Calcutta High Court
Phaethon International Sa vs Lords Polymer (India) Pvt. Ltd on 2 May, 2017
Author: Soumen Sen
Bench: Soumen Sen
ORDER
EC No. 601 of 2015
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
PHAETHON INTERNATIONAL SA
Versus
LORDS POLYMER (INDIA) PVT. LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 2nd May, 2017.
Appearance:
Mr. Rohit Mukherjee, Advocate
Ms. Anindita Ghose, Advocate
...for the petitioner.
This is an application for execution of a foreign award. The
petitioner has filed three supplementary affidavits to bring on
record additional documents to show that the arbitration clause in
the charter party agreement has been validly enforced and the
arbitral tribunal was constituted in accordance with the procedure
agreed by and between the parties.
The award-debtor at the relevant time was a charter of the
vessel "Trade Star". The petitioner is a foreign company. The
petitioner as despondent owner of the Vessel M. V. Trade Star by a
Final Recap / Voyage Charter Party on an amended Gencon Form dated
10th April 2013 chartered the vessel M. V. Trade Star to the
respondent to carry a full and complete cargo of 25,000 MT 10%
MOLOO OWS OPTION. The duly certified copy of the Final Recap / Voyage Charter Party along with Rider Clauses and clean GENCON 94 2 is annexed to the petition. Clause 4 of the Final Recap along with Clause 19 of the clean GENCON Charter Party provides for the Arbitration Clause which reads:-
"a) This Charter Party shall be governed by and construed in accordance with English Law and any dispute arising out of this Charter Party shall be referred to arbitration in London in accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or modification or reenactment thereof for the time being in force. Unless the parties agree upon a sole arbitrator, one arbitrator shall be appointed by each party and the arbitrators so appointed shall appoint a third arbitrator, the decision of the three man tribunal thus constituted or any two of them shall be final. On the receipt by one party of the nomination in writing of the other party's arbitrator, that party shall appoint their arbitrator within 14 days, failing which the decision of the single arbitrator appointed shall be final."
The terms of the charter party dated 10th April 2013 were exchanged through email. It is stated that the parties have acted on the basis of such terms thereby indicating consent to such terms by their conduct. In the supplementary affidavit, addendum to the charter party dated 10th April 2013 has been disclosed which appears to have been signed by both the parties. The said addendum refers to the fixture note dated 10th April 2013 and records that apart from what was mentioned in the addendum all 3 other terms of the charter party agreement dated 10th April 2013 remained unchanged, unaltered and irrevocable. The award-holder says that disputes arose in respect of the charter party agreement evidenced by the "Final Recap" note dated April 13, 2013.
On 4th July 2013, through an email, the applicant's English Solicitors appointed Mr. Bruce Buchan as their arbitrator. The applicant's English Solicitors also by their email dated 9th July 2013 informed the award-debtor of the appointment of Mr. Buchan as the applicant's arbitrator and called upon the award-debtor to appoint their arbitrator within 14 days of the receipt of the message failing which Mr. Buchan would stand appointed as the sole arbitrator. Intimation of the appointment of Mr. Buchan as the applicant's arbitrator was sent to the broker, Prime Oceanic who by their email of 24th July 2013 confirmed to the applicant's English Solicitors of their having forwarded the said notice dated 4th July 2013 to the award-debtor on 9th July 2013. In view of the failure of the award-debtor to appoint their arbitrator, the applicant's English Solicitors by their email dated 5th August 2014 requested Mr. Bruce Buchan that in view of the failure of the award-debtor to appoint their arbitrator he ought to in agreement between the parties assume the role of sole arbitrator. Mr. Buchan vide his reply email dated 5th August 2013 accepted his appointment as the Sole Arbitrator and commenced the arbitration proceedings. By their email dated 5th August 2013, the applicant's 4 English Solicitors requested Prime Oceanic to forward to the award debtor their notice dated 5th August 2013 to Mr. Buchan. Prime Oceanic vide their email of 5th August 2013 confirmed to the English Solicitors of their having forwarded the said notice of 5th August 2013 to the award-debtor. On 2nd December 2013, the applicant sent their Statement of Claim by an email to both, the Sole Arbitrator as well as the award-debtor. In view of the award-debtor not having responded to the Statement of Claim filed by the applicant, the applicant's English Solicitors by their emalil of December 31, 2013, requested