Calcutta High Court
Eastern Bulk Company Ltd vs United India Insurance Company Ltd on 7 September, 2016
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
AP No.1534 of 2015
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
EASTERN BULK COMPANY LTD.
Versus
UNITED INDIA INSURANCE COMPANY LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 7th September, 2016.
Appearance:
Mr. S. Barman Roy, Adv.
Mr. P.D. Mukherjee, Adv.
Mr. Pradeep Kumar, Adv.
Mr. Chandan Kr. Lal, Adv..
Ms. Sreya Trivedi, Adv.
The Court : The preliminary objection is raised on behalf of the insurance
company that there is no arbitration agreement between the parties. The said
submission is self-defeating as the communication dated 30th October, 2013 of the
insurance company clearly states that Mr. Tony Fernandez of M/s. Creative Marine
Insurance Consultants Pvt. Ltd., Mumbai, is appointed as the sole Arbitrator and
required the petitioner to give consent in writing to the appointment of the sole
Arbitrator following which the respondent by a letter dated 31st October, 2013 agreed to
the said appointment. By a subsequent communication dated 11th November, 2013, the insurance company reiterated its stand and after taking note of the consent given by the petitioner intimated the sole Arbitrator to enter reference in the matter. The sole Arbitrator thereafter entered reference.
The Arbitrator, however, declined to proceed further in view of failure on the part of the parties to sign the agreement on procedure despite several reminders. Moreover, 2 the advance professional fees payable to the Arbitrator as per the communication made by the Arbitrator appears to have not been paid by either of the parties. The petitioner soon after receiving the said mail requested the Arbitrator to send an invoice and the Permanent Account Number of the Arbitrator to enable the petitioner to pay its share of fees. The petitioner appears to have informed the Arbitrator that since the parties have agreed to the appointment of a sole Arbitrator, there would be no requirement to enter into an agreement as such and the procedure may be laid down by the Arbitrator, if the parties fail to agree on the procedure.
The Court expected the insurance company being the Government of India Undertaking should act fairly and not to resile from its obligation. The insurance company, in fact, wanted the adjudication to be made by a sole Arbitrator. The insurance company did not cooperate with the Arbitrator.
Under such circumstances, the parties are directed to pay their respective shares of the remuneration to the Arbitrator already named by the insurance company within three weeks from date. Failing any agreement as to procedure the Arbitral Tribunal shall conduct the proceeding in the manner it considers appropriate. Power of the Arbitral Tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. The contention of the insurance company that there is no arbitration clause is thoroughly misconceived and unacceptable. The sole Arbitrator is requested to dispose of the reference within ten months from the date of lodging of the statement of claim.
AP No.1534 of 2015 is, accordingly, disposed of.
However, there shall be no order as to costs.
(SOUMEN SEN, J.) B.Pal