Rohit Ranjan Agarwal, J.

1. This is an application under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as “Act of 1996”).

2. The applicant HBA Offshore Pte. Ltd. is a company incorporated under the laws of Singapore having its registered office at Singapore, while the respondent- Samsung Heavy Industries India Private Limited is a Company incorporated under the provisions of Indian Companies Act, 1956 (hereinafter referred to as “Act of 1956”) having its registered office at Sector 62, Noida (UP).

3. The applicant-Company, which was incorporated in 2015, provides for services to the offshore and floating production sectors worldwide. Its business focused on FPSO, FSO, FSRU, FLNG and specialized offshore and marine equipment, while the respondentCompany is engaged in FEED, Detailed Engineering and Assistance in Construction & Commissioning of FPSO Topsides, Fixed Platforms, Semi-submersible Drilling Rigs & Drill ship Topside facilities. It is a part of Samsung Heavy Industries, a group of Samsung, a South Korean conglomerate.

4. The respondent -Company, on 22.3.2022, floated a tender/RFQ for their project – provision of Accommodation Work Barge (AWB), with associate services required during the Hook-up and Commissioning of RUBY FPSO for Reliance Industries Limited at MJ Field, in the block KG-DWN-98/3 (KG-D6), in the Bay of Bengal, East Coast of India.

5. The applicant along with other companies made bid for the tender/ RFQ floated by respondent-Company. The initial proposal and quotation was submitted in March, 2022. The applicant, at the bidding stage, offered a Floatel Vessel called ‘Nor Goliath’. One Telford Marine DMCC (“Telford”) is the owner of ‘Nor Goliath’. The said Vessel being stationed at Walvisbay was to travel to UAE and from UAE to Kakinada, India.

6. On 28.04.2022, a Letter of Intent (hereinafter referred to as “LoI”) was issued by the respondent-Company to the applicantCompany mentioning therein the work to be executed. The LoI provided that General Condition of Contract (hereinafter referred to as “GCC”) was to be executed by 14th May, 2022. It also provided that in case of any claims, disputes, differences arising out of or in connection with the LoI, the same was to be finally settled by arbitration.

7. Post issuance of LOI, hectic discussion took place between the applicant and respondent on number of issues and, on 11.05.2022, a request was made by the applicant-Company to the respondentCompany for extending the timeline for conclusion of GCC till 20th May, 2022. The request was accepted by the respondent-Company and time was extended till 20th May, 2022. The second extension was sought by the applicant- Company on 20th May, 2022 as number of matters remained unresolved and further extension was granted till 31st May, 2022. A meeting of the officials of both the companies were held on 26th May, 2022 and a total of 18 Deviation from original agreed terms were discussed. The parties tried to conclude and reach the agreement on the proposed Deviation. When the parties were not able to reach consensus on the proposed Deviation, another meeting was held on 30th May, 2022 wherein certain issues were resolved but some of the matters remained unresolved. The respondent-Company ultimately on 19th June, 2022 informed the applicant-Company that as the validity of LoI, which was extended till 31st May, 2022, had expired without any agreement on GCC and all the exhibits, LoI stands null and void.

8. The respondent Company thereafter on 27.6.2022 awarded the new contract to a third party namely Bhambhani Shipping Limited. Hence the present application under Section 9 of Act of 1996.

9. Sri Manish Goyal, learned Senior Advocate appearing for the applicant-Company submitted that the LoI issued by the respondentCompany was in fact a concluded contract as from the reading of the same it is clear that only a formal GCC was to be executed between the parties and the LoI categorically states that while Contractor and Subcontractor are negotiating the outstanding terms and conditions of the work, it authorizes Subcontractor to immediately commence the Work to avoid any delay to the schedule of Work including Detailed Design Pedestal & Gangway Foundation, including Procurement of Material, Fabrication of Pedestal & Gangway Foundation and install Gangway Pedestal (Work). According to him, the intention of LoI was clear to the extent that it authorized the applicant to straight away start the Work, acting on which the Company had incurred huge expenses and a vessel in the name of ‘Nor Goliath’ was made available for due execution of Work.

