Delhi High Court
Oht Hawk As vs Jagson Internatioal Ltd. on 4 July, 2018
Equivalent citations: AIRONLINE 2018 DEL 1253
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(EFA)(COMM.) 5/2016 & IA 6393-94/2016
Reserved on: 11th May, 2018
Date of decision : 4th July, 2018
OHT HAWK AS ..... Petitioner
Through: Mr.Arvind K. Nigam, Sr. Adv.
with Mr.O.P. Gaggar,Mr.Nikhil
Sharda and Mr.Mehtab Singh
Sandhu, Advs.
versus
JAGSON INTERNATIOAL LTD. ..... Respondent
Through: Mr.Arun Kumar Varma, Sr. Adv.
with Mr.Sanjeev Mahajan, Mr.Ashish Joshi, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA I.A.No.8471/2016
1. This application has been filed by the respondent under Section 48 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') inter-alia praying therein that the enforcement of the Foreign Award dated 07.01.2015 as subsequently amended on 09.02.2015 and 16.03.2015 along with the Supplementary Award dated 06.07.2015 be refused.
2. The disputes between the parties arose out of the Charter Party Agreement dated 21.07.2010 executed between the parties whereby the petitioner as "owner" chartered to the respondent "charterer" its ship "Hawk" for the carriage of a cargo of 2 Jack-up rigs from Malaysia to India.
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3. Clause 29, Part-I read with Clause 39, Part-II of the Charter Party Agreement provided for resolution of disputes in accordance with the English Law through Arbitration in London conducted in accordance with the London Maritime Arbitrators Association (LMAA) Rules.
4. Clause 7, Part-I of the Charter Party provided for the discharging port to be Bharuch or Sikka, India. The parties later agreed that the discharging should take place at Bedi Bunder rather than at Bharuch or Sikka. The respondent informed the petitioner that for discharging at Bedi Bunder, the vessel is required to be converted from foreign to coastal run at Pipavav during the first call and subsequently reconverted from coastal to foreign run post discharge of rigs and prior final departure from Pipavav. The petitioner by its response dated 16.08.2010 informed the respondent that time lost and costs for deviation would be on respondent's account.
5. The present challenge, on merits, to the Impugned Award is to the award of amount in favour of the petitioner on basis of principle of Quantum Meruit for the period of 21 hours between 1500 hours on 20.09.2010 to 1200 hours on 21.09.2010 at the agreed demurrage rate.
6. Before proceeding with the objections raised by the respondent/applicant to the Impugned Award, it would be useful to reproduce the provision of Sub Section 1 and Sub Section 2 to Section 48 of the Act within the limits of which the Court may refuse to enforce a Foreign Award:
"48. Conditions for enforcement of foreign awards.--(1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that--
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(a) the parties to the agreement referred to in section 44
were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(c) 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; or
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place ; or
(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
(2) Enforcement of an arbitral award may also be refused if the Court finds that--
(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or
(b) the enforcement of the award would be contrary to the public policy of India.
OMP (EFA)(Comm.) No.5/2016 Page 3 Explanation 1.--For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute."
7. The first contention raised by learned senior counsel for the respondent/applicant is that the Arbitral Tribunal, in violation of the LMAA Rules and without notice to the parties, treated the arbitral proceedings to be a document only arbitration thereby denying an opportunity of fair hearing to the respondent/applicant. He submits that the arbitral procedure followed by the Arbitral Tribunal was therefore not in accordance with the Agreement between the parties and thus, the Impugned Award cannot be enforced. In this regard he places reliance on Rule 12(a) of the LMAA Rules to contend that the Arbitral Tribunal did not convey its decision to conduct instant arbitral proceedings as a document only arbitration. Further, relying upon Clause 13(c) of the Rules, learned senior counsel for the respondent/applicant submits that such decision of the Arbitral Tribunal required a notice of such decision to be given by the Arbitral Tribunal to the parties.
8. Rules 12 and 13 of the LMAA Rules are reproduced hereinbelow:
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"ARBITRATION PROCEDURE
12. (a) It shall be for the tribunal to decide all procedural and evidential matters, but the tribunal will where appropriate have regard to any agreement reached by the parties on such matters. The normal procedure to be adopted is set out in the Second Schedule, subject to the tribunal having power at any time to vary that procedure.
