the Minutes of the shareholders Meeting of Agrimar France SARL dated 24th December, 1996 and 31st January, 1997 and Article 391-2 of French Company Law dated 24th January, 1966 confirmed that Agrimar France SARL was liquidated on 31st January, 1997. The French legal opinion sought confirmed the official date of dissolution as of 31st January, 1997. It was, therefore, argued that GAFTA Arbitration No. 12/040 therefore, lapsed on 31st January, 1997. No notice of assignment was given either to the Seller or to the Arbitrators by that date. There was a denial of a valid assignment and that the alleged notice given were invalid under French Laws. The law relating to assignment of rights under arbitration clauses which take place after arbitration proceedings have been commenced has been considered in Montedipe SPA v. JTP-Ro Jugotanker the "JORDAN NIVOLOV", 1990(2) Lloyd's Rep. 11. Hobhouse, J., who has held that an Arbitration clause is assignable even after arbitration proceedings have commenced and that the assignee may simply take over the assignors proceedings without the need to start afresh. That right was subject to two important qualifications :---

A specific finding has been given that Ruchi International Limited was served with notice of the assignment. The appellate forum, therefore, held that Agri France SARL had validly assigned their right to Agri Marketing Co. SARL and that Agri Marketing Co., SARL are entitled to pursue substantive claim for damages in arbitration as on service of assignment notice, it was English Law that was applicable and in the appeal in respect of the dispute under the subject contract. The objection, therefore, raised that the arbitration agreement fails was rejected. Considering the powers vested the names of the parties were substituted. It was further awarded that the sellers defence to buyers claim on the grounds that the arbitration lapsed or that the claim was not properly assigned fails.

"It is lawful however for a plaintiff in a pending suit to assign the benefit which he may obtain under the decree to be passed in the suit; but this does not give the assignee of the fruits of the action the right to interfere in proceedings in the action: vide Glegg v. Bromley, 1912(3) K.B. 474 which was accepted by the Privy Council as correctly stating the law in 48 Mad. 230".

It was, therefore, held that a person who had purchased the rights had no right to be substituted. Based on the judgment it is sought to be pointed out that the petitioner claimed his right to continue the Arbitration proceedings based on assignment and the Award being based on that assignment cannot be enforced as it will be contrary to the public policy of India.

6. Firstly we must consider that the action was not initiated by the present respondents, but the action was initiated by the party to the contract. It was in the course of the proceedings for voluntary winding up and as per the provisions of the French Law that the right in the contract was assigned in favour of the present respondents. That assignment was held to be valid as notice of assignment in terms of French Law had been given. The issue of validity of assignment of the claim was in issue as a preliminary issue before the appellate forum. The appellate forum has given a finding of fact that on notice being served the applicable law is English Law as parties had agreed that under the Domicile and Arbitration clause under GAFTA that English law should apply. The law in England as explained in Montedepe SPA (supra) is that an arbitration clause is assignable. There is then a specified finding that the clause was validly assigned and that notice of claims assignment was properly and timeously given. The contention that the arbitration lapsed or that the clause was not properly assigned was rejected. Leave sought to appeal was rejected by the High Court of Justice. Queens Bench Division, Commercial Court. The assignment of the arbitral clause was in issue before the appellate forum. It is, therefore, clear that atleast under the law of the country in which the company was wound up it was eligible and entitled to assign its rights. Similarly, the arbitrable clause was assignable in the country where the arbitration proceedings commenced and the Award passed. The arbitration proceedings were subject to English Law. Secondly the respondents herein were aware of the situation. They had contended before the arbitral Tribunal that consequent to the assignment of the rights in the respondents the arbitral clause governing the parties ceased to exist. The respondents did not urge or argue before the arbitral Tribunal, which argument would have been available, that the company could not in law considering the Indian Law have assigned its interest. It may be mentioned that in so far as the contract is concerned, it was governed by English Law. It may also be mentioned that it is now well settled that arbitral clause can be considered de hors other terms of the agreement as an independent agreement by itself. On consideration of the contentions the appellate forum gave a finding that the assignment was valid and as such the name of the respondent in the appeal was allowed to be substituted.