Karnataka High Court
Five Ocean Corporation vs Iriv Asia Pte Ltd on 5 August, 2016
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST 2016
BEFORE
THE HON'BLE MR. JUSTICE A.S.BOPANNA
C.M.P. NO.58/2016
BETWEEN :
FIVE OCEAN CORPORATION
HAVING ITS OFFICE AT 7TH FLOOR,
JEONG -AN BUILDING 95,
SEOSONUN RO
CHUNG- GU SEOUL
SOUTH KOREA 100814
REP. BY ITS AUTHORIZED SIGNATORY
... PETITIONER
(BY MS. POORNIMA HATTI, ADV. FOR
M/S. SAMVAD PARTNERS)
AND:
1. IRIV ASIA PTE LTD.,
NO 84, FLORA ROAD,
03-18 SINGAPORE - 507001
REP. BY ITS MANAGING DIRECTOR
2. BULKCOM SHIPPING
SUITE NO 326, 3RD FLOOR,
C-2, DISTRICT CENTRE,
SAKET, NEW DELHI - 1100017
REP. BY CAPT. HARSH SETIA
3. MARCON SHIPPING (KONKAN) PVT. LTD.,
5TH FLOOR B WING,
RAMA BHAVAN COMPLEX,
KODIALBAIL,
MANGALORE - 575003
REP. BY ITS MANAGING DIRECTOR
2
4. LAKSHMI AGENCIES
NO 106, 1ST FLOOR,
SILVER STREAK APARTMENTS,
ASHOK NAGAR CIRCLE,
MANGALORE - 575006
REP. BY ITS MANAGING DIRECTOR
5. NEW MANGALORE PORT TRUST
PANAMBUR , MANGALORE - 575006
REP. BY THE TRAFFIC MANAGER
6. COMMISSIONER OF CUSTOMS
NEW CUSTOMS HOUSE,
MANGALORE PORT,
PANAMBUR, MANGALORE
... RESPONDENTS
(BY SRI. M B NARGUND, SR. COUNSEL FOR
SRI GURURAJ YADRAVI &
SMT. SONA VAKKUD, ADVS. FOR R1
SRI. C SHADHIKANTHA, ADV. FOR R6
SRI. RAVISHANKAR R.H., ADV. FOR R4
SERVICE OF NOTICE TO R2, 3 & 5 H/S
V/O DATED 31.05.2016)
THIS C.M.P. IS FILED UNDER SECTION 11 (9) OF THE
ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO
(A) AN ORDER RESTRAINING RESPONDENT NOS. 1, 2, 4 AND 5
FROM REMOVING, SHIFTING, MOVING, TRANSPORTING AND
FROM ALLOWING ANY FURTHER DELIVERY OF THE CARGO
BELONGING TO THE PETITIONER, DISCHARGED FROM THE
VESSEL M.V.CORINNA AND LYING AT NEW MANGALORE PORT
TRUST AND ETC.
THIS C.M.P. COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
The instant petition in C.M.P. No.58/2016 is filed by the petitioner under Section 9 of the Arbitration and Conciliation Act to seek for order on interim measure pursuant to the Amendment Act 3/2016.
2. It is evident that the issue as raised, arises under an agreement of International Commercial Arbitration. Since, at present, only the applications filed under Section 11 of the Act are being categorized as Civil Miscellaneous Petition(C.M.P.) and is being listed before the designate Judge, I have heard the learned counsel for the petitioner and the learned Senior Counsel representing the respondent on this aspect of the matter, to arrive at a conclusion with regard to the appropriate nature, in which the petitions under Section 9 of the present nature are to be categorized and be listed in that regard, since a Judge designated to hear a Section 11 Application would not have the 4 jurisdiction or the roster to hear an application filed under Section 9 of the Act.
3. In this regard, what is presently available is only the High Court of Karnataka (Arbitration (Proceedings before the Court) Rules, 2001 and no other Rule making provision to file appropriate proceedings after the amendment is brought to the knowledge of this Court. In that light, insofar as the petitions under Section 9 of the Act to be filed for interim measure, the classification provided is an Arbitration Application (AA). As noticed, the applications under Section 9 of the Act though filed keeping in view the said Rules was before the District Judge and such classification was being made in such Court. However, presently, since the instant application is to be filed before this Court in view of the amendment and no Rule is formulated, it would be useful to refer to the definition in Section 2(e) of the Act, wherein for the purpose of considering the jurisdiction and defining the 'Court', it is provided that in the case of International Commercial Arbitration, the 5 High Court in exercise of its ordinary original Civil Jurisdiction has no jurisdiction to decide the questions forming the subject matter of the Arbitration, if the same had been the subject matter of a suit and in other cases, a High Court having jurisdiction to hear appeals from decrees of Courts subordinate to that High Court. If the said definition is kept in view, presently, there is no original civil jurisdiction but a Division Bench of this Court is provided the roster to hear the appeals arising from such cases. If that be the position, an arbitration petition filed under Section 9 of the amended Act will also have to be listed before such Bench, which considers those matters relating to Arbitration.
4. In that view, the instant petition shall be treated as an Arbitration Petition-Interim Measure (AP- IM), on obtaining appropriate orders from Hon'ble the Chief Justice and thereafter, the petition shall be listed before the Bench having roster for the subject.
5. Since the learned counsel for the petitioner contends that there is urgency in the matter, the 6 Registry shall Act upon this order forthwith and list accordingly. Further, considering that such matters are presently being listed before the Hon'ble Division Bench, the learned counsel for the petitioner shall file the second set consisting of all the papers.
For the purpose of records, this petition shall be rounded off as disposed with liberty to convert the same into an Arbitration petition.
Sd/-
JUDGE SPS/bms