(b) In the absence of agreement it shall be for the tribunal to decide whether and to what extent there should be oral or written evidence or submissions in the arbitration. The parties should however attempt to agree at an early stage whether the arbitration is to be on documents alone (i.e. without any oral hearing) or whether there is to be such a hearing.
INTERLOCUTORY PROCEEDINGS
13. (a) In all cases parties should be guided by the procedure set out in the Second Schedule.
(b) Applications for directions should not be necessary but, if required, they should be made in accordance with the Second Schedule.
(c) Arbitrations on documents alone Following completion of the steps covered by the Second Schedule, if it has been agreed by the parties or is determined by the tribunal that the case is to be dealt with on documents alone, the tribunal will then give notice to the parties of its intention to proceed to its award and will so proceed unless either party within 7 days requests, and is thereafter granted, permission to serve further submissions and/or documents.
(d) Oral hearings If it is determined or agreed that there shall be an oral hearing, then following the fixing of the hearing date a OMP (EFA)(Comm.) No.5/2016 Page 5 booking fee will be payable in accordance with the provisions of the First Schedule."
9. A reading of the above would show that the normal procedure to be adopted by the Arbitral Tribunal is set out in the Second Schedule to the Rules. Clause 11 of the Second Schedule provides that unless the parties agree that the reference is ready to proceed to an Award on exclusive basis of the written submissions, both parties must complete the questionnaire as set out in the Third Schedule of the Rules within 14 days of the service of final submissions and serve the complete questionnaire on the Tribunal as also on the other party. Clause 11 of the Second Schedule to the Rules is reproduced hereinbelow:
"11. Unless the parties agree that the reference is ready to proceed to an award on the exclusive basis of the written submissions that have already been served, both parties must complete the Questionnaire set out in the Third Schedule within 14 days of the service of the final submissions as set out in paragraph 5 above. Every such Questionnaire must contain the declaration set out at the end thereof, which shall be signed by a properly authorised officer of the party on whose behalf it is served. Completed Questionnaires must be served on the tribunal and all other parties. Unless the parties agree, the tribunal will then establish the future procedural course of the reference, either on the basis of the Questionnaires and any other applications made to it in writing or, if appropriate, after a preliminary meeting."
10. The questionnaire which is to be filled by the parties is given in the Third Schedule and is a rather detailed one. As far as the oral evidence is concerned, paragraphs 9 to 13 are important and are reproduced hereinbelow:
OMP (EFA)(Comm.) No.5/2016 Page 6 "9. What statement evidence is it intended to adduce, from whom and when? Is it possible to limit the length of statements or to avoid duplication of evidence? If there is to be a hearing what oral evidence will be adduced?
10. What expert evidence is it intended to adduce by way of reports and/or oral testimony and by when will experts' reports be exchanged? Can the length of experts' reports be limited? Unless the parties agree or the tribunal rules that a meeting between experts would not be appropriate, when should the meeting take place and when should a record of that meeting be provided?
11. What is the suggested timetable for the close of submissions if the case is to go ahead on documents alone or for a hearing if that is appropriate?
12. What is the estimated length of the hearing, if any?
13. Which witnesses of fact and experts is it anticipated will be called at the hearing, if there is to be one?"
11. A reading of the above would show that if a party wants to lead oral evidence it must clearly indicate the nature of the oral evidence that it seeks to produce and which are the witnesses that it seeks to produce at the hearing. The relevance of this nature of disclosure is in terms of Clause 13(d) of the Rules as per which, if it is determined that there shall be an oral hearing, 'Booking Fee' will be payable in accordance with the First Schedule to the Rules. The 'Booking Fee' is provided in detail in Clause D of the First Schedule.
12. In terms of the LMAA Rules as explained by LMAA in its answer to the 'Frequently Asked Questions', it has been clarified that the Arbitrators are not bound to have an oral hearing even if a party demands one. It further states that 80% of the Awards made by the LMAA OMP (EFA)(Comm.) No.5/2016 Page 7 members are made on the basis of written submissions and documents only, that is without an oral hearing.
