M/S. GOVIND RUBBER LTD.versusM/S. LOUIDS DREYFUS COMMODITIES ASIA PVT. LTD.

                        (2014] 12 S.C.R. 488


A                   M/S. GOVIND RUBBER LTD.
                                   v..
     M/S. LOU IDS DREYFUS COMMODITIES ASIA PVT. LTD.
                (Civil Appeal No. 11438 of 2014)
                        DECEMBER 16, 2014
B
             [M.Y. EQBAL AND R. BANUMATHI, JJ.]

         Arbitration and Conciliation Act, 1996: ss.6, 7(4), 7(5) -
    Arbitration agreement - Whether the parties we~ ad idem to
C   refer the dispute for arbitration to the Singapore commodity
    Exchange in the absence of arbitration agreement - Held: An
    arbitration agreement even though in writing need not be
    signed by the parties if the record of agreement is provided
    by exchange of letters, telex, telegrams or other means of
D   telecommunication - s. 7(4)(c) provides that there can be an
    arbitration agreement in the exchange of statements of claims
    and defence in which the existence of the agreement is
    alleged by one party and not denied by the other - If it can
    be prima facie shown that the parties are at ad idem, then
E   mere fact of one party not signing the agreement cannot
    absolve himself from the liability under the agreement -
    Therefore, signature is not a formal requirement u/s. 7(4)(b) or
    s. 7(4)(c) or u/s. 7(5) of the Act - In the instant case, the
    intention of the parties is clear from the correspondence
F   regarding their meeting of mind and ad idem to the terms of
    sale contract which contained the forum of dispute resolution
    at Singapore Commodity Exchange - Apart from that, after
    the dispute was referred to Singapore Commodity Exchange
    for arbitration, the appellant in response to the notice made
G   a counter claim before the Arbitral Tribunal contending that
    the appellant had incurred huge loss in view of the failure on
    the part of the respondent to supply the goods in time - By
    making a counter claim, the appellant indeed submitted to the
    jurisdiction of the arbitrator.

H                                 488
    GOVIND RUBBER LTD. v. LOU IDS DREYFUS              489
         COMMODITIES ASIA PVT. LTD.
    Dismissing the appeal, the .Court                          A

     HELD: 1. An agreement even if not signed by the
parties can be spelt out from correspondence exchanged
between the parties. However it is the duty of the Court
to construe correspondence with a view to arrive at the        B
conclusion whether there was any meeting of mind
between the parties which could create a binding contract
between them. It is necessary for the Court to find out
from the correspondence as to whether the parties were
ad idem to the terms of contract. While construing an          C
arbitration agreement or arbitration clause, the Courts
have to adopt a pragmatic and not technical approach.
[Paras 12 and 13] [497-G-H]
    M.R. Engineers and Contractors (Pvt.) vs. Som Dutt
Builders Ltd. (2009) 7 SCC 696:2009 (10) SCR 373;              D
Rukmanibai Gupta vs. Collector (1980) 4 SCC 556 - relied
on.
     2.A perusal of Section 7 of AC Act would show that
in order to constitute an arbitration agreement, it need not   E
be signed by all the parties. Section 7(3) of the Act
provides that the arbitration agreement shall be in writing,
which is a mandatory requirement. Section 7(4) states that
the arbitration agreement shall be in writing, if it is a
document signed by all the parties. But a perusal of
clauses (b) & (t:) of Section 7(4) would show that a written   F
document which may not be signed by the parties even
then      it    can     be      arbitration    agreement.
Section 7(4)(b) provides that an arbitration agreement can
be culled out from an exchange of letters, telex, telegrams
or other means of telecommunication which provide a            G
record of the agreement. Reading the provisions it can
safely be concluded that an arbitration agreement even
though in writing need not be signed by the parties if the
record of agreement is provided by exchange of letters,
telex, telegrams or other means of telecommunication.          H
    490     SUPREME COURT REPORTS             ·[2014] 12 S.C.R.


