BEFORE THE HON’BLE TRIBUNAL COMPRISING OF:

HON’BLE MR. JUSTICE S. MURALIDHAR (RETD.)

(SOLE ARBITRATOR)

IN THE ARBITRATION MATTER OF:

YASH REFRACTORIES …CLAIMANT
VERSUS

NINGBO TRADING INTERNATIONAL PTE. LTD. …RESPONDENT

REJOINDER TO STATEMENT OF CLAIM

________________________________________________________________

15 JUNE 2024

FILED THROUGH:

RPV Legal

Counsels for the Respondent

D-19, Second Floor, Geetanjali Enclave
New Delhi - 110017
Phone: +91 11 41834272
E: info@rpvlegal.com
 BEFORE THE HON’BLE TRIBUNAL COMPRISING OF:
HON’BLE MR. JUSTICE S. MURALIDHAR (RETD.)
(SOLE ARBITRATOR)

IN THE ARBITRATION MATTER OF:

YASH REFRACTORIES …CLAIMANT
VERSUS

NINGBO TRADING INTERNATIONAL PTE. LTD. …RESPONDENT

INDEX
S. No. Particulars Page No.
1. Rejoinder to Statement of Claim
2. Annexure C-1:
3. Annexure C-2:

Through,

RPV Legal
Counsel for the Respondent
D-19, Second Floor, Geetanjali Enclave
New Delhi – 110017
Date: 15 June 2024 Phone: +91 11 41834272
Place: New Delhi E: info@rpvlegal.com
 BEFORE THE HON’BLE TRIBUNAL COMPRISING OF:
HON’BLE MR. JUSTICE S. MURALIDHAR (RETD.)
(SOLE ARBITRATOR)

IN THE ARBITRATION MATTER OF:

YASH REFRACTORIES …CLAIMANT
VERSUS

NINGBO TRADING INTERNATIONAL PTE. LTD. …RESPONDENT

REJOINDER TO STATEMENT OF CLAIM

________________________________________________________________

I. INTRODUCTION

I.1. The present Rejoinder to the Statement of Defense filed on 30.04.2024

(“SoD”), is being filed in pursuance of the directions passed by this
Hon’ble Tribunal in the Procedural Order dated 25.06.2024
(“Rejoinder”).

I.2. All capitalized terms and abbreviations used herein shall have the same
meaning given to them in the Contract executed between the Parties and
the pleadings of the Parties, unless otherwise stated or the context
requires otherwise.

I.3. The Claimant denies all the allegations, statements and contentions set
out by the Respondent in the SoD in totality. Nothing contained therein
shall be deemed to have been admitted by the Claimant merely for want
of specific denial and nothing may be construed as being admitted on
 the ground of non-traverse. Further, anything stated in the SoD which is
in variance with the pleadings filed by the Claimant, is specifically
denied.

II. PRELIMINARY SUBMISSIONS

A. THE RESPONDENT MADE FRAUDULENT

MISREPRESENTATIONS FROM THE INCEPTION OF THE
CONTRACT, WHICH IS EVIDENT FROM THE PRE-
CONTRACTUAL NEGOTIATIONS BETWEEN THE PARTIES

II.1. In May 2021, the Claimant enquired on an online website named

‘Indiamart’, regarding the requirement for 3500 MT of FESIMN, to be
purchased on a prompt and immediate basis. Subsequently, on
13.05.2021, the Respondent replied to the Claimant’s enquiry
representing that it could deliver the said quantity of FESIMN and
shared it’s contact details for further negotiations. Whereafter, the
Claimant categorically clarified the terms regarding the quality, quantity
and above all delivery timeline for the FESIMN. In response, the
Respondent represented and assured the Claimant of its ability to supply
a total of 4000 MT of FESIMN, in lots of 250 MT on a weekly basis,
from Durban to La Guaira Port, Venezuela. A copy of the email dated
13.05.2021, wherein the Respondent reached out to the Claimant
enquiry is annexed herewith and marked as Annexure C-__.

II.2. Subsequently, on 14.05.2021, upon the representations made by the

Respondent, the Claimant specifically enquired about the quantities
readily available for delivery specifically in June and July 2021. The
Claimant also requested the Respondent to submit its final CFR price
quotation for FESIMN for the said periods. In response, the Respondent
 assertively represented an assured delivery of 1500 MT of FESIMN of
the specifications required by June and July 2021 at USD 1,470/- PMT.
The relevant excerpts of the email correspondence dated 14.05.2021,
exchanged between the Parties before entering the Contract are
reproduced hereunder:

Andy wrote:
“… Vikas, please let me know what can you deliver in June and July.
Also please give me CFR price, no fob. …”

Yash wrote:
“… Our price for CFR is $ 1470 PMT and rest terms and conditions
remain the same.
… In June and July 2021 we will deliver the 1500 MT material either
in 3 or 5 parts as per the availability of the containers. …”

A copy of the email trail titled “Quote for Ferro Silico Manganese”
exchanged between the Parties is annexed herewith and marked as
Annexure C-____.

II.3. It is also relevant to highlight that upon further inquiry and clarification
sought by the Claimant regarding the need for prompt delivery, the
Respondent reassured and represented itself to be a regular trader of
FESIMN and boasted about previous dealings with other international
clients. The Respondent further represented to the Claimant that it
exports FESIMN on a weekly basis and had more than sufficient stock
of the required FESIMN available with it for a prompt delivery. It
categorically stipulated that the agreed quantity of FESIMN shall be
ready by 15.06.2021, and that the estimated transit time for delivery of
the same would be a month after the SOB Date. A copy of the relevant
screenshots of the WhatsApp communications exchanged between the
Parties are annexed herewith and marked as Annexure C- (Colly.)
[14.07.2021, 22.07.2021, 09.08.2021]
II.4. Thus, it was only on account of the numerous representations and
assurances made by the Respondent regarding the ready availability of
the required stock, and the timely delivery thereof, that the Parties
integrated the terms of the present Contract for the sale and purchase of
1000 MT of FESIMN at USD 1,470/- PMT to be delivered in June and
July 2021. It was based on this understanding, that the terms of the
Contract were signed, including the SOB Date which was to fall strictly
within 20.06.2021 to 19.07.2021.

B. RESPONDENT BREACHED ITS OBLIGATION TO ENSURE

TIMELY DELIVERY OF THE AGREED QUALITY OF FESIMN,
WHICH WAS THE ESSENCE OF THE CONTRACT

II.5. At the outset, it is pertinent to highlight and emphasize on the object and
purpose of the Contract dated 14.05.2021 (‘Contract’). As per the terms
of the Contract, the Respondent (seller) was obligated to supply a total
quantity of 1000 MT of Ferro Silico Manganese (‘FESIMN’) having the
specifications provided under Clause 1. Further, as per Clause 5 of the
Contract, the said quantity of FESIMN was to be shipped on board by
the Respondent within 20.06.2021 to 19.07.2021 (‘SOB Date’).

II.6. The Contract also laid down provisions for ‘Guarantee on Quality’
(Clause 14), ‘Penalty of Quality’ (Clause 15), ‘Late Delivery and
Penalty’ (Clause 18), etc., which categorically highlight that adherence
to the quality specifications and the SOB Date as stipulated under the
Contract formed the basis and essence of the Contract. In view thereof,
it is clear that prompt and timely delivery of FESIMN, having the
contractually provided specifications, was the sine qua non of the
Contract.
II.7. It is significant to note that the Respondent committed a flagrant and
material breach of the terms that formed the essence of the Contract.
Specifically, despite repeated requests and objections raised by the
Claimant, the Respondent never supplied FESIMN conforming to the
contractual specifications and failed to ship on board any FESIMN at all
within the SOB timeline stipulated under Clause 5 of the Contract. The
same is evident from the following table:

*SOB Date was to fall within 20.06.2021 to 19.07.2021

S. No. Particulars SOB Date (as per Days of Delay
Actuals) calculated from
19.07.2021
1. 1st Consignment 10.09.2021 54 days
2. 2nd Consignment 01.02.2022 198 days
3. 3rd Consignment 05.05.2022 291 days

II.8. As discussed above, the terms of the Contract required the Respondent
to ship on board the entire quantity of FESIMN i.e., 1000 MT, within
20.06.2021 to 19.07.2021. However, despite receiving the Advance
Payment of USD 588,000/- from the Claimant on 18.05.2021, i.e., 40%
of the total Contract Value, the Respondent has only supplied 187 MT of
FESIMN (18.7% of the entire quantity) till date. Moreover, the FESIMN
supplied by the Respondent did not even conform with the specifications
provided under the Contract.

II.9. Notably, the Respondent has not provided any explanation in its SoD for
its failure to supply FESIMN having the contractually provided
specification. Therefore, the Respondent’s breach to supply FESIMN of
 the specifications provided under Clause 1 of the Contract stands
established.

II.10. Insofar as the Respondent’s failure to ensure timely delivery of FESIMN

is concerned, the only justification provided by the Respondent in its
SoD is that the delay occurred on account of the COVID pandemic and
the consequent lockdown. However, the said justification provided by
the Respondent is also baseless and wholly devoid of merit. Pertinently,
the present Contract was entered on 14.05.2021, when the COVID
pandemic was already in place. Thus, the Respondent was fully
cognizant of the existing restrictions and guidelines that could
potentially affect the performance of the Contract. Therefore, it does not
lie in the mouth of the Respondent to use COVID pandemic as an
excuse for the inordinate and unexplained delay caused by it in
delivering the FESIMN. It is noteworthy, that all other suppliers of the
Claimant from India had completed their respective agreements on time
and within budget, which was also brought to the Respondent’s notice
vide email dated 24.01.2022. A copy of the email dated 24.01.2022
exchanged between the Parties is annexed herewith and marked as
Annexure C- ___.

C. THE RESPONDENT WAS NOT ENTITLED TO ANY FURTHER

PAYMENTS FROM THE CLAIMANT

II.11. As discussed above, the terms of the Contract required the Respondent
to supply 1000 MT of specified quality of FESIMN to the Claimant,
which was to be shipped on board within 20.06.2021 to 19.07.2021, for
a total contract value of USD 1,470,000/-. Thus, making it clear that the
Respondent was obligated to ship on board the entire quantity of
FESIMN i.e., 1000 MT, by 19.07.2021. On this premise, the Contract
 required the Claimant to make an Advance Payment of USD 588,000/-,
i.e., 40% of the total Contract Value (Clause 9), which was duly
remitted by the Claimant on 18.05.2021, i.e., within 4 days of the date of
the Contract.

