GREAT OFFSHORE LTD. versus IRANIAN OFFSHORE ENGINEERING & CONSTRUCTION COMPANY

Citation: [2008] 12 S.C.R. 515 · Decided: 25-08-2008 · Supreme Court of India · Bench: DALVEER BHANDARI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 12 S.C.R. 515 
../ 
GREAT OFFSHORE LTD. 
A 
II. 
IRANIAN OFFSHORE ENGINEERING & 
CONSTRUCTION COMPANY 
(Arbitration Petition No.1 O of 2006) 
AUGUST 25, 2008 
8 
Arbitration and Conciliation Act, 1996: 
s. 7 -
Petition for appointment of arbitrator -
On the 
basis of arbitration agreement faxed by petitioner - Claim of c 
respondent that there was no conclu(led agreement between 
parties and signatures on FAX agreement were forged -
Held: Initial burden to prove that valid arbitration agreement 
existed was on petitioner - Fax header prima facie suggested 
that agreement was genuine - Burden shifted to respondent D 
to prove that the signatures on agreement were forged w~ich 
it failed to discharge -
Thus valid arbitration agreement 
_,.. 
existed -
Petition for appointment of arbitrator allowed -
UNCITRAL Model Law on International Commercial 
Arbitration (1985). 
E 
s. 7(4)(a) - Arbitration agreement - Essential elements 
of -
Held: Arbitration agreement has to be in writing and 
signed by both the parties, though no need for parties to 
sign every page of the arbitration agreement - Also no 
requirement that it has to be original - The Act defines the 
F 
,....,_ 
term 'in writing' -
Court is precluded from adding another 
term to the definition - Adding technicalities disturbs parties 
autonomie de la volonte - Interpretation of statutes - Adding 
or reading words into the statute. 
s. 7(4)(a) - FAX agreement - AcceptabHity of, under s. 7.,... G 
r-___. 
Held: FAX falls under 'other means of telecommunication' -
Hence acceptable under s. 7 -
Court to view the legislative 
intention especially in the light of Act's main objectives of 
minimizing the supervisory role of Courts in the arbitral process. 
515 
H 
( 
516 
SUPREME COURT REPORTS 
[2008] 12 S.C.R. 
A 
Words and phrases: 'Fax' - Meaning of 
The parties had done business with each other in 
2004. They expressed mutual interest for doing business 
for the second time. On June 23rd, 2005, the applicant-
petitioner faxed an offer to the respondent. In turn, the 
8 
respondent faxed a letter of intent on the same day. 
Applicant acknowledged the award of contract in favour 
of respondent. 
On August 13th, the respondent faxed a letter to 
c the respondent, suggesting that additional provisions 
be incorporated in a new draft of the contract and further 
asked the applicant to pay the outstanding amount from 
the preceding contract. 
On August 22nd, the applicant allegedly sent the 
D faxed Charter Party Agreement (CPA) to the respondent. 
Both parties signed the faxed CPA, and it bore the 
applicant's seal. However, it did not bear the 
respondent's seal. On October 26, the respondent 
originally asserted that it never signed the faxed CPA 
E and that the document was forged. 
The applicant filed the present petition seeking 
appointment of sole arbitrator. The respondent 
contended that the two parties had not progressed 
beyond the stage of negotiation and that there was no 
F concluded contract between them and hence there was 
no question of referring the dispute to arbitration; and 
the "faxed CPA" of August 22nd was (1) a copy, not the 
original; (2) was stamped by one, not by both parties; 
(3) one of the parties did not sign every page; and (4) it 
G was first sent vide fax. 
Allowing the petition, the Court 
HELD: 1.1. The burden to prove that a valid contract 
containing an arbitration clause existed first rested on 
H the applicant, as it was the applicant who moved this 
GREAT OFFSHORE LTD. v. IRANIAN OFFSHORE 
517 
ENG. & CONST. COMPANY 
v 
Court. The faxed CPA, on its face, appears legitimate, A 
thus the onus shifted to the respondent to prove that it 
was forged. It appears, prima facie, to be legitimate 
because it bears the heading "08-SEP-2005 13:52 FROM 
IOEC HEAD OFFICE TO ALLAHVER[)I" (the "fax 
header"). This is an important piece of evidence that s 
makes its genuineness more probable. Hypothetically, 
the applicant could have fabricated the fax header. But 
that is highly unlikely and presumes much more than 
what is expected in normal human conduct especially 
when that conduct concerns the forgery of an executive c 
officer's signature. It should not be forgotten that this 
case is between sophisticated companies, not warring 
family members that dispute the authenticity of a Will. 
[Para 55] [536-F-H, 537-A] 
Dresser Rand S.A. v. Mis. Bindal Agro Chemical Ltd. 
D 
& Another, AIR 2006 SC 871 - relied on. 
May & Butcher Limited 

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