A Section 7(4)(c) provides there can be an arbitration
  agreement in the exchange of statements of claims and
  defence in which the existence of the agreement is
  alleged by one party and not denied by the other. If it can
  be prima facie shown that the parties are at ad idem, then
B mere fact of one party not signing the agreement cannot.
  absolve himself from the liability under the agreement. In
  the present day of E-commerce, in cases of internet
  purchases, tele purchases, ticket booking on internet and
  in standard forms of contract, terms and conditions are
c agreed upon. In such agreements, if the identity of the
  parties is established, and there is a record of agreement
  it becomes an arbitration agreement if there is an
  arbitration clause showing ad idem between the parties.
  Therefore, signature is not a formal requirement under
  Section 7(4)(b) or 7(4)(c) or under 7(5) of the Act [Paras
0
  15, 16] [499-D-H; 500-A-C]
         3. A commercial document having arbitration clause
    has to be interpreted in such a manner as to give effect
    to the agreement rather than invalidate it. Admittedly, the
E   respondent issued a sale contract for supply of goods
    incorporating in the said sale contract various terms
    including 100% percent payment against letter of credit
    and also providing the governing terms as "Singapore
    Commodity Exchange". Though the appellant issued
F   purchase order on terms and conditions set out therein·
    but the appellant requested the respondent to change
    the payment terms mentioned in the sales contract. The
    request for amendment was accepted by the respondent.
    The Email sent by the appellant acknowledging the
G   amendments on the payment term in the sale contract.
    Thus, at the request of the appellant, the invoice was split
    Into two invoices and in the said letter of request
    reference was made to the sale contract. The appellant
    proceeded to supply the goods on the terms contained
H   in the sale contract. From the intention of the parties, as
    GOVIND RUBBER LTD. v. LOUIDS DREYFUS                491
         COMMODITIES ASIA PVT. LTD.
appearing from the correspondence, it can safely be . A
inferred that there had been meeting of mind between the
parties and they were ad idem to the terms of sale
contract which contained the forum of dispute resolution
at Singapore Commodity Exchange. Apart from that, after
the dispute was referred to Singapore Commodity B
Exchange for arbitration, the appellant made ~ counter
claim before the Arbitral Tribunal contending that the
appellant had incurred huge loss in view of the failure on
the part of the respond~nt to supply the goods in time.
By making a counter claim, the appellant indeed c
submitted to the jurisdiction of the arbitrator. [Paras 17,
19, 20] [500-C; 501-D-F; 502-F-H; 503-A]

     Union of India vs. D.N. Revri and Co. AIR 1976 SC
 2257:1977 (1) SCR 483 - relied on.
                                                               D
       Astra Vendeor Compania Naviera SA vs. Mabanaft
· GmbH (1970) 2 Llyod's Rep.267: Paul Smith Ltd v. H and
  S International Holdings Inc. (1991) 2 Llyod's Rep.127 -
  referred to.
                                                               E
      4. It is clear that for construing an arbitration
 agreement, the intention of the parties must be looked
 into. The materials on record make it very clear that the
 appellant was prima facie acting pursuant to the sale
 contract issued by the respondent. So, it is not very
 material whether it was signed by the second respondent       F
 or not. Although the appellant having full notice and
 knowledge of the dispute having been decided by the
 Arbitral Tribunal and an award was passed, the said
 award has not been challenged by the appellant in any
 court of law. Instead, the appellant filed the suit against   G
 the respondent in the High Court for damages. In the said
 premise, there is no valid ground to oppose the
 en.forcement of the foreign award. The High Court rightly
 held that the foreign award is enforceable under Part II
                                                               H
    492      SUPREME COURT REPORTS              (2014] 12 S.C.R.


A .and is binding for all purposes on the parties. [Paras 22,
   23 and 24] [503-F-H; 504-A-B]

         Cairncross vs.' Lorimer, (1860) 7 Jur NS 149; Sarat
    Churider Dey vs. Gopa/ Chunder Laha, 19 IA 203; Chowdhri
    Murtaza-Hossein vs. Mt. Bibi Bechunnissa, 3 IA 209. -
8
    referred to.

                       Case Law Reference:
          2009 (10) SCR 373     · Relied on            Para 10
c         (1980) 4 sec 556        Relied on.           Para 13
          1977 (1) SCR 483        Relied on            Para 18

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    11438 of 2014.
D
         From the Judgment & Order dated 04.02.2013 of the High
    Court of Judicature at Bombay in Arbitration Petition No. 174
    of 2012.

E       Jayant Bhushan, Vanita Bhargava, Ajay Bhargava (for
    Khaitan & Co.) for the Appellant.

          Jay Savla, Renuka Sahu for the Respondent

          The Judgment of the Court was delivered by
F
          M.Y. EQBAL, J.: 1. Leave granted.

