Holding

The Supreme Court held that the Section 47 objections were not maintainable as there were no prima facie grounds of fraud or breach of fiduciary duty, and the narrow jurisdiction of Section 47 precludes a re‑trial of the award.

Summary

MMTC Limited entered a Long Term Agreement with Anglo American Metallurgical Coal for the supply of coking coal, but a dispute arose over the price and unlifted quantities, leading to an arbitral award in favour of Anglo. MMTC challenged the award under Section 34 of the Arbitration and Conciliation Act, which was rejected, and later succeeded on appeal under Section 37, only for the Supreme Court to restore the award. While the award was being enforced, MMTC filed objections under Section 47 of the CPC claiming fraud and breach of fiduciary duty by its senior officials, and also sought a stay of execution under Order XXI Rule 29. The Delhi High Court dismissed both the Section 47 objections and the stay application. The Supreme Court examined whether the objections were maintainable and whether a prima facie case of fiduciary breach existed, applying the business judgment rule and the narrow scope of Section 47. Finding no substantive evidence of fraud or unreasonable conduct, the Court held the objections untenable and dismissed the appeal.

Issues considered

Whether the High Court was justified in dismissing MMTC's objections under Section 47 of the CPC.
Whether a prima facie case of breach of fiduciary duty and fraud by MMTC officials was established.
Whether Section 47 can be used to challenge the executability of an arbitral award after it has been upheld by the Supreme Court.
Whether the application under Order XXI Rule 29 for a stay of execution was maintainable.

Legislation cited

Arbitration and Conciliation Act, 1996s. 34, s. 37
Code of Civil Procedure, 1908s. 47, s. Order XXI Rule 29
Indian Penal Code, 1860
Prevention of Corruption Act, 1988

Headnote

Issue for Consideration Issue arose whether the High Court was justified in not entertaining the objections filed by the appellant u/s.47 CPC and in dismissing the same; and whether at least prima facie the case of breach of fiduciary duty has been established Act, 1996 – ss.34, 37 – Code of Civil Procedure, 1908 – s.47 – Objections under – Maintainability – Long Term Agreement-LTA between the petitioner and the respondent – Respondent invoked arbitration clause claiming damages on account of the

Subjects

Prima facie case of breach of fiduciary dutyObjections u/s.47 CPCLong Term AgreementArbitration clauseDamagesUnlifted quantity of coal contractedArbitration awardReview PetitionInterestClarification applicationExecution petitionEnforcement of awardOrd. XXI r.29 CPC applicationStay of executionBusiness judgment rulePostscriptPolicy paralysis

Judgment

[2025] 11 S.C.R. 327 : 2025 INSC 1279

MMTC Limited
v.
Anglo American Metallurgical Coal Pvt. Limited
(Civil Appeal No. 13321 of 2025)
03 November 2025
[Sanjay Kumar and K.V. Viswanathan,* JJ.]

Issue for Consideration
Issue arose whether the High Court was justified in not entertaining
the objections filed by the appellant u/s.47 CPC and in dismissing
the same; and whether at least prima facie the case of breach of
fiduciary duty has been established by appellant.

Headnotes†
Arbitration and Conciliation Act, 1996 – ss.34, 37 – Code of Civil
Procedure, 1908 – s.47 – Objections under – Maintainability –
Long Term Agreement-LTA between the petitioner and the
respondent – Respondent invoked arbitration clause claiming
damages on account of the unlifted quantity of coal contracted
by the appellant – Arbitration award passed in favour of
the respondent – Challenge u/s.34 of the 1996 Act rejected
by the Single Judge, however, the Division Bench allowed
appellant’s appeal u/s.37 and set aside the arbitral award – In
appeal before this Court, the judgment of the Division Bench
set aside and that of the Single Judge restored as also the
arbitral award – Review Petition filed by the appellant, admitted
on the limited issue of interest – Subsequently, clarification
application by the appellant disposed of – In the meantime,
the respondent filed execution petition seeking enforcement
of award and the appellant filed its objections u/s.47 CPC –
When the Judgment was reserved, the appellant filed a suit
praying that the award is void and unenforceable, however, the
said suit was dismissed and the Executing Court dismissed
the objections u/s.47 CPC as well as Ord. XXI r.29 application,
seeking stay of execution, pending the suit – Challenge to:
Held: Objection petition u/s.47 should not invariably be treated
as a commencement of a new trial – This Court has warned that

* Author
328 [2025] 11 S.C.R.

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there is a steady rise of proceedings akin to a retrial which causes
failure of realization of the fruits of a decree, unless prima facie
grounds are made out entertaining objections u/s.47 would be
an abuse of process – On the material furnished, it cannot be
said that the Senior Managerial personnel involved at the helm in
appellant company during the relevant period acted in a manner
as no reasonable personnel/director in the circumstances would
have acted – It cannot be concluded that the decisions taken were
not within the range of reasonableness or that the course adopted
by them was not one, a reasonably competent personnel/director
would adopt – Applying the business judgment rule, the course
adopted by them cannot be said to be one to which a court of
law would not defer to – Appellants have not been able to even
prima facie demonstrate that circumstances exist to conclude that
the personnel of appellant did not act in the best interest of the
company – Appeal challenges, in the prayer clause, the judgment
dismissing the objections, though in the prayer clause, no challenge
to dismissal of the application u/Ord. XXI r.29 filed, in the civil appeal
the appellants have indicated that they are aggrieved by the said
order also – Ord. XXI r. 29 provides for stay of execution pending
suit between decree holder and judgment debtor – However, the
suit filed itself now stands rejected u/Ord. VII r.11 but a regular first
appeal was filed – Hence, an occasion for considering an Ord. XXI
r.29 application does not arise – Objection filed u/s.47 claiming
that the award as upheld by this Court is inexecutable, is dealt
with – Jurisdiction lies in a narrow compass – It is the mandate of
this Court that the object of s.47 is to prevent unwarranted litigation
and dispose of all objections as expeditiously as possible – No
merit in the objections filed by the appellant – No good grounds
to entertain the same. [Paras 95-98, 100]

Arbitration – Arbitration award – Execution Petition seeking
enforcement of the Award by the respondent – Appellant-MMTC
filing its objections u/s.47 CPC and when the Judgment was
reserved, MMTC filed a suit praying that the award is void
and unenforceable – However, the said suit was dismissed
and MMTC filed application u/Ord. XXI r.29 CPC – Executing
Court dismissed the objections as well as Order XXI Rule 29
application – Postscript in relation thereto:
Held: Whether in Government, Public Sector Corporations or even
in the private sector, the driving force of the entity are the persons
[2025] 11 S.C.R. 329

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

who administer them – Certain play in the joints is inevitable for
their day-to-day functioning – If they are shackled with the fear
that, their decisions taken for the day-to-day administration, could
years later with the benefit of hindsight, be viewed with a jaundiced
eye, it will create a chilling effect on them – Tendency to play it
safe will set in – Decision making will be avoided – Policy paralysis
will descend – All this will in the long run prove detrimental not
just to that entity but to the nation itself – This Court is not to be
understood to be condoning decisions taken for improper purposes
or extraneous considerations – Great caution and circumspection
have to be exercised before such allegations are brought forward
and adequate proof must exist to back them – Otherwise for fear
that carefully built reputations could be casually tarnished, best
of talent will not be forthcoming, especially for government and
public sector corporations. [Para 99]

Case Law Cited
Electrosteel Steel Limited (Now M/s ESL Steel Limited) v. ISPAT
Carrier Private Limited, 2025 INSC 525; Vasudev Dhanjibhai
Modi v. Rajabhai Abdul Rehman [1971] 1 SCR 66 : (1970) 1
SCC 670; Ram Preeti Yadav v. U.P. Board of High School and
Intermediate Education and Ors. [2003] Supp. 3 SCR 352 :
(2003) 8 SCC 311; S.P. Chengalvaraya Naidu v. Jagannath and
Ors. [1993] Supp. 3 SCR 422 : (1994) 1 SCC 1; Indian Bank v.
Satyam Fibres (India) Pvt. Ltd. [1996] Supp. 4 SCR 464 : (1996)
5 SCC 550; United India Insurance Co. Ltd. v. Rajendra Singh and
Others [2000] 2 SCR 264 : (2000) 3 SCC 581; Rahul S. Shah v.
Jinendra Kumar Gandhi and Ors. [2021] 4 SCR 279 : (2021) 6
SCC 418 – referred to.
Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341; Re Living
Images Ltd., (1996) 1 BCLC 348; Dovey and The Metropolitan
Bank (of England and Wales) Limited v. John Cory, 1901 Appeal
Cases 477; Sharp and Ors. v. Blank and Ors., (2019) EWHC 3096
(Ch); Maple Leaf Foods Inc. v. Schneider Corp., 42 OR (3d) 177;
Kerr v. Danier Leather Inc., (2007) 3 SCR 331 Canadian Supreme
Court Reports – referred to.

List of Acts
Penal Code, 1860; Prevention of Corruption Act, 1988; Code of
Civil Procedure, 1908; Arbitration and Conciliation Act, 1996.
330 [2025] 11 S.C.R.

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List of Keywords
Prima facie case of breach of fiduciary duty; Objections u/s.47
CPC; Long Term Agreement; Arbitration clause; Damages; Unlifted
quantity of coal contracted; Arbitration award; Review Petition;
Interest; Clarification application; Execution petition; Enforcement of
award; Ord. XXI r.29 CPC application; Stay of execution; Business
judgment rule; Postscript; Policy paralysis.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13321
of 2025
From the Judgment and Order dated 09.05.2025 of the High Court
of Delhi at New Delhi in OMP (ENF.) (COMM.) No. 19 of 2018

Appearances for Parties
Advs. for the Appellant:
Venkataraman, A.S.G., Harish Salve, Sanat Kumar, Sr. Advs. Akhil
Sachar, Ms. Astha Tyagi, Ms. Sunanda Tulsyan, Ms. Karishma
Sharma.
Advs. for the Respondent:
Neeraj Kishan Kaul, Jayant Mehta, Sr. Advs., Sumeet Kachwaha,
Samar Singh Kachwaha, Ms. Ankit Khushu, Ms. Garima Bajaj,
Ms. Akanksha Mohan, Pratyush Khanna, Ms. Ira Mahajan.

Judgment / Order of the Supreme Court

Judgment

K.V. Viswanathan, J.

1. Leave granted.
2. The present appeal calls in question the correctness of the judgment
dated 09.05.2025 passed by a learned Single Judge of the Delhi
High Court in OMP (ENF.) (COMM.) No. 19 of 2018. By the said
judgment, the High Court dismissed the objections filed by the
appellant-MMTC Limited [for short “MMTC”] under Section 47 of
the Code of Civil Procedure, 1908 [“CPC”] as well as an application
under Order XXI Rule 29 of CPC seeking stay of the enforcement
[2025] 11 S.C.R. 331

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

proceedings. The High Court further directed that the amount
deposited by MMTC shall be withdrawn by the decree holder-Anglo
American Metallurgical Coal Pvt. Limited [for short “the Anglo”]
along with the interest accrued. Aggrieved, the appellant-MMTC is
in appeal by way of special leave.

BRIEF FACTS:-
3. The respondent-Anglo, on 24.09.2012, invoked the arbitration clause
in the Long Term Agreement [LTA] dated 07.03.2007 entered into
between MMTC and Anglo. The claim in the arbitration was for
damages on account of the unlifted quantity of coal contracted by
the appellant-MMTC. The damages were computed based on the
difference in the price between the contracted price of US$ 300 Per
Metric Tonne [for short “PMT”] and the market price of US$ 126 PMT,
multiplied by the unlifted quantity. In the arbitration, by an Award
dated 12.05.2014, Anglo was awarded a sum of US$ 78.720 million
along with interest and costs by a majority of 2:1.
4. By a judgment dated 10.07.2015, challenge under Section 34 of the
Arbitration and Conciliation Act, 1996 [for short ‘the A&C Act’] failed
before a learned Single Judge of the High Court of Delhi. However,
the Division Bench, by its judgment dated 02.03.2020, allowed
MMTC’s appeal under Section 37 of the A&C Act and set aside the
arbitral Award along with the decision of the learned Single Judge.
By a judgment of 17.12.2020, this Court allowed the Civil Appeal
filed by Anglo and after setting aside the judgment of the Division
Bench restored the judgment of the learned Single Judge and the
arbitral Award.
5. On 29.07.2021, a review petition filed by MMTC, which was admitted
on the limited issue of interest, was disposed of by reducing the
pendente lite and future interest to 6%. The remaining findings were
not disturbed. On 19.04.2022, a clarification application filed by
MMTC was disposed of by clarifying that MMTC would be liable to
pay interest @ 6% from the date of reference till the date of payment
and for the period from the date of breach till the date of reference,
interest was to be paid @ 7.5%.
6. In the meantime, the respondent filed Execution Petition seeking
enforcement of the Award. Post the disposal of the clarification
application, on 20.07.2022, MMTC deposited a sum of Rs.1,087/-
332 [2025] 11 S.C.R.