10. According to him, the officers of the applicant and respondent Company were in regular touch and were monitoring the progress of the work done by the applicant- Company. The respondent-Company had granted two extensions, first, upto 20th May, 2022 and subsequently uptil 31st May, 2022. He then contended that despite the period extended by the respondent-Company having been expired on 31st May, 2022, the officers of the respondent-Company continued to negotiate with the applicant-Company and the vessel ‘Nor Goliath’ was inspected on 10th June, 2022 at Capetown. He also invited the attention of the Court to the correspondence dated 11th June, 2022 of the applicant-Company with the respondent, wherein a reference has been made to the meeting, which was held on 08th and 09th June, 2022 at Noida office.

11. According to the Senior Counsel, both the applicant and the respondent Company were in touch with each other after the period for formal execution of GCC had expired, which means that both the parties were serious and were working on the LoI. The mail sent on 19.06.2022 abruptly holding the LoI as null and void is against the terms of the letter issued on 28th April, 2022.

12. Sri Goyal then invited the attention of the Court to Annexure CA1 filed by the respondent Company which is a contract executed on a stamp paper dated 06th April, 2022 and tried to impress upon the fact that respondents were not serious and had committed fraud with the applicant-Company by executing a contract on a stamp paper of 06th April, 2022 which was prior to the issuance of LoI.

13. Reliance has been placed upon decision of Apex Court in Bhaurao Dagdu Paralkar vs. State of Maharashtra and others (2005) 7 SCC 605 [LQ/SC/2005/827] . Relevant paras 9, 10 and 11 thereof are extracted hereas under:-

“9. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. See Vimla (Dr.) v. Delhi Admn. 1963 Supp (2) SCR 585 : AIR 1963 SC 1572 [LQ/SC/1962/403] and Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550 [LQ/SC/1996/1257] .

10. A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1) [LQ/SC/1993/933] .

11. “Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 [LQ/SC/2003/1017] .)”

14. Reliance has also been placed upon the decision of Apex Court in Rickmers Vermwaltung GMBH vs. Indian Oil Corporation Ltd. (1999) 1 SCC 1 [LQ/SC/1998/1114] and Dresser Rand S.A. vs. Bindal Agro Chemical Ltd. and another (2006) 1 SCC 751 [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751 [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751 [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751 [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] . Relevant paras 39 and 40 of Dresser Rand S.A. (supra) are extracted hereas under:-

“39. It is now well settled that a letter of intent merely indicates a party's intention to enter into a contract with the other party in future. A letter of intent is not intended to bind either party ultimately to enter into any contract. This Court while considering the nature of a letter of intent, observed thus in Rajasthan Coop. Dairy Federation Ltd. v. Maha Laxmi Mingrate Marketing Service (P) Ltd. (1996) 10 SCC 405 [LQ/SC/1996/1503] : (SCC p. 408, para 7).

“The letter of intent merely expressed an intention to enter into a contract. … There was no binding legal relationship between the appellant and Respondent 1 at this stage and the appellant was entitled to look at the totality of circumstances in deciding whether to enter into a binding contract with Respondent 1 or not.”

40. It is no doubt true that a letter of intent may be construed as a letter of acceptance if such intention is evident from its terms. It is not uncommon in contracts involving detailed procedure, in order to save time, to issue a letter of intent communicating the acceptance of the offer and asking the contractor to start the work with a stipulation that the detailed contract would be drawn up later. If such a letter is issued to the contractor, though it may be termed as a letter of intent, it may amount to acceptance of the offer resulting in a concluded contract between the parties. But the question whether the letter of intent is merely an expression of an intention to place an order in future or whether it is a final acceptance of the offer thereby leading to a contract, is a matter that has to be decided with reference to the terms of the letter. Chitty on Contracts (para 2.115 in Vol. 1, 28th Edn.) observes that where parties to a transaction exchanged letters of intent, the terms of such letters may, of course, negative contractual intention; but, on the other hand, where the language does not negative contractual intention, it is open to the courts to hold that the parties are bound by the document; and the courts will, in particular, be inclined to do so where the parties have acted on the document for a long period of time or have expended considerable sums of money in reliance on it. Be that as it may.”