       2. This appeal by special leave is directed against
  judgment and order dated 4.2.2013 of the High Court of
  Judicature at Bombay whereby learned Single Judge allowed
G the arbitration petition preferred by the respondent under
  Sections 47 and 48 of the Arbitration & Conciliation Act, 1996
  (in short, "the Act"). By the aforesaid petition, respondent had
  inter alia sought direction to enforce and execute the foreign
  award dated 18th December, 2009 as decreed in favour of the
H respondent and against the appellant.
   GOVIND RUBBER LTD. v. LOU IDS DREYFUS                     493
  COMMODITIES ASIA PVT. LTD. [M.Y. EQBAL, J.]
     3. The factual matrix of the case is that the appellant is      A
carrying on business at Mumbai inter alia of import and export
of commodities and the respondent company is having its office
at Singapore. On 20th August, 2008, the appellant through the
broker B.B. Rubber Pvt. Ltd. (in short, 'Broker') confirmed the
offer for purchase of natural rubber RSS-3 (Thailand origin). The    B
respondent issued a sales contract bearing No.0388733 for
200 Metric Tons (MT) of Thai RSS-3 at US $2,880 per metric
ton, CIF Nhava Sheva, India with payment term 100% against
Letter of Credit for shipment in September, 2008. The said sale
contract, signed by the representative of the respondent,            c
provided the governing terms as "Singapore Commodity
Exchange". The name of the appellant was described as buyer,
who issued purchase Order No.BOM:P0:2008~09:286 dated
21st August, 2008. As pleaded by the appellant, by this
purchase order, the appellant placed orders on the terms and         D
conditions set out therein. The appellant thereafter requested
to change the payment term in the said sales contract to be
 10% advance by TT (Telegraph Transfer) and balance 90% by
DP (documents against payment) at sight through e-mail dated
26th August, 2008. This request for amendment was accepted
                                                                     E
by the respondent and accordingly it issued invoice dated 27th
August, 2008 for the 10% advance payment for 200 metric tons
RSS 3 at the rate of US$ 2,880/MT. It is the case of the
respondent that latter the invoice was split into two invoices of
100 metric tons each for which 10% of contract value was
 US$28,800. Cargo of 200 MT RSS-3 was accordingly shipped            F
to Nahava Sheva and original documents of shipments were
couriered to the appellant's Bank.

     4. On 11th October, 2008, the broker sent a letter to the
appellant to confirm acceptance of their request to split bills of   G
lading separately as conditions for payment upon presentation.
The respondent on 17th October, 2008 requested for return of
the documents from Indian Overseas Bank of the appellant in
order to split the bills of lading into smaller lots as requested
by the appellant. On 31st October, 2008, the respondent sent         H
   494      SUPREME COURT REPORTS               [2014] 12 S.C.R.


A the revised split bills of lading and invoices for resubmission
  on Indian Overseas Bank for payment. On 31st October, 2008,.
  the appellant confirmed acceptance of non-negotiable
  documents for both contracts and requested for price deduction
  as conditions to make payment, which was not accepted by
B the respondent. On 10th November, 2008, the broker emailed
  to the appellant to insist performance of the contracts and
  recapping the sequence of events of the contracts. The
  appellant, however, did not make payment.

       5. It is pleaded by the respondent that. on 22nd August,
C 2008, upon receiving brokers confirmation of order and advice
  to fax over the sales contracts, the respondent issued sales
  contract on 25th August, 2008 bearing No.03S8739 for 201.6
  Metric tons (mt) of SIR20 at us $ 2,895/mt CIF Nhava Sheva,
  India, with payment term 100% Letter of Credit for shipment in
D September, 2008 with the respondent's contract stating
  governing terms as Singapore Commodity Exchange to the
  appellant which issued its purchase Order No. BOM:PO: 208-
  09:290 (in short, the said contract is referred to as "second
  sales contract"). By email dated 27th August, 2008 the
E appellant requested to change payment terms in respect of the
  said second sales contract and the respondent accepted new
  payment terms as requested by the appellant.