13. A holistic reading of the LMAA Rules would therefore show that the oral hearing and opportunity to lead oral evidence is granted to the parties only on specific demand for the same by the parties to the arbitration. For making such demand the party must give justified reasons for the same. Such demand also entail additional cost. In the present case, while merely alleging that the Arbitral Tribunal did not give reasons for a document only arbitration, it has not been shown as to which witness the respondent/applicant wanted to produce and for what evidence. Further, it is not shown that what, if any, prejudice was caused to the respondent/applicant due to the arbitration proceedings being conducted as a document only arbitration. In my opinion, therefore, the objection raised by the respondent/applicant is totally fallacious and is liable to be rejected.
14. The second objection to the enforcement of the Award is that the Arbitral Tribunal having concluded in its Award that the petitioner was not entitled to claim demurrage from the time of completion of discharge until the vessel finally sailed from Pipavav, it could not have granted the same claim applying the principle of Quantum Meruit, that too, using the demurrage rate as the basis of the Award. The objection is that the petitioner had not based its claim on the principle of Quantum Meruit and therefore, the respondent never had an opportunity to defend the same. The respondent/applicant, therefore, pleads violation of the Principles of Natural Justice to challenge the enforcement of the Award.
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15. I have considered the submissions made by the learned senior counsel for the respondent/applicant, however, I am unable to accept the same. As noted above, Clause 7 Part I of the Charter Party Agreement provides for Bharuch or Sikka to be the discharging port. At the request of the respondent/applicant, the discharging port was changed to Bedi Bunder. As noted above, for Bedi Bunder, the vessel was to be converted from foreign to coastal run at Pipavav until it discharges rigs at Bedi Bunder and thereafter reconverted to foreign run at Pipavav after discharging the rigs and before sailing to its further journey. Clause 3(c) of the Charter Party Agreement provides that if the vessel for reasons beyond the owner's control is delayed at the loading port and/or the discharging port, including customs, port clearance or other formalities, such delays shall be paid for by the Charterer at the demurrage rate stipulated in Clause19, Part I of the Charter Party Agreement. The petitioner, therefore, in my opinion was entitled to claim demurrage for the said period in accordance with the terms of the Charter Party Agreement.
16. The Arbitral Tribunal has held that as Pipavav cannot be taken as the discharging port, the claim of demurrage by the petitioner from the time of completion of discharging at Bedi Bunder, which was 1155 hours on 19.09.2010, until the vessel sailed from Pipavav at 1200 hours on 21.09.2010 cannot be granted. However, as the call at Pipavav was an extra-contractual requirement, the petitioner was held entitled to claim demurrage for the time spent at Pipavav for custom clearance at the demurrage rate provided in the Charter Party. The finding of the Arbitral Tribunal cannot be said to be unreasonable, arbitrary or perverse in any OMP (EFA)(Comm.) No.5/2016 Page 9 manner. In any case, it is now settled law that wider meaning given to the expression "Public Policy of India" occurring in Section 34 (2) (b) (ii) of the Act is not applicable to objection against enforcement of Foreign Award under Section 48 (2)(b) of the Act; review of Foreign Award on merits is not provided for under Section 48 of the Act. There is no scope for a second look on the merits of the Award at the stage of enforcement of Foreign Awards (Shri Lal Mahal Limited v. Progetto Grano SPA (2014) 2 SCC 433)
17. The Explanation 2 to Section 48 of the Act has further clarified that the question whether the Award contravenes the Fundamental Policy of Indian Law would not entail a review on the merits of the disputes. In fact, as held by this Court in Xstrata Coal Marketing AG v. Dalmia Bharat (Cement) Ltd. (2017) 236 DLT 524, the expression "Fundamental Policy of Indian law" does not mean the provisions of Indian Statutes. The key words are Fundamental Policy; they connote the substratal principles on which Indian law is founded.
18. As far as the arguments of learned senior counsel for the respondent/applicant that the basis of the claim made by the petitioner was not the principle of Quantum Meruit and therefore, the respondent was denied an opportunity of defending such claim on the said basis leading to violation of the Principles of Natural Justice, the same also cannot be accepted.
