JUDGMENT : 1. This is an application for enforcement of a foreign award. 2. The ground for challenge to the enforcement of the foreign award is that the award deals with a difference not contemplated by or not falling within the terms of the submissions to arbitration. Although no application under Section 48 has been separately filed, but in the affidavit in opposition to the application for enforcement of the award, the aforesaid objection has been taken. 3. In order to appreciate the objection, it is necessary to refer to the pleadings filed before the arbitral tribunal. 4. The dispute arose out of a contract for sale entered into on 20th December 2012 between the award holder and the award debtor in relation to purchase and sale of 28000 WMT iron ore fines from India to China. The contract had three addenda. While the parties are ad idem that addendum nos.1 and 2 have been duly signed by the parties, there is a dispute with regard to the enforceability of addendum no.3. The parent contract contains an arbitration clause. 5. On 17th January 2013 the parties entered into an addendum reflecting changes to the contract price and the shipment date. On 21st January 2013 the parties executed another addendum reflecting amendments to the letter of credit and demurrage issues. The parties also agreed to revise the contract price under Clause 4 as follows: “USD 111 PDMT CFR HUANGHUA Port or TIANJIN Port, China based on 57.00% Fe content, fraction pro rata”. 6. The addendum dated 17th January 2013 was cancelled. On 31st January 2013 the parties executed addendum no.2 in connection with further amendments to the letter of credit. Addendum no.2 provides that “other terms and conditions in the Contract... and in the Addendum dated 21 January 2013 shall be remain unchanged.” 7. On 2nd May 2013 the award holder circulated a draft addendum no.3 to the respondent which was however returned to the award holder with proposed amendments to the method of payment. On 21st May 2013 the claimant agreed to this proposal and requested the respondent to sign addendum no.3 which provides as follows: “1. UNDER CLAUSE 4 OF THE CONTRACT. THE PRICE SHALL BE ALTERED TO USD 108 PDMT CFR HUANGHUA PORT OR TIANJIN PORT. CHINA BASED ON 57.00% FE CONTENT. FRACTION PRO RATA. 2. On 21st May 2013 the claimant agreed to this proposal and requested the respondent to sign addendum no.3 which provides as follows: “1. UNDER CLAUSE 4 OF THE CONTRACT. THE PRICE SHALL BE ALTERED TO USD 108 PDMT CFR HUANGHUA PORT OR TIANJIN PORT. CHINA BASED ON 57.00% FE CONTENT. FRACTION PRO RATA. 2. UNDER CLAUSE 5 OF THE CONTRACT FOR FE CONTENT “PENALTY” THE BASE PRICE SHALL BE DECREASED BY USD 2.00 PDMT OF THE PRICE AS PER CLAUSE 4 FOR EACH 1% FE BELOW 57% FRACTION PRO RATA. […] SELLER SHALL MAKE FINAL PAYMENT AND REFUND IT TO BUYER WITHIN 3 MONTHS IN THREE INSTALLMENTS AFTER SIGNED THIS ADDENDUM 3. IF FINAL PAYMENT UNAVAILABLE TO THE BUYER WITHIN THE ABOVE TIME LIMIT. THE BUYER SHALL HAVE RIGHTS TO CLAIM AGAINST THE SELLER, AND BUYER’S RIGHTS UNDER THE CONTRACT AND ITS ADDENDA SIGNED ON 21 JANUARY AND 31 JANUARY 2013 AND AT LAW ARE EXPRESSLY RESERVED AND UNAFFECTED.” 8. The respondent refused to sign addendum no.3 despite subsequent attempts by the claimant to follow up. This refusal followed by denying the claim of the claimant to pay USD 156,198.39 towards the balance amount payable to the claimant and calculated on the basis of addendum no.3 resulted in initiation of arbitration proceedings. 9. Before the arbitral tribunal, the award holder filed a statement of claim. In the Background Facts, the claimant had referred to addendum no.1 and addendum no.2. The claimant alleged that the buyer had no objection to the payment method proposed by the seller and on 21st May, 2013 the buyer sent an email to the seller reaffirming the buyers amendment to the draft addendum no.3 and requested the seller to sign addendum no.3. The addendum no.3 was concluded and binding upon the parties and formed a part of the contract, regardless of whether the parties have signed the same. More particularly, the seller’s email dated 16th May 2013 was a counter offer to buyers offer dated 2nd May 2013. Addendum no.3 was reached upon the buyer’s acceptance communicated to the seller on 21st May 2013. As the seller was silent to the buyers email, the buyer sent a final calculation of balance on 26th June, 2013 in accordance with the addendum no.3 and balance due to the buyer was in the amount of USD 156,198.39. Addendum no.3 was reached upon the buyer’s acceptance communicated to the seller on 21st May 2013. As the seller was silent to the buyers email, the buyer sent a final calculation of balance on 26th June, 2013 in accordance with the addendum no.3 and balance due to the buyer was in the amount of USD 156,198.39. The seller was silent to this email and made no objection to the final calculation. On the aforesaid basis the buyer made a claim of USD 156,198.39, alternatively damages. 10. The seller entered appearance before the tribunal and filed its statement of defence. In the short statement of defence the seller admitted the contract and addendum nos.1 and 2 but disputed the binding nature of addendum no.3 in paragraph 10 of the statement of defence, which reads:- “Paragraph 10 of the Claims Submissions is not admitted. The Respondents sent a revised version of the Addendum No.3. It is completely denied there was an agreement in the form of Addendum No.3. The only understanding between the parties were that the Addendum No.3 would only be binding upon signing. The respondents further rely in the course of dealings in the execution of the Contract and subsequently Addendum No.1 and Addendum No.2 were duly signed. In these course of dealings the Respondents had agreed only to be bound when both parties signed the relevant contract. The Respondents had all times expected to follow the same course of dealings in relation to Addendum No.2. There was in fact no such signing of the Addendum No.3. The Respondents are thus not bound.” 