15. Reliance has also been placed upon Apex Court’s judgment in South Eastern Coalfields Ltd. and others vs. S. Kumar’s Associates AKM (JV) (2021) 9 SCC 166 [LQ/SC/2021/2876 ;] ">(2021) 9 SCC 166 [LQ/SC/2021/2876 ;] [LQ/SC/2021/2876 ;] ">(2021) 9 SCC 166 [LQ/SC/2021/2876 ;] ">(2021) 9 SCC 166 [LQ/SC/2021/2876 ;] [LQ/SC/2021/2876 ;] [LQ/SC/2021/2876 ;] . Relevant paras 14, 22 and 24 of the judgment are extracted hereas under:-

“14. The terms of LoI were adverted to, more specifically Clause (L) therein, which stated that “this contract will come into force upon receipt of this letter of intent by supplier”. In the different clauses the LoI were referred to as “this order” and “this contract” and it was, thus, argued to that the LoI be treated as purchase orders. The Court harmoniously construed the terms of the LoI to find that the effect of the LoI was that if the purchase orders were placed and LCs were opened the supplier was bound to effect supplies within the stipulated time at the prices stated in the LoI. It was not interpreted as a work order despite the wording utilised in the LoI.”

“22. We would like to state the issue whether a concluded contract had been arrived at inter se the parties is in turn dependent on the terms and conditions of the NIT, the LoI and the conduct of the parties. The judicial views before us leave little doubt over the proposition that an LoI merely indicates a party's intention to enter into a contract with the other party in future. No binding relationship between the parties at this stage emerges and the totality of the circumstances have to be considered in each case. It is no doubt possible to construe a letter of intent as a binding contract if such an intention is evident from its terms. But then the intention to do so must be clear and unambiguous as it takes a deviation from how normally a letter of intent has to be understood. This Court did consider in Dresser Rand S.A. case [Dresser Rand S.A. v. Bindal Agro Chem Ltd., (2006) 1 SCC 751] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] that there are cases where a detailed contract is drawn up later on account of anxiety to start work on an urgent basis. In that case it was clearly stated that the contract will come into force upon receipt of letter by the supplier, and yet on an holistic analysis—it was held that the LoI could not be interpreted as a work order.”

24. If we compare the aforesaid scenario in the present case, the period for execution of the contract was one year. The respondent worked at the site for a little over the month, facing certain difficulties —it is immaterial whether the same was of the own making of the respondent or attributable to the appellants. No amount was paid for the work done. The respondent failed to comply with their obligations under the LoI. It is not merely a case of the non-furnishing of performance security deposit but even the integrity pact was never signed, nor work order issued on account of failure to execute the contract. We are, thus, of the view that none of the judgments cited by the learned counsel for the appellants would come to their aid in the contractual situation of the present case. The judgments referred by the learned counsel for the appellants, Jawahar Lal Burman case [Jawahar Lal Burman v. Union of India, (1962) 3 SCR 769 [LQ/SC/1961/323] : AIR 1962 SC 378 [LQ/SC/1961/323] ] and Dresser Rand S.A. case [Dresser Rand S.A. v. Bindal Agro Chem Ltd., (2006) 1 SCC 751] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751] [LQ/SC/2006/31 ;] ">(2006) 1 SCC 751] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] [LQ/SC/2006/31 ;] , if one may say so are not directly supporting either of the parties but suffice to say that to determine the issue what has to be seen are the relevant clauses of the NIT and the LoI.”

16. Sri Shashi Nandan, learned Senior Advocate appearing for respondent-Company submitted that LoI issued by the respondentCompany on 28.04.2022 specifically stipulated that GCC was to be executed till 14th May, 2022. Two extensions were granted, extending the period till 31st May, 2022. As the parties had not reached consensus and there were 18 outstanding issues to be negotiated between the parties and the time was essence of the contract, the respondent-Company was left with no option but to hold that as the validity of LoI had expired without any agreement on GCC, LoI stood null and void.

17. He then submitted that pursuant to the communication dated 19th June, 2022, the respondent-Company had entered into a contract with one Bhambhani Shipping Limited on 27th June, 2022 and this has never been disclosed by the applicant-Company in its application filed under Section 9 of Act of 1996 and as such the same has to be rejected as the respondent-Company have already entered into a contract with a third party, while the present proceedings were initiated on 28th June, 2022, without impleading Bhambhani Shipping Limited as a party. He next contended that in view of Section 14 (d) of Specific Relief Act, 1963 (hereinafter referred to as “Act of 1963”), a contract which is in its nature determinable, cannot be enforced. Reliance has also been placed upon Section 41(e) of the Act of 1963 that no injunction can be granted to prevent the breach of a contract the performance of which would not be specifically enforced.