II.12. However, the Respondent blatantly breached its supply obligations as it

failed to ship on board any quantity of FESIMN within the SOB Date.
Till date, the Respondent has only supplied 187 MT of FESIMN to the
Claimant which was completely out of contractual specifications.
Notably, Clause 1 of the Contract provides the per Metric Ton (‘PMT’)
price of FESIMN as USD 1,470/-. Thus, as per the contractual rate, the
total value of FESIMN supplied by the Respondent to the Claimant till
date amounts to USD 274,890/- (187 MT x USD 1,470/-), whereas, it
has already received the Advance Payment of USD 588,000/- from the
Claimant on 18.05.2021. Thus, considering the quantity of the FESIMN
supplied by the Respondent and the contractually agreed PMT rate of
FESIMN, the Respondent is already in possession of surplus funds
amounting to USD 313,110/- (USD 588,000 – USD 274,890).
Therefore, in view of no further delivery of FESIMN made by the
Respondent, the Claimant is entitled to refund of USD 313,110/- from
the Respondent. Thus, the question of any amount being payable by the
Claimant to the Respondent does not arise.

II.13. Notwithstanding the above, even if the arbitrary and hypothetical rates
proposed by the Respondent for the supply of FESIMN, which were
never approved by the Claimant, are taken into account, the total value
of the FESIMN supplied till date amounts to USD 337,340/-. The same
is evident from the table given below:

SOB Date Particulars Quantity Rate Amount

 (MT) (USD/MT) (USD)
10.09.2021 FESIMN 54 1,470/- 79,380/-
02.02.2022 FESIMN 77 1,570/- 126,360/-
05.05.2022 FESIMN 56 2,350/- 131,600/-
TOTAL 337,340/-

II.14. However, as already discussed above, the Claimant has already

submitted a sum of USD 588,000/- to the Respondent towards Advance
Payment. Therefore, assuming without conceding that the total value of
the FESIMN supplied was USD 337,340/-, the Respondent would still
be in possession of surplus funds amounting to USD 250,660/- (USD
588,000 – USD 337,340). Therefore, in view of no further delivery of
FESIMN by the Respondent, the Claimant is entitled to refund of USD
250,660/- from the Claimant.

II.15. At this juncture, it is pertinent to highlight that throughout the

contractual relationship, the Respondent never sought the remaining
60% payment for the three consignments (‘Consignments’) of FESIMN
supplied by it to the Claimant (‘remaining 60% payment’). The same
was claimed by the Respondent for the first time only in its SoD.
Moreover, it is not even the pleaded case of the Respondent that the said
remaining 60% payment was claimed by it from the Claimant
throughout their contractual tenure and no correspondence/evidence has
been placed on record in this regard.

II.16. In view of the aforesaid discussion, it is clear that the Respondent’s

averment regarding the pendency of the remaining 60% payment from
the Claimant is wholly devoid of merit and is merely a counterblast to
the claims raised by the Claimant. In fact, in the meeting held between
 the Parties on 17.08.2022, the Respondent categorically acknowledged
and admitted its payment liabilities towards the Claimant, and thereby
agreed to refund an initial sum of USD 80,000/-, with the remaining to
be sorted out later [Annexure C-27 of SoC]. Pursuant thereto, on
16.09.2022, the Respondent addressed a letter to the Bank of Baroda
International Business Branch (IBB) (‘Bank’), requesting it to initiate
the initial refund of the aforesaid amount in favour of the Claimant.
[Annexure C-29 of SoC]. In view thereof, it is abundantly clear that it
is not the Claimant rather the Respondent whose payment obligations
remain pending till date. Thus, any suggestion regarding payments being
due from the Claimant to the Respondent is completely erroneous,
misconstrued and devoid of merit.

II.17. Notwithstanding the foregoing, the Respondent’s argument that the

Claimant’s liability to make the remaining 60% payment arose upon the
receipt of scanned Shipment Documents is also devoid of merit. It is
relevant to highlight that timely delivery of the Shipment Documents, as
enlisted under Clause 10 of the Contract, was not just a formal
contractual obligation but was extremely crucial for facilitating import-
export. Without essential documents, such as the Bill of Lading and
Certificate of Origin (‘COO’) which acts as evidence of title and are
essential for claiming goods upon arrival at the destination port, customs
clearance can be delayed or denied, leading to disruptions in supply
chains and financial losses for importers and exporters.

II.18. Moreover, the Certificate of Quality/Analysis, another critical Shipment

Document, is essential for verifying that the supplied goods conformed
to the contractual specifications, before the same are dispatched.
Consequently, the Certificate of Quality/Analysis was to be provided by
the Respondent to the Claimant prior to shipping the consignment of
 FESIMN. However, for the 1st Consignment and the 3rd Consignment,
the Certificate of Quality/Analysis were supplied belatedly on
28.10.2021 and 03.06.2022, after a delay of 48 days and 28 days,
respectively, from the shipping of board of the said consignments. As a
result, the Claimant was deprived of the opportunity to raise concerns
regarding any deviations in quality specifications before the goods were
dispatched. Although the Certificate of Quality/Analysis for the 2 nd
Consignment was issued on 10.09.2021, prior to its SOB Date, it
highlighted several discrepancies in the FESIMN, which were duly
communicated to the Respondent. Therefore, given that the Certificate
of Quality/Analysis was a required Shipment Document, the final
payment was contingent upon the Claimant’s approval that its findings
were in consonance with the contractual specifications.

II.19. However, despite repeated requests and objections raised by the

Claimant, the Respondent consistently failed to provide the Shipment
Document on time. Moreover, original COO, which is a Shipment
Document enlisted in Clause 10 of the Contract remains pending till
date. Resultantly, the Claimant found itself unable to exercise control
over the consignments. In view of the foregoing, the Respondent is not
entitled to the remaining 60% payment for the Consignments supplied
by it.

D. THE TERMS OF THE CONTRACT WERE NEVER NOVATED

II.20. The Respondent, throughout the SoD, has contended that the terms of
the Contract, specifically pertaining to the delivery schedule (Clause 5),
quality specifications and price of FESIMN (Clause 1), as were initially
agreed, stood novated on account of the mutual agreement between the
Parties. It is the Respondent’s contention that since the Claimant had
 agreed and assented to the revised terms of the Contract, it has thereby
waived its right(s) to raise any claim in relation to delivery time and
composition of the FESIMN delivered.

II.21. At the outset, it is submitted that the said contention is completely

erroneous and is nothing but a blatant distortion of facts by the
Respondent to conceal the material breaches committed by it in
fulfilling its contractual obligations. The Claimant has already
demonstrated in Preliminary Submission (A) that the Respondent
fraudulently misrepresented its commercial capacity to the Claimant
with respect to the ready availability of the required stock of FESIMN
and the timely delivery of the same. The Claimant shall now deal
separately with the three legs of the Respondent’s submission regarding
alleged novation in the (i) Delivery Schedule/SOB Date, (ii) Quality
Specifications and (iii) Price of FESIMN in the following paragraphs.

(i) DELIVERY SCHEDULE/SOB DATE

II.22. In this background, the Claimant submits that insofar the alleged
revision of the Delivery Schedule/SOB Date is concerned, the
Claimant’s acceptance was obtained by way of fraudulent
misrepresentations and false promises made by the Respondent
regarding the ready availability of FESIMN and timely delivery thereof.
Throughout the duration of the Contract, the Respondent took advantage
of the Claimant’s need for prompt and immediate delivery and resorted
to dilatory tactics and fraudulent approach to keep the transaction open.
Notably, upon Respondent’s repeated failure, the Claimant, on several
occasions, also gave opportunities to the Respondent to immediately
intimate it if the delivery within the indicated time was not possible, and
accordingly proceed with the refund of the Advance Payment. This was
 to allow the Claimant to arrange alternate suppliers to meet the delivery
deadline set by its downstream buyer. However, the Respondent adopted
a lackadaisical approach and repeatedly made false assurances regarding
the timely delivery of goods. Despite the accommodation and flexibility
provided by the Claimant, the Respondent continued to take advantage
of the situation for it personal economic gains and kept deferring the
delivery schedule on one pretext or the other, with no sign of delivery.

II.23. In view thereof, the Respondent’s contention that the SOB Date was
novated by mutual agreement by the Parties is utterly misplaced. The
Claimant’s reluctance and disinterest to continue with the Contract, in
view of the frequent deferments made by the Respondent in the delivery
schedule, is further evident from various email communications dated
07.10.2021, 13.10.2021 & 18.10.2021, whereby the Claimant gave final
warnings and last opportunities to the Respondent to ship on board the
required goods by 07.11.2021. The Claimant also categorically informed
the Respondent that in case of its failure to adhere to the final deadline,
the Claimant would request a refund of the deposit made by it and assign
the Contract to another supplier. [Annexure C- , Annexure C- , &
Annexure C- ]

II.24. Consequently, upon the Respondent’s failure to fulfil its contractual

obligations even till the final deadline, i.e., 07.11.2021, coupled with its
fraudulent behavior, the Claimant was constrained to issue a
Termination Letter dated 12.11.2021 under both Contracts
(‘Termination Letter’), on the ground of ‘supplier not being able to meet
terms established in the sales contract’. In the said Termination Letter,
the Claimant requested for a total refund of $600,690/-, out of which
USD 588,000/- was the refund amount pending against the present
Contract.
II.25. Subsequently, while acknowledging the receipt of Termination Letter,
the Respondent, on 12.11.2021, agreed to refund the balance Advance
Payment, however requested an adjustment for the price of 54 MT and
162 MT of FESIMN; and 135 MT of HCFEMN. The Respondent,
following the same pattern, again fraudulently misrepresented that the
delivery of the remaining aforesaid quantities was already under
process. At this juncture, it may be pertinent to highlight, that for over a
period of more than 2 months, the Respondent kept assuring that the
delivery of 162 MT of FESIMN was underway, but the consignment
that was finally shipped on board on 01.02.2022, which contained only
77MT of FESIMN.

II.26. Regardless, soon after, the Respondent started giving excuses regarding
the difficulties around initiating refunds. On 19.11.2021, Amit stated,
"As informed earlier, this will be done by next week." Then, on
01.12.2021, Amit provided a circular for Third Country Trade or
Merchant Trade, suggesting thorough legal review and the long
procedure surrounding the refund process. These issues were being
continuously highlighted by the Respondent, despite it representing
initially that it was a regular international trader. In fact, even until a
year later, on 23.11.2022, Amit mentioned, "But due to RBI guidelines,
it has been stuck at the bank's side and not from our side." A copy of the
relevant WhatsApp communications and e-mails wherein the
Respondent raised concerns regarding initiating refund are annexed
herewith and marked as Annexure C-___.