11. Accordingly, the seller denied its liability to pay any amount under Addendum No.3. The claimant before the tribunal contended that the signing of Addendum No.3 was a routine formality and would not affect its efficacy as a binding contract. The claimant argued that consistent with the “prevention principle”, the seller should not be allowed to refuse to sign the addendum no.3 and thereby prevent a requisite pre-condition from being fulfilled. It was further contended that under English law, a contract can be made informally and there is no requirement of signing before a contract binds the parties. The claimant relied among other legal authorities on RTS Flexible Systems Ltd. v. Molkerei Alois Muller GmbH & Co. reported at [2010] 1 WLR 753. 12. It was further contended that under English law, a contract can be made informally and there is no requirement of signing before a contract binds the parties. The claimant relied among other legal authorities on RTS Flexible Systems Ltd. v. Molkerei Alois Muller GmbH & Co. reported at [2010] 1 WLR 753. 12. The seller in its written submissions filed prior to the hearing, questioned the jurisdiction of the tribunal to determine the claims on the basis that the dispute did not fall within the scope of the contract. The seller reiterated that Addendum No.3 was never signed by the parties and therefore was not binding. The seller accordingly requested for dismissal of the claim. 13. The claimant however at the time of hearing confirmed that its claim for damages was premised on Addendum No.3 and in the alternative on the basis of the contract as amended by Addendum Nos. 1 and 2. The tribunal considered the validity of Addendum No.3 as a binding contract and held against the claimant. The relevant observations can be found in paragraphs 121 to 128 of the award, which are set out hereunder:- “121. The Tribunal is not persuaded by the Claimant’s argument that a contractual arrangement was constituted by the Claimant’s acceptance of the Respondent’s counter-offer on 21 May 2013 or that signature of the addendum was a “routine formality”. 122.The Tribunal adopts the guidance established in RTS Flexible Systems Ltd. v. Molkerei Alois Muller GimbH & Co [2010] 1 WLR 753, which states as follows: Whether there is a binding contract between the parties and if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. 123. In this case, the Tribunal is not convinced that the communications between the Parties leads objectively to a conclusion that the Parties intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations”. 124. 123. In this case, the Tribunal is not convinced that the communications between the Parties leads objectively to a conclusion that the Parties intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations”. 124. First, the version of Addendum No.3 which the Claimant purports to be binding itself provides that the Seller shall make payment “within 3 months in three installments after signed this Addendum 3.” 125. Second, Clause 21 which addresses subsequent amendments to the Contract specifies that any “amendment or modification to this contract shall be in the form of an addendum to be signed by both parties ...” 126. Third, Clause 23 contains an “Entire Agreement” provision, making clear that the Contract “constitutes the entire agreement between the parties and supersedes all prior negotiations, understanding and agreements, whether written or oral. This contract shall not be modified, amended or supplemented, except by an instrument in writing duly executed by each of the parties hereto.” 127. Addendum No.3 was never signed by the Respondent. Based on a critical assessment of the correspondence on record and the intent of the Parties reflected in the foregoing provisions, the Tribunal finds that the communications and exchange of drafts between the Claimant and Respondent did not constitute an intention to create legal relations, or an agreement of terms that were intended to be contractually binding. 128. Addendum No.3 therefore does not bind either of the Parties, who remain bound by the Contract as amended by Addendum No.1 dated 21 January 2013 and Addendum No.2 dated 31 January 2013.” 13. The tribunal thereafter proceeded to decide the respondent’s breach of the contract as amended by addendum nos. 1 and 2. 14. Mr. Mainak Bose, the learned counsel representing the award-debtor/seller submits that the tribunal has exceeded its jurisdiction in deciding the said dispute as the claimant has not initiated the proceeding for the respondent’s breach of addendum nos. 1 and 2. It is submitted that the statement of claim proceeds solely on the basis of breach of addendum no. 3 and the tribunal had transgressed its jurisdiction in adjudicating the claim on the basis of addendum nos. 1 and 2. It is submitted that once the tribunal has come to a finding that addendum no. 1 and 2. It is submitted that the statement of claim proceeds solely on the basis of breach of addendum no. 3 and the tribunal had transgressed its jurisdiction in adjudicating the claim on the basis of addendum nos. 1 and 2. It is submitted that once the tribunal has come to a finding that addendum no. 3 is not binding on the parties, the tribunal has no jurisdiction to decide the claim not even being made by the claimant for the respondent’s alleged breach of the contract as amended by addendum nos. 1 and 2. Mr. Bose has referred to Section 48(c) of the Arbitration and Conciliation Act, 1996 and submits that since the award does not fall within the terms of the submission to arbitration and it contains decision on matters beyond the scope of submission to arbitration, the said award is not enforceable. 