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crores with the High Court of Delhi at New Delhi. On 28.11.2022,
E.A. No. 3728 of 2022 in the Execution Petition was filed by MMTC
seeking to stay the operation and implementation of the Award till
the Central Bureau of Investigation [CBI] concludes its investigation
into the matter. It transpires that on 02.09.2022 and 23.11.2022,
complaints were filed by MMTC against persons including its erstwhile
employees alleging fraud and collusion with the respondent in relation
to the price fixed for coal for the 5th Delivery Period. On 09.01.2023,
the CBI, it transpires registered a preliminary enquiry.
7. When the matter stood thus, on 10.01.2024, MMTC filed its objections
under Section 47 of the CPC. In the objections, the primary contentions
of MMTC were:-
7.1 Despite having complete knowledge of the recession in the
market due to the collapse of the Lehman Brothers, the officials
of MMTC in collusion and conspiracy with the officials of Anglo
contracted the price of coal for the 5th delivery period at US$ 300
PMT. This price was 3 times more than the price of US$ 96.40
PMT which prevailed during the 4th delivery period.
7.2 Viewed in the background of the fact that Neelachal Ispat Nigam
Ltd (for short the “NINL”) for whom the coal was sourced did not
have pressing requirement of the ultimately contracted quantity
and considering the fact that there was room for negotiation of
the price, the contention of collusion and conspiracy became
stark.
7.3 The fraud could not be discovered earlier since Shri Ved Prakash,
who was Chief General Manager in 2008, became Director
(Marketing) in 2010 and ultimately Chairman-cum-Managing
Director in 2015, remained at the helm of affairs till 29.02.2020.
The said officer was in control of the arbitral proceedings as
well as at Section 34 and Section 37 stage.
7.4 When the Division Bench under Section 37 of the A&C Act
set aside the Award on 02.03.2020, there was no occasion
to examine the file to unearth the conspiracy. On 17.12.2020,
when this Court set aside the judgment of the Division Bench
and reinstated the Award, the matter was examined and on
24.02.2021, the then CMD of MMTC issued a confidential note
requesting the Chief Vigilance Officer to seek permission of the
Government of India to enquire into the matter.
[2025] 11 S.C.R. 333

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

7.5 It was thereafter that the matter was enquired into, and a decision
was taken to refer the matter to the CBI and a preliminary enquiry
came to be registered on 09.01.2023 by the CBI.
8. A detailed reply was filed by Anglo taking objections on maintainability
and limitation. Primarily, the reply to the objections on the aspect of
fraud were set out as under:-
8.1 Under the LTA entered into on 07.03.2007 between MMTC and
Anglo, in each of the 5 delivery periods of the contract, Anglo
was to supply specified quantity of coking coal.
8.2 After the 3rd delivery period, MMTC had an option to extend the
Agreement by two years on condition that the option was to be
exercised latest by 31.01.2007. This was as per Clause 1.3.
The 3rd delivery period was to expire on 30.06.2007. Clause
1.3 reads as under: -
“1.3 The PURCHASER had the option to extend
the duration of the Agreement by two more years,
at its sole discretion and the Purchaser to exercise
its option for extending the Agreement by two more
years or otherwise by 31st January, 2007. In case
the PURCHASER decides to exercise such option,
at its sole discretion, the Agreement shall have two
more Delivery Periods as follows:
Fourth Delivery Period: 1st July 2007 to 30th June 2008
Fifth Delivery Period: 1st July 2008 to 30th June 2009”
8.3 The option was indeed exercised before 31.01.2007, on
30.01.2007, with the execution of the Memorandum of
Understanding [MoU]. Option once exercised, MMTC was
obliged to pick up the stipulated quantities at the stipulated
price during the 4th and 5th delivery periods. The 4th delivery
period was from 01.07.2007 to 30.06.2008 and the 5th delivery
period was from 01.07.2008 to 30.06.2009. There could be
postponement of delivery at the option of the purchaser for a
period of three months following each delivery period.
8.4 As per the contract, the price was linked with the price fixed
for two other Public Sector Undertakings, the Steel Authority
of India Limited (SAIL) and the Rashtriya Ispat Nigam Limited
334 [2025] 11 S.C.R.

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(RINL). For SAIL and RINL, the prices were negotiated by the
Government’s Empowered Joint Committee and those contracts
were long term contracts for purchase up to 2.5 million MT per
annum as opposed to MMTC’s contracted quantity of 4,66,000
Metric Tonnes per annum.
8.5 Addendum No. 2 dated 20.11.2008 to the LTA was only to firm
up the terms and conditions. Shri Ved Prakash was a junior
member of the Committee in 2008 and by the time he became
CMD of MMTC on 14.03.2015 (as mentioned in the objections),
the Award had been pronounced by the Arbitral Tribunal on
12.05.2014.
8.6 The dispute commenced in March 2010 and culminated with
the judgment of this Court on 17.12.2020 and the allegation of
fraud is only to escape the liability under the Award.
9. By 28.10.2024, when the judgment was reserved in the Section 47
objections, MMTC had filed a Civil Suit praying that the Award
dated 12.05.2014 is void and unenforceable. It further transpires
that, on 29.07.2025, the said Civil Suit has been dismissed as not
maintainable and a Regular First Appeal being RFA (OS) (Comm)
No. 28 of 2025 is pending before the High Court.
10. On 11.11.2024, MMTC filed an application under Order XXI Rule 29
CPC. By the impugned judgment, the Executing Court dismissed
the objections under Section 47 as well as the Order XXI Rule 29
application seeking stay of execution, pending the suit. Aggrieved,
MMTC has filed the present Appeal, by way of special leave, and
this is how the matter presents itself before us.
11. The High Court, by the impugned judgment, though held that the
objections under Section 47 were not maintainable, made a brief
observation on merits. It held that on merits that the acts of the Officers
bind the Corporation as MMTC being a separate legal entity can only
function through its Officers. Only a preliminary enquiry had been
registered (when the proceedings were pending in the High Court)
and, as such, there is no finding of fraud, cheating and collusion
against the Officers of MMTC with the Officers of the decree-holder.
12. We have heard Mr. N. Venkataraman, learned Additional Solicitor
General and Mr. Sanat Kumar, learned Senior Advocate, ably
assisted by Mr. Akhil Sachar, Ms. Astha Tyagi, Ms. Sunanda Tulsyan
[2025] 11 S.C.R. 335

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

and Ms. Karishma Sharma, learned counsels for the appellant. We
have also heard Mr. Neeraj Kishan Kaul and Mr. Jayant Mehta,
learned Senior Advocates, ably assisted by Mr. Sumeet Kachwaha,
Mr. Samar Singh Kachwaha, Ms. Ankit Khushu, Ms. Garima Bajaj,
Ms. Akanksha Mohan, Mr. Pratyush Khanna and Ms. Ira Mahajan,
learned counsels for the respondent.
13. We have carefully considered the submissions and perused the
records of the case. Elaborate arguments were heard on 22.05.2025,
23.05.2025, 24.07.2025, 29.08.2025, 18.09.2025 and 25.09.2025,
both on maintainability and merits of the Section 47-objections.
14. Before we proceed to consider the contentions, we need to notice
one additional fact which transpired during the pendency of the
proceedings. It appears that, on 20.07.2025, MMTC had filed a follow-
up complaint with the CBI and the CBI, on 21.07.2025, registered an
FIR. We will deal with the same during the course of the judgment.

QUESTION FOR CONSIDERATION: -
15. In the above background, the question that arises for consideration
is – Whether the High Court was justified in not entertaining the
objections filed by the appellant under Section 47 of CPC and in
dismissing the same?

MAINTAINABILITY: -
16. Mr. N. Venkataraman, learned ASG, assailed the impugned judgment
by first contending that the finding on maintainability is completely
untenable in view of the judgment of this Court in Civil Appeal No.
2896 of 2024 [Electrosteel Steel Limited (Now M/s ESL Steel
Limited) vs. ISPAT Carrier Private Limited1] decided on 21.04.2025.
According to the learned ASG, this Court has held that the plea of
nullity qua an Arbitral Award can be raised in a proceeding under
Section 47 of CPC though the scope was very narrow.
17. Before the High Court, considerable arguments were advanced on
the question of maintainability of Section 47 objections under the
CPC, once the award had been challenged and the Section 34
objection had been dismissed and sustained right up to the highest

1 2025 INSC 525
336 [2025] 11 S.C.R.

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Court. The High Court held that if the objections under Section 47
are allowed to be entertained during the enforcement proceedings of
an Award, it would effectively open a second round for challenging
the Award. According to the High Court, this was not intended by
the legislature and would defeat the purpose of the A&C Act, apart
from delaying the finality of disputes.
18. Mr. N. Venkataraman, learned ASG, drew our attention to the judgment
of this Court in Electrosteel (supra). In Electroteel (supra), certain
arbitration proceedings between parties therein were commenced
on 07.06.2017. On 27.06.2017, proceedings commenced under
Section 7 of the Insolvency and Bankruptcy Code, 2016(IBC) against
the appellant therein. The arbitration proceedings were kept in
abeyance, due to the moratorium. The respondent therein filed a
claim before the resolution professional who partly admitted the claim.
A resolution plan submitted by the successful resolution applicant
therein was approved by the Adjudicating Authority on 17.04.2018
under Section 31 of the IBC. In the plan, ‘nil’ value was provided for
the operational creditors. The approval of the plan attained finality right
up to this Court and the challenge made by some other operational
creditors were not fruitful.
19. The arbitrator, whose proceedings were kept in abeyance, resumed
proceedings after the lifting of the moratorium and passed an Award on
06.07.2018 with the appellant therein Electrosteel not even contesting
the proceedings. An award for a sum of Rs. 1,59,09,214/- along with
interest was made in terms of Section 16 of the Micro, Small and
Medium Enterprises Development Act, 2006 (for short ‘MSME Act’).
No challenge was made under Section 34. Execution came to be
levied by the respondent therein, when appellant Electrosteel filed
a petition under Section 47 CPC, contending that the Award was
a nullity and is not executable. The Executing Court dismissed the
petition resulting in a challenge under Article 227 before the High
Court. The High Court dismissed the Article 227-petition primarily
holding that since arbitral proceedings were initiated prior to the
insolvency resolution process, the arbitrator was not barred from
proceeding.
20. Before this Court, apart from arguments on Section 31 of the IBC
which provided for binding nature of the plan on all the stakeholders,
Electrosteel also argued that it was not barred from challenging the
[2025] 11 S.C.R. 337

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

award at the execution stage. The contention was that since the
award was a nullity, even if the appellant had not filed a petition
under Section 34 of the A&C Act, it would not foreclose them from
challenging the award in the execution proceedings. It was argued
therein that the Facilitation Council in the said case inherently lacked
jurisdiction to arbitrate the claim of the respondent, post the approval
of the resolution plan. The respondent therein contended that since
the appellant-Electrosteel did not challenge the award it was not
open to them to raise a challenge to the award in the Section 47
proceeding.
21. In answering the issue about the maintainability of the objection under
Section 47, this Court held that the High Court was correct insofar
as it stated that plea of nullity qua an Arbitral award can be raised
in a proceeding under Section 47 of CPC, but such a challenge
would lie within a very narrow compass. This Court further held that
in terms of Section 36 of the A&C Act, an Award can be enforced in
accordance with the provisions of the CPC, in the same manner as if
it were a decree of the Civil Court. This Court further held as under.
“48. ………. Execution of decrees and orders is provided for
in Order XXI CPC. The law is well settled that at the stage
of execution, an objection as to executability of the decree
can be raised but such objection is limited to the ground
of jurisdictional infirmity or voidness. The law laid down
by this Court in Vasudev Dhanjibhai Modi Vs. Rajabhai
Abdul Rehman, (1970) 1 SCC 670, is that only a decree
which is a nullity can be the subject matter of objection
under Section 47 CPC and not one which is erroneous
either in law or on facts. The aforesaid proposition of law
continues to hold the field.”
22. In conclusion, this Court on the said issue, held that objection to
execution of an award under Section 47 was not dependent or
contingent upon filing a petition under Section 34. Ultimately insofar
as Electrosteel (supra) was concerned, the appeal of Electrosteel
was allowed in view of the provisions of the IBC, particularly, Section
30 and 31. It was found that the Facilitation Council did not have
jurisdiction to arbitrate the claim after approval of the plan.
23. Electrosteel (supra) held that any challenge under Section 47 would
lie within a narrow compass. It has also been held that at the stage
338 [2025] 11 S.C.R.