II.27. In view thereof, the Claimant was left with no option but to either accept
delivery as per the Respondent’s timelines or to wait indefinitely for the
refund. Therefore, the alleged novation in the Delivery Schedule/SOB
Date was not upon mutual agreement but out of economic duress. Below
is a list of dates wherein the Respondent made false representations and
assurances regarding prompt delivery of FESIMN and reimbursement of
the balance Advance Payment but reneged on the said promises:

A. 12.11.2021: After acknowledging the Termination Letter dated

12.11.2021, the Respondent again adopted a fraudulent approach to
keep the transaction open. In the said email, the Respondent
proposed two options to the Claimant, to either seek a refund of the
balance Advance Payment or negotiate for the remaining 750MT of
FESIMN to be delivered by November 2021. [Annexure C_] [Ref:
Contract deliveries - Enquiry]

In response, the Claimant highlighted that, despite previously

representing that 300MT of FESIMN had been ready in Durban since
15.10.2021, the Respondent now stated that the material was still in
Zambia. In view of the Respondent’s fraudulent conduct, the
Claimant requested reimbursement of the remaining Advance
Payment. [Annexure C_]

Thereafter, the Respondent once again misrepresented to the

Claimant, for its personal economic gains, that, “If You need us to
supply balance 750 MT Fe si mn ( Cif prices of US$ 1790 ) is the
price we can close this and shipment will be made by 25 th Nov
without fail”. [Annexure C_]

Pursuant to the aforesaid misrepresentation, the Claimant once again,

in good faith, requested the Respondent to confirm whether the offer
for the delivery of the remaining 750 MT of FESIMN at USD 1,790/-
PMT was firm and could be shipped on board prior to 25.11.2021.
Expressing its unwillingness to expend any further time and money,
 the Claimant reiterated its request for a refund should the Respondent
fail to meet the specified deadline.

B. 14.11.2021: Pursuant to the aforesaid representations made, the

Respondent shared a list of certificate analysis agencies, for the
Claimant to choose and confirm, for the future consignments.

C. 15.11.2021: Acting in good faith and based on the representations

made by the Respondent regarding the delivery of the remaining
750MT of FESIMN at USD 1,790/-, the Claimant agreed to move
ahead with any one of the agencies proposed by the Respondent.

In response, while acknowledging the extraordinary and unexplained

delay caused by it, the Respondent represented that the balance 750
MT of FESIMN will be booked at USD 1,790/- PMT by the next
date, subject to Claimant’s confirmation. It further reassured that the
same shall be shipped on board around 15.12.2021. [Annexure C ]

The Claimant while reiterating the importance of adherence to the

contractual specifications, categorically stated that, “Every other
single supplier has delivered their material within time and the
required tolerances, under the same circumstances and market
conditions. We are not authorised to accept any other delivery out
of specification.”.

D. 17.11.2021 & 19.11.2021: The Claimant requested the Respondent to

make sea-freight bookings for 11 containers for 03.12.2021. In
response, the Respondent once again falsely assured that, “Yes we
have planned for the vessel dated 3/12/2021, however we will try and
load before that if all is in order. Documents will be prepared and
presented as per the requirement.”. The Respondent further
 confirmed that the reimbursement of Claimant’s deposit will be done
by next week.

E. 23.11.2021 & 26.11.2021: The Claimant again followed up with the

Respondent regarding the sea-freight booking and shared
reimbursement instructions for the Advance Payment. Due to the
Respondent’s lack of response, the Claimant sent a reminder on
26.11.2021, regarding the refund of USD 97,272/-, which had
become due and payable within a week from 19.11.2021, ending on
that day.

F. 29.11.2021, 30.11.2021 & 01.12.2021: The Claimant sent several

reminders to the Respondent requesting details regarding the alleged
upcoming shipment, the reimbursement, pending documents, etc.,
however, no response was received from the Respondent.

G. 01.02.2022: On the said date, the Respondent shipped on board the

2nd Consignment, after a substantial delay of 198 days from the SOB
Date. It is pertinent to note that the Respondent had initially assured
delivery of 162 MT in the 2nd Consignment, which was later reduced
to 81MT. However, only 77 MT of FESIMN was ultimately shipped
on board by the Respondent, which was in stark contravention of the
multiple representations made by it. Notably, the said consignment of
FESIMN was not only delayed but was also substantially out of
contractual specifications.

H. 09.03.2022: In the said email, the Respondent expressly requested

the Claimant to allow it to make the third delivery and close the
issues. Parallelly, the Respondent continued to evade the Claimant’s
request for refund on one pretext or the other, including but not
 limited to, certain technical issues with the bank in remitting the
balance Advance Payment. It was only in pursuance of the said
desperate request of the Respondent coupled with no hope for refund,
that the Claimant allowed the 3rd Consignment to be dispatched.

I. 09.03.2022: Disappointed by the constant misrepresentation and

assurances made by the Respondent, the Claimant sent an email
stating the following:

“…
First of all, I would appreciate it if you could answer the phone and
have a conversation as we used to. Rejecting calls and blocking
messages on WhatsApp is not the solution to your problems.
Amit, over the last six months, there have always been constant
changes and difficulties from your company, which have not been
explained in time and create uncertainty at our end.
… It seems like you have had issues with everyone involved in your
operations.
At this stage, my advice is to be realistic and honest. If you don't
have the material, refund us our balance, and we will finish this
here.
….
To summarise, please share it with us if you have a CONFIRMED
delivery plan from INDIA for the remaining 6 FCLs.
If not, do not worry about finding solutions at this stage; place our
reimbursement, and we will conclude our contracts without
escalating the issue to arbitration.
…”

The contents of the aforesaid email clearly reflect the Claimant’s

disinterest, and dissatisfaction with the Respondent’s lackadaisical
conduct. In view thereof, the Claimant once again requested the
Respondent to refund the balance Advance Payment, which was
being sought by it since 12.11.2021. [Annexure C-]
 J. 19.04.2022: The Respondent, after the expiry of more than 5 months
from the date of termination, for the first time sought a formal
request letter from the Claimant, for the refund of the balance
Advance Payment. [Annexure C-]

II.28. In view of the foregoing, it is evident that the Claimant categorically and
repeatedly requested the Respondent to reimburse/refund the balance
advance amount paid to it by the Claimant, in case delivery was not
possible within the proposed deadlines. However, the Respondent
continued to give false assurances to the Claimant regarding its ability to
make timely delivery. The said conduct of the Respondent rendered the
Claimant helpless, leaving it with no option but to accede to the
timelines proposed by the Respondent.

II.29. Moreover, it is undisputed that no quantity of FESIMN was shipped on

board by the Respondent within the SOB Date, let alone the entire
quantity which remains pending till date. It is also undisputed that till
date only 187 MT of FESIMN has been supplied by the Respondent as
against the contractually agreed quantity of 1000 MT, which was also
completely out of the contractual specifications. Therefore, the
Respondent cannot and should not be allowed to misconstrue the facts of
the case and take advantage of its own breaches.

(ii) SPECIFICATIONS OF FESIMN

II.30. It is the Respondent’s case that the Claimant accepted the FESIMN
supplied by the Respondent even though all inspection reports were sent
to the Claimant prior to the delivery of the goods. However, as has
already been discussed, the Certificate of Quality/Analysis were to be
provided to the Claimant not prior to the ‘delivery of the goods’ rather
prior to the same being ‘shipped on board’. This was essential to afford
 an opportunity to the Claimant to inspect the material(s) for any quality
deviation before the goods were dispatched. As already elaborated in
para 2.18 of this Rejoinder, the Respondent miserably failed to furnish
the Shipment Documents before the SOB Date, thus, depriving the
Claimant of the opportunity to raise concerns regarding any deviations
in specifications prior to the goods being shipped on board. Although
the Certificate of Quality/Analysis for the 2 nd Consignment was issued
on 10.09.2021, i.e., prior to its SOB Date, it highlighted several
discrepancies in the FESIMN, which were duly communicated to the
Respondent.

II.31. It may be relevant to mention that time and again, the Claimant raised
issues and objections with respect to deviations in specifications of the
FESIMN supplied by the Respondent, however, it completely
discredited and disregarded the deviations highlighted by the Claimant.
Instead, the Respondent imposed the FESIMN of varying specifications
upon the Claimant by stating that the same were of a superior quality
than the one stipulated under the Contract. The same is evident from
numerous correspondences exchanged between Parties, some of which
are reproduced below:

A. 12.11.2021: In response to the concerns raised by the Claimant

regarding the quality of the FESIMN supplied in the 1 st
Consignment, the Respondent, instead of acknowledging its failure to
adhere to the contractual specifications, tried to impose upon the
Claimant the FESIMN of a varying specification. The Respondent
wrote to the Claimant stating the following: [Annexure C-]

“…
 1. FOR 54 MT FE SI MN , WE HAVE ALREADY INFORMED
YOU NOT TO RETEST AND WASTE TIME AND MONEY ,
INSTEAD ASK THE CUSTOMER TO USE THE GOODS .

66 -67 % MANGANESE WILL SAVE THEIR MANGANESE

CONSUMPTION BY 10 % AND IN TURN THE COST.

THERE IS NO NEED FOR INSPECTION AND IF THE BUYER

FINDS ANY ISSUE WITH THE GOODS WE WILL TAKE BACK
THE MATERIAL, THERE IS NO POINT IN WASTING TIME
FOR THIS ISSUE.

…”

In response, the Claimant continued to raise serious concerns

regarding the quality deviations in the FESIMN and wrote, “In
many years of operations this is the first time (between many
other suppliers) that we get delivered a different material that
does not meet the accepted established criteria as per sales
contract...” [Annexure C-]

However, the Respondent, vide another email dated 12.11.2021,

again advised the Claimant to accept the FESIMN of varying
specification, terming it to be of a better quality than the one
stipulated in the Contract. The Respondent wrote, “The material
is completely within specifications and the place where it has to
be used, in Mn content of the billet making , this is far better
than your requirement .” [Annexure C-]

The Claimant continued to highlight the discrepancies in the

quality specifications and stated that, “Our contract is not for
better material, it is for the specifications signed and agreed by
both parties. Any variation is consider a fault.” [Annexure C-]

B. 15.11.2021: Despite the deviations highlighted by the Claimant time

and again, the Respondent kept once again imposed upon the
Claimant the FESIMN of varying specification. The relevant excerpt
of this is reproduced hereunder:

“The yield in Manganese ore in Zambia is better ( on higher side )

so 65-66 % is minimum what we get and there should be no issue
in that ,
In INDIA for this difference USD 200 PMT is charged extra , so
62 % min is the requirement and we are getting 66 % so there
should be no issue in that .
For other parameters like sizing ( 10-60 mm , Carbon content ) we
would be sticking to the specifications needed .”