15. Mr. K.R. Thakker, learned counsel representing the decree-holder submits that the claimant in the statement of claim has referred to addendum nos. 1 and 2 and in the prayer had made a claim on account of damages. The tribunal has considered the claim of claimant on account of damages resulting from the respondent’s breach of addendum nos. 1 and 2. Mr. Thakker has relied upon the observation in the award that the seller although had disputed the validity of addendum no. 3 has not otherwise challenged the claimant’s calculation or disputed the provisional payment sum. The claimant has in the alternative claimed damages for the respondent’s breach of the contract as amended by addendum nos. 1 and 2 and hence an award in favour of the claimant. It is submitted that the tribunal has come to the conclusion that on a critical assessment of the documents on record, the respondent has breached the contract as amended by the addendum nos.1 and 2 and is liable for damages reflecting the difference in purchase price occasioned by the reduced quality of the cargo. 16. In order to appreciate the respective submissions, it is necessary to refer to section 48(c) of the Arbitration and Conciliation Act, 1996. 16. In order to appreciate the respective submissions, it is necessary to refer to section 48(c) of the Arbitration and Conciliation Act, 1996. The said Section reads:- “The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced;” 17. On a reading of the said sub-clause (c), it is clear that the executing court can scrutinize an award only for the limited purpose of ascertaining if the award deals with a difference not contemplated by or not falling within the terms of submission to arbitration. If on examination of the award it appears that matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced. 18. In the instant case a meaningful reading of the statement of claim would clearly show that the claimant has approached the arbitral tribunal seeking adjudication as to its claim arising out addendum no. 3. The claimant has asserted before the tribunal that addendum no. 3 binds the parties to the contract. The seller has breached addendum no. 3 and hence the claimant is entitled to the amounts under addendum no. 3 for which a final calculation of balance was sent to the seller on 26th June 2013. The respondent has categorically denied the existence of addendum no. 3 and any amount payable under addendum no. 3. The issue before the tribunal was whether addendum no. 3 is binding on the parties and if the answer is in the affirmative, then to quantify the amount payable under addendum no. 3. There is no mention of any claim on account of breach by the respondent of addendum nos. 1 and 2. It is elementary that a tribunal cannot grant a relief on a case for which there is no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. 3. There is no mention of any claim on account of breach by the respondent of addendum nos. 1 and 2. It is elementary that a tribunal cannot grant a relief on a case for which there is no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case which the claimant could have made was not only admitted by respondent in its statement of defence but is expressly put forward as an answer to claim which the claimant made in the statement of claim, there would be nothing improper in giving the claimant an award upon the case which respondent himself makes. Mr. Thakker submitted that the court is laying down a standard of pleading with a view to scrutinize the award. The rules of pleading in any jurisprudence do not permit that in the absence of pleading, evidence, if any, produced by the parties could be considered. It is equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to inform the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that a party should state the essential and material facts so that the other party may not be taken by surprise. In case of deficiency in the pleading, once it is found that the party knew the case and proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of substance of pleadings in order to nullify an award. In view of absence of pleading with regard to the seller’s alleged breach of addendum nos. 1 and 2, the seller was not called upon to deliver a defence with regard to such claims inasmuch as the seller was not even put to notice that the seller would be required to meet a case arising out of its alleged breach of addendum nos. 1 and 2. The tribunal however proceeded to decide a claim for damages for breach of addendum nos. 1 and 2. The tribunal however proceeded to decide a claim for damages for breach of addendum nos. 1 and 2 by the respondent without even giving an opportunity to the respondent to meet the case. This is a clear violation of the principles of natural justice. The tribunal had dealt with a claim not falling within the terms of the submission to arbitration. The pleading was only restricted to a claim on account of damages for breach of addendum no. 3. Since the award holder did not make any claim on the basis of addendum nos. 1 and 2 there was no occasion for the award debtor to file any objection with regard to the legality and validity of such claim. On such considerations, the said award is held to be unenforceable. 19. EC No.70 of 2017 stands dismissed. However, there shall be no order as to costs.