the sole arbitrator to pass an order for service of defence upon the award debtor. Prima Oceanic forwarded a copy of the said email to the award debtor and duly copies in the applicant, their English Solicitors and the sole arbitrator. The Sole Arbitrator by his e-mail dated December 31, 2013, directed the award-debtor to comment to the English Solicitor's application by January 03, 2014. On January 02, 2014, the award-debtor responded by their e-mail, stating inter alia, that they are not aware of the matter and requested for documents pertaining to the dispute. The applicant's English Solicitors summarily on the same day itself again sent to the award-debtor by an e-mail, the Statement of Claim and drew the sole arbitrator's attention to the fact that the recipient's email address was on the initial list of those included in their earlier emails. The sole arbitrator also sent an e-mail on January 02, 2014, directing 5 the award-debtor to file their statement of defence within January 14, 2014. With no response forthcoming from the award-debtor even after January 14, 2014, despite the e-mails being sent to the same address from which the award-debtor had responded on January 2, 2014, the sole arbitrator by an e-mail dated January 16, 2014 issued a peremptory direction upon the award-debtor to file their Statement of Defence by January 24, 2014 in default of which he would proceed to make and publish an award in the arbitration based solely on the submissions before him. On January 28, 2014 since the award-debtor failed to file their Statement of Defence and to respond in any manner, the sole Arbitrator informed the parties through an email that there was no compliance of his directives by the award-debtor and that he would now proceed to deliver the award on the basis of the submissions made by the applicant.
Thereafter, an email was sent by the award-debtor on 30th January 2014 informing that they were not a party to the dispute. This was refuted by the award-holder in their email dated 30th January 2014. The applicant by email dated 30th January 2014 disclosed documents to evidence the fact that the award-debtors always had knowledge about their outstanding claim. The applicant also responded to the clarification sought by the sole arbitrator in the email dated 2nd June 2014. The sole arbitrator on the same date by his email afforded the award-debtor an opportunity to 6 respond to the clarification given by the applicant. In the said email dated 2nd June 2014, a direction was given to the award- debtor to respond to the applicant's email dated 2nd June 2014 on or before 10th June 2014. Since the award-debtor did not respond to such email, the arbitrator proceeded with the matter and published an award on 16th July 2014. A copy of the said award was sent to the parties by the sole arbitrator on 28th July 2014 both by email as well as by post. The said award is not under challenge. The affidavit of service filed in this proceeding shows that the award debtor was served with a copy of this application and the supplementary affidavits filed in this court. The award-debtor, in spite of notice, has remained unrepresented. The documents disclosed in this proceeding conform to the conditions for enforcement of foreign awards. The petitioner has disclosed emails which contain the charter party agreement as also the addendum to the fixture note duly signed by the parties. The said charter party contains the arbitrator clause. The agreement between the parties which contains the arbitration clause is evidenced from the exchange of emails. The said emails provide record of the agreement. Under such circumstances, this court is of the view that the award has snow become enforceable.
Mr. Amit Saha and Mr. Asis Kumar Saha, the principal officers of the award-debtor, shall file individual affidavits of assets in Form No.16A of Appendix-E to the Code of Civil Procedure within 7 six weeks from the date of communication of this order. The matter is adjourned for eight weeks.
The petitioner shall communicate this order to the said principal officers of the award-debtor within a week from date and shall file an affidavit of service on the adjourned date.
The supplementary affidavit filed today are taken on record.
(SOUMEN SEN, J.) Later:
While signing the order on verification of record it appears that a clerk of the applicant solicitor firm has affirmed the affidavit in support of the tabular statement without production of proper authority. The Oath Commissioner is directed to explain as to how the deponent was allowed to affirm the affidavit without proper authorisation. The Registrar, High Court, Original Side is directed to enquire into the matter.
The earlier part of the order shall remain in abeyance until the authority of the deponent is established.
Let this matter appear on 16th May 2017.
[SOUMEN SEN, J.] S. Kumar