18. According to the Senior Counsel, once no contract was entered into between the applicant and the respondent Company, and only the LoI was issued with categorical stipulation of execution of GCC within time frame and the time having expired, and contract having been awarded to a third party, the applicant cannot force respondent to enter into a contract with the applicant on the basis of LoI. According to him, the only remedy left to the applicant is to invoke the provisions for arbitration, as has been provided under LoI for any claims, disputes or differences arising out of or in connection with LoI.

19. Counsel for the respondent has placed reliance upon judgments of Apex Court in South Eastern Coalfields Ltd. and others Vs. M/s S. Kumar’s Associates AKM (JB) (2021) 9 SCC 166 [LQ/SC/2021/2876 ;] ">(2021) 9 SCC 166 [LQ/SC/2021/2876 ;] [LQ/SC/2021/2876 ;] ">(2021) 9 SCC 166 [LQ/SC/2021/2876 ;] ">(2021) 9 SCC 166 [LQ/SC/2021/2876 ;] [LQ/SC/2021/2876 ;] [LQ/SC/2021/2876 ;] ; and Rajasthan Cooperative Dairy Vs. Shri Maha Laxmi Mingrade (1996) 10 SCC 405 [LQ/SC/1996/1503] as also judgments of different High Courts in Narangs International Hotels Pvt. Ltd. Vs. Delhi International Airport Ltd. (2021) SCC Online Del 4197; Shivansh Autozone Pvt. Ltd. Vs. Honda Cars India Ltd. (2016) SCC Online Del 2428; Samay Singh Vs. Hindustan Petroleum Corporation Ltd, (2012) SCC Online All 1253; Bharat Petroleum Corporation Ltd. Vs. M/s Khaybar Transport Pvt. Ltd. 2011 SCC Online All 640; Rani Goldi Vs. Territory Manager (Retail) Bharat Petroleum Corporation 2012 SCC Online All 1497; Bharat Petroleum Corporation Ltd. Vs. Rajesh Sharma 2015 SCC Online All 5249; Ambe Carrier Vs. State of U.P. 2014 SCC Online All 15467; Inter Ads Exhibition Pvt. Ltd. Vs. Busworld International Cooperative Vennootschap Met Beperkte Anasprakelijkheid 2020 SCC Online Del 351; Inter Ads Exhibition Pvt. Ltd. Vs. Busworld International Cooperative Vennootschap Met Beperkte Anasprakelijkheid 2020 SCC Online Del 2485; Rajasthan Breweris Ltd. Vs. Stroh Brawery Company 2000 SCC Online Del 481; ABP Network Pvt. Ltd. Vs. Malika Malhotra 2021 SCC Online Del 4733; Jindal Steel & Power Ltd. Vs. SAP India Pvt. Ltd. 2015 SCC Online Del 10067; Vidya Securities Ltd. Vs. Comfort Living Hotel Pvt. Ltd. AIR 2003 Del 214 [LQ/DelHC/2002/2232] ; Rainbow Electric Supply Company Vs. North Delhi Power Ltd. (2006) 1 Arb LR 283; B.S.M. Contractors Pvt. Ltd. Vs. Rajasthan State Bridge and Construction Corporation Ltd. (1999) 1 Arb LR 417; Oil and Natural Gas Corporation Ltd. Vs. Streamline Shipping Company Pvt. Ltd. AIR 2002 Bombay 420; M/s Saboo Cars Pvt. Ltd. Vs. M/s Hyundai Motors India Ltd. 2021 SCC Online Mad 1681; and Kiran Mohanty Vs. Woodburn Developers and Builders (P) Ltd. AIR 2006 Ori 31 [LQ/OriHC/2005/537] .

20. I have heard the respective counsel for the parties and the material on record.

21. It is not in dispute that the LoI was issued by the respondentCompany on 28th April, 2022 in favour of applicant-Company. The said LoI categorically provided for the work to be executed by the Contractor and Subcontractor. Under the heading “Purpose of this LOI”, it has been categorically mentioned that it shall be superseded by a full-fledged contract under which the sub-contractor shall continue to perform the work (contract) at the date of execution of such contract upon the parties reaching an agreement on the outstanding terms and conditions. Under the heading “Reference Documents”, it has been mentioned that GCC and the Exhibits provided by the Contractor to the Sub-contractor at the time of floating the Request for Quote (RFQ) currently under negotiation.