In response to the aforesaid and being tired of the Respondent’s

incessant pressure to accept FESIMN of varying specifications, the
Claimant categorically expressed its dissent stating that it does not
require a better product and requested the Respondent to stick to the
specifications stipulated under the Contract. The same is evident
from the Claimant’s email dated 15.11.2021 and WhatsApp
communications dated 28.10.2021 and 17.12.2021. The relevant
excerpt of the Claimant’s email dated 15.11.2021 is extracted below:

“…
ALL specifications must meet criteria as per our contract
agreement (chemical composition, size and packing)
…
Every other single supplier has delivered their material within time
and the required tolerances, under the same circumstances and
market conditions.
We are not authorised to accept any other delivery out of
specification.
…”

The relevant excerpt of the WhatsApp communications dated

17.12.2021 exchanged between Vikas Rawat (Respondent) and
Andres Rodriguez (Claimant), are extracted hereinbelow:

“Andres Rodriguez: Good morning Vikas, Amit

 Andres Rodriguez: Yes I have reviewed at the report. It will have
to be re-assess at destination and subject to client acceptance as it
is not the product required.
Andres Rodriguez: Amit, ALL the specification in terms of
chemical quality and size must comply. We are not requesting a
better product. We just need you to stick to our requirement and
max-min tolerances.
Andres Rodriguez: I look forward to the reports of the material
pending delivery.
Andres Rodriguez: I really hope that the material is within the
parameters requested
Andres Rodriguez: Alfred H Knight inspection report is also
acceptable
Andres Rodriguez: You should request your supplier to even do
this prior delivery of the goods”

The relevant excerpt of the WhatsApp communications dated

17.12.2021 exchanged between Vikas Rawat (Respondent) and
Andres Rodriguez (Claimant), are extracted hereinbelow:

“Andres Rodriguez: Received

Andres Rodriguez: Thanks
Andres Rodriguez: Material is out of specification again Vikas
Andres Rodriguez: [Image of table attached]
Andres Rodriguez: 2 of the specifications do not comply with
contracts requirements
Vikas Rawat: Boss… Mn is higher which is major part
Andres Rodriguez: by more than 15%
Andres Rodriguez: Sir I have been very clear
Vikas Rawat: Same material we sold by 500 USD Extra
Andres Rodriguez: I do not want better
Andres Rodriguez: I just want what we agreed to
Andres Rodriguez: Simple
Andres Rodriguez: One more material is out of specification
Vikas Rawat: Can you ask this with technical team
Vikas Rawat: Once.
Andres Rodriguez: 3 cargo deliveries ALL out of specification”

II.32. In view thereof, it is incorrect for the Respondent to assert that the
quality specifications as specified in Clause 1 of the Contract were
mutually revised by the Parties. Instead, it was the Respondent who, as
 early as 19.05.2021, i.e., 5 days after entering the Contract, proposed to
supply a substituted/different quality of FESIMN, contrary to the terms
of the Contract. The said proposal was categorically and explicitly
declined by the Claimant on 20.05.2021, in light of its commitments to
its downstream buyers and requested the Respondent to strictly adhere
to the terms of the Contract. Therefore, it becomes manifestly clear that
from the very nascent stage of the Contract, the Respondent lacked both
the ability and the intent to perform the present Contract, but it
continued to misrepresent and give false assurance to the Claimant.

II.33. It may also be pertinent to highlight that the Claimant’s reluctant

acquiescence to the alleged revised terms was premised on the
Respondent’s failure to initiate a refund of the balance Advance
Payment, coupled with the Claimant’s urgency to fulfill its obligations
towards its downstream buyers. However, considering the transaction
holistically, it is evident that the Respondent’s conduct was clearly
tainted with incapacity and malafide.

(iii) PRICE OF FESIMN

II.34. The Respondent has further contended in the SoD that the price of
FESIMN, as was contractually agreed between the Parties, stood
novated broadly on the following counts: a) the Claimant’s approval of
the Respondent’s request to pay an additional fee of USD 100/- PMT,
over and above the contractually agreed price, i.e., USD 1,470/- PMT on
account of enhanced composition of FESIMN; b) the Claimant’s
acceptance of 2nd and 3rd Consignments of FESIMN at escalated prices.

II.35. At the outset, it is highlighted that the alleged additional fee of USD
100/- PMT for the 2nd Consignment was not accepted by the Claimant on
account of the enhanced composition of FESIMN, but on Respondent’s
 false representation to promptly delivery the same. It already stands
established that the Claimant did not only raise concerns regarding the
FESIMN being out of contractual specification but categorically denied
the requirement of the alleged better product than the one agreed in the
Contract. Reference in this regard is made to Paras 2.30 to 2.33 of this
Rejoinder.

II.36. In this regard, it must be highlighted that the additional support of USD
100 PMT was sought by the Respondent on the false pretext that 81 MT
cargo would be shipped within 30 days, i.e., by 17.10.2021. It was only
on this pretext, that the Claimant reluctantly agreed to provide an
additional support of USD 100 PMT, over and above the contractual
price. Pertinently, the said approval was conditional upon prompt
delivery of goods by the Respondent, which is clear from the contents of
the email dated 17.09.2021. (Reference is drawn from Annexure D-9
of the SoD)

II.37. Admittedly, upon Respondent’s request, on 17.10.2021, the said

deadline was extended to give a last opportunity to the Respondent to
ship on board the required goods by 07.11.2021. However, it is
undisputed that the 2nd Consignment of 77 MT of FESIMN, was shipped
on board only on 01.02.2022, i.e., after more than 2 months from the
expiry of the last deadline. Since, the Respondent miserably failed to
meet the deadline on which the additional support of USD 100/- PMT
was contingent on prompt delivery, therefore, the same stands
extinguished. Thus, the Claimant cannot be held liable to pay the alleged
revised fee of USD 1,570/- (USD 1,470 + USD 100) for goods which
neither conformed to the contractual specifications nor were delivered
on time by the Respondent.
II.38. In view thereof, it is clear that the revision, if any, was conditional on
prompt delivery, and also was obtained by the Respondent through
fraudulent misrepresentations. Thus, the Respondent’s averment
regarding the alleged revision of the total Contract Value being
increased from USD 1,470,000/- to USD 1,570,000/-, is not only
baseless, but also misleading.

II.39. Insofar as the 3rd Consignment is concerned, it is submitted that the

Respondent had unilaterally and arbitrarily quoted an imaginary price of
USD 2,350/- PMT, which was never approved by the Claimant. Thus, it
is entirely out of place for the Respondent to state that the said escalated
price was mutually agreed by the Parties. It was only when the Claimant
received the Commercial Invoice for the 3 rd Consignment that it came to
know that the invoice was raised at the rate of USD 2,350/- PMT. At
this juncture, it is pertinent to highlight that even though the
Commercial Invoice is dated 19.04.2022, however, the same was shared
with the Claimant only vide email dated 30.06.2022, i.e., after a delay of
56 days from the SOB Date, i.e., 05.05.2022, for the said consignment.
Therefore, it was only after dispatching the 3 rd Consignment, that the
Respondent bothered to share the Commercial Invoice raised at USD
2,350/- PMY with the Claimant. Thus, it is clear that despite having the
Shipment Documents in its possession, the Respondent withheld the
same from the Claimant for reasons best known to it.

II.40. The said conduct of the Respondent is clearly infested with malafide as
it deliberately withheld the documents from the Claimant, depriving the
latter of the opportunity to raise any objection with respect to price or
composition of the goods supplied, prior to the same being dispatched.
In view thereof, it is wholly erroneous and out of place for the
Respondent to state that the said price was mutually agreed between the
 Parties. Needless to mention that the said consignment of 56 MT of
FESIMN was only shipped on board on 05.05.2022, i.e., after an
extraordinary and unexplained delay of around 10 months from the
expiry of the SOB Date. Additionally, the Respondent has failed to
place on record any document to substantiate that the Parties mutually
agreed to the price escalation with respect to the said consignment.
Thus, the Respondent’s averment regarding the alleged novation in the
contractually agreed price for the 3 rd Consignment of FESIMN also falls
short of truth, is completely erroneous and devoid of merit.

II.41. In conclusion, it is submitted that the terms of the Contract were never
mutually or even willingly revised/novated by the Parties, rather the
whole transaction is perpetrated by Respondent’s fraudulent
misrepresentations from the very inception. A bare perusal of the
correspondences exchanged between the Parties, makes it abundantly
clear that the Claimant’s acquiescence to the repeated deferments in the
delivery schedule, were solely premised on the misrepresentations, false
promises and excused made by the Respondent to make refunds,
deliveries, etc., even though it neither had the intention nor the ability to
honor the terms of the Contract.

II.42. It is worth highlighting that the Respondent has cherrypicked and

selectively relied upon the correspondences exchanged between the
Parties to misconstrue Claimant’s forced acquiescence as its acceptance
to the alleged revision of the Contractual terms. The Claimant’s distress
and dissatisfaction is manifest from the tone and tenor of the emails and
text messages exchanged between the Parties. Thus, the Claimant’s
reluctant acquiescence cannot be termed as its acceptance or agreement
to the purportedly revised terms so as to have the effect of novating the
 terms of the Contract. Therefore, the right of the Claimant to seek
damages under the Contract and otherwise, continues to exist.

E. DETENTION AND DEMURRAGE

II.43. The Respondent has falsely alleged that the Claimant delayed in
accepting the delivery of goods from the Port of Destination, which
resulted in the Respondent being blacklisted by the shipping/logistics
agency, i.e., Maersk. It is thus the Respondent case that the
extraordinary delay caused by the Claimant led to outstanding
demurrage and detention charges, which were allegedly borne by the
Respondent. However, these allegations are not only a misrepresentation
of facts and devoid of merit but also made in bad faith.

II.44. At the outset, it is pertinent to highlight that the delivery of goods at the
Port of Destination was the sole responsibility of the independent
Consignee, Orinoco Flow Comercializadora C. A.
(‘Orinoco/Consignee’), who was an integral part of this commercial
transaction. As an independent third-party agency, Orinoco was solely
responsible for receiving the goods and autonomously organizing their
collection in Venezuela, i.e., the Port of Destination.

II.45. Notably, the issues faced by the Respondent concerning the unloading of
cargo at the Port of Destination were not due to the Consignee’s alleged
outstanding charges at the Venezuela Port, but were due to issues
between the Respondent, its freight forwarder Reload Logistics, and
Maersk. The Respondent, via an email dated 02.03.2022, highlighted
these issues to the Claimant. The relevant excerpt of the said email is as
follows:
 “NOW FOR THE BALANCE OF THE GOODS WE ARE FACING
THE FOLLOWING ISSUE:
1. FORWARDER ISSUE WITH MAERSK STILL NOT
RESOLVED AND OUR BANK HAS MADE SOME
RESTRICTIONS FOR OVERSEAS PAYMENTS LEADING TO
DOUBLE ISSUES.
2. OUR OWN ISSUE WITH MAERSK REGARDING 5 CNTRS
HIGH CARBON FERRO MANGANESE (STILL UNDER
PROCESS)”

A bare perusal of the aforesaid email makes it clear that the Respondent
was in discussion with Maersk regarding issues for the balance goods
which had nothing to do either with the Claimant or the Consignee. The
email also highlighted that the Respondent’s bank had some issues
regarding overseas payments, which further complicated the situation. A
copy of the email dated 02.03.2022 is attached herewith and marked as
Annexure C-___.

