Judgment:
ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE TA 5.OF 201.WITH CS 13.of 2012 VISA STEEL LTD.Versus XSTRATA COAL QUEENSLAND PTY.
LTD.& ANR.
BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date :
17. h April, 2012.
Mr.P.Chatterjee, Sr.Advocate Mr.D.Ghosh, Advocate.
Mr.Ratnanko Banerjee, Advocate Mr.Arvind Jhunjhunwala, Advocate Ms.A.Bansal, Advocate Ms.Nikita Jhunjhunwala, Advocate.
….
For petitioner.
The Court :- This is an interlocutory application in aid of a suit to restrain the defendants from proceeding with a foreign arbitration.
This application is moved ex parte at 2.00 p.m.after obtaining prior leave from me in the morning.
The urgency shown is that by a letter dated 21st March 2012 an Australian Firm of Solicitors acting on behalf of the defendants, had warned the plaintiff that unless they agreed to an arbitrator by 18th April 2012, their clients would approach the English Courts for appointment of an arbitrator.
It is submitted that if notice of this application was given to the defendants they would immediately take steps in furtherance of arbitration.
It is said on behalf of the plaintiff that there was a contract between the plaintiff and another company ‘VISA COMTRADE AG’ of Switzerland.
The contract had an arbitration clause.
Under the arbitration clause the place of arbitration was to be Kolkata and the applicable law would be the Indian Arbitration & Conciliation Act, 1996.
For this purpose my attention was drawn to a letter dated 8th August 2008 by the plaintiff, ‘VISA COMTRADE AG’ proposing the said arbitration clause.
The Swiss company had accepted such proposal at the foot of such letter.
Furthermore, my attention was also drawn to a letter of illegible date, December 2008 written by the plaintiff, to the said Swiss company, the terms whereof were also accepted by them at the foot of that letter.
They inter alia provided that the disputes between the parties had been resolved.
not it is further submitted by Mr.Chatterjee, learned Senior Advocate that this Swiss company went into liquidation.
The liquidators of this company had allegedly assigned its rights and liabilities under the said contract to the present defendants.
He makes two submissions : (a) No right could have been assigned in favour of the defendants as on the face of the letter of December 2008 there were no disputes between the parties; (b) Alternatively, the place of arbitration could only be India and the Arbitration governed by Indian Laws.
Therefore, the notice dated 21 March 2012 was nonest.
I accept both the contentions as they are prima facie established by the above evidence produced.
Further orders or continuance of this order will be considered in the presence of the defendants.
For the time being, I pass an order in terms of prayer (a) of the Notice-of-Motion till 30th April 2012 or until further orders whichever is earlier.
List this application as ‘New Motion’ on 26th April 2012.
Leave to communicate this order or a gist thereof by ‘e-mail’ or fax or by both.
All parties are to act on a signed photocopy of this order on the usual undertakings.
(I.P.MUKERJI, J.) GH.