       6. The dispute arose between the parties in respect of this
F second sales contract. The respond~nt, therefore, vide letter
  dated 12th May, 2009, referred the matter to Singapore
  Commodity Exchange for arbitration in accordance with the
  terms of sale contract and attached points of claim in
  arbitration. The appell;mt vide letter dated 23rd May, 2009 to
G SICOM Rubber Contract Dispute Resolution Committee, the
  Singapore Commodity Exchange, contended that the appellant
  had incurred huge loss in view of the failure on the part of the
  respondent to supply the goods in time with standard of second
  party in quantity. By the said letter, the appellant lodged its
H counter claim on the first party for US $ 3734036.25 and also
   GOVIND RUBBER LTD. v. LOUIDS DREYFUS                        495
  COMMODITIES ASIA PVT. LTD. [M.Y. EQBAL, J.]
agreed for acceptance of nomination to Mr. Leon Tim Fook as            A
their sole arbitrator. The appellant contended that the
Singapore Commodity Exchange or its committee did not have
any jurisdiction. It was submitted that the jurisdiction shall be in
Mumbai. The Arbitral Tribunal made award dated 18th
December, 2009 directing the appellant to pay to the                   B
respondent a sum of US $716283 for breach of contract and
also to bear cost and expenses of said arbitration amounting
to Singapore dollar 20330. The Arbitral Tribunal, rejected the
counter claim made by the appellant and recorded a finding that
SICOM and its arbitral tribunal had arbitration juri!!diction over     c
two contracts in dispute and the said two sales contracts
existed and were valid.

     7. The appellant did not challenge the aforesaid award
before the High Court. On the other hand, in the year 2010,
appellant filed a suit against the respondent in the High Court D
inter alia praying for damages. The respondent has also filed
notice of motion in the said proceedings. During the pendency
of the said suit, respondent filed arbitration petition on 11th
January, 2012 for enforcement and execution of the said award
as decree. After hearing learned counsel on either side and E
going through the materials placed before the Court, learned
Single Judge allowed the arbitration petition observing that the
appellant has not furnished any proof as to why the enforcement
of the foreign award dated 18th December, 2009 can be
refused. The appellant had made counter claim before the F
arbitral tribunal and thereafter did not challenge the award
passed in favour of the respondent and rejection of the counter
claim against the appellant in any court of law. According to the
learned Single Judge, the said foreign award is enforceable
under Part II and is binding for all purposes on the parties under G
Section 46 of the Arbitration & Conciliation Act, 1996. After
holding that that the said foreign award is enforceable, High
Court directed the respondent to put the award in execution in
accordance with the rules of this court. The High Court also
directed the appellant to produce on oath, complete inventory H
    496      SUPREME COURT REPORTS                  [2014] 12 S.C.R.


A of its assets and properties as prayer for in prayer clause (b)
  within the period of four weeks from the date of impugned
  order.

       8. Hence, this appeal by special leave under Article 136
8 of the Constitution is preferred by the appellant raising
  substantial question of law as to whether in the absence of a
  valid arbitration ·agreement between the parties as
  contemplated under Section 7 of the Act, the Singapore~
  Commodity Exchange had jurisdiction to appoint any arbitrator
C on behalf of the appellant or to proceed with the arbitration. It
  is the case of the appellant that the entire arbitral proceedings
  before the Singapore Commodity Exchange, at the instance of
  the respondent, was without jurisdiction and cannot bind the
  appellant.

D         9. Mr. Jayant Bhushan: learned senior counsel appearing
    for the appellant, at the very 'outset submitted that the sale
    contract issued by the respondent containing and referring the
    arbitration to Singapore Commodity Exchange was not signed
    and returned by the appellant. On the contrary the purchase
E   order sent to the respondent contains commercial terms and
    conditions including exclusive jurisdiction of Bombay High Court.
    The said purchase order was accepted by the respondent and
    was concluded. Hence, Singapore Commodity Exchange did
    not have jurisdiction to decide the disputes inasmuch as the
F   parties were not ad idem to refer the dispute for arbitration.
    Learned counsel submitted that the High Court has failed to
    appreciate the case of the appellant and grossly erred in
    holding that the appellant did not raise jurisdiction in the counter
    claim filed by it. Leaned counsel submitted that as against the
G   specific conditions fixed in the purchase order regarding the
    jurisdiction of Bombay High Court, the respondent did not
    respond to the said letter objecting to the jurisdiction of the
    Bombay High Court. Mr. Bhushan then submitted that making
    a counter claim in response to the notice sent by the Arbitrator
H   will not amount to waiver of jurisdiction. Lastly learned counsel
   GOVIND RUBBER LTD. v. LOUIDS DREYFUS                       497
  COMMODITIES ASIA PVT. LTD. [M.Y. EQBAL, J.]
submitted that the High Court has further gravely erred by           A
recording a finding that the appellant has acted upon the sale
contract as concluded contract.