II.46. The frivolity of the Respondent’s argument is further evident from the
fact that the issues regarding the unloading of material at the Port of
Destination due to the Consignee’s overdue charges were raised by the
Respondent in early March 2022, when no consignment under the
present Contract was pending at the Port of Destination. The timeline of
events shows that the 1st Consignment had already arrived on
31.10.2021, the delivery of which was taken by the Consignee on
14.12.2021. While the 2nd Consignment only arrived at the Port of
Destination on 25.04.2022. Thus, the alleged unloading issues faced by
the Respondent could not have arisen in respect of the Consignments
made under the present Contract.
II.47. Despite the aforesaid discrepancy, the Claimant promptly offered an
alternative consignee, i.e., Prosuministros, C.A., to alleviate any
inconvenience on the same day, i.e., 14.03.2022. Despite the Claimant’s
prompt action and arrangement, the Respondent still failed to proceed
with the shipment of the remaining FESIMN. This clearly indicates that
the delays were not due to external factors but rather internal issues
within the Respondent’s organization and management. A copy of the
email trail titled “Delivery For Balance Cargo” is attached herewith and
marked as Annexure C-___.

II.48. As far as the Respondent’s contention regarding its blacklisting is

concerned, the same occurred due to its own long-standing issues with
Maersk. As highlighted above, the Respondent and its freight forwarder
were facing persistent issues with Maersk regarding freight charges and
prompt payments. Moreso, the Respondent continued disputing the
prices with Maersk even after the consignments were shipped, leading to
Maersk’s annoyance and the eventual blacklisting of the Respondent.
Therefore, the Respondent’s claim that it was blacklisted due to the
Claimant’s/Consignee’s failure to take prompt delivery, is utterly false,
devoid of merit, misleading, and a blatant misrepresentation of facts. A
copy of the WhatsApp communication dated _________ is attached
herewith and marked as Annexure C-___.

II.49. Finally, it is undisputed that the Respondent caused an inordinate and

unexplained delay in making the shipments of FESIMN. Moreover, the
Respondent repeatedly provided fake timelines and misrepresented to
the Claimant regarding the delivery of required goods. Consequently,
such frequent false assurances had a direct impact on the delivery
schedule for the entire shipment and on the commitments made by the
Claimant to the Consignee regarding delivery dates. The Respondent
 often fraudulently misrepresented the availability of the required stock
but then failed to book sea freight. On other occasions, the Respondent
cited excuses regarding inflation in FESIMN prices, the COVID
pandemic, freight charges, and unavailability of containers to mislead
the Claimant.

II.50. As a result, the delivery dates of Consignments were never clearly

communicated to the Claimant or the Consignee until the last moment.
Thus, the Consignee could not have waited indefinitely at the Port of
Destination for the Respondent to ship its Consignments. Eventually,
when the consignments did arrive at the Port of Destination, the
Consignee had other prior engagements, which took priority and
ultimately caused delays in taking delivery of the Consignments sent by
the Respondent. Therefore, any delay in accepting the delivery of the
Consignments was a direct consequence of the Respondent’s frequent
misrepresentations and inordinate delays in making the deliveries of
FESIMN. Consequently, any alleged detention and demurrage charges
at the Port of Destination are solely attributable to the Respondent, and
neither the Claimant nor the Consignee can be held liable for the same.

III. PARAWISE REPLY TO STATEMENT OF DEFENSE

III.1. Before dealing with the contents of the SoD, the Claimant most
respectfully submits that the contents of the paragraphs below should be
read without prejudice to the contents of the foregoing sections of this
Rejoinder. By way of the para-wise reply, the Claimant does not attempt
to rebut each and every submission of fact or law mentioned by the
Respondent in the SoD, in general leaving matters of detail for the
written submissions.
III.2. The contents of paragraphs 1 – 2, being a matter of record, merit no
specific response. However, it is pertinent to highlight that the
constitution of the present SoD lacks valid authorization and is
therefore, contested.

III.3. The contents of paragraph 3 are formal and merit no response.

III.4. The contents of paragraphs 4 and 5 are misplaced, concocted and

therefore denied in totality. It is specifically denied that the Claimant has
concealed any essential or relevant facts pertaining to the Contract in its
SoC. Rather, it is the Respondent who has egregiously misrepresented
the facts of the present case and has selectively presented the
communications exchanged between the Parties with malafide intent of
misleading this Tribunal. The Respondent has committed a significant
and material breach of the terms which formed the essence of the
Contract. The entire transaction between the Parties has been tainted by
the Respondent’s fraudulent misrepresentations and false assurances
from the inception of the Contract. Furthermore, it is emphatically
denied that the Parties ever mutually agreed to the purported revised
terms of the Contract or had any consensus ad idem in this regard, so as
to constitute novation of the original Contract. Consequently, the
Respondent’s argument regarding novation is entirely based on a
misinterpretation of facts and is thus without merit. In this regard, the
contents of this Rejoinder and the SoC are reiterated and not repeated
for the sake of brevity.

III.5. The contents of paragraphs 6 – 8 of the SoD, being matter of record

merit no specific response.
III.6. The contents of paragraphs 9 – 12, save and except for what is a matter
of record, are denied for being incorrect and wholly misconceived. In
respect thereof, the Claimant states as under:

a. It is specifically denied that the Claimant defaulted in making

remaining 60% payment in respect of the three consignments of
FESIMN, which were not only supplied by the Respondent much
after the expiry of the SOB Date, but were completely out of
contractual specifications. Reference in this regard is made to Para
2.15 to 2.19 of this Rejoinder which are not repeated for the sake of
brevity.

b. It is vehemently denied that the Claimant caused any delay in

taking delivery of the Consignments shipped by the Respondent.
Notably, it was the Respondent who caused an extraordinary and
unexplained delay in shipping on board the FESIMN, needless to
mention that the contractually agreed quantity i.e., 1000 MT, has
not been delivered till date. Reference in this regard is made to the
contents of Preliminary Submissions (B) of this Rejoinder which
are not being repeated to avoid prolixity.

c. It is denied that any loss was caused to the Respondent on account

of the alleged delay caused by the Claimant as no relevant or
cogent documentary evidence has been placed on record by the
Respondent in support of the same. Thus, the said contention is
wholly unsubstantiated and devoid of merit. Without prejudice, it is
submitted that loss if any, and the Respondent’s blacklisting was a
result of the Respondent’s own longstanding issues with Maersk,
which led to its blacklisting. Reliance in this regard is placed on
emails dated 09.03.2022.
 d. In reference to paragraph 11, it is specifically denied that the
Claimant directly got in touch with the supplier, behind the
Respondent’s back, avoided performance of the Contract and
terminated the Contract with malafide intent. It is submitted that
Claimant’s logistics agent, unrelated to the Respondent,
recommended two suppliers in Zambia. Consequently, the
Claimant obtained independent quotes from them and chose one,
who delivered all the material on time and within specifications,
unlike the Respondent. It is further highlighted that the said
allegation is not only uncorroborated and false but is also
inconsistent with the Respondent’s own stance that subsequent
consignments were not put to sail due to non-release of the
remaining 60% payment against the three Consignments. The pleas
taken by the Respondent in the answering paragraph are mutually
inconsistent and totally devoid of merit.

A. Re: Novation in Contract: Change in Country of Origin/Supply,

Fluctuation in Price & Improvement in Composition of Goods

a. Re: Novation in the Port of Shipment from India to Durban

III.7. The contents of paragraphs 13 – 14, are wholly misconceived and

devoid of merit, hence denied. At the outset, it is submitted that the said
revision in the Port of Shipment from India to Durban has neither been
disputed by the Claimant nor is an issue in contentions. However, it is
pertinent to highlight that at the time of entering into the Contract, i.e.,
on 14.05.2021, the COVID pandemic was already in place. Thus, while
choosing India as the Port of Shipment, the Respondent was aware of
the existing restrictions and guidelines that could potentially affect the
performance of the Contract. Pertinently, on 17.05.2021, the Claimant
 specifically asked the Respondent to confirm whether the goods will be
supplied from India or Durban. In response, the Respondent confirmed
that the same shall be supplied from India as the Respondent’s
representative shall be personally available there to monitor the same.
The relevant excerpt of the WhatsApp communications dated
17.05.2021 exchanged between Vikas Rawat (Respondent) and Andres
Rodriguez (Claimant), are extracted hereinbelow:

“Andres Rodriguez: Vikas, last question, the goods you are going
to supply are from india or Durban?
Vikas Rawat: India...”

III.8. However, subsequently on 16.06.2021, the Respondent informed the

Claimant that the deliveries shall be made from Durban as the same
would be cheaper and faster. The relevant excerpt of the WhatsApp
communications dated 16.06.2021 exchanged between Vikas Rawat
(Respondent) and Andres Rodriguez (Claimant), are extracted
hereinbelow:

“Andres Rodriguez: may i know which shipping line and transit

time to destination?
Vikas Rawat: I will send it via Durban route
Vikas Rawat: As this is the cheapest way...
Vikas Rawat: My agent advise the way...
Vikas Rawat: So it's best for all
Andres Rodriguez: so what is the origin? India or south africa?
Vikas Rawat: Africa..
Vikas Rawat: But documents for India Origin...
Andres Rodriguez: We will required SGS Vikas
Vikas Rawat: Yes...
Vikas Rawat: I will give you SGS and all
Vikas Rawat: I take fully responsibility
Andres Rodriguez: We will required SGS Vikas
Vikas Rawat: Yes...
Vikas Rawat: I will give you SGS and all
Vikas Rawat: I take fully responsibility
Andres Rodriguez: Delivery time and ETD?
Vikas Rawat: 3 weeks from order and payment
 Vikas Rawat: Transit time approx 45 days...
Vikas Rawat: I will try to make it 15 days
Vikas Rawat: So within next 2 month they have delivery of goods
Vikas Rawat: This is the only way for the faster transaction....
”

Thereafter, the Respondent repeatedly requested the Claimant to accept

deliveries from Durban instead of India, citing frivolous reasons,
including but not limited to, the non-availability of containers and higher
prices. Reliance in this regard is placed on emails dated 28.07.2021,
18.08.2021, 01.09.2021. It was only pursuant to the persistent requests,
that the Claimant agreed to accommodate the Respondent and expedite
delivery. Needless to mention, that the Respondent miserably failed to
meet the deferred timeline proposed by it as the 1 st Consignment was
only shipped on board on 10.09.2021. [Annexure C - ]

III.9. Further, it is specifically denied that the Shipment Documents for the 1 st
Consignment were provided to the Claimant on 28.07.2021 thereby
entitling the Respondent to the remaining 60% payment. Notably, the
Certificate of Quality/Analysis for the said consignment was only shared
with the Claimant on 28.10.2021, i.e., after a delay of 48 days, from the
shipping on board of the said consignment . Pertinently, as discussed
above, the Respondent was under the obligation to share the Certificate
of Quality/Analysis with the Claimant prior to dispatching of goods
from the Port of Shipment to allow the Claimant to verify the same,
before the same are shipped on board. However, the Respondent
negligently shipped the goods without Claimant’s consent regarding the
quality deviations. In this regard, the contents of Preliminary
Submission (D) of this Rejoinder are reiterated and not repeated for the
sake of brevity.
 b. Re: Revision in the name of the Notify Party 2 from Clover
International C.A. to Global Partner Co. Ltd.
III.10. The contents of paragraphs 15 – 24, save and except for what is a matter
of record, are denied for being incorrect and wholly misconceived. It is
specifically denied that the Consignee, i.e., Orinoco, was Claimant’s
agent. Instead, the Consignee was an independent third-party agency,
who was solely responsible for receiving the goods and autonomously
organizing their collection in Venezuela, i.e., the Port of Destination.