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of execution, an objection as to executability of the decree can be
raised, limited to the ground of jurisdictional infirmity or voidness.
It has been further held that errors of facts and law cannot be the
subject matter of objection under Section 47.
24. In Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman2, it
was held that an Executing Court cannot go behind the decree. It
was also held that where a decree is a nullity like, for example, in
cases where it is passed without bringing the legal representatives
on record or made by a Court which inherently lacked jurisdiction,
objections can be raised at the execution stage.
25. It should be pointed out that, in the present case, the objection is
not based on the ground of any inherent lack of jurisdiction. What is
really argued is that the Officials of MMTC committed fraud on MMTC,
their employer and there was collusion and conspiracy between the
Officials of MMTC and Anglo in pegging the price at US$ 300 PMT
for the 5th delivery period. So, the argument on inexecutability of the
decree was based on fraud committed by the Officials of MMTC on
MMTC, by collusion and conspiracy resulting in a favourable Award
for Anglo. It is also argued that fraud was discovered only after the
Award was upheld by this Court.
26. Mr. Neeraj Kishan Kaul, learned senior counsel for Anglo, argued that
objections under Section 47 were barred by law; that the A&C Act is
a complete Code and Section 5 bars any form of judicial intervention
other than what is expressly provided in the Act. According to the
learned senior counsel, the A&C Act contains a comprehensive
mechanism not just for the conduct of arbitral proceedings but also
for challenge to an execution of an arbitral award. Learned senior
counsel contended that awards cannot be challenged by a sidewind
in Section 47-proceedings. Mr. Kaul contended that the fraud alleged
in the present case is a fraud on itself by the employees (on the
MMTC) and is not a fraud on the Arbitral Tribunal. According to the
learned senior counsel, fraud alleged is a fraud on the formation
and validity of the underlying contract. Learned Senior Counsel also
submits that these objections were never taken at any point in the
earlier stage of litigation.

2 (1970) 1 SCC 670
[2025] 11 S.C.R. 339

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

27. In response, Mr. N. Venkataraman, learned ASG drew our attention
to a judgment of the English Court and to the following passage in
Lazarus Estates Ltd. v. Beasley3, as cited in Ram Preeti Yadav v.
U.P. Board of High School and Intermediate Education and Ors.4:-
“I cannot accede to this argument for a moment. No court
in this land will allow a person to keep an advantage which
he has obtained by fraud. No judgment of a court, no
order of a minister, can be allowed to stand if it has been
obtained by fraud. Fraud unravels everything. The court
is careful not to find fraud unless it is distinctly pleaded
and proved; but once it is proved it vitiates judgments,
contracts and all transactions whatsoever;”
28. Learned ASG also relied on the principle that fraud avoids all judicial
acts, ecclesiastical or temporal and relied on the judgment in S.P.
Chengalvaraya Naidu v. Jagannath and Ors.5, as cited in Ram
Preeti Yadav (supra). Learned ASG further relied on Indian Bank v.
Satyam Fibres (India) Pvt. Ltd.6, United India Insurance Co.
Ltd. v. Rajendra Singh and Others7, and judgment of the Delhi
High Court in National Projects Construction Corporation v.
Royal Construction Company Private Ltd.8, to contend that fraud
avoids all judicial acts and that fraud affects the solemnity, regularity
and orderliness of the proceedings. By relying on Rajendra Singh
(supra), it was contended that no Court or Tribunal can be regarded
as powerless to recall its own order if it is convinced that the order
was wangled due to fraud or misrepresentation of such a dimension
as would affect the very basis of the claim.
29. In Rajendra Singh (supra), while allowing the appeal of the Insurance
Company to recall two awards of the Motor Accident claims Tribunal
and permitting them to resist the claim on the ground of fraud, this
Court opened the judgment with the following strong words:-
“2. If what the appellant Insurance Company now says is
true, then a rank fraud had been played by two claimants

3 (1956) 1 All ER 341
4 (2003) 8 SCC 311
5 (1994) 1 SCC 1
6 (1996) 5 SCC 550
7 (2000) 3 SCC 581
8 2017 SCC Online Del 10944
340 [2025] 11 S.C.R.

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who wangled two separate awards from a Motor Accident
Claims Tribunal for a bulk sum. But neither the Tribunal nor
the High Court of Allahabad, before which the Insurance
Company approached for annulling the awards, opened
the door but expressed helplessness even to look into the
matter and hence the Insurance Company has filed these
appeals by special leave.
3. “Fraud and justice never dwell together” (fraus et jus
nunquam cohabitant) is a pristine maxim which has never
lost its temper over all these centuries. Lord Denning
observed in a language without equivocation that “no
judgment of a court, no order of a Minister can be allowed
to stand if it has been obtained by fraud, for, fraud unravels
everything” (Lazarus Estates Ltd. v. Beasley : (1956) 1
All ER 341).
4. For a High Court in India to say that it has no power
even to consider the contention that the awards secured
are the by-products of stark fraud played on a tribunal,
the plenary power conferred on the High Court by the
Constitution may become a mirage and people’s faith in
the efficacy of the High Courts would corrode. We would
have appreciated if the Tribunal or at least the High Court
had considered the plea and found them unsustainable
on merits, if they are meritless. But when the courts pre-
empted the Insurance Company by slamming the doors
against them, this Court has to step in and salvage the
situation.”
30. Faced with this situation, Mr. Kaul submitted that even if the case is
examined on merits, the MMTC has not made out any case, nor even
a prima facie case, by establishing any fraud or collusion warranting
a decision that the Award is inexecutable.
31. In the light of the judicial pronouncements discussed hereinabove,
we are not inclined to dismiss the objections only on maintainability.
Elaborate arguments spanning over several days have been heard
on merits and we set out to examine the objection of the appellants
on merits to see if any prima facie case of fraud is made out for the
appellant to contend that the Award is inexecutable.
[2025] 11 S.C.R. 341

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

NATURE OF ALLEGATION OF FRAUD – BREACH OF FIDUCIARY
DUTY: -
32. The fraud that is alleged in this case originates in the grievance
of MMTC that its employees in senior managerial roles including
directors on the Board committed a breach of fiduciary duty. According
to MMTC, there was collusion and criminal conspiracy by them with
the Officials of Anglo in fixing the contracted price for the 5th delivery
period at US$ 300 PMT. MMTC contends that the market price was
only US$ 96.40 PMT for the 4th delivery period. The further contention
is that the contracted quantity was far in excess of what was in need
for NINL for whom the coal was being sourced. They also seek to
explain the delay in unearthing the fraud for the reasons adduced by
them which have been discussed in the earlier part of the judgment.
33. It is important to recollect here that we are at a stage where the
award has attained finality in view of the dismissal of the appeal by
this Court in proceedings arising under Section 34 of the A&C Act.
The initiation of the dispute was on 04.03.2010 and the judgment
of this Court was delivered on 17.12.2020.

LEGAL FRAMEWORK TO DETERMINE BREACH OF FIDUCIARY
DUTY: -
34. Before we discuss the nitty-gritty of the merits insofar as they are
essential for adjudication of Section 47-objection to examine whether
at all even a prima facie case is made out, it is important to set out
the legal parameters as laid down in judicial precedents in cases
involving breach of fiduciary duty. The broad framework as to what
would constitute the breach of fiduciary duty and what are the legal
parameters for deciding the same have arisen before courts across
the globe in various fact situations. To understand the principles
that would govern is even more important in a case like ours where
parties have litigated for over a period of 15 years and the allegation
of breach of fiduciary duty has cropped up after the Award has had
the imprimatur of this Court.
35. As was rightly forewarned in Re Living Images Ltd. 9, the first
precaution to be taken is not to fall into the trap of being too wise

9 (1996) 1 BCLC 348
342 [2025] 11 S.C.R.

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after the event. In Re Living Images (supra), highlighting the need
to discount the benefit of hindsight, the Court observed as under:-
“I should add that the court must also be alert to the dangers
of hindsight. By the time an application comes before the
court, the conduct of the directors has to be judged on
the basis of statements given to the Official Receiver, no
doubt frequently under stress, and a comparatively small
collection of documents selected to support the Official
Receiver’s and the respondents’ respective positions.
On the basis of this the court has to pass judgment on
the way in which the directors conducted the affairs of
the company over a period of days, weeks or, as in this
case, months. Those statements and documents are
analysed in the clinical atmosphere of the courtroom.
They are analysed, for example, with the benefit of
knowing that the company went into liquidation. It is
very easy therefore to look at the signals available to
the directors at the time and to assume that they, or
any other competent director, would have realised that
the end was coming. The court must be careful not
to fall into the trap of being too wise after the event.”
(Emphasis supplied)

36. It is always useful while adjudicating on alleged breach of fiduciary
cases to remember the memorable words of Lord Davey in Dovey
and The Metropolitan Bank (of England and Wales) Limited v.
John Cory10:-
“I think the respondent was bound to give his attention
to and exercise his judgment as a man of business on
the matters which were brought before the board at
the meetings which he attended, and it is not proved
that he did not do so”
(Emphasis supplied)

10 1901 Appeal Cases 477
[2025] 11 S.C.R. 343

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

37. MMTC now launches a ‘no holds barred attack’ on most of the directors
and senior managerial personnel who were in office from 2008-2009
right up to those who held office till 2020. The case projected is that
the senior managerial personnel including the directors operated as
a cabal to defraud MMTC and that it was only after this Court upheld
the Award that an enquiry was launched and the fraud unearthed.

TEST OF A REASONABLY COMPETENT DIRECTOR: -
38. Before we examine the merits, we should also bear in mind the
principle that in cases like this, a court cannot be swayed by what the
Court thinks would have been a reasonable course of action for the
director to adopt but the duty is to enquire whether on the available
evidence before the Court to consider whether the course adopted
by the director was one reasonably competent directors could have
adopted. In Sharp and Ors. v. Blank and Ors,11 a judgment by
Norris J in Chancery Division in the context of negligence the Court
observed as under:
“631. … in testing whether a director has been negligent
the question is not simply what the Court thinks it would
be reasonable for the director to have done; rather it is
what the evidence before the Court establishes were the
courses open to reasonably competent directors (the
burden lying on a complainant to establish that the course
of which complaint is made is not amongst them).
627. … When embarking upon a transaction a director
does not guarantee or warrant the success of the venture.
Risk is an inherent part of any venture (whether it is called
‘entrepreneurial’ or not). A director is called upon (in the
light of the material and the time available) to assess and
make a judgment upon that risk in determining the future
course of the company. Where a director honestly holds
the belief that a particular course is in the best interests
of the company then a complainant must show that the
director’s belief is one which no reasonable director in the
same circumstances could have entertained.”

11 (2019) EWHC 3096 (Ch)
344 [2025] 11 S.C.R.