22. The LoI further under the heading “Condition precedent” provides as under :

“1. General Condition of Contract and all the exhibits shall be agreeable as circulated at the time of floating of RFQ dated 22nd March 2022, read together with Exception and deviation as discussed during bid clarification meetings till 27th April 2022.

This Letter of Intent to Award the Work shall be binding on the parties only upon the fulfillment of the above condition precedent on or before 14th May 2022 by a formal confirmation letter.”

23. From the reading of the LoI to award the work issued by the respondent- Company it is clear that a GCC was to be executed pursuant to the issuance of LoI, and Subcontractor was to continue to perform the Work (contract) at the date of execution of such contract upon the parties reaching an agreement on the outstanding terms and conditions, meaning thereby, that there were certain terms and conditions which were to be settled between the parties post issuance of LoI and prior to execution of GCC.

24. The LoI prescribed the time limit upto 14th May, 2022, which was twice extended on the request of the applicant uptil 31st May, 2022.

25. The argument led at the behest of the applicant-Company that as negotiation continued beyond 31st May, 2022 amounted to extension of time for entering GCC between the Companies holds no ground as the time was twice extended provided in LoI on the request of the applicantCompany. There were number of contentious issues which remained unresolved between the parties in meetings held during the extended period i.e. on 26th May, 2022 and 30th May, 2022.

26. The Apex Court in Dresser Rand S.A. (supra) had held that question whether LoI is merely an expression of an intention to place an order in future or whether it is a final acceptance of offer thereby leading to a contract, is a matter that has to be decided with reference to terms of letter. From the reading of LoI it is clear that the parties were to reach an agreement on the outstanding terms and conditions, and it was not a concluded agreement.

27. In South Eastern Coalfields Limited and others (supra), the Apex Court, relying upon its earlier judgment in the case of Dresser Rand S.A. (supra) and Rajasthan Coop. Dairy Federation Ltd. (supra) resolved the controversy and held that LoI merely indicates a party’s intention to enter into a contract with other party in future. No binding relationship between the parties emerges at this stage. The Court further held that to construe a LoI as a binding contract, the intention of terms and conditions has to be seen, which must be clear and unambiguous.

28. In the present case, the LoI categorically provides that GCC was to be executed upon the parties reaching an agreement on the outstanding terms and conditions, thus LoI cannot be construed as a binding contract.

29. In Narangs International Hotels Pvt. Ltd. (supra) the Delhi High Court held that adherence to contracted terms is a prime factor in any contractual relationship. Further, Section 14 of Act of 1963 specifically provides that one such category of contract given in subsection (d) is, a contract which by its very nature is determinable and cannot be specifically enforced.

30. In Samay Singh (supra), this Court had clarified the legal position as to a contract which is determinable in nature cannot be specifically enforced and no injunction in respect thereof can be granted.

31. In the present case, LoI specifically provided for execution of GCC by 14th May, 2022, the date which was extended till 31st May, 2022, but when no consensus was arrived at between the parties, the respondent-Company proceeded to hold the validity of LoI as null and void.

32. A contract which is determinable at any event, the action of parties cannot be enforced through Court and the same is barred by provisions of Section 14(d) of Act of 1963.

33. Thus, this Court finds that once the GCC was not executed between the parties despite two extension of time being granted by the respondent-Company and there being unresolved issues between the parties, the LoI cannot be treated to be a contract and enforced against the respondent-Company.

34. Moreover, after the LoI was held to be null and void on 19.6.2022, the respondent had entered into a contract with third party on 27.6.2022 i.e. before the filing of the application under Section 9 of the Act of 1996 and thus the present application under Section 9 of Act of 1996 is not maintainable. The only remedy available to the applicant -Company is for the invocation of the arbitration clause.

35. The argument raised by the applicant’s counsel that the subsequent contract between the respondent and the third party was executed on a stamp paper dated 6th April, 2022 has no legs to stand, as the contract which has been brought on record, clearly demonstrate that it was made and entered on 27th June, 2022, thus the applicant cannot claim any relief in the garb of the fact that contract subsequently entered into by the respondent-Company was on a stamp paper dated 6th April, 2022.

36. The application filed under Section 9 of Act of 1996 fails and is hereby dismissed.

37. No order as to costs.