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Porto Emporios Shipping Inc vs Indian Oil Corporation Limited & Anr on 27 October, 2021

Author: Asha Menon

Bench: Asha Menon

$~Suppl.-18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 549/2021

       PORTO EMPORIOS SHIPPING INC.              ..... Plaintiff
                    Through: Mr. Sandeep Sethi, Sr. Adv. with
                             Mr. Amitava Majumdar, Mr.
                             Arvind Kumar Gupta, Mr. Aditya
                             Krishnamurthy,     Mr.       Pulkit
                             Dhawan, Mr. prashant Bhardwaj
                             and Mr. A. Gupta, Advs.

                                Versus

    INDIAN OIL CORPORATION LIMITED
    & ANR.                                       ......Defendants
                  Through: Mr. A.S. Chandhiok, Sr. Adv. with
                              Ms. Manmeet Arora, Mr. Shrikant
                              Hathi, Ms. Pavitra Kaur, Mr.
                              Shimansh Soni and Mr. Kartikeya
                              Sharma, Advs. for D-1.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
                       ORDER

% 27.10.2021 (HYBRID HEARING) I.A.13978/2021 (for exemption)

1. Allowed, subject to just exceptions.

2. The application stands disposed of.

I.A.13977/2021 (of plaintiff u/S 148 CPC for extension of time for filing court fee) CS(OS) 549/2021 Page 1 of 5

3. For the reasons mentioned in the application, the application is allowed and the plaintiff is permitted to file the court fees within one week from today, as sought.

4. The application stands disposed of.

CS(OS) 549/2021 & I.A.13976/2021 (of plaintiff u/O XXXIX R-1&2 CPC for ad-interim relief)

5. The plaint be registered as a suit.

6. The suit has been filed for the following reliefs:

"a) pass a decree for declaration that the Arbitration Agreement contained in clause 29 of the Charterparty Agreement dated 5th August 2020 between the Plaintiff/Porto Emporios Shipping Inc. and Defendant No.1/Indian Oil Corporation Limited has been waived and/or has stood terminated and therefore is inoperable;

b) pass a decree for declaration that the arbitration proceedings commenced by the Defendant No.1/Indian Oil Corporation Limited on 3rd September 2021 under clause 29 of the Charterparty Agreement dated 5 th August 2020 is oppressive and vexatious in light of Defendant No.1/Indian Oil Corporation Limited on 6 th July 2021 having lodged a claim against the limitation fund constituted by the Plaintiff/ Porto Emporios Shipping Inc. before the Second Maritime Court in Panama on the basis of the claim in the Panamanian Money Decree Suit filed by Defendant No.1/Indian Oil Corporation Limited in the First Maritime Court of Panama;

c) pass a decree for declaration that the claim sought to be made by the Defendant No.1/Indian Oil Corporation Limited against the Plaintiff/ Porto Emporios Shipping Inc. by notice dated 3rd September 2021, under the Arbitration Agreement contained in clause 29 of the Charterparty Agreement dated 5th August 2020 is non-

arbitrable and cannot be proceeded with in arbitration;

d) pass a decree of perpetual injunction restraining Defendant No.1/Indian Oil Corporation Limited and Defendant No.2/Indian Council of Arbitration from prosecuting, conducting and taking any steps or further steps in the arbitration proceedings sought to be commenced by the notice dated 3rd September 2021 under the Charterparty dated 5th August 2020, between the Plaintiff/Porto Emporios Shipping Inc. and Defendant No.1/Indian Oil Corporation Limited which is currently being administered by Defendant No.2/Indian Council of Arbitration as Case No. ACM-210;

e) pass a decree of perpetual injunction restraining the Defendants from taking any steps or further steps on the basis of the email dated 20th September 2021 issued by Defendant No.2/Indian Council of Arbitration and from appointing any arbitrator/s under clause 29 of the Charterparty dated 5th August 2020 and Rule 10(3)(b) of the Maritime Arbitration Rules of the Indian Council of Arbitration;

f) pass any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case."

7. Issue summons in the suit and notice in the application to the defendants by all permissible modes returnable on the next date of hearing.

8. Ms. Manmeet Arora, Advocate accepts summons in the suit and notice in the application on behalf of the defendant No.1 and seeks time to file the written statement and reply to the application.

9. The written statement(s) to the suit and reply(ies) to the application(s) be filed by the defendant(s) within two weeks from the date of receipt of the summons. The defendant(s) shall also file the affidavit of admission/denial of the document(s) filed by the plaintiff(s), failing CS(OS) 549/2021 Page 3 of 5 which the written statement(s) shall not be taken on record.

10. The plaintiff is at liberty to file replication(s) to the written statement(s) and rejoinder(s) to the reply(ies) filed by the defendant(s) before the next date of hearing following the filing of the written statement(s)/reply(ies). The replication(s) shall be accompanied by the affidavit of admission/denial in respect of the documents filed by the defendant(s), failing which the replication(s) shall not be taken on record.

11. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the time lines.

12. At the outset, Mr. A.S. Chandhiok, learned senior counsel appearing on behalf of the defendant No.1 submits that the present suit is not maintainable as an ordinary suit. These objections will be considered once the pleadings have come on record.

13. Mr. Sandeep Sethi, learned senior counsel for the plaintiff submits that interim directions may be issued to the defendant No.2 to not proceed with the appointment of the Arbitral Tribunal. It is submitted that under the Rules prescribed, if the response of the plaintiff is not filed by the date fixed i.e., 3rd November, 2021, the defendant No.2 shall be at liberty to proceed with the appointment of an Arbitral Tribunal.

14. The aforesaid request is objected to by the learned senior counsel for the defendant No.1.

15. However without prejudice to the rights and contentions of the parties, the defendant No.2/Indian Council of Arbitration may not proceed to appoint an Arbitral Tribunal till the next date of hearing.

16. Provisions of Order XXXIX Rule 3 CPC be complied with qua defendant No.2.

17. List on 24th November, 2021.

18. The order be uploaded on the website forthwith.

ASHA MENON, J.

OCTOBER 27, 2021 'bs' CS(OS) 549/2021 Page 5 of 5