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RANGE OF REASONABLENESS - TEST
39. Dealing with the aspect of how the Court cannot second guess
the directors by substituting its opinion and laying down that the
enquiry should be whether the decision taken was within the range
of reasonableness, it was held by the Court of appeal for Ontario in
Maple Leaf Foods Inc. v. Schneider Corp.12, thus:
“The mandate of the directors is to manage the company
according to their best judgment; that judgment must be
an informed judgment; it must have a reasonable basis.
If there are no reasonable grounds to support an
assertion by the directors that they have acted in the
best interests of the company, a court will be justified
in finding that the directors acted for an improper
purpose.
The law as it has evolved in Ontario and Delaware has
the common requirements that the court must be satisfied
that the directors have acted reasonably and fairly. The
court looks to see that the directors made a reasonable
decision not a perfect decision. Provided the decision
taken is within a range of reasonableness, the court
ought not to substitute its opinion for that of the board
even though subsequent events may have cast doubt
on the board’s determination. As long as the directors
have selected one of several reasonable alternatives,
deference is accorded to the board’s decision…...
This formulation of deference to the decision of the
Board is known as the “business judgment rule”.
The fact that alternative transactions were rejected
by the directors is irrelevant unless it can be shown
that a particular alternative was definitely available
and clearly more beneficial to the company than the
chosen transaction”
(Emphasis supplied)

12 42 OR (3d) 177
[2025] 11 S.C.R. 345

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

BUSINESS JUDGMENT RULE: -
40. The above decision also highlights the principle that as long as the
decision taken falls within the range of options reasonably available,
Court would defer to the decision of the Board under the “Business
Judgment Rule”. The said principle was also reiterated by the
Supreme Court of Canada in Kerr v. Danier Leather Inc.,13 in the
following words:
“On the broader legal proposition, however, I agree with
the appellants that while forecasting is a matter of business
judgment, disclosure is a matter of legal obligation. The
Business Judgment Rule is a concept well-developed in
the context of business decisions but should not be used to
qualify or undermine the duty of disclosure. The Business
Judgment Rule was well stated by Weiler J.A. in Maple
Leaf Foods Inc. v. Schneider Corp. (1998), 42 O.R. (3d)
177 (C.A.): The court looks to see that the directors made
a reasonable decision not a perfect decision. Provided the
decision taken is within a range of reasonableness, the
court ought not to substitute its opinion for that of the board
even though subsequent events may have cast doubt on
the board’s determination. As long as the directors have
selected one of several reasonable alternatives, deference
is accorded to the board’s decision ...”

APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS AT
HAND
41. With the above legal principles in mind, it is time to apply the same
to the facts of the case and consider the contentions raised by the
respective parties. The dispute revolves around the 5th delivery
period, i.e., from 01.07.2008 to 30.06.2009, as well as on the status
and execution of Addendum No.2 dated 20.11.2008, to the LTA of
07.03.2007. A brief narration of the facts essential for appreciating
this aspect of the controversy has also been discussed, while dealing
with the rival contentions.

13 (2007) 3 SCR 331 Canadian Supreme Court Reports
346 [2025] 11 S.C.R.

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LONG TERM AGREEMENT (LTA) OF 07.03.2007
42. Indisputably, on 07.03.2007, an agreement for sale and purchase of
coking coal was executed between the MMTC and Anglo. This is the
Long Term Agreement (LTA). Under the LTA, Clauses 1 and 2 are
crucial for the determination of the case and they are set out hereunder:
“CLAUSE 1: MATERIAL, QUANTITY, QUALITY AND
DELIVERY PERIOD:
1.1 The SELLER shall sell and the PURCHASER shall
buy,
a) The base quantity during the currency of the contract
shall be 466,000 (Four hundred Sixty six thousand)
metric tons (of one thousand kilograms each) firm.
b) During the First Delivery Period (1 st July, 2004
to 30th June, 2005), a quantity of 464,374 (Four
Hundred Sixty Four Thousand, Three Hundred
and Seventy Four) metric tons (of one thousand
kilograms each) firm quantity of freshly mined and
washed “Isaac”, “Moranbah North” and “German
Creek” coking coals.
c) During the Second Delivery Period (1st July, 2005
to 30th June, 2006) a quantity of 382,769 (Three
Hundred Eighty Two Thousand, Seven Hundred and
Sixty Nine) metric tons (of one thousand kilograms
each) firm quantity of freshly mined and washed
“Isaac”, “Moranbah North” and “German Creek”
coking coals.
d) During the Third Delivery Period (1st July, 2006 to
30th June, 2007) a quantity of 466,000 (Four Hundred
Sixty Six Thousand) metric tons (of one thousand
kilograms each) firm quantity of freshly mined and
washed “Isaac”, “Moranbah North” and “German
Creek” coking coals.
e) During the subsequent Delivery Periods, in
case of the PURCHASER exercising the option
to extend the duration of the Agreement by two
more years, at its sole discretion, as indicated
at Para 1.3 herein below, a quantity of 466,000
[2025] 11 S.C.R. 347

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

(Four Hundred Sixty Six Thousand) metric tons
(of one thousand kilograms each) of freshly
mined and washed “Isaac”, “Moranbah North” and
“German Creek” coking coals hereinafter referred to
as the MATERIALS, in conformity with the Technical
Specifications incorporated in Annexure- IIA
(applicable for “Isaac” coking coal) and Annexure-
IIB (applicable for “Moranbah North” coking coal)
and Annexure IIC (applicable for “German Creek”
coking coal) to this Agreement and which shall
constitute an integral part of this Agreement, for
use of imported coking coals in the coke ovens in
its integrated iron and steel works for production of
metallurgical coke. The quality of the prime washed
coking coals to be supplied under this Agreement
shall under no circumstances be inferior to the
Technical Specifications as contained in Annexure
IIA, Annexure IIB and Annexure IIC to this Agreement
as applicable.
1.1.1 Annual base quantity from 15th July, 2007 to 30th
June, 2009, in case Purchaser exercises its option to
extend the Agreement by 2 years, shall be 466,000
metric tonnes, subject to further discussions at the
time of contract extension and the logical contract
specification modifications to reflect the changing
nature of existing reserves at the Moranbah North
and German Creek mining operations will be
mutually agreed.
1.2 For the purpose of this Agreement, the Delivery
Periods shall be reckoned as follows:
First Delivery Period: 1st July 2004 to 30th June 2005
Second Delivery Period: 1st July 2005 to 30th June
2006
Third Delivery Period: 1st July 2006 to 30th June 2007
The shipments will be evenly spread during each
Delivery Period. The PURCHASER reserves the
right to prepone shipments against any Delivery
348 [2025] 11 S.C.R.

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Period based on its requirement and subject to
availability with the SELLER.
The PURCHASER reserves the right to postpone
the deliveries to be effected under each Delivery
Period by upto 3 months i.e. upto the month of
September following each Delivery Period, without
any additional financial liability to the PURCHASER.
1.3 The PURCHASER had the option to extend the
duration of the Agreement by two more years,
at its sole discretion and the Purchaser to
exercise its option for extending the Agreement
by two more years or otherwise by 31 January,
2007. In case the PURCHASER decides to
exercise such option, at its sole discretion, the
Agreement shall have two more Delivery Periods as
follows:
Fourth Delivery Period: 1st July 2007 to 30thJune
2008
Fifth Delivery Period: 1st July 2008 to 30thJune 2009

CLAUSE 2: PRICE:
2.1 The firm price of the MATERIALS for the First
Delivery Period 1st July 2004 to 30th June, 2005
shall be US$ 57.75 (United States Dollars, Fifty
Seven and Cents Seventy Five only) per metric ton
(of one thousand kilograms each) Free on Board
(Trimmed). Port of Loading will be Dalrymple Bay
Coal Terminal, Queensland, Australia.
The firm price of the MATERIALS for the Second
Delivery Period 1st July 2005 to 30th June, 2006 shall
be US$ 126.75 (United States Dollars One hundred
twenty six and Cents Seventy Five only) per metric
ton (of one thousand kilograms each) Free on Board
(Trimmed). Port of Loading will be Dalrymple Bay
Coal Terminal, Queensland, Australia.
2.2 The Price for the delivery of AGREEMENT
quantity for subsequent Delivery Periods shall
[2025] 11 S.C.R. 349

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

be fixed in accordance with Para 1 of Annexure
I and shall be firm and shall not be subject to
any escalation for any reason, whatsoever, until
the completion of delivery of the AGREEMENT
quantity due for delivery in the relevant Delivery
Period with such extensions as might be
mutually agreed upon between the PURCHASER
and the SELLER.
2.3 The payment of the price of the MATERIALS
delivered by the SELLER under this Agreement
shall be made by the PURCHASER by means of
an irrevocable, without recourse to drawer Letter of
Credit providing for payment of the full invoice value
of the MATERIALS at sight. The Letter of Credit will
provide for full payment in US Dollars at Brisbane,
Queensland, Australia. The payment shall be made
on presentation of the documents mentioned in Para
6.2 of Annexure - 1.
2.3.1 Notwithstanding the method of payment as
mentioned at 2.3 above, the SELLER may also
provide Supplier’s credit for 180 days at the terms
and conditions mutually agreed upon from time
to time, against an irrevocable, without recourse
to drawer letter of credit upon presentation of
documents mentioned at Para 6.2 of Annexure-I.
The documents in original and by fax referred to
hereinabove should be delivered at the following
address.
General Manager (Coal & Coke)
MMTC Limited,
SCOPE Complex, Core-1,
7, Institutional Area, Lodi Road,
New Delhi-110003
India
All bank charges at the Seller’s end (outside
India) shall be borne and paid for by the SELLER.
All bank charges at the PURCHASER’S end
350 [2025] 11 S.C.R.

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(inside India) shall be borne and paid for by the
PURCHASER.”
(Emphasis supplied)

43. It will be noticed that under Clause 1.1 (a), the base quantity of
4,66,000 MT was fixed for the currency of the contract. For the
first three delivery periods, the quantity was mentioned along with
the period. Clause 1.1 (e) dealt with the option of the purchaser to
extend the duration by two more years, after the third delivery period.
It further provided that if option is exercised a quantity of 4,66,000
MT of coal was to be purchased.
44. Clause 1.3 vested the option in the purchaser to extend the contract.
Clause 2.1 provided the firm price of the materials for subsequent
delivery periods. As per Clause 2.2, the price was to be fixed in
accordance with Para 1 of Annexure-I which dealt with General
Conditions of Agreement. Under Para 1 of Annexure-I, the price for
delivery of the materials during subsequent delivery periods was
to be mutually discussed and settled by the purchaser and seller
prior to the commencement of relevant delivery period at the same
price as settled between the seller and SAIL/RINL, applicable to the
relevant delivery period under the LTAs.
45. Clause 1.1 of the General Conditions of Agreement in Annexure-I
is extracted hereunder:

“GENERAL CONDITIONS OF AGREEMENT (GCA)
PARA 1.0: PRICE FIXATION
1.1 The price for delivery of the MATERIALS during
subsequent Delivery Periods shall be mutually
discussed and settled by the PURCHASER
and SELLER prior to commencement of the
relevant Delivery Period at the same price
as settled between the SELLER AND STEEL
AUTHORITY OF INDIA (SAIL) / RASHTRIYA ISPAT
NIGAM LTD (RINL), applicable to the relevant
Delivery Period under their respective Long Term
Agreements.”
(Emphasis supplied)
[2025] 11 S.C.R. 351

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

It is undisputed that the third delivery period also passed off smoothly
from 01.07.2006 to 30.06.2007.

EXECUTION OF THE MoU AND EXERCISE OF OPTION: -
46. One of the questions that arise is whether option was exercised on
or before 31.01.2007 as required under Clause 1.3 of the LTA. While
Mr. Venkataraman-learned ASG, contends that it was Addendum No.2
dated 20.11.2008 which was the real agreement, Mr. Kaul submits
that, on 30.01.2007, a MoU was executed between MMTC and
Anglo. Mr. Kaul contends that while the LTA was not formally signed,
deliveries for the first and second delivery period were completed
and by 30.01.2007 they were in the process of completing the third
delivery period which was from 01.07.2006 to 30.06.2007. It was at
this point that on 30.01.2007, a MoU has been executed with the
following Clauses:
“1. MMTC to execute the long term contract agreed
between the parties in correspondence and provide
to Anglo for execution earliest.
2. The parties agree to foreclose a quantity of
a) 1615 MT undelivered against first delivery period
July 2004- June 2005 of long term contract @
USD 57.75 PMT FOBT and
b) 83231 MT undelivered against second delivery
period July 2005-June 2006 of long term contract
@ USD 126.75 PMT FOBT
2. Supply of a quantity of 466,000 MT @ USD 114.00
PMT FOBT for third delivery period July 2006-June
2007. The delivery period is extended to September
30,2007.
3. Supply of a quantity 466,000 MT at price to be
finalized by EJC for SAIL and RINL, for fourth
delivery period July 2007- June 2008. The delivery
period is extendable up to September 2008.
4. The contract is extended by a further two years
in accordance with clause 1.3 of the long term
agreement.
352 [2025] 11 S.C.R.