19. Learned senior counsel for the respondent/applicant relying upon the judgments of the Supreme Court in Puran Lal Sah v. The State of U.P., 1971 (1) SCC 424 and Food Corporation of India & Ors v. Vikas Majdoor Kamdar Sahkari Mandli Limited, (2007) 13 SCC 544 and OMP (EFA)(Comm.) No.5/2016 Page 10 Yeoman's Row Management Limited & Anr. v. Cobbe, (2008) UKHL 55 submits that the remedy by way of Quantum Meruit is restitutory and is different from a claim in damages which is compensatory. The Principle of Quantum Meruit is not applicable where there is a specific Agreement in operation. He therefore submits that the Quantum Meruit was a completely different basis than the claim made for demurrage and could not have been allowed by the Arbitral Tribunal without giving an opportunity to the respondent/applicant to meet the same.
20. I cannot agree with the above submission of the learned senior counsel for the respondent/applicant. As noted above, the claim of the petitioner was for demurrage for the entire period spent by the vessel after discharging the cargo at Bedi Bunder right till the sailing of the vessel from Pipavav after obtaining customs clearance. The Arbitral Tribunal has held that the detention of the vessel at Pipavav on its way back was due to the extra-contractual requirement made by the respondent/applicant. Only because the Arbitral Tribunal based its Award on a particular principle of law relating to contracts, it cannot be said that it must first put the other party to notice for application of such law. The factual basis for making of the claim and the Award passed by the Arbitral Tribunal remained the same. It is only an application of law to those facts for which no separate notice was required to be given to the respondent/applicant. As explained by the Supreme Court in Shri Lal Mahal Limited (Supra) something more than contravention of law is required for enforcement of a Foreign Award to be contrary to the Public Policy of India. In the present case, the Arbitral Tribunal has applied the principle of Law which is also contained in Section 70 of the Indian OMP (EFA)(Comm.) No.5/2016 Page 11 Contract Act, 1872. It cannot therefore, be said that the Impugned Award has been passed in violation of Principles of Natural Justice or without giving adequate opportunity to the respondent/applicant to defend the claim of the petitioner.
21. Learned senior counsel for the respondent/applicant has further submitted that the Arbitral Tribunal has erred in awarding the interest in terms of the Clause 33 of the Charter Party Agreement in favour of the petitioner. He submits that the Clause 33, Part-II of the Charter Party Agreement is applicable only where the amount is due under the Charter Party. He submits that as the Arbitral Tribunal has found the claim of demurrage to be not sustainable and has granted the same on the Principle of Quantum Meruit in favour of the petitioner, Clause 33 of the Charter Party Agreement would not be attracted. I am unable to agree with the said submission of the learned senior counsel for the respondent/applicant. The Arbitral Tribunal has awarded the claim of the petitioner under the Charter Party Agreement itself, though applying the principle of Quantum Meruit. In any case, the award of interest would be within the jurisdiction of the Arbitral Tribunal and there is no challenge made that the Arbitral Tribunal could not have awarded interest on the amount that was found due and payable by the respondent/ applicant to the petitioner due to any term in the agreement prohibiting grant of such interest.
22. The next contention of learned senior counsel is that there was no evidence on record of the Arbitral Tribunal showing that the vessel had arrived at Pipavav at 1500 hours on 20.09.2010 and sailed therefrom at 1200 hours on 21.09.2010. He submits that the Impugned Award has OMP (EFA)(Comm.) No.5/2016 Page 12 been, therefore, passed without there being any evidence in this regard. I am unable to agree with the said submission of the learned senior counsel for the respondent/applicant. In the amended Statement of Claim, the petitioner had stated as under:
"9. In breach of the charterparty the Vessel did not complete discharge until 11.55 on 19 September 2011. The Vessel proceeded to Pipavav port for customs clearance. The Vessel arrived in Pipavav at 15:00 on 20 September 2011 and was subsequently redelivered to Owners. As stated at Paragraph 5 above, free time had expired at 12:01 hours on 15 August 2011 and accordingly the Vessel was on demurrage-waiting for a further 4.5097 5.3847 days, as particularized by the invoice dated 21 September 2010 (as subsequently amended) set out at Tab 45. However, Charterers have failed and refused to pay the sum of USD 269,236.11 in respect of that invoice or any part thereof."