      10. Per contra, Mr. Jay Savla, learned advocate firstly
contended that the sales contract is a concluded contract and B
the appellant aC:ted on the terms of the sales contract and
issued the supply order to the respondent. The appellant
thereafter requested to change the terms of payment mentioned
in the sales contract to be 10% advance by TT and the 90%
by DP. The said request for amendment in the sales contract C
was accepted by the respondent. Learned counsel submitted
that the appellant always referred the sales contract which is
 evident from the fact that no amendment in the payment terms
 in the supply order was ever sought for. Learned counsel
 submitted that the request for splitting the bills referring the sales
 contract was also accepted and payments were made as per D
the amended terms in the sales contract. According to the.
 learned counsel, the High Court has rightly appreciated all these
 facts then submitted that the parties were ad idem in the matter
 of terms of the sale contract which contained the resolution of
 dispute by arbitration through Singapore Commodity E
 Exchange. Learned counsel put reliance on the decision of this
Court in the case of M.R. Engineers and Contractors (Pvt.)
 vs. Som Dutt Builders Ltd., (2009) 7 SCC 696.

     11. We have heard the learned counsel appearing for the         F
parties and have perused and considered all the facts and the
documents brought on record.

     12. There may not be any dispute with regard to the settled
proposition of law that an agreement even if not signed by the
parties can be spelt out from correspondence exchanged               G
between the parties. However it is the duty of the Court to
construe correspondence with a view to arrive at the conclusion
whether there was any meeting of mind between the parties
which could create a binding contract between them. It is
                                                                     H
    498     . SUPREME COURT REPORTS                 (2014] 12 S.C.R.


A   necessary for the Court to find out from the correspondence as
    to whether the parties were ad idem to the terms of contract.

        13. It is equally well settled that while construing an .
  arbitration agreement or arbitration clause, the Courts have to
B adopt a pragmatic and not technical approach. In the case of
  Rukmanibai Gupta vs. Collector, (1980) 4-SCC 556, this
  Court held that:-

          "6. Arbitration agreement is not required to be in any
          particular form. What is required to be ascertained is
c         whether the parties have agreed that if disputes arise
          between them in respect Of the subject-matter of contract
          such dispute shall be referred to arbitration, then such an
          arrangement would spell out an arbitration agreement."
                                        '
D       14. So far as the first contention made by the learned
   counsel for the. appellant that since the appellant did not sign
  ·the agreement, it cannot be said fo be a party to the agreement,
   we would like to refer Section 7 of the Arbitration and
   Conciliation Act, which reads as under:
E         "?.Arbitration agreement:- ·

          (1) In this Part, "arbitration agreement" means an
          agreement by the parties to submit to arbitration all or
          certain disputes which have arisen or which may arise
F         between them in respect of a defined legal relationship,
          whether contractual or not.

          (2) An arbitration agreement may be in the form of an
          arbitration clause in a contract or in the form of a separate
          agreement.
G
          (3) An arbitration agreement shall be in writing.

       · (4) An arbitration agreement is in writing if it is contained
         in-
H
   GOVIND RUBBER LTD. v. LOU IDS DREYFUS                      499
  COMMODITIES ASIA PVT. LTD. [M.Y. EOBAL, J.]
           (a) a document signed by the parties;
                                                         .,         A

           (b) an exchange of letters, telex, telegrams or other
           means of telecommunication which provide a
           record of the agreement; or

           (c) an exchange of statements of claim and defence       B
           in which the existence of the agreement is alleged
           by one party and not denied by the other.