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Fourth delivery period 1st July 2007 to 30th June
2008.
Fifth delivery period 1st July 2008 to 30th June
2009.
The price terms & Conditions of coal supply to
MMTC for fourth and fifth delivery periods shall
be as per Anglo-Agreement UNL/SAIL”
(Emphasis supplied)

47. It will be noticed that this MoU was signed on 30.01.2007 and this
is a fact not disputed by the learned ASG and, in fact, filed by the
learned ASG as part of his additional documents. This date was one
day before the deadline of 31.01.2007.#

DELIVERIES DID NOT AWAIT FORMAL EXECUTION OF
AGREEMENTS: -
48. As is clear from the MoU, based on the agreement in the
correspondence, deliveries were taking place and by the time the
LTA was signed, it was mid-way during the third delivery period.
As could be seen from the MoU, even the 4th delivery period was
agreed upon and passed on without any dispute. The 5th delivery
period was to begin on 01.07.2008, when the 4th delivery period
stood extended till 30.09.2008.

PRICES PEGGED TO SAIL/RINL PRICE: -
49. The price for the periods concerned was pegged by what the
Empowered Joint Committee would fix for the contract with SAIL and
RINL. This was also reiterated on 30.01.2007, contends Mr. Kaul.
When matters stood thus, the time for the 4th delivery period which
was extended to 30.09.2008, however, continued till 30.10.2008.
In the meantime, as is clear from the internal note of 03.06.2008
circulated by Shri Suresh Babu of MMTC, SAIL and RINL had fixed
their price for the delivery period from 01.07.2008 to 30.06.2009.
On 03.06.2008, the Lehman Brothers’ collapse had not happened.
It commenced on 15.09.2008, and that is also not in dispute.

# Ed. Note: “This date was one day before the deadline of 31.01.2007” instead of “This date was one
day before the deadline of 31.01.2007 which came to be signed on 07.03.2007” in terms of
subsequent corrigendum.
[2025] 11 S.C.R. 353

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

INTERNAL NOTE OF 03.06.2008
50. At this stage, it is relevant to extract the internal note of 03.06.2008
prepared by Shri Suresh Babu for MMTC, which reads as under:-

“COAL & HYDROCARBON DIVISION
Sub: Finalization of long term price of Coking Coal for
Delivery Period of 01-07-2008 to 30-06-2009.
Anglo and BMA had already finalized the price of hard
coking coal for the above delivery period with Japanese
Steel Mills and SAIL and RINL. The price of prime hard
coking coal for the above delivery period is fixed at usd
300/t and Torrington hard coking coal at usd 292.50/t
as against usd 96.4/91.5 per ton respectively in the
previous year. It is understood that BMA had not allowed
carrying forward the left over quantities for the delivery period
2007-08 in case of Japanese Steel Mills. So MMTC made
all out effort to secure the cargo from both BMA and Anglo
within the delivery period itself. MMTC will not be able to
lift the entire contracted quantity of Anglo Coal for 07-08
by 30th June, 2008. Accordingly shipment schedule has
been obtained from Anglo to complete shipment within the
extension allowed i.e., upto Sept,’08. However, BMA has to
give us the schedule for left over quantity for 2007-08. Here
also every effort is being made to ensure that the entire
quantity relating to 2007-08 delivery period will be secured
within the extended delivery period upto 30th Sept., 2008.
The coal supplied within the extended period will be
sufficient to take care of NINL requirement upto March’09.
As per the shipment schedule given by Anglo, two vessels
have to be nominated in Sept 08 to load coking coal from
DBCT. These vessels will come up for loading from DBCT
in Oct 08 and reach Paradip early November 08.
Both Anglo and BMA are offering Japanese price to Indian
consumers. The demurrage rate offered by Japanese Steel
Mills are said to be in the range of US $ 9000-15,000
per day. So Indian consumers also have been asked to
accept similar demurrage rates. Despite all these, the
spot price of hard coking coal has reached US $ 400/t
354 [2025] 11 S.C.R.

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FOB; availability is very-very tight. Since the 2007-08
contract cargo is to be delivered upto 30.9.09, there
was a suggestion from Anglo that quantity for 1.7.08
to 30.6.09 will be proportionately reduced keeping in
mind 9 months left for the supplies.
Considering the huge shortage for coking coal and the
spot premium, it is felt that “we may continue to keep the
delivery period from 1.7.08 to 30.06.09 and the contracted
quantity will be 4,66,000 tons with provision for extension
of delivery period by another three months, i.e., upto
30.9.09. in case the entire quantity cannot be delivered
by 30 June 2009, delivery period will be extended upto
30.9.09.” We may also request Anglo to extend the long
term agreement for another five years with the terms and
conditions of Steel Authority of India Ltd.
For approval ‘A’ please Sd/-
(SURESH BABU)
03.06.08
DIR (HSM)
Upto March 09, we should try to avoid/ defer US$ 300
price coal to be finalised for 08-09 pl. ‘X’ app.
Sd/-
HS Mann
04/08.”
(Emphasis added)

51. As will be noticed, there was a note of Shri H.S. Mann, Director, to
the effect that MMTC should try to avoid/defer US$ 300 price coal
to be finalised for 08-09. Learned ASG highlighted this aspect of the
matter in great detail. The learned ASG contended that even Mr.
Mann, later was a party consenting to the price of US$ 300 PMT
and wanted to infer certain sinister conduct in the same.

EJC – APPROVAL OF SAIL/RINL PRICE AT US$ 300 PMT:
52. On 14.08.2008, Anglo wrote to MMTC about their agreement with
the Empowered Joint Committee (EJC) on 08th and 9th May, 2008
for supply of hard coking coal to SAIL and RINL during the delivery
period from 01.07.2008 to 30.06.2009. They confirmed by the same
[2025] 11 S.C.R. 355

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

mail the supply arrangement for the 5th delivery period with MMTC
for 4,66,000 MT. Indisputably, the price fixed with SAIL and RINL
was US$ 300 PMT.
53. On 25.09.2008, a letter was written by Shri Suresh Babu of MMTC
to Shri SP Padhi, Executive Director of NINL, suggesting that since
SAIL has already signed the agreement for 2008-2009 and the price
is also fixed, MMTC may also sign the agreement. In the letter, it
was suggested that a new brand of hard coking coal “Dawson Valley
Blend” has been introduced. The letter suggested that “Dawson” coal
be preferred because “Dawson” coal will be loaded from Gladstone
where the pre-berthing delay is only around a week as against
25 to 30 days in port (DBC) where Isaac coking coal was loaded.
Suggestion was that demurrage can be saved by MMTC.

AGENDA NOTE OF 29.09.2008
54. In the agenda note dated 29.09.2008 put up by Shri Suresh Babu
to the Sale/Purchase Committee of Directors [SPCoD] of MMTC,
it was stated as under:-
“5. Status Of 2007-08 Contract:
a) Contracted Quantity: 466,000 Mt: As on today a
quantity of 417,345 MTs of Hard Coking Coal has already
been loaded by Anglo and a vessel is already nominated in
lay can 20-30 October 2008, for loading about 50,000 Mt.

6. New 5 Year Long Term Agreement by SAIL: RINL/
SAIL’s LT agreement was valid till 30.6.08. They have
entered into a new five year long term agreement with
Anglo Coal for the period of 15th July 2008 to 30th June
2013. Our LT agreement is valid upto 30.6.09. We may,
if approved, explore the possibility and enter into a five
year long term agreement with effect from 01.07.2008 to
30.06.2013 as in the case of RINL/SAIL.

B: RECOMMENDATION OF THE DIVISION: -
7. SPC may please deliberate and accord approval for:-
i) Inclusion of new coking coal brand “Dawson Valley
Blend”.
356 [2025] 11 S.C.R.

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ii) Price of US$ 300.00 PMT FOB each for the purchase
of Isaac and Dawson Valley Blend Brand of Coking Coal
totaling 466,000 MT from Anglo for the period of 1st July
2008 to 30th June 2009.
iii) Subject to acceptance by Anglo Coal for entering
into five years long term agreement with them w.e.f.
1.07.2008, incorporating the terms and conditions of
Anglo’s Agreement/ amendment to Agreement with SAIL
from time to time with logical changes wherever applicable.
8. The total value of the proposed purchase for 2008-09
is about Rs.615 crores (exchange rate US$/Rs. = 1/44).
9. Authorising Dir (HSM) and Dir (Fin) to sort out deadlock
issues/make logical changes wherever required.
10. Associate Finance has concurred the proposal.
11. Director-HSM has seen and approved for circulation
to SPCOD.

C: DECLARATION
The Division has truly and fairly brought out all material
information available with the division which is likely to
influence the decision SPC, in the agenda and no material
information has been withheld.”

SPCoD APPROVAL OF 06.10.2008
55. The SPCoD met on 06.10.2008. The SPCoD (including Mr. H.S.
Mann) granted approval in the following terms:-

“Item No. 1: Agreement with Anglo coal Australia Pty. Ltd.,
for import of Coking Coal for NINL-as per note
of GM (SB) dated 29.9.2008
The Committee after being informed that the proposed
terms and conditions including deviations are same, as in
the case of RINL/SAIL approved the proposal subject to
acceptance of the same by NINL. Possibility of reduction
of quantity for 2008-09 be explored without affecting
long-term prospects from the supplier in view of recent
fall in prices of Pig Iron and Steel products
[2025] 11 S.C.R. 357

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

Item No. 2: Import of Coking Coal of NINL-Qty. & Price
Fixation as per note of GM (SB) dated 29.9.2008
The Committee after being informed that the proposed
terms and conditions including deviations are same, as in
the case of RINL/SAIL, approved the proposal subject to
acceptance of the same by NINL. Possibility of reduction
of quantity for 2008-09 be explored without affecting long-
term prospects from the supplier in view of recent fall in
prices of Pig Iron and Steel products.”
(Emphasis supplied)

The Minutes of 06.10.2008 mentioned that in view of the recent fall
in prices of pig iron and steel products possibility of reduction of
quantity should be explored.
56. Dealing with reference to “approval by NINL” in the Minutes, Mr.
Kaul sought to explain the same by stating that the LTA was not
dependent on the approval of NINL and what was meant by the
Minutes was the approval of the proposed change in the technical
specifications of coal.

5TH DELIVERY PERIOD COMMENCED WITH THE LAST SHIPMENT
UNDER THE FOURTH DELIVERY PERIOD: -
57. During this period, the 4th delivery period was nearing completion
in view of the extension up to 30.09.2008 which prolonged up to
30.10.2008. In fact, it was not disputed that with the last shipment
of the 4th delivery period of 48,655 MT at US$ 96.40 PMT, 2,366 MT
was loaded on the vessel as part of the 5th delivery period at US$
300 PMT. This was even before the Addendum No.2 of 20.11.2008
and on a query by the Court, the learned ASG replied that this was
a miniscule quantity intended to save dead freight. What is, however,
significant is even before agreements were entered into, based on the
agreement on correspondence, deliveries were being executed and
that is clear from the events that transpired from 2004 onwards. No
grievance has been raised for any of the shipments till 20.11.2008.

REPLY OF NINL TO MMTC LETTERS OF 25.09.2008: -
58. In reply, NINL wrote two letters, first a letter was written on 14.10.2008
giving a go-ahead. Thereafter, a letter dated 16.10.2008 was written
358 [2025] 11 S.C.R.