23. In its reply to the amended Statement of Claim, the respondent inter-alia contended as under:
"Once the Rigs were offloaded at 11:55 Hours on 19 September 2010, there is no question whatsoever of any further claim for demurrage. The free time had stopped to run and no demurrage can be claimed after free time has stopped to run. The Respondent is not liable to pay demurrage for any time allegedly spent by Hawk towards customs clearance or otherwise. Therefore, the alleged figure of 4.50975.3847 days is in the least inflated by fifteen (15 forty seven hours and fifty five minutes(47:55) hours or 0.6251.996 days spent by Hawk, according to the Claimant, in travelling to Pipavav and obtaining customs clearance, between 11:55 Hours on 19 September 2010 and 1512:00 Hours on 2021 September 2010.
Without prejudice to the afore-said submission and in the alternative, if the Respondent is held responsible for payment of any demurrage for the period of 4.50975.3847 OMP (EFA)(Comm.) No.5/2016 Page 13 days or a part thereof, as alleged by the Claimant, such period has to, in the least, exclude a period of 0.625 days forty seven (47) hours spent by Hawk in travelling to Pipavav for customs clearance. Accordingly, if at all, only demurrage for 3.8597[4.5097 (0.6253887[5.3847-(1.996)] days at the rate of United States Dollars Fifty Thousand (USD 50000) per day, i.e., an amount of United States Dollars One Hundred Ninety Two and Sixty Nine Thousand Nine four Hundred Eighty Thirty Five (USD 192985169435), is payable by the Respondent to the Claimant, if at all.
The Claimant has not provided the Claimant Respondent with a duly signed copy of (a) notice of readiness for loading, (b) statement of facts enumerating the activity chart of Hawk and (c) notice of readiness for discharge. The Respondent requests the two (2) arbitrators to direct the Claimant to provide the Respondent with copies of these documents."
24. Therefore, there was no serious dispute that the vessel had arrived at Pipavav at 1500 hours on 20.09.2010 and sailed therefrom at 1200 hours on 21.09.2010. Even otherwise, as noted above, a Foreign Award cannot be refused to be enforced by scrutinizing the same on merits. In fact, Explanation 2 to Section 48(2)(b) of the Act proscribes examination of the merits of the dispute.
25. It is further contended by the learned senior counsel for the respondent/applicant that the petitioner had not given a Notice of Readiness as mandated in Clause 10, Part-II of the Charter Party Agreement nor had given advance notice as provided in Clause 9, Part-II of the Charter Party Agreement and, therefore, in terms of Clause 13(a), Part-II of the Charter Party Agreement, the free time had not started and OMP (EFA)(Comm.) No.5/2016 Page 14 consequently no cause of action for award of Demurrage or claim on the basis of Quantum Meruit had arisen in favour of the petitioner. He submits that this plea was expressly taken before the Arbitral Tribunal, however, has not been adverted to by the Arbitral Tribunal at all.
26. I do not find any merit in the said submission of the learned senior counsel for the respondent/applicant. Admittedly, there is no challenge made before this Court to the award of demurrage at the discharging port at Bedi Bunder. The Arbitral Tribunal, in its Award has observed that the applicant has paid substantial amount of demurrage as claimed by the petitioner as discharging port demurrage and has made no counter claim in respect of that payment. Paragraph 9 of the Impugned Award is relevant and is reproduced hereinbelow:
"9. The same is true in respect of much of the demurrage claimed by the owners in respect of the discharging port. A payment was made by the charterers in respect of a substantial amount of discharging port demurrage, and they made no counterclaim in respect of that payment, although seeking to argue that they were not originally liable for it. Again, therefore, there can be no issue in this arbitration in relation to that demurrage, and again we need not deal with the relevant facts or the charterers' arguments based on them."
27. From a reading of the Award it is apparent that such a plea, though raised by the applicant in its reply before the Arbitral Tribunal, was not argued. In any case, it is not explained by the applicant on what basis it had paid demurrage at the discharge port and in absence of such explanation and without a counter claim being raised, in my opinion, the OMP (EFA)(Comm.) No.5/2016 Page 15 Arbitral Tribunal was correct in rejecting to consider such submission of the applicant.
28. Learned senior counsel for the petitioner has also drawn reference to various documents which he claims were advance notices as contemplated in Clause 9, Part-II of the Charter Party Agreement, however, in my opinion, this being a dispute on facts, it is not open for this Court to enter into the evidentiary value of these documents and reappraise the evidence led before the Arbitral Tribunal.