III.11. The Respondent has further contended that since the request for change
in the name of Notify Party 2 from Clover International C.A. to Global
Partner Co. Ltd., was intimated by the Claimant after 40 days of
receiving the Shipment Documents, the same is indicative of the fact
that time was never the fundamental essence. The aforesaid contention
of the Respondent is denied in entirety for being wholly misconceived
and devoid of merit. It is submitted that the aforesaid revision in the
name of the Notify Party 2 was wholly immaterial and had no bearing
whatsoever on the Respondent’s performance of its obligations under
the Contract. The said contention is nothing but an afterthought and a
desperate attempt by the Respondent to mislead this Tribunal by pinning
its own failure to make timely delivery, on the Claimant.

III.12. The Respondent’s contention that it had handed over 1 st Consignment of

54 MT of FESIMN to Maersk on 22.07.2021 is completely false and
misleading. Admittedly, it was only on 28.07.2019, i.e., after 8 days
from the expiry of the SOB Date as stipulated in the Contract, that the
Respondent shared certain Shipment Documents with the Claimant,
seeking its advice on any changes, if required. Further, it was only on
10.09.2021, that the 1st Consignment was shipped on board by the
Respondent after a delay of 54 days from the SOB Date.
III.13. Insofar as the Respondent’s contention that the Claimant agreed to
delivery being made in separate tranches is concerned, it is submitted
that that the same has neither been disputed nor is an issue in contention.
As has been discussed above, Respondent was under the obligation to
provide the agreed amount of FESIMN, i.e., 1000 MT, within the SOB
Date (between 20.06.2021 to 19.07.2021), whether in tranches or all at
once. However, it is undisputed that no quantity of FESIMN was
supplied by it within the stipulated SOB Date. Thus, the Respondent’s
reliance on the Claimant’s email dated 07.09.2021 to depict its
acknowledgement/confirmation for the belated delivery in tranches is
completely erroneous. The Respondent has indulged in the practice of
cherry-picking the communications exchanged between the Parties to
distract this Tribunal from the material breaches committed by it in
fulfilling its contractual obligations. Further, the Respondent has
conveniently failed to place on record the correspondences wherein
repeated reminders and requests were made by the Claimant to expedite
delivery. The Respondent continued to misrepresent its ability to make
delivery on time and gave false assurance to obtain Claimant’s
accommodation. Reliance in this regard is made to the contents of
Preliminary Submission (A) of this Rejoinder, which are reiterated but
not repeated for the sake of brevity.

III.14. The Respondent has further relied upon the Claimant’s email dated
17.09.2021 to contend that since the Claimant had confirmed/accepted
receipt of the Bill of Lading shared by the Respondent and sought for
the scanned copy of original Shipment Documents, the Respondent
became entitled to the remaining 60% payment in terms of Clause 9 of
the Contract. The said contention is not only baseless and devoid of
merit but is wholly extraneous to the terms of the Contract, hence
 denied. Notably, it was the receipt of the scanned Shipment Documents
by the Claimant, that could have triggered the payment obligation under
Clause 9 and not the request for the same. It is highlighted that in the
email dated 17.09.2021, the Claimant categorically listed the Shipment
Documents that were to be supplied by the Respondent to initiate
balance payment. The said email clearly shows the Claimant’s bonafide
and intention to make the payment. However, the Respondent miserably
failed to provide all the Shipment Documents to the Claimant in
accordance with the terms of the Contract. Pertinently, the Respondent
has failed to highlight the date when the same were provided by it to the
Claimant. Thus, it is wholly out of place for the Respondent to contend
that it became entitled to the remaining 60% payment in respect of the
1st Consignment on 17.09.2021, when as per its own contention the
scanned copy of the Shipment Documents was yet to be supplied to the
Claimant. Reliance in this regard is made to the contents of Preliminary
Submission (C) of this Rejoinder, which are reiterated but not repeated
for the sake of brevity.

III.15. The Respondent has further drawn reference to Clause 22 of the

Contract to contend that since the Claimant failed to release the
remaining 60% payment within 7 days from the date of the shipment,
the Respondent became entitled to charge extra 5% of the invoice from
the Claimant. It has been sufficiently established in Preliminary
Submissions (C) of this Rejoinder that the Respondent was not entitled
to any further payments from the Claimant. In view thereof, it is
vehemently denied that the Respondent was entitled to any right/claim
under Clause 22 of the Contract. Thus, it is wholly out of place for the
Respondent to contend that it is entitled to charge extra 5% of the
 invoice from the Claimant, especially when the same was never claimed
or sought by the Respondent till as late as in its SoD.

III.16. In view of the above discussion, the Claimant specifically and

vehemently denies that time was not the fundamental essence of the
Contract which clearly stipulated the SOB Date within which the
Respondent was required to ship on board the entire agreed quantity,
i.e., 1000 MT of FESIMN. It is further denied that the said timeline was
ever modified by the Parties through mutual agreement so as to
constitute novation of the Contract. Rather, it was only on account of the
continuous misrepresentations and false assurances made by the
Respondent that the Claimant was left with no choice but to accede to
the delayed delivery. Reliance in this regard is made to the contents of
Preliminary Submission (A), Preliminary Submission (B) and
Preliminary Submission (D) of this Rejoinder, which are reiterated but
not repeated for the sake of brevity.

c. Re: Novation in SOB Date/Delivery Schedule as stipulated under

Clause 5 of the Contract
III.17. The contents of paragraph 25-27, save and except for what is matter of
record, are blatantly false and deserve to be dismissed at the very outset.
Reference in this regard is made to the contents of Preliminary
Submissions (D(i)) of this Rejoinder which are reiterated but not
repeated to avoid prolixity.

III.18. It is specifically denied that since the country of origin was revised from
India to Zambia, upon the Respondent’s repeated requests, the SOB
Date as stipulated in the Contract also stood altered. The aforesaid
contention of the Respondent is not only bereft of logic but is totally
uncorroborated and false. It is highlighted that the Respondent on
 16.06.2021 had requested the Claimant to accept deliveries from Durban
instead of India on the pretext of expedited delivery at cheaper rates.
The Respondent promised that the delivery will be made within 2
months, i.e., by 16.08.2021. However, the Respondent miserably failed
to honor the said deferred timeline proposed by it. It was only in
pursuance of the said false assurance made by the Respondent that the
Claimant accommodated Respondent’s request to change the country of
origin. Thus, the Respondent cannot diametrically change its stance to
state that the SOB Date stood revised on account of the alleged revision
in the country of origin. Reference in this regard is made to paragraph
3.8 of this Rejoinder which are not being repeated to avoid prolixity.

d. Re: Novation in price and composition of FESIMN

III.19. The contents of paragraph 28-34, save and except for what is matter of
record, are totally misplaced, concocted and therefore denied in entirety.
It is specifically denied that the Claimant agreed to pay an additional
sum of USD 100/- PMT in addition to USD 1,470 PMT in consideration
for the improved/enhanced quality of FESIMN. Moreover, the email
relied upon by the Respondent is dated 17.09.2021, whereas the
inspection report for the 1st Consignment was provided only on
29.10.2021. Therefore, it was only after a month that the Claimant
discovered the FESIMN was not merely substandard but entirely out of
specifications, with a 100% deviation in size tolerance, which was
disastrous for the Claimant. Reference in this regard is made to the
contents of paragraphs 2.30 to 2.33 along with Preliminary Submissions
(D (iii)) of this Rejoinder, which are reiterated but not repeated for the
sake of brevity.

III.20. In light of the above, it is vehemently denied that the overall value of the
Contract was mutually increased from USD 1,470,000/- to USD
 1,570,000/-, without any dispute. Thus, the Respondent’s reliance on the
email dated 17.09.2021 to contend that the additional support of USD
100/- PMT was agreed to by the Claimant on account of improved
quality of FESIMN is wholly untrue and devoid of merit. Notably, the
alleged revision was approved by the Claimant, albeit with reluctance,
only on account of the false assurance made by the Respondent that the
remaining cargo (i.e., 864 MT FESIMN) would be shipped within 30
days, i.e., by 17.10.2021. However, it is a matter of record that the
Respondent miserably failed to meet the aforesaid deadline, as the 2 nd
Consignment of 77 MT (as against the 81 MT promised) was only
shipped on board on 01.02.2022. It already stands established that the
Claimant did not only raise concerns regarding the FESIMN being out
of contractual specification but categorically denied the requirement of
the alleged better product than the one agreed in the Contract.

III.21. The Respondent has further placed reliance on emails dated 14.11.2021
and 15.11.2021, exchanged between the Parties to contend that since,
the Parties were going ahead with the performance of the Contract even
in November 2021, i.e., 5 months from the initially agreed SOB Date,
thus, the Claimant’s claim towards the purported delay is untenable. The
aforesaid contention is wholly misconceived, concocted and therefore
denied in entirety. It is once again reiterated that the Respondent has
cherrypicked and selectively relied upon the correspondences exchanged
between the Parties with malafide intent of misleading this Tribunal.
Reference in this regard is made to the contents of Preliminary
Submissions (D (i)), which are reiterated but no repeated to avoid
prolixity.

