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7. The following arrangement was entered into between the said companies; firstly it was agreed that M/s Brawn Laboratories Ltd. would sell its products to M/s. Strategic Overseas Pvt. Ltd. and M/s. Strategic Overseas Pvt. Ltd. would then deal with M/s. Balajee at Angola, i.e., the company which was engaged in the business of sale and marketing of pharmaceutical and other medicinal products in Angola.

8. M/s. Balajee situated at Angola was supplying the pharmaceutical products manufactured by M/s. Brawn Laboratories Ltd., received through M/s. Strategic Overseas Pvt. Ltd. to a company based in Angola by the name of "Neopharma". In return M/s. Neopharma was to pay M/s. Balajee for the product on realisation basis, which in turn was used to make payment to M/s. Brawn O.M.P. (COMM) 283/2018 Page 3 Laboratories after meting out its expenses. As there was no further export done by M/s. Brawn Laboratories to M/s. Balajee since January 01, 2003, the parties wanted to settle their accounts.

(ii) The learned Arbitrator failed to consider that no agreement existed between late claimant and M/s. Brawn Pharmaceuticals Ltd. and that no claim could have been made by it against the late claimant.
(iii) M/s. Brawn Pharmaceuticals not a party to the arbitration agreement contained in the MoU dated January 1, 2003 or in the supplementary MoU.
(iv) That also M/s. Brawn Pharmaceuticals Ltd. had made no claim or counter claim or demand against the late claimant for payment of money. 
O.M.P. (COMM) 283/2018                                               Page 14
           iii.    M/s. Brawn Pharmaceuticals Ltd. was not a party to
the arbitration agreement which was entered into by the parties in their individual capacity.
iv. M/s. Brawn Pharmaceuticals Ltd. was not a party to the arbitration proceedings.
v. M/s. Brawn Pharmaceuticals Ltd. had made no claim/ counter claim / demand against the late claimant for payment of money.

49. If that be so, the conclusion arrived at by the learned Arbitrator in favour of the respondent No.1 cannot be justified and to that extent the counter claim awarded by the learned Arbitrator in favour of the respondent No.1 need to be set aside. This I say so because M/s. Brawn Pharmaceuticals Ltd. is a separate entity in the eyes of law, whereas the respondent No.1 herein is only a Director of the Company and as a Director, he is different from the entity called M/s. Brawn Pharmaceuticals Ltd. The benefit under the Supplementary MoU could only flow to the entity M/s. Brawn Pharmaceuticals Ltd. In the absence of any claim by M/s. Brawn Pharmaceuticals Ltd., the learned Arbitrator could not have allowed the counter claim of the respondent No.1 in his favour. The award to that extent is liable to be set aside.