29. For the reasons above stated, I find no merit in the objection raised by the applicant on the above ground.
30. It is further submitted by the learned senior counsel for the respondent/applicant that in terms of Clause 28 of the LMAA Rules, the Arbitral Tribunal may reserve question relating to cost, however, an application in this regard must be filed by the party within three months of the Award, unless the Tribunal agrees to a longer period. He submits that in the present case, the Award was passed on 07.01.2015 reserving jurisdiction to assess and make an Award with respect to the cost. The petitioner thereafter moved an application for assessing such cost only on 28.04.2015, that is, beyond the period of three months as prescribed in Clause 28 of the LMAA Rules. It is submitted by the learned senior counsel for the respondent/applicant that in view of the above facts, the application filed by the petitioner for award of cost was beyond the period of limitation and therefore, the Supplementary Award dated 06.07.2015 cannot be sustained.
31. I have considered the submission made by the learned senior counsel for the applicant, however, I find no merit in the same. In the OMP (EFA)(Comm.) No.5/2016 Page 16 present case, learned senior counsel for the petitioner has drawn my attention to the fact that after the passing of Award dated 07.01.2015, the Arbitral Tribunal corrected the same vide its order dated 09.02.2015 and again on 16.03.2015. Even the Award dated 07.01.2015 was published only on 20.01.2015. He therefore submits that the Final Award was passed only on 16.03.2015 and the application filed by the petitioner was within the period of three months prescribed in Clause 28 of the LMAA Rules. The learned senior counsel for the petitioner further draws reference to petitioner's email dated 16.04.2015 calling upon the Arbitral Tribunal to consider the question of quantum of costs to be awarded in favour of the petitioner as the respondent/applicant had failed to reply to the demand letters addressed by the petitioner. He submits that on 28.04.2015 only a detailed breakdown of the working of the cost in form of Schedule of Costs was provided to the Arbitral Tribunal. Therefore, the application for cost was filed on 16.04.2015, that is, within the period of limitation prescribed in Clause 28 of LMAA Rules as considered from the date of the publication of the Award. He further draws my attention to the reply dated 13.05.2015 given by the respondent/applicant to the Arbitral Tribunal on such application, wherein there is no objection with respect to limitation taken by the respondent. He submits that even after receipt of this reply, the Arbitral Tribunal vide its notice dated 22.05.2015 granted another opportunity to the respondent to give its reply to the application of the petitioner for award of cost. Having received no response thereto, the Arbitral Tribunal closed the right of the respondent to give a reply to the application vide its email dated 30.05.2015 and finally proceeded to pass the Award in favour of the petitioner on OMP (EFA)(Comm.) No.5/2016 Page 17 06.07.2015. He therefore submits that the contention of the applicant apart from being factually incorrect, is even otherwise not maintainable as it had forfeited its right to object to the award of cost before the Arbitral Tribunal.
32. I have considered the submissions made by the learned counsels for the parties. It is not disputed by the respondent/applicant that though the Award was dated 07.01.2015, it was published only on 20.01.2015. The period of three months, therefore, has to be counted from that date. The application for cost was made by the petitioner on 16.04.2015, that is, within the period of three months from the date of publication of the Award. Therefore, application was within the period of limitation prescribed in Clause 28 of the LMAA Rules. Even otherwise, Clause 28 of the LMAA Rules empowered the Arbitral Tribunal to extend the time for making of the application beyond three months where they reserve any question relating to cost and/or interest in any Award. The respondent having forfeited its right to the object to the said application, in my opinion, cannot be heard to challenge the Award on this technical plea, especially where the Arbitral Tribunal had a right to extend the period of limitation.
33. In view of the above, I find no merit in the present application and the same is accordingly dismissed with cost quantified as Rs.1 lac. O.M.P.(EFA)(COMM.) 5/2016 & IA 6393-94/2016 As the objections against the enforcement of the Arbitral Award have been rejected, the respondent/Judgment Debtor shall pay the amount awarded to the petitioner within the period of four weeks from today, OMP (EFA)(Comm.) No.5/2016 Page 18 failing which the respondent/Judgment Debtor shall file an affidavit disclosing its assets in Form 16A, Appendix E of Code of Civil Procedure, 1908 within the same period.
List on 9th August, 2018.
NAVIN CHAWLA, J
JULY 04, 2018/vp
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