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in reply to MMTC’s letter dated 25.09.2008. This letter of 16.10.2008
is strongly relied upon by learned ASG to contend that NINL needed
only 2.2 Lakh tons of Anglo coal. The letters dated 14.10.2008 and
16.10.2008 read as under:-

“Ref.No.NINL/GM(Comml)/2008/1085
Date: 14.10.2008
Mr. Suresh Babu,
GM (Coal & Coke)
MMTC Ltd.,
New Delhi
Dear Sir,
Please refer to your mail dated 25th September, 2008 for
procurement of coking coal of 12.66 lakh tons.
MMTC may please place order for Anglo Coal consisting
of 80% Dawson and 20% Capricon, since the same is
approved by SAIL. Other terms and conditions may be
negotiated and finalized.
Thanking you,
Yours faithfully
For Neelanchal Ispat Nigam Ltd
Sd/-
[P.K. Pandey]
DGM (Commercial)

*** *** ***
Ref. No. NINL/CM/24/1103
Dt. 16th October, 2008
Mr. Suresh Babu,
General Manager (Coal & Coke)
MMTC Limited
Core-1, Scope Complex
7 Institutional Area, Lodhi Road
New Delhi-110003
Dear Sir,
[2025] 11 S.C.R. 359

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

Please refer to your mail dated 25th September, 2008 for
procurement of Coking Coal of 12.66 Lakh Tons.
It may be noted that our annual requirement is 11.80 lakh
tons. Our present stock of coal is around 3.70 Lakh tons.
Hence, we need to procure coal around 9.00 Lakh tons
in a year from now. However, procurement quantity may
be decided based on the coal supply in pipe line and our
present stock. Considering, blending of the hard coal and
soft coal is in 80:20 ratio, coal may be procured as under:

Hard Coking Coal:

a) BMA : 5 Lakh tons approx.
b) ANGLO : 2.2 Lakh tons approx.
Out of 2.2 Lakh tons of ANGLO Coal, 20% may be procured
from Dawson Valley Blend consisting of 80% Dawson and
20% Capricorn, since the same is approved by SAIL, at
the option of MMTC/NINL (to be exercised in a manner
for minimizing the demurrage)

Soft Coking Coal
Black Water: 1.80 Lakh Tons Approx.
Price, terms and conditions may be negotiated and
finalized.
Thanking you,
Yours faithfully,

Sd/-
16/10
(P.K. Pandey)
Dy. General Manager (Commercial)
Encl: Approved copy of Competent Authority for your
reference and record.”
59. Mr. Kaul contends that the terms of LTA had already fixed the quantity
and NINL’s correspondence one way or the other can have no bearing
on the committed quantity which MMTC agreed to procure from Anglo.
360 [2025] 11 S.C.R.

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ADDENDUM NO.2 DATED 20.11.2008 – THE BONE OF
CONTENTION: -
60. It is in this background that the 20.11.2008-Addendum No.2 to the
LTA was formally signed. Learned ASG contended that it was by
the agreement of 20.11.2008 that price and other terms of delivery
were fixed and relied on the evidence of Mr. John Wilcox who was
examined in the Arbitration as Anglo’s witness. According to learned
ASG, the officials of MMTC by entering into Addendum No.2 tied up
MMTC in knots and no ends were kept loose to ensure that MMTC
was committed to huge financial amounts due to the fraudulent
fixation of the price.
61. Learned ASG referred to the news release of Anglo dated 20.02.2009
to demonstrate that it was within the knowledge of Anglo that the
price of coking coal has drastically fallen in the second half of 2008.
62. In response, Mr. Kaul contended that Addendum No.2 signed on
20.11.2008 was only the last in the series of documents to finetune
the shipping terms, moisture content and the specific variety of coal
for the 5th delivery period all material terms including the shipping
period (from 01.07.2008 to 30.09.2009) quantity (4,66,000 MT) and
price were already fixed in terms of the LTA. The price was to follow
the SAIL/RINL price which has been duly fixed at US$ 300 PMT for
the said period.
63. The Addendum of 20.11.2008 is in the form of a letter addressed
by MMTC to Anglo. It is to the attention of Mr. John B. Wilcox. It
states that MMTC was pleased to confirm the settlement with Anglo
and, thereafter, the column below deals with (i) delivery period –
01.07.2008 to 30.06.2009, (ii) quantity – 4,66,000 MT. Thereafter, it
deals with coal brands and price (US$ 300 PMT), other terms like
total moisture, loading terms, vessel sizes, loading rates, demurrage
rates for different ports, the variation permissible limits and force
majeure clause. At the end it has the following clause:
“All other terms and conditions of agreement no. MMTC/
C&HC/LT/HCC/NINL/ANGLO/585 DATED 7TH MARCH
2007 shall remain unchanged”.
64. It should be recalled that shipments have happened based on
correspondence, as stated earlier from 2004 and agreements have
been entered into post the shipments even for the 5th delivery period.
[2025] 11 S.C.R. 361

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

Admittedly, 2,366 MT were shipped on 30.10.2008 along with the
last shipment of the 4th delivery period.

SAME DAY (20.11.2008) LETTER SEEKING PRICE REDUCTION: -
65. On the same day after entering into Addendum No.2, the following
letter was written by Mr. Ved Prakash, the Chief General Manager
of MMTC to Anglo:-
“File No. MMTC/C&HC/08-09/CC/Anglo/798
20th November 2008
Anglo Coal Australia Pty. Ltd.
201, Charlotte Street
Brisbane 4000
Queensland, Australia
Fax No. 0061-7-3834-1390
KIND ATTN: MR. JOHN B WILCOX, MARKETING
MANAGER
Sub: Addendum to Long Term supply of coking coal
contract for the
Delivery Period 2008-09
Dear Sirs,
As discussed, we hereby confirm the acceptance of coking
coal supply during the period 2008-09 vide Addendum No.2
LT Agreement MMTC/C&HC/LT/HCC/NINL/ANGLO/585
DATED 7th March 2007
As you are aware, due to worldwide crisis as financial
markets, there has been unprecedented fall in prices of
major commodities including steel Such a steep tall is a
rare phenomenon and all over there is a feeling that it is a
beginning of economic recession in the world. It is feared
that it may continue for long time to come
The prices of iron and steel products in the international
market has nose-dived in the month of September and
October 2008 and pig iron, a finished product manufactured
by us and being exported is not getting customer on
362 [2025] 11 S.C.R.

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date even at US $100 FOB. Same is the situation in the
domestic market and we are not able to sell our product.
Under the circumstances, you will appreciate it has
become absolutely unviable to produce and sell pig
iron based on the imported coking coal having price of
US$ 300 per tonne FOB for hard coking coal. More than
three-fold increase in the price of coking coal during
a period when the prices of finished steel including
pig iron had virtually crashed, will make difficult for us
to run the plant on sustainable basis. The substantial
depreciation of Indian rupees to USD has further added
to our woes and under the circumstances, we have
already out the production to a bare minimum so as to
just keep running our coke oven batteries as well as blast
furnace. In view of unprecedented recessionary trends in
the economy and consequent abnormal low realization on
pig iron, we request price reduction of coal for quantities
finalized for delivery during 1st July 2008 to 30th June 2009
period to level that was settled for delivery period 1st July
2007 to 30th June 2008. This only will help us to keep the
plant running and to produce on consistent basis.
We look forward for your positive response.
Yours faithfully
Sd/-
MMTC Ltd.
Ved Prakash
Chief General Manager”
(Emphasis supplied)

66. The letter was written by Shri Ved Prakash who was then the Chief
General Manager and the substance of the letter was that since
pig iron prices have crashed, to purchase coal at US$ 300 PMT to
produce pig iron could be an unviable option. Hence, a request was
made for price reduction of coal for the period from 01.07.2008 to
30.06.2009 to the level which obtained for the delivery period from
01.07.2007 to 30.06.2008.
67. Elaborate arguments were advanced by the learned ASG about the
significance of letter being written on the same day after signing the
[2025] 11 S.C.R. 363

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

Addendum No.2. The learned ASG also invited our attention to the
observations of majority members of the Board of Arbitration about
the Addendum being executed and the letter being written on the
same day respectively.

SUBSEQUENT CORRESPONDENCE – CONCEPT OF “CARRY
OVER”: -
68. Learned ASG referred to a series of correspondence that ensued
between MMTC and Anglo pursuant to MMTC lifting only 11,966
MT out of the contracted 4,66,000 MT. Learned ASG contended
that the correspondence only reflected a friendly fight between
erring officials, after having committed to the price of US$ 300 PMT
while the prevailing market price was US$ 128 PMT. Learned ASG
submitted that on the one hand Anglo was justifying the fixation of
prices at US$ 300 PMT on the premise that agreements entered
into between SAIL and RINL were of the said price, while on the
other hand Anglo chose to ignore the same analogy for the period
post the execution of Addendum. According to learned ASG, the
refusal on the part of Anglo for staggering at the price of US$ 128
PMT in the same manner as was provided to SAIL was an act of
arbitrariness on the part of Anglo. Learned ASG lamented that the
erring officials of MMTC did not even attempt to persuade Anglo to
provide the same treatment as was given to SAIL and RINL after
the execution of the Addendum dated 20.11.2008.
69. Learned ASG referred to the letter dated 21.09.2009 of Anglo which
referred to the earlier letter dated 09.03.2009 (which MMTC claims
was not received by MMTC) and submitted that Anglo had made
the following proposal:-
• MMTC to perform a total of 38% of the total contracted tonnage
for the Fifth Delivery Period on the terms and conditions
(including price) applicable under the Agreement (a further
172,533 tonnes) by March 31, 2010. This will bring MMTC in
line with the contract performance of SAIL and RINL for the
2008/09 Delivery Period.
• In addition, MMTC is to perform 18.7% of the remaining
Carryover (a further 52,641 tons) by March 31, 2010 on the
terms and conditions of the Agreement (including price) as
agreed with SAIL and RINL.
364 [2025] 11 S.C.R.

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• Anglo will enter into a new long term agreement with MMTC
on the same terms and conditions as the current long term
agreements with SAIL and RINL (including performance of the
remaining carryover) for 466,000 tonnes per annum for a period
of 3 years commencing 1st April, 2010.
• Therefore, in summary, MMTC will take delivery of 225,174
tonnes of coal at 2008 price, terms and conditions between
now and 31 March 2010 and, under the new 3 year contract,
perform the remainder of the Carryover evenly spread over the
first 2 years of the contract.
• This proposal is made without prejudice to our rights under
the Agreement. It will remain open and capable of acceptance
until 5:00 pm (Brisbane time) on Wednesday 30th Sept 2009.
70. Learned ASG submitted that by letter of 25.09.2009, Shri Suresh
Babu declined the proposal which the learned ASG stated would
indicate that the reply strengthened the case of Anglo. Referring to
the counter proposal in the letter of 25.09.2009, the learned ASG
referred to the following paragraph in the said letter:-
“...Keeping these issues in mind, we had approached
Anglo Coal for a reduction in price vide our letter dated
20.11.2008. Lifting another 38% implies a further increase
in loss by another USD 80/t. For the sake of negotiation,
we hope you will not ignore the economic realities
completely. Steel Melting Shop of NINL is under
implementation and the commissioning is expected
sometime in end 2010. Economy will also come out
of recession gradually.
In short we are not denying our obligation. The request
is only for staggering the time frame for lifting as explained
in para 1 and para 2. Please review and consider our
request for allotting at least one shipment of 50,000 MT
each from October 09 onwards instead of zero stem till
end of 2009.”
(Emphasis supplied)

71. Learned ASG also referred to the further proposal of Anglo vide
their letter dated 25.11.2009, whereby Anglo proposed that MMTC
[2025] 11 S.C.R. 365

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

lifts the remaining quantities of 4,54,034 MT of 2008 contract year
in line with the agreement with SAIL and RINL at the 2008 price of
US$ 300 as per the following schedule:-

“January - March, 2010 85,000 18.7%
April 2010 - March 2011 1,84,566 40.65%
April 2011 - March 2012 1,84,566 40.65%
We trust that this arrangement meets with your approval.
This proposal is made without prejudice to our rights
under the Agreement. It will remain open and capable
of acceptance until 5.00pm (Brisbane time) on Friday 4th
December 2009.”
72. Learned ASG referred to the reply of Shri Suresh Babu, for MMTC
dated 27.11.2009 in his letter addressed to Mr. Rod H. Elliott of Anglo
stating that the said proposal was acceptable to MMTC subject to
Anglo allocating the left-over quantities pertaining to 2009 contract at
2009 prices based on the terms and conditions agreed upon in the
EJC of SAIL and RINL. The learned ASG referred to the following
para in the said letter.
“……conditions agreed upon in the EJC of SAIL & RINL.
To be specific the balance supplies amounting to 4,25,600
MT at the 2009 price level of US$ 128/125 PMT shall also
be made in proportion along with the carryover quantities
of 2008 as proposed above in line with the terms agreed
upon with SAIL & RINL.”
73. Learned ASG referred to the reply of Anglo dated 01.12.2009 stating
that it was not possible to make any additional tonnage commitment
to MMTC over and above what was detailed in the proposal of
25.11.2009. The above correspondence was characterised by the
learned ASG as a make believe and friendly fight and only a creation
of a paper trail to give an impression that there was no collusion.
74. Mr. Kaul, on the other hand, submitted that the offers made by
Anglo were good faith offers. Explaining the concept of “carry over”
learned senior counsel, Mr. Kaul, pointed out that “carry over”
arrangements do not dilute price or quantity and all that happens
is some more time is given to the purchaser to lift the quantities at
the contracted price.
366 [2025] 11 S.C.R.