III.22. It is further the case of the Respondent that the terms of the Contract in
respect of the specification of FESIMN stood revised/novated in view of
 the Claimant’s acceptance of FESIMN of varying specifications
supplied by the Respondent, even though all inspection reports were sent
to the Claimant prior to the delivery of the goods. To support the
aforesaid contention, the Respondent has relied upon Claimant’s email
dated 17.09.2021. In this regard, it is reiterated that Certificate of
Quality/Analysis were to be provided to the Claimant prior to the goods
being ‘shipped on board’ to enable it to inspect the material(s) for any
quality deviation before the goods were dispatched to minimize costs.
The same was also highlighted by the Claimant in its email dated
17.09.2021, which has been relied upon by the Respondent. However, as
has been established paragraph 2.18 of this Rejoinder that the
Respondent miserably failed to fulfill the aforesaid obligation.
Reference in this regard is made to the contents of Preliminary
Submissions (D (ii)), which are reiterated but not for the sake of brevity.

e. Re: Illegal Termination of the Contract by the Claimant

III.23. The contents of paragraphs 35 – 38, are denied for being misleading and
bereft of truth, except for what is a matter of record. It is specifically
denied that the Claimant deliberately or otherwise, attempted to suppress
any relevant information from this Tribunal. It is undisputed that the
Claimant agreed to extent the last deadline to 07.11.2021, however, the
same was based on Respondent’s fraudulent misrepresentation to
expediate the process and ensure delivery by 07.11.2021. Additionally,
it is undisputed that the Claimant issued the Termination Letter dated
12.11.2021, in favor of the Respondent, only after the Respondent’s
failure to complete delivery of the FESIMN even until the expiry of the
said deadline. The submission made in the SoC, regarding the
Termination Letter being issued upon the expiry to meet the deadline of
17.10.2021, was inadvertently made by the Claimant’s counsel,
however, the same does not affect the legality of the same.

Pertinently, the Claimant’s disinterest to continue with the Contract is

evident from the tone and tenor of the correspondences exchanged
between the Parties wherein the Claimant continuously requested the
Respondent to initiate refund of the balance Advance Payment.
However, the Respondent deferred the Claimant’s request for refund on
one pretext or the other citing frivolous technical issues. It was only on
account of the continuous misrepresentations and false assurance made
by the Respondent coupled with a bleak hope of receiving the refund of
the balance amount, that the Claimant indulged in negotiations for
further delivery despite terminating the Contract. Reference in this
regard is made to the contents of Preliminary Submissions (D (e)) of this
Rejoinder, which are reiterated but not repeated for the sake of brevity.

Regarding the Respondent’s contention with respect to accepting

delivery of FESIMN in separate tranches, it is submitted that the same
has never been a point of contention between the Parties. Reference in
this regard is made to paragraph 3.13 of this Rejoinder, which is not
reiterated for the sake of brevity.

Finally, the Claimant vehemently denies acknowledgment of any of the

operational difficulties in making timely delivery of the FESIMN that
the Respondent allegedly suffered. The Respondent fraudulently
misrepresented its commercial position from the inception of the
Contract and all the alleged operational difficulties were just excuses
given by the Respondent in an attempt to hide the real position.
 In this regard, the contents of the Preliminary Submission (A),
Preliminary Submission (B), and Preliminary Submission (D) of this
Rejoinder are reiterated and not repeated for the sake of brevity.

III.24. The contents of paragraphs 39 – 40, are denied for being false,
misleading and bereft of merit. From a perusal of the emails exchanged
amongst the Claimant, Defendant and Bureau Veritas (‘BV’), it can be
clearly seen that it was not due to BV’s delay and/or default in
responding or providing an inspection report on time, but due to
Respondent’s own failure to provide BV with the requested sample of
FESIMN that lead to the delay. From a perusal of the email trail
attached by the Respondent in support of this argument [Annexure D-12
(Colly)], it can be clearly seen that the Respondent not only failed to
provide the sample FESIMN to BV for testing but also failed to give
clear instructions to BV to conduct the testing while it kept changing the
quantity of FESIMN to be inspected. Particularly, the Respondent’s
fraudulent conduct is further evident from the fact that it represented to
the Claimant that 162 MT and 300MT of FESIMN and 350 MT of
HCFEMN was ready and available for delivery. However, on
25.10.2021, the Respondent requested BV to only inspect 56 MT of
FESIMN, which was then increased to 70 MT on 26.10.2021, and 108
MT on 27.10.2021. Notably, only 77 MT of FESIMN was supplied by
the Respondent in the 2nd Consignment.

III.25. In regards to the alleged increase in the price for 338 MT and 450 MT of
FESIMN, it is submitted that it was due to Respondent’s own delay in
delivering the 1000MT of FESIMN, that the circumstances changed, if
any, and the same cannot and should not be attributed to the Claimant. It
may also be pointed out that it was never the Claimant’s duty to follow
up and get involved in the Respondent’s responsibilities. Finally, BV’s
 failure to respond to the Respondent, if at all, could have been due to the
Respondent’s own previous conduct on other cargoes. At this point, it
had become extremely clear that the Respondent had no control over the
material they offered. The Respondent planned to wait for market
conditions to correct to deliver and maintain more profits.
Unfortunately, the market continued to rise, and they delayed
everything, waiting for the market to play in their favor. They tried to
pass the increased material price to the Claimant, without taking
responsibility for the Contract, which was for a fixed price and a
determined period. Without any signed addendum, the Respondent set
false dispatch plans, wasting Claimant’s time and money and
compromising Claimant’s reputation. In view of the aforesaid, the
contents of the Preliminary Submission (A), Preliminary Submission
(B), and Preliminary Submission (D) of this Rejoinder are reiterated and
not repeated for brevity.

III.26. The contents of paragraphs 41 – 42, are denied for being false,
misconstrued and based on conjectures. The Claimant denies being in
possession of any information regarding the Respondent paying an
advance amount to its suppliers, and the same then allegedly being stuck
with them. It is submitted that the Claimant duly transferred the
Advance Payment to the Respondent, whereafter, the supply of FESIMN
was the sole responsibility of the Respondent. It is undisputed that the
Respondent agreed to refund the balance Advance Payment, however,
the said refund has never been received by the Claimant. The
Respondent’s argument regarding termination has already been reverted
to and merits no further response. In this regard, the contents of the
Preliminary Submission (A), Preliminary Submission (B), and
 Preliminary Submission (C) of this Rejoinder are reiterated and not
repeated for brevity.

III.27. The contents of paragraph 43 are misleading, false and misconstrued. It

is submitted that the Claimant has already reverted to the contentions
contained in the answering paragraph thus, the same require no further
response. In this regard, the contents of paragraph 3.21 are reiterated and
not repeated for brevity.

f. Re: Certificate of Quality/Analysis provided by Mitra S.K. and

findings thereunder
III.28. The contents of paragraph 44-48, save and except for what is a matter of
record, are denied for being incorrect and wholly misconceived. It is
vehemently denied that the Defendant was dedicatedly trying to get the
shipment of 162 MT of FESIMN streamlined but was kept in dark by its
suppliers who could eventually make available only 77 MT of FESIMN,
citing reason of price escalation due to COVID. Pertinently, the
responsibility for following up on delivery and quality control was on
the Respondent, and not on the Claimant. It was solely due to the
Respondent’s lack of seriousness and planning, that it involved the
Claimant in its communications to make the Claimant believe it.

III.29. Moreover, the aforesaid contention is not only uncorroborated but is

entirely sham, bogus and an afterthought which is liable to be
disregarded. It is reiterated that from the very inception, the Respondent
neither had the intention nor the ability to honor the terms of the
Contract. However, it repeatedly and fraudulently misrepresented its
commercial ability to the Claimant and gave false assurances to keep the
Contract alive, with no intention to honor the same. It is further pertinent
to highlight that the final report submitted by Mitra S.K. on 30.12.2021
 clearly reflected that the material supplied by the Respondent was
completely out of specifications. Notably, despite repeated requests and
warnings given by the Claimant that it does not require goods of
allegedly higher quality, the Claimant forced the same upon the
Claimant by tactfully furnishing the Certificate of Quality/Analysis in
respect of the same only after dispatching them from the port of origin.
The inordinate and unexplained delay already caused by the Respondent
in making the deliveries coupled with the misrepresentations made by it,
left the Claimant with no option but to accept the goods of varying
specifications. Reliance in this regard is placed on the contents of
Preliminary Submissions (D (ii)), which are not reiterated for the sake of
brevity.

g. Delay in refund being attributable to the Bank

III.30. The contents of paragraph 49 are false, unsubstantiated and misleading.
It is submitted that the Claimant rightly requested for refund as the
Respondent miserably failed in providing the required quality and/or
quantity of FESIMN, even within the deferred timeline proposed by it,
leave alone the SOB Date as stipulated under the Contract. The
Respondent’s contention that its money was stuck with the supplier is
completely irrelevant, unsubstantiated and merits no response.
Regarding the contention that operational issues were faced by
Respondent’s bank, which further lead to delay in initiating refund is
also denied for being misleading and unsubstantiated. It is submitted that
the email trail placed on record [Annexure D-21 (Colly)] by the
Respondent in support of this argument does not point towards any
operational difficulty alleged faced by the Respondent Bank. The said
email trail only highlights the numerous follow ups sent by the Claimant
to the Respondent and to the officials of Respondent bank marked on the
 email. However, neither the Respondent nor Respondent’s bank cared to
respond to the Claimant’s incessant follow ups. Thus, the Respondent’s
contention that delay in refund was caused due to technical issues faced
by the Bank is wholly unsubstantiated and devoid of merit.

III.31. It is further submitted that the delay in refund was caused due to
Respondent’s failure to comply with the RBI Regulations. The same is
evident from Annexure D-39, at Page 43 of the Counter claim. The said
document is a letter dated 30.04.2024, sent by Bank of Baroda to the
Respondent, highlighting its outstanding outward remittances. The letter
clearly stipulated that “…We request you to scan your portfolio and
submit the Bill of Entry number, date & port code to the respective AD
branch with additional clarifications / information, if any, to knock off
the respective outward remittances.” This clearly evinces that the
Respondent failed to comply with the RBI Regulations to ensure smooth
outward remittance. Needless to mention, the Respondent portrayed
itself to be an international trader but lacked the basic knowledge
regarding the compliances surrounding inward and outward international
remittances. This further substantiates that the Respondent
misrepresented its position from the very inception of the Contract for
its economic gains and took advantage of Claimant’s situation.

III.32. That the contents of paragraphs 50-52 are denied for being false,
misleading and misconstrued. The Claimant has already explained in the
SoC and then reiterated in this Rejoinder, that it was paramount for the
specifications of FESIMN to comply with the contractual specifications
in view of its commitments made to its downstream buyer. With respect
to the email highlighted by the Respondent in this context, it is
submitted that the entire transaction was so delayed that the Claimant
was left with no option but to accept whatever little quantities were
 being supplied by the Respondent to minimize losses. In fact, the email
itself captures this wherein the Respondent wrote, “However, at this
stage, we have no option but to accept the materal”. Needless to
mention that every time there was a quality shift, the Claimant had to
renegotiate terms with its downstream buyer(s). This is evident from the
fact that when the Respondent imposed the FESIMN on the Claimant,
the Claimant clearly told the Respondent that since the FESIMN did not
comply with the contractual specifications, the delivery of the same shall
be accepted only after a quality analysis and confirmation by the
Consignee at the Port of Destination. [Annexure C-]

Finally, it is relevant to point out that the Respondent has highlighted

only a part of the email dated 20.12.2021, wherein the Claimant has
requested for a refund ‘after adjusting 81 MT of FESIMN’. This is
because the Respondent had already assured and represented to the
Claimant regarding the availability of 162MT of FESIMN, and
accordingly, the Claimant had assured its downstream buyer. Therefore,
the Claimant acceptance to take delivery of 3FCL (81 MT FESIMN) to
minimize cost, however, the same was subject to it being available for
immediate delivery. In this regard, the contents of the SoC, Preliminary
Submission (D), Preliminary and Preliminary Submission (E) of this
Rejoinder are reiterated and not repeated for brevity.

