H. J. BAKER AND BROS. INC versus THE MINERALS AND METALS TRADE CORPORATION LTD. (MMTC)

Citation: [2023] 11 S.C.R. 287 · Decided: 18-08-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Dismissed

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Judgment (excerpt)

[2023] 11 S.C.R. 287 : 2023 INSC 747 
287
CASE DETAILS
H. J. BAKER AND BROS. INC.
v.
THE MINERALS AND METALS TRADE 
CORPORATION LTD. (MMTC)
(Civil Appeal No(s). 2437 of 2010)
AUGUST 18, 2023
[S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
HEADNOTES
Issue for consideration : In the instant appeals, the order passed 
by the Division Bench of the High Court, which partly interfered with an 
arbitration award by upholding the fi ndings of the Single Judge of the High 
Court to the extent the award granting damages for certain period, but set 
aside the award for the balance period, is challenged.
Arbitration – Award of damages – Interference with – Award 
of damages for breach of contract for certain periods – Upheld by the 
Single Judge of the High Court, however, the Division Bench upheld the 
fi ndings, to the extent the award granted damages for certain period, 
but set it aside for the balance period – Correctness: 
Held : As regards fi rst period, conclusions of courts below upheld 
and does not call for interference – As regards the second period, the 
respondent made no attempt to produce a copy of the canalisation order 
before the tribunal nor intimated the claimant its inability to continue with 
the arrangement – Nothing was shown to prevent the respondent from 
communicating the said aspect at the earliest point of time – Thus, no 
interference called for – Furthermore, the measure of damages has to be in 
accord with s. 73, i.e. the market price of goods on the date of the breach, 
less the contract price – As regards, the award for the balance period, the 
Division Bench held that the failure to produce the best evidence that 
the claimant possessed in the form of contracts for the balance quantity 
and the payments received as proof of damage suff ered and the shipping 
arrangements as well as the shipments as billed from time to time with full 
288
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
particulars, disentitled it to any compensation for the later period, which is 
in accordance with law – Impugned judgment applied the correct principles 
of law, in partly setting aside the award – As regards, the rate of interest, 
there have been concurrent fi ndings – Contract Act, 1873 – s. 73. [Paras 
14-16, 18-21]
LIST OF CITATIONS AND OTHER REFERENCES
M/S. Murlidhar Chiranjilal vs M/S. Harishchandra Dwarkadas & 
Anr [1962] 1 SCR 653; Arosan Enterprises Ltd v Union of India [1999] 
Supp 2 SCR 621: (1999) 9 SCC 449; Vedanta Ltd. v. Shenzhen Shandong 
Nuclear Power Construction Co. Ltd. [2018] (12) S.C.R 829 – referred to.
Foley vs. Classique Coaches Ltd. (1934) 2 K.B. 1 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2437 of 
2010.
From the Judgment and Order dated 27.07.2009 of the High Court 
of Delhi at New Delhi in FAO No.477 of 2001.
With
Civil Appeal No.5286-5287 of 2023.
Appearances:
Ramesh Singh, Ms. Kiran Suri, Sr. Advs., Gautam Khaitan, Ms. Bharti 
Badesra, Mrs. Bina Gupta,  Ms. Ranjana Roy Gawai, Ms. Vasudha Sen, 
Vineet Wadhwa, Ms. Divya Roy, Advs. for the appearing parties.
JUDGMENT/ORDER OF THE SUPREME COURT
JUDGMENT
S. RAVINDRA BHAT, J.
1. Leave granted in SLP (Civil) No(s). 12870-12871 of 2011.
289
H. J. BAKER AND BROS. INC. v. THE MINERALS AND METALS 
TRADE CORP. LTD. (MMTC) [S. RAVINDRA BHAT, J.]
2. These appeals are directed against a common judgment of the 
Delhi High Court1, which partly interfered with an arbitration award. One 
appeal has been preferred by the respondent – MMTC Limited in arbitration 
(hereafter “MMTC”) to the extent that the impugned judgment did not set 
aside the award, and the  other appeal by the arbitration claimant – M/s H.J 
Baker & Bros. INC (hereafter “Baker”) to the extent it did.
Essential facts
3. MMTC entered into an agreement dated 14-01-1986 with Baker 
for the purchase of US-origin sulphur. In terms of the agreement, MMTC 
was to purchase on an annual basis 60,000 metric tons of sulphur (+/- 5% 
for shipping convenience). The agreement was to be operative for three 
years from 01-06-1986 and thereafter was to be extended annually on ever 
green basis unless terminated by either party through six month’s written 
notice. Under the contract, MMTC purchased the material till 1991. On 
20-12-1991, MMTC telexed Baker, confi rming supply-price for the period 
from January to June 1992. As no vessel was nominated for this purpose, by 
a fax dated 27-01-1992, Baker requested nomination of a vessel. On 31-

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