    (5) The reference in a contract to a document containing
    an arbitration clause constitutes an arbitration agreement C
    if the contract is in writing and the reference is such as to
    make that arbitration clause part of the contract." ·

     15. Perusal of the afores~id provisions would show that in
order to constitute an arbitration agreement, it need not be
signed by all the parties. Section 7(3) of the Act provides that D
the arbitration agreement shall be in writing, which is a
mandatory requirement. Section 7(4) states that the arbitration
agreement shall be in writing, if it is a document signed by all
the parties. But a perusal of clauses (b) & (c) of
Section 7(4) would show that a written document which may not E
be signed· by the parties even then it can be arbitration
agreement. Section 7(4)(b) provides that an arbitration
agreement can be culled out from an exchange of letters, telex,
telegrams or other means of telecommunication which provide
a record of the agreement.                                       F

      16. Reading the provisions it can safely be concluded that
an arbitration agreement even though in writing need not be
signed by the parties if the record of agreement is provided by
exchange of ·letters, telex, telegrams or other means of G
telecommunication. Section 7(4)(c) provides there can be an
arbitration agreement in the exchange of statements of claims
and defence in which the existence of the agreement is alleged
by one party and not denied by the other. If it can be prima facie
shown that the parties are at ad idem, then mere fact of one H
    500      SUPREME COURT REPORTS                   [2014] 12 S.C.R.


A party not signing the agreement cannot absolve himself from
  the liability under the agreement. In the present day of E-
  commerce, in cases of internet purchases, tele purchases,
  ticket booking on internet and in standard forms of contract,
  terms and conditions are agreed upon. In such agreements, if
B the identity of the parties is established, and there is a record
  of agreement it becomes an arbitration agreement if there is
  an arbitration clause showing ad idem between the parties.
  Therefore, signature is not a formal requirement under Section
  7(4)(b) or 7(4}(c) or under 7(5) of the Act
c        17. We are also of the opinion that a commercial document
    having arbitration clause has to be interpreted in such a manner
    as to give effect to the agreement rather than invalidate it. On
    the principle of construction of a commercial agreement,
    Scrutton on Charter Parties (17th Edition, Sweet & Maxwell, .
D London, 1964) explained that commercial agreement has to be
    construed, according to the sense and meaning as collected
    in the first place from the terms used and understood in the
    plain, ordinary and popular sense (See Article 6 at page 16).
    The learned Author also said that the agreement has to be
E · interpreted 'in order to effectuate the immediate intention of the
    parties'. Similarly, Russel on Arbitration (21st Edition) opined,
    relying on Astro Vendeor Compania Naviera SA vs.
    Mabanaft GmbH (1970) 2 Llyod's Rep.~67, that the Court
    should, if the circumstances allow •. lean in favo1.1r of giving effect
F to the arbitration clause to which the parties have agreed. The
    learned Author has also referred to another judgment in Paul
    Smith Ltd v. H and S International Holdings Inc. (1991) 2
    Llyod's Rep.127 in order to emphasize that in construing an
    arbitration agreement the Court should seek to 'give effect to
G the intentions of the parties'. (See page 28 of the book).

        18. The Apex Court also in the case of Union of India
    vs. D.N. Revri and Co., AIR 1976 SC 2257, held .that a
    commercial document between the parties must be interpreted

H
   GOVIND RUBBER LTD. v. LOUIDS DREYFUS                         501
  COMMODITIES ASIA PVT. LTD. [M.Y. EQBAL, J.]
in such a manner as to· give efficacy to the contract rather than      A
to invalidate it. The learned Judges clarified it by saying: -

     "7. It must be remembered that a contract is a commercial
     document between the parties and it must be interpreted
     in such a manner as to give efficacy to the contract rather       B
     than to invalidate it. It would not be right while interpreting
     a contract, entered into between two lay parties, to apply
     strict rules of constrtiction which are ordinarily applicable
     to a conveyance and other formal documents. The
     meaning of such a contract must be gathered by adopting           C
     a common sense approach and it must not be allowed to
     be thwarted by a narrow, pedantic and legalistic
     interpretation."

     19. In the instant case, admittedly, the respondent issued
a sale contract for supply of goods incorporating in the said          D
sale contract various terms including hundred percent payment
against letter of credit and also providing the governing terms
as "Singapore Commodity Exchange?'. Though the appellant
issued purchase order dated 21st August, 2008 on terms and
conditions set out therein but the appellant requested the             E
respondent to change the payment terms mentioned in the sales
contract. The request for amendment was accepted by the
respondent. At this juncture, we would like to quote hereinbelow
the Email dated 27th August, 2008 sent by the appellant
acknowledging the amendments on the payment term in the sale           F
contract.

     "bbr@vsnl.com
     To MeKwan.Yip@idcommodities.com ·
     Cc: Andrew. Trevett@id commodities. com                           G
     Christina.Chlia@idocmodities.com
      Subject: Re: Govind Rubber
     " Hi Mee Kwan,
      As discussed & confirmed with Andrew y'd. Govind. H
    502          SUPREME COURT REPORTS           · [2014] 12 S.C.R.