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75. Mr. Kaul strongly refuted the contention that Anglo allowed SAIL
and RINL to lift their 2008-09 quantities at a reduced price. Mr. Kaul
submitted that SAIL and RINL were in the first delivery period of their
new LTA and as such could lift coal pertaining to their future delivery
period alongside their 2008-09 carryover and could thus seek mixed
price cargo with shipments containing some percentage of 2008-09
carryover and some percentage of the ongoing delivery period. Mr.
Kaul submitted that MMTC was in the last delivery period and even
then they were not treated differently than SAIL or RINL.
76. According to Mr. Kaul, on 15.07.2009, MMTC was offered an ad hoc
“mixed price shipment” to tide over financial difficulties of MMTC.
According to the learned senior counsel, what was offered in the
letter, namely, 40,400 MT at US$ 128.25 PMT was on ad hoc basis
with a condition that their carry over quantity of 5th delivery period
will be supplied only at US$ 300 PMT.
77. Mr. Kaul, learned senior counsel for Anglo submitted that the letter of
21.09.2009 by Anglo offered the same “carry over terms” to MMTC as
was offered to SAIL/RINL, as is clear from the letter itself. According
to Mr. Kaul, the attempt of MMTC by its letter of 21.05.2009 was to
perform the carry-over obligation at the adhoc mixed price, which
was offered vide letter of 15.07.2009 as a onetime measure and as
a goodwill gesture.
78. Mr. Kaul submitted that by letter of 21.09.2009, Anglo even agreed
that MMTC could spread out its contractual performance over the
next 3 years. The letter of MMTC of 27.11.2009, according to Mr.
Kaul, purported to accept this offer provided, in parallel, Anglo
also supplied additional (Adhoc) (coal) @ US$ 128/125 PMT. This
could not be accommodated by Anglo resulting in the invocation of
arbitration ultimately.
79. According to Mr. Kaul, MMTC kept asking for reduction of price and
when Anglo refused to supply at the reduced price a defence was
taken in the arbitration and in the Court proceedings that Anglo
was incapable of supplying. According to Mr. Kaul, this submission
was rejected both by the majority of the arbitral Tribunal and by the
learned Single-Judge in Section 34 which was restored by this Court
and a finding was recorded that the stand of MMTC that Anglo was
incapable of supplying was found to be incorrect.
[2025] 11 S.C.R. 367

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

80. Mr. Kaul invited our attention to the following findings of this Court
to buttress his submission.
“…….However, what is missed by Shri Rohatgi is the crucial
fact that no price for the coal to be lifted was stated in any
of the emails or letters exchanged during this period. This
is in fact what the Majority Award adverts to and fills up
by having recourse to the evidence given by Mr. Wilcox,
stating that the ambiguity qua price was resolved by the
fact that no coal was available for lifting at a price lower
than the contractual price. The Majority Award found, relying
upon Mr. Wilcox’s evidence, that the supplies that were
sought to be made in August and September, 2009 were
therefore, also in the nature of “mixed” supplies, i.e., coal
at the contractual price, as well as coal at a much lower
price. This is a finding of fact that cannot be characterised
as perverse, as it is clear from the evidence led, the factual
matrix of the setting of there being a slump in the market,
in which the performance of the contract took place, as
well as the ambiguity as to whether the correspondence
referred to contractual price or “mixed” price, and thus, is
a possible view to take.”

MMTC’S CONTRACT WITH BMA – SAME PERIOD / SAME PRICE
(APPROXIMATELY): -
81. Dealing with the aspect of the contracted price, namely, US$ 300 PMT,
Mr. Kaul highlighted the fact that MMTC had a parallel contract with
BHP Billiton Mitsubishi Alliance (BMA). Under the said contract, MMTC
lifted five lakh tons of hard coking coal at US$ 300 PMT (Goonyella
Middle Seam brand) and US$ 292.5 PMT (Torrington brand) and US$
270 PMT (soft coking coal) and absolutely no grievance was made
about the said contract with BMA. Quantities were lifted and price paid
without demur, contends Mr. Kaul. Mr. Kaul further submitted that in
fact the price paid to BMA was used as a defence when Anglo sought
damages pointing to market price at US$ 126 PMT. The argument of
MMTC before the arbitrators was that there was no scope for damages
as the market price was what they had paid to BMA.
82. In response to the aspect of supply by BMA, learned ASG submitted
that the said transaction was vastly different from the one entered
with MMTC. The learned ASG submitted that
368 [2025] 11 S.C.R.

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a. The agreement entertained between BMA and MMTC was qua
5,00,000 MT hard coking coal and 3,00,000 black water soft
coking coal whereas Addendum 2 with Anglo by MMTC was
only qua 4,66,000 hard coking coal.
b. BMA showed flexibility, commercial wisdom and prudence by
providing coking coal at the rate agreed that is US$ 292.50
for Torrington brand coking coal and US$ 270 Black water soft
coking coal in a staggered manner which commenced from
25.05.2009 till 23.06.2012.
c. BMA continued to supply the much needed hard coking coal
to the tune of 3,21,410 MT for operating the NINL plan at the
prevailing market rate that is US$ 122 PMT whereas Anglo
adopted an extremely hard and uncompromising stand and
refused to supply coking coal, except for one adhoc quantity of
40,446 MT of coking coal at US$ 128.25 PMT on 05.08.2009.
d. The quality of coking coal supplied by BMA was different from
the one supplied by Anglo.

LONG CONTINUANCE OF MR. VED PRAKASH: -
83. Dealing with the contention of the learned ASG that Mr. Ved Prakash,
being at the helm of affairs in different senior positions from 2008
to 2020, Mr. Kaul submitted that the arbitration proceedings and the
Court proceedings were hotly contested and that at no point was
the issue of fraud and collusion and breach of fiduciary duty in the
making of the contract ever raised. Mr. Kaul pointed out that Mr.
Ved Prakash retired on 29.02.2020 when judgment was reserved in
the Section 37-Appeal of MMTC. The judgment was pronounced on
02.03.2020 in favour of MMTC and cited this to rebut the contention
that Mr. Ved Prakash and team played a friendly match. Mr. Kaul
further submitted that Anglo carried the matter further to this Court
and by a detailed judgement this Court upheld the award and restored
the findings of the learned Single Judge.
84. Mr. Kaul invited our attention to the following findings of this Court
in judgment dated 17.12.2020.
“3. “Under clause 2 of the LTA, which refers to “Price”,
for subsequent Delivery Periods, including the “Fifth
Delivery Period”, with which we are directly concerned,
[2025] 11 S.C.R. 369

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

it is undisputed that when read with Annexure I of the
LTA and a letter dated 14.08.2008, setting out the terms
of the Fifth Delivery Period, the price fixed at $300 per
metric tonne .... “
10. “Shri Kapil Sibal, learned Senior Advocate appearing on
behalf of the Appellant, painstakingly took us through the
LTA and the entire correspondence that ensued between
the parties. He argued that all the findings given by the
Majority Award were findings of fact, there having been
little dispute on the construction of any term of the LTA; no
dispute as to the contracted quantity of coal that was to be
supplied in the Fifth Delivery Period, i.e. 466,000 metric
tonnes: no dispute as to the price at which such coal was
to be supplied, i.e., at the rate of $300 per metric tonne;
and no dispute as to the quantity of coal that remained
unlifted, i.e., 454,034 metric tonnes. The only issue before
the Arbitral Tribunal was whether the Appellant was unable
to supply the contracted quantity of coal at the contractual
price, or whether the Respondent was unwilling to lift the
quantity of coal at the contractual price, both being purely
questions of fact as to the performance of contractual
obligations stemming from the LTA.”
14. “Shri Mukul Rohatgi, learned Senior Advocate
appearing on behalf of the Respondent, supported the
impugned judgment of the Division Bench ... According to
him... the Respondent was in a position to take supplies,
and did in fact demand that supplies of coal be made in
accordance with the LTA.”
17. “The first and most important point, therefore, to be
noted is that this is a case in which there is a finding of
fact by the Majority Award that the Appellant was able
to supply the contracted quantity of coal for the Fifth
Delivery Period, at the contractual price, and that it was
the Respondent who was unwilling to lift the coal, owing
to a slump in the market, the Respondent being conscious
of the fact that mere commercial difficulty in performing a
contract would not amount to frustration of the contract.
It was for this reason that the Respondent decided, as an
370 [2025] 11 S.C.R.

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afterthought, in reply to the Appellant’s legal notice dated
04.03.2010, to attack the Appellant on the ground that it
was the Appellant that was unable to supply the contracted
quantity in the Fifth Delivery Period.”

IMPACT OF THE FIRST INFORMATION REPORT: -
85. Mr. N. Venkataraman, learned ASG, drew attention to the complaints
filed by MMTC which resulted in the registration of the First Information
Report on 21.07.2025. The FIR is registered for offences under
Section 120(B), IPC, and Sections 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988 [PC Act]. The FIR is lodged by
Shri Abhay Kumar, General Manager, MMTC, New Delhi. The FIR
records that the information prima facie disclosed commission of
offences punishable under the Sections referred to above. The FIR
is registered against 13 named officials of MMTC, against the Anglo,
against unknown officials of MMTC and Anglo and other unknown
persons.
86. FIR refers to the background of the Long Term Agreement (LTA) dated
07.03.2007 details about the 5th delivery period; the quantity agreed
to be procured and the price of US$ 300 PMT, labeled as massively
inflated. The FIR makes reference to Addendum 2 dated 20.11.2008
having been entered into ignoring NINL letter of 16.10.2008 and
attributes collusion between MMTC and Anglo officials for execution
of Addendum 2 at a peak price when the Lehman Brothers collapse
happened in September 2008.
87. The FIR further mentions that the SPCoD approved Addendum
2, based on misleading inputs from Mr. Ved Prakash and Suresh
Babu who failed to disclose the reduced demand and obtained
approval under false pretences amounting to administrative frauds.
A reference is also made to the letter of the same dated 20.11.2008
seeking reduction of price. FIR refers in detail to the subsequent
correspondence which, according to the complaint, discloses that
officials did not assert the legal position of MMTC against Anglo. A
particular reference is made to the use of phrase “we are not denying
our obligation” in the letter of 25.09.2009 which, according to the
complaint, weakened the MMTC’s defense in arbitration.
88. The FIR refers to an allegation about Anglo providing reduced price
US$ 128 PMT and staggered deliveries to SAIL and RINL but refusal
[2025] 11 S.C.R. 371

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

of the same to MMTC/NINL. It alleges that MMTC officials failed to
invoke parity or renegotiation clauses, indicating deliberate inaction. It
was stated in the FIR that all this suggested that there was exchange
of unlawful and illegal consideration between the erring officials of
MMTC and Anglo.
89. As will be noticed above, the gravamen of the allegations in the
FIR is similar to the allegations set out in the proceedings before
us which we have discussed in detail hereinabove.
90. Alluding to the First Information Report, Mr. Kaul submitted that
the whole attempt to file a criminal complaint and get the FIR
registered is a malicious attempt to wriggle out of the award and
mere pendency of the FIR could not render the award inexecutable.
Mr. Kaul submitted that MMTC filed a criminal complaint with the
CBI on 02.09.2022 with the follow-up complaint on 23.11.2022. The
CBI registered the preliminary enquiry on 09.01.2023. MMTC moved
the CBI Court seeking a direction to register the FIR. The CBI Court
passed a judgment on 09.05.2024 stating that it did not have power
to direct the CBI to register the FIR. On 01.03.2025, MMTC filed a
Revision Petition against CBI Court’s order before the High Court. In
the meantime, the Executing Court allowed the Enforcement Petition
and dismissed the MMTC’s objections on 09.05.2025 which is the
order impugned herein.
91. During the pendency of this Special Leave Petition, and when
arguments have been heard on 22.05.2025 and 23.05.2025 and
when the matter was posted after the partial working days i.e., for
24.07.2025, on 20.07.20205 MMTC filed the follow-up complaint
with the CBI and the CBI, very promptly, registered the FIR on
21.07.2025. Mr. Kaul submitted that all this was done when the
matter was part-heard only to create some support to the allegations
of fraud. Mr. Kaul made a grievance that no leave of the Court was
taken and that MMTC had resorted to abuse of the legal process
of the Court. Mr. Kaul submits that execution of the award cannot
be kept in abeyance pending an FIR based on a self-serving and
convenient criminal complaint.
92. The FIR has been filed for the offences punishable under Section
120B, IPC, read with Section 13(2) and 13(1)(d) of the PC Act,
against named public servants of MMTC the respondent company,
unknown officials of MMTC and the respondent.
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93. Mr. Kaul, learned Senior Counsel, submitted that had there been
criminal conspiracy/fraud, the common course of human conduct of
recalcitrant parties would be to lift the coal at the agreed price, pay
the amount, and share the booty. Instead, here was a case where
not only was the contracted quantity not lifted except to the extent of
11,966 MT, leaving a huge amount of contracted quantity un-lifted,
Anglo had to litigate for the last 15 years and have still not seen
the fruits of the award. To say that there was collusion, submits Mr.
Kaul, would be completely unjustified.