III.33. That the contents of paragraph 53 are denied for being misleading,
incorrect and misconceived. The Claimant has already discussed the
same in length, and no further response is merited. In this regard, the
contents of this Rejoinder and the SoC are reiterated and not repeated
for brevity.
III.34. The contents of paragraphs 54 – 55, are denied for being misleading and
incorrect, except for what is a matter of fact. The Claimant submits that
the Respondent is interpreting communications to suit its narrative and
to mislead this Tribunal. That on 20.01.2022, the Claimant did not
request for a new delivery but followed up on a long pending delivery
which the Respondent had assured months ago to have been ready and
available for immediate delivery. In this regard, the contents of
Preliminary Submission (A) and Preliminary Submission (D) of this
Rejoinder are reiterated and not repeated for brevity.

III.35. The contents of paragraph 56 are denied for being incorrect and
misleading, except for what is a matter of record. The Claimant submits
that it is undisputed that the Contract was subsisting even until March
2022, however, the same was a result of the Respondent’s consistent
misrepresentations and false assurances to the Claimant to complete the
delivery of 1000MT of FESIMN. In this regard, the contents of
Preliminary Submission (A) and Preliminary Submission (D) of this
Rejoinder are reiterated and not repeated for brevity.

III.36. That the contents of paragraphs 57 – 58, are denied for being false,
frivolous and bereft of substance. In this regard, the contents of
Preliminary Submission (C) and Preliminary Submission (D) of this
Rejoinder are reiterated and not repeated for the sake of brevity.

III.37. The contents of paragraphs 59 – 63, are denied for being incorrect and
misleading, except for what is a matter of record. In this regard, the
contents of Preliminary Submission (A), Preliminary Submission (B)
and Preliminary Submission (D) of this Rejoinder are reiterated and not
repeated for brevity.
 Response: Failure on part of Claimant to take timely delivery of
Consignments: Demurrage & Detention Charges and Loss of
Business by the Defendant

III.38. The contents of paragraphs 64 – 67 are denied, except for what is a

matter of record. At the outset, it is submitted that the Respondent has
cherry-picked information and twisted the facts in a manner to suit its
own narrative. The Respondent’s averments are not only false but also
misleading. The Respondent’s contention that at the Port of Destination,
the containers were unloaded, however, not returned to Maersk is also
incomplete and devoid of substance. Finally, the Respondent is trying to
mislead this Tribunal by making it look like it was charged more than
USD 85,000/- by Maersk as a penalty. However, the said amount of
USD 85,000/- was pending on part of the Consignee/Orinoco, and the
same was duly cleared by the Consignee only. The discussion or alleged
“chase” between Maersk and Respondent, regarding the delay in taking
delivery at the Port of Destination was only to seek clarity with respect
to goods handling, and any alleged threat of penalty was simply a
confusion, which was duly and eventually cleared by the Consignee. It is
particularly highlighted that the Respondent has failed to put on record
any document to show that it actually paid any amount towards
detention or demurrage to Maersk or to any other entity. In this regard,
the contents of Preliminary Submission (E) are reiterated and not
repeated for brevity.

III.39. The contents of paragraphs 68 – 71, are denied for being false,
misconceived and devoid of merit. Particularly, with regards to the
Respondent’s contention that the Consignee was blocked at destination
due to outstanding dues, it is submitted that due to a large shipment of
the Consignee arriving in March 2022, there was waiting for picking up
 the containers at the Port of Destination. Due to this situation, which too
was a result of the Respondent’s failure to make timely delivery within
the assured time, Maersk decided not to ship new cargoes under the
Consignee’s name until the previous cargoes were cleared. Although
this matter was beyond Claimant’s scope of responsibility, but to resolve
the difficulty promptly and to complete the established Contracts, on
14.03.2022, the Claimant proceeded, under instructions from the
Consignee, to immediately indicate a new consignee named
Prosuministros, C.A., who was also a part of the same Consignee group.
It may be noted, that originally, as per the terms of the Contract the
goods were schedule to arrive at the Port of Destination much prior to
when this issue arose. However, despite the same, the Claimant, in bona
fide, assisted the Respondent in every way possible. In this regard, the
contents of Preliminary Submission (E) are reiterated and not repeated
for brevity.

III.40. The contents of paragraphs 72 – 76, are denied for being false,
misleading and without merit, except for what is matter of record. As
already discussed above, the detention and demurrage charges, if any,
were paid by the Consignee and not by the Respondent. It is further
disputed that an amount of USD 20,000/- was paid by the Defendant to
satisfy the mounting demurrage and detention charges. Notably, the
Respondent has simply made a bald assertion without placing on record
any document to substantiate the aforesaid averment. Finally, it is
vehemently denied that due to the alleged faults of the Consignee, the
entire supply line was disrupted because of which the final consignment
had to be sent from India instead of Zambia. Rather, it was due the
longstanding issues that the Respondent and its bank had with Maersk
alongwith Respondent’s poor planning and management, that it begged
 the Claimant to allow it to import the remaining shipment from India
instead of Zambia to close the issue. In the interest of the business
relationship and being left with no option, the Claimant once again
acceded to the aforesaid. In this regard, reference is drawn to the email
dated 09.03.2022, the relevant excerpts of the same are reproduced
below:

“Dear Andy,
As we informed you, remittance from Yash is on hold due to
some technical issues. You can talk to the bank manager also
regarding the same.
We tried to make the remittance from ARV engineering to
Zambia but there is a rule over here that in Third country trade
with the company from which the remittance is being done the
payment should be received by that company only and here it was
received by us.
We can give the contact details of the bankers of ARV engineering
also for verification.
Now the only option is to make it from India.
Because sorting out from the bank will take another 2 weeks or
so.
Our issue with Maersk now is solved , however that of the
forwarder is still there , however we have made the payment to the
agent under different remittance code from the bank.

… Here in India the freight cost and material cost have

skyrocketed but pls allow us to make the shipment and close the
issue”

The aforesaid email makes it abundantly clear that issues were always
from the Respondent’s end because of which the Port of Origin was
repeatedly changed by the Respondent. In this regard, the contents of the
SoC and specifically Preliminary Submission (E) of this Rejoinder are
reiterated and not repeated for brevity.

III.41. The contents of paragraphs 77 – 82, are denied for being misleading,
misconstrued and false. It is specifically denied that the Claimant ever
gave its consent to USD 2,350/- PMT for the third consignment of 56
MT of FESIMN. Further, as already discussed, the extra cost and/or
penalty which Maersk mentioned to charge to the Origin Party was on
account of a confusion which was subsequently clarified upon further
negotiations. Notably, the charges were finally paid by the Consignee
and not the Respondent. The same is evident from the contents of
Respondent’s own email dated 08.03.2023 at Annexure D-34, at Page
196-197 of the SoD, addressed to Maersk on 08.03.2023, which reads as
follows:

“Dear Team
Till last week you have e-mailed us that the delivery has not been
taken and charges have piled up to USD 85,000.
Now as per your email, nothing of that sort exists
So the case is closed now ?
Kindly confirm.
Amit”

The above email clearly shows that the said delivery issues were
resolved without Respondent’s assistance and the alleged charges were
also duly taken care of without the Respondent having to pay for the
same. Pertinently, the Respondent has very conveniently highlighted
only one of the many e-mails that were exchanged between itself and
Maersk in an attempt to mislead this Tribunal.

Following the same pattern, the Respondent has again reproduced and
highlighted only a portion of the email dated 02.08.2022 sent by the
Claimant instead of placing the complete picture before this Tribunal.
The contents of email dated 02.08.2022 reads as under:

“Hi Amit,
Yes, the consignee has a large backload of cargo, and they are
clearing all their goods at their capacity.
The shipping line is aware of their case, and they are working closely
together to overcome the difficulty in place.
Amit, I don't know what problems you are having with your
forwarders.
First of all, as mentioned on many occasions, your responsibility is
only at the origin (loading port) as per our contract.
 Any duties arising at destination are not in your contract and are
only the consignee's responsibility, NOT YOURS.
The consignee is in fact the only one paying for any fees related to
the collection of the cargo, NOT YOU.
None of our freight forwarders has had the issue you are mentioning.
Subrata Mondal can confirm this. She handled more than 30
containers with the same consignee details.
Once again, I do not know how you operate and why you are the
only one (out of many suppliers with the same circumstances)
facing all the issues you have mentioned.
To sum up, the consignee is in the process of collecting the goods.
It is out of our scope and yours any logistic at the destination.
Kind regards.”

The aforesaid email clearly shows Respondent’s mala fide and that it is
the Respondent, who is approaching the present arbitration with unclean
hands. Finally, in this regard, the contents of the SoC, Preliminary
Submissions (A) and Preliminary Submissions (E) of this Rejoinder are
reiterated and not repeated for the sake of brevity.

III.42. The contents of paragraphs 83 – 85, are denied for being false,
misleading and completely devoid of merit. In this regard, the contents
of this Rejoinder and the SoC are reiterated and not repeated for the sake
of brevity.

Re: Prayer

III.43. In view of the above-mentioned facts and circumstances, the

Respondent is not entitled to any relief claimed in the SoD and the same
ought to be dismissed with exemplary costs against the Respondent.

Re: Para wise reply to the Statement of Claim

III.44. That the contents of paragraphs under the ‘Para-wise reply’ from I-XL
are completely and absolutely denied for being false, frivolous,
incomplete, misleading and baseless. That the Claimant stands by the
 contents of the SoC and this Rejoinder, and the same are not repeated
herein for the sake of brevity and proximity.

III.45. Hence, in light of the facts and circumstances of this case and
submissions made in the SoC and hereinabove, the Claimant prays that
this Hon’ble Tribunal may be pleased to grant the prayers as sought by
the Claimant in the captioned SoC.

Through,

RPV Legal
Counsel for the Respondent
D-19, Second Floor, Geetanjali Enclave
New Delhi – 110017
Date: 15 June 2024 Phone: +91 11 41834272
Place: New Delhi E: info@rpvlegal.com