A         Rubbeer's pavment terms have been changed to:10%
          ADVANCE BY TT, BALANCE AGAINST DIP AT SIGHT
          SO, PLEASE AMEND YOUR SALE CONTRACT
          ACCORDINGLY & SEND ME THE SALE CONTRACT &
          PROFORMA INVOICE FOR BOTH CONTRACTS
B         SEPARATELY.
           Await your earlier action, since Govind Rubber wants to.
          send the 10% advance TT today & is waiting for your
          Proforma Invoice.
          Rgds,
c
          Biju
          _Original Message_·
          From: MeeKwan.Yip@idcommodities.com
D         To: bbr@vsnl.com
          Cc:           Andrew.Trevatt@idcommodities.com;
          Christina.Chia@idcommodities.com
          Subject: Re: Govind Rubber."
E      20. From the documents available on record and also
  referred in the impugned order, it is evident that at the request
  of the appellant, the invoice was split into two invoices and in
  the said letter of request reference was made -to the sale
  contract. The appellant proceeded to supply the goods on the
F terms contained in the sale contract. The intention of the parties,
  as appearing from the correspondence, it· can safely be
  interred that there had been meeting of mind between the
  parties and they were ad idem to the terms of sale contract
  which contained the forum of dispute resolution at Singapore
G Commodity Exchange. Apart from that, after the dispute was
  referred to Singapore Commodity Exchange for arbitration, the
  appellant in response to the notice made a counter claim
  before the Arbitral Tribunal contending that the appellant had
  incurred huge loss in view of the failure on the part of the
H respondent tci supply the goods in time. By making a counter
   GOVIND RUBBER LTD. v. LOU IDS DREYFUS ·                    503
  COMMODITIES ASIA. PVT. LJD. [M.Y. EQBAL, J.)
claim, the appellant indeed submitted to the jurisdiction cif the    A
arbitrator.

      21. The principles laid down by the House of Lords in the
case of Cairncross vs. Lorimer, (1860) 7 Jur NS 149, were
approved of by the Judicial Committee in the case of Sarat B
Chunder Dey vs. Gopat Chunder Laha, 19 IA 203. We may
also take the liberty of reading a passage from another Privy
Council decision where the general principle applicable to such
cases is stated. "On the whole, therefore, their Lordships think
that the appellant, having a clear knowledge of the
circumstances on which he might have founded an objection· C
to the arbitrators proceeding to make their award, did submit
to the arbitration going on; that he allowed the arbitrators to deal
with the case as it stood before them, taking his chance of the
decision being more or less favourable to himself; and that it
 is too late for him, after the award has been made, and on the D
 application to file the award, to· insist on this objection to the
filing of the award": see the case of Chowdhri Murtaza-
Hossein vs. Mt. Bibi Bechunnissa, 3 IA 209 . It is true that
the question in the present case is a question of competence
of the arbitrator which in a sense is a question of jurisdiction, E
but it is not like the jurisdiction of a Court, because the
jurisdiction of arbitrators is derived from consent of the parties.

     22. It is clear that for construing an arbitration agreement,
the intention of the parties must be looked into. The materials
on record which have been discussed hereinabove make it
                                                                     F
very clear that the appellant was prima facie acting pursuant
to the sale contract issued by the respondent. So, it is not very
material whether it was signed by the second respondent or
not
                                                                     G
      23. It is not in dispute that although the appellant having
full notice and knowledge of the dispute having been decided
by the Arbitral Tribunal and an award was passed on 18th
December, 2009, the said award has not been challenged by
                                                                     H
    504       SUPREME COURT REPORTS                [2014] 12 S.C.R.


A   the appellant in any court of law. Instead, the appellant filed the
    suit against the respondent in the High Court inter alia praying
    for damages.

         24. In the aforesaid premise, we do not find any valid
    ground to oppose the enforcement of the foreign award. The
8   High Court in the impugned order has rightly held that the
    foreign award is enforceable under Part II and is binding for all
    purposes on the parties.
                                           ' .
       25. After giving our anxious consideration to the question
C raised by the appellant, we do not find any merit in this appeal
  and is accordingly dismissed, but with no order as to costs. ·

    Devika Gujral                                     Appeal dismissed.