ANALYSIS
94. We have set out hereinabove the contentions of both the parties
to enable us to examine the issue whether at least prima facie the
case of breach of fiduciary duty has been established by MMTC
in this appeal. From the analysis of the pros and cons of the case
advanced by both the parties, the following undisputed facts/irresistible
deductions emerge:-
a. That there was a Long Term Agreement (LTA) between the
parties on 07.03.2007 which for the first three delivery periods
clearly prescribed the quantity of 4,66,000 MT as the yearly base
quantity of which 4,64,374 MT was fixed for the first delivery
period, 3,82,769 MT was fixed for the 2nd delivery and 4,66,000
was fixed for 3rd delivery period.
b. In clause 2 of the LTA, the price for the 1st and 2nd delivery period
was prescribed. For the subsequent delivery period, the price
was fixed in accordance with para 1 of the General Conditions
of the Agreement (GCA). Para 1.1 of GCA prescribed that the
price was to be mutually discussed and settled at the same
price as settled between Anglo and SAIL/RINL.
c. Under clause 1.3 of the LTA, the option to extend the duration
of the agreement was to be exercised by 31.01.2007. It has
not been disputed before us that a MoU dated 30.01.2007 was
executed between MMTC and Anglo. Under the MoU read with
Clause 1.3 of LTA, supply of a quantity of 4,66,000 MT at a price
to be finalized by the Empowered Joint Committee for SAIL/
RINL was agreed upon. The contract was extended further for
2 years, covering the 4th and 5th delivery period.
[2025] 11 S.C.R. 373

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

d. MoU also indicates that based on correspondence and even
before the execution of the Long Term Agreement, the first, 2nd
and part of the 3rd delivery period was even completed. So parties
had, based on correspondence, discharged their obligations.
e. It is not disputed that the 4 delivery periods namely the first,
second, third and fourth passed on peacefully with no dispute
between the parties.
f. The 5th delivery period was to begin on 01.07.2008. However,
the 4th delivery period under the 3 month extension clause stood
extended till 30.09.2008 and in fact was further extended for
a month to 30.10.2008.
g. It is also not disputed that the Empowered Joint Committee on
8th and 9th May 2008, did approve a price of US$ 300 PMT for
supply for coal to SAIL/RINL. This is important because the price
fixed for SAIL/RINL is linked to the price that MMTC was to pay.
h. It is also not disputed that with the last shipment of the 4th
delivery period, 2366 MT pertaining to the 5th delivery period
was also shipped on 30.10.2010.
i. The EJC, fixed the price for the 5th delivery period on 8th and
9th May 2008. The Lehman brothers fiasco happened in mid-
September 2008.
j. The internal note for the finalization of terms for the 5th delivery
period is of 03.06.2008 which expressed the concern that the
spot price for coal was US$ 400 PMT FOB.
k. The Addendum signed on 20.11.2008 followed after the quantity
of 2366 MT as part of the 5th delivery period had already been
shipped. The explanation of the learned ASG is that this was
only to save dead freight.
l. SPCoD approval Minutes of 06.10.2008 was also signed by Mr.
H.S. Mann whose initial note of April 2008 was one of the main
points urged by MMTC before us. The approval also noticed
the recent fall in prices of pig iron and steel products and did
in fact suggest exploring possibility of reduction in quantity.
m. The explanation of Anglo that NINL had no say in the quantity
since the quantity was fixed in the LTA and MoU and that in fact,
NINL’s approval was only for the specification is a plausible one.
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n. That MMTC purchased coal from BMA at US$ 300/292 PMT
which had not been disputed and in fact the argument in the
proceedings to set aside the award was based on the price paid
to BMA to contend that no damages occurred to Anglo. Further,
the stand of the learned ASG insofar as the supply by BMA is
concerned as dealt with above shows that there was indeed
supply by BMA at the rate of US$ 292 PMT and US$ 270 PMT,
though the period of carryover offered may have been different.
o. The exercise of writing a letter on 20.11.2008, namely, the
same day as the Addendum No.2 has been explained as an
attempt by MMTC to renegotiate the price. Per se on this basis
and without anything more, nothing sinister could be imputed.
There has been no convincing explanation from the appellant
to the argument of Anglo that the common course of human
conduct of conspiring parties would be to lift the coal at the
agreed price, pay the amount and share the booty, instead of
litigating for 15 years.
p. The subsequent correspondence and the context in which
they were written viewed in the background of the findings of
this Court do not indicate that it was a friendly fight intended
to commit certain admissions in the correspondence. On the
concept of carryover also, the explanation by Anglo that there
was no discrimination between the contract with MMTC and
contract with SAIL and that a carryover offered in the respective
contracts have to be viewed in the background of the “delivery
periods in question” of the respective contracts is a plausible
explanation borne out from the records.
q. A First Information Report by itself is only a document to set in
motion a legal process. It is the version of one party and by itself
we are not able to, for the reasons set out above, declare that
the award upheld by this Court should be rendered inexecutable.
r. The argument that Mr. Ved Parkash orchestrated the arbitration
and the litigation before the High Court of Delhi and facilitated
success for Anglo is also not convincing because when Mr. Ved
Prakash was at the helm, the Section 37 proceedings were
prosecuted by MMTC successfully. While Ved Prakash retired
on 29.02.2020 the Delhi High Court pronounced its judgement
in favour of MMTC on 02.03.2020.
[2025] 11 S.C.R. 375

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

s. Ultimately, the arbitration was fought over a period of 2 years
before the arbitrators and the matter was fought in the Delhi
High Court and this Court for over a period of 6 years till this
court restored the award and set aside the judgment of the
Division Bench.
t. The only two arguments raised before the arbitrators and Court
were:-
i. Anglo was incapable of supplying the agreed quantity.
ii. In any event, there was no loss in the form of damages
as the market price was in the range of US$ 300 PMT as
is evident from the supply done by BMA.

CONCLUSION: -
95. In the light of the above analysis, we are not able to conclude, on the
material furnished before us, that the Senior Managerial personnel
involved at the helm in MMTC during the relevant period acted in a
manner as no reasonable personnel/director in the circumstances
would have acted. We are also not able to conclude on the material
furnished that the decisions taken were not within the range of
reasonableness or that the course adopted by them was not one,
a reasonably competent personnel/director would adopt. Applying
the business judgment rule, the course adopted by them cannot
be said to be one to which a court of law would not defer to. The
appellants have not been able to even prima facie demonstrate that
circumstances exist to conclude that the personnel of MMTC did not
act in the best interest of the company.
96. The appeal challenges, in the prayer clause, the judgment dismissing
the objections in OMP (ENF.) (COMM.) 19 of 2018. Though in the
prayer clause, there is no challenge to dismissal of the application
under Order XXI Rule 29 filed in EX/application (OS) 1806 of 2024,
in Para 1 of the civil appeal the appellants have indicated that they
are aggrieved by the said order also. Order XXI Rule 29 provides for
stay of execution pending suit between decree holder and judgment
debtor. We were, however, told that the suit filed itself now stands
rejected under Order VII Rule 11 but a regular first appeal in RFA 28
of 2025 has been filed. Hence, an occasion for considering an
Order XXI Rule 29 Application does not arise.
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97. We are dealing with an objection filed under Section 47 claiming
that the award as upheld by this Court is inexecutable. As held by
this Court in Electrosteel (Supra) the jurisdiction lies in a narrow
compass. It is the mandate of this Court that the object of Section 47
is to prevent unwarranted litigation and dispose of all objections
as expeditiously as possible. This Court has warned that there is
a steady rise of proceedings akin to a retrial which causes failure
of realization of the fruits of a decree, unless prima facie grounds
are made out entertaining objections under Section 47 would be an
abuse of process.
98. An objection petition under Section 47 should not invariably be
treated as a commencement of a new trial. In Rahul S. Shah Vs
Jinendra Kumar Gandhi and Ors.,14 this Court had the following
telling observations to make.
“24. In respect of execution of a decree, Section 47 CPC
contemplates adjudication of limited nature of issues
relating to execution i.e. discharge or satisfaction of the
decree and is aligned with the consequential provisions of
Order 21 CPC. Section 47 is intended to prevent multiplicity
of suits. It simply lays down the procedure and the form
whereby the court reaches a decision. For the applicability
of the section, two essential requisites have to be kept
in mind. Firstly, the question must be the one arising
between the parties and secondly, the dispute relates
to the execution, discharge or satisfaction of the decree.
Thus, the objective of Section 47 is to prevent unwanted
litigation and dispose of all objections as expeditiously
as possible.
25. These provisions contemplate that for execution of
decrees, executing court must not go beyond the decree.
However, there is steady rise of proceedings akin to a retrial
at the time of execution causing failure of realisation of fruits
of decree and relief which the party seeks from the courts
despite there being a decree in their favour. Experience
has shown that various objections are filed before the
executing court and the decree-holder is deprived of the

14 (2021) 6 SCC 418
[2025] 11 S.C.R. 377

MMTC Limited v. Anglo American Metallurgical Coal Pvt. Limited

fruits of the litigation and the judgment-debtor, in abuse
of process of law, is allowed to benefit from the subject-
matter which he is otherwise not entitled to.
26. The general practice prevailing in the subordinate
courts is that invariably in all execution applications, the
courts first issue show-cause notice asking the judgment-
debtor as to why the decree should not be executed as is
given under Order 21 Rule 22 for certain class of cases.
However, this is often misconstrued as the beginning of
a new trial. For example, the judgment-debtor sometimes
misuses the provisions of Order 21 Rule 2 and Order 21
Rule 11 to set up an oral plea, which invariably leaves no
option with the court but to record oral evidence which
may be frivolous. This drags the execution proceedings
indefinitely.
27. This is antithesis to the scheme of the Civil Procedure
Code, which stipulates that in civil suit, all questions and
issues that may arise, must be decided in one and the
same trial. Order 1 and Order 2 which relate to parties
to suits and frame of suits with the object of avoiding
multiplicity of proceedings, provides for joinder of parties
and joinder of cause of action so that common questions
of law and facts could be decided at one go.”

POSTSCRIPT :-
99. Before we part, a small postscript. Whether in Government, Public
Sector Corporations or even in the private sector, the driving force
of the entity are the persons who administer them. A certain play
in the joints is inevitable for their day-to-day functioning. If they are
shackled with the fear that, their decisions taken for the day-to-
day administration, could years later with the benefit of hindsight,
be viewed with a jaundiced eye, it will create a chilling effect on
them. A tendency to play it safe will set in. Decision making will
be avoided. Policy paralysis will descend. All this will in the long
run prove detrimental not just to that entity but to the nation itself.
We are not to be understood to be condoning decisions taken for
improper purposes or extraneous considerations. All that we are at
pains to drive home is that great caution and circumspection have
to be exercised before such allegations are brought forward and
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adequate proof must exist to back them. Otherwise for fear that
carefully built reputations could be casually tarnished, best of talent
will not be forthcoming, especially for government and public sector
corporations.
100. In view of what is stated hereinabove, we find no merit in the
objections filed by MMTC under Section 47 of the CPC. There are
no good grounds to entertain the same. The appeal is dismissed.
No order as to costs.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Nidhi Jain