Karnataka High Court
Bainbridge Navigation Pte Ltd vs Bigmans Metals And Alloys Pvt Ltd on 18 November, 2023
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NC: 2023:KHC:43284
AP.EFA No. 4 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
ARBITRATION PETITION(ENFORCEMENT OF FOREIGN
ARBITRAL AWARD) NO. 4 OF 2022
BETWEEN:
1. BAINBRIDGE NAVIGATION PTE LTD.
19-06, TONG ENG BUILDING
101 CECIL STREET
SINGAPORE-069533
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR SANTOSH KOLI
...PETITIONER
(BY SRI SHREYAS JAYASIMHA, ADVOCATE)
AND:
1. BIGMANS METALS AND ALLOYS PVT LTD
HAVING ITS REGISTERED OFFICE AT:
NO.154/1, 8TH CROSS
4TH MAIN ROAD, CHAMRAJPET
Digitally signed
by BHARATHI S BENGALURU-560018, INDIA
Location: HIGH REPRESENTED BY ITS AUTHORIZED SIGNATORY
COURT OF
KARNATAKA ...RESPONDENT
(SERVICE OF NOTICE TO RESPONDENT IS HELD SUFFICIENT V/O
DTD 3.11.2023)
THIS AP-EFA IS FILED UNDER SECTION 47, 48 AND 49 OF THE
ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO ENFORCE
THE AWARD DATED 08/11/2021 PASSED BY THE SOLE ARBITRATION
IN SCMA REF: 2021/04 AND EXECUTE THE AWARD IN THE
EXECUTION PETITION ANNEXED HEREWITH AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC:43284
AP.EFA No. 4 of 2022
ORDER
Heard learned counsel for the Petitioner.
2. The present Petition is filed under Section 47, 48 and 49 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') for enforcement of the arbitral award dated 08.11.2021 between the parties.
3. It is forthcoming from a certified copy of the arbitral award dated 08.11.2021, which is produced as Annexure-A to the present petition that the arbitration proceedings have been conducted at the seat of arbitration at Singapore and has been conducted by a sole arbitrator.
4. At paras 4 and 5 of the award dated 8.11.2021, the arbitration clause has been set out, which reads as follows:
"4. In box 25 of the Charteparty, the following words were inserted:
"Law and Arbitration (state 19(a), 19(b) or 19(c) of Cl. 19; if 19(c) a Place of Arbitration) (if not filled in 19(a) shall apply) (CI. 19) ARBITRATION SINGAPORE WITH BIMCO DISPUTE RESOLUTION CLAUSE 2016 AND ENGLISH LAW TO APPLY.
5. Clause 19 and Rider Clause 34 of the Charterparty state that the BIMCO Dispute Resolution Clause 2016 is to apply with English Law and arbitration in Singapore." -3-
NC: 2023:KHC:43284 AP.EFA No. 4 of 2022
5. It is forthcoming that BIMCO Dispute Resolution Clause 2016 has been extracted at para 6 of the award, which reads as follows:
"6. The BIMCO Dispute Resolution Clause 2016 provides as follows:
"Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration in Singapore in accordance with the Singapore International Arbitration Act (Chapter 143A) and any statutory modification or re- enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
The arbitration shall be conducted in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration (SCMA) current at the time when the arbitration proceedings are commenced. The reference to arbitration of disputes under this clause shall be to three arbitrators. A Party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other Party requiring the other Party to appoint its own arbitrator and give notice that it has done so within fourteen (14) calendar days of that notice and stating that it will appoint its own arbitrator as sole arbitrator unless the other Party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other Party does not give notice that it has done so within the fourteen (14) days specified, the Party referring a dispute to arbitration may. without the requirement of any further prior notice to the other Party, appoint its arbitrator as sole arbitrator and shall advise the other Party accordingly. The award of a sole arbitrator shall be binding on both Parties as if the arbitrator had been appointed by agreement. -4-
NC: 2023:KHC:43284 AP.EFA No. 4 of 2022 Nothing herein shall prevent the Parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
In cases where neither the claim nor any counterclaim exceeds the sum of USD 150,000 (or such other sum as the Parties may agree) the arbitration shall be conducted before a single arbitrator in accordance with the SCMA Small Claims Procedure current at the time when the arbitration proceedings are commenced."
6. It is further noticed at para No.7 that the Rules applicable to the reference are the Rules of Singapore Chamber of Maritime Arbitration (SCMA rules).
7. It is further forthcoming that the arbitration proceedings have been conducted by a sole arbitrator as per the Rules and the Respondent had entered appearance in the said arbitration proceedings and participated in the same.
8. Section 47 (1), (a), (b) and (c) and 49 of the Act reads as follows:
"47. Evidence. (1)The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court--
(a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made;
(b) the original agreement for arbitration or a duly certified copy thereof; and -5- NC: 2023:KHC:43284 AP.EFA No. 4 of 2022
(c) such evidence as may be necessary to prove that the award is a foreign award.
(2)xxxxxx
49. Enforcement of foreign awards.--Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court."
9. It is forthcoming from Annexure-A that the final arbitration award dated 08.11.2021 is a Certified Authenticated Copy which has been attested by the Registrar, Singapore Chamber of Maritime Arbitration. Hence, the requirements as stipulated under Section 47(1)(a) and (c) have been complied with. In view of the fact that the arbitration clause has been extracted in the award itself, the relevant portion of which is noticed hereinabove, it is expedient to hold that Section 47(1)(b) of the Act is also complied with.
10. It is forthcoming from the award that the Respondent has participated in the arbitration proceedings as has been noticed at para 13 of the award and various other paragraphs, where reference to the contentions of the Respondent has been made.
11. In view of the aforementioned, the Petitioner having satisfied the requisite provisions as stipulated under Section -6- NC: 2023:KHC:43284 AP.EFA No. 4 of 2022 47(1) of the Act, it is required to hold that the Petitioner shall be entitled to enforce the said award as a decree of the Court as contemplated under Section 49 of the Act.
12. Ordered accordingly.
13. Registry to return the certified copy of the award dated 08.11.2021 (Annexure-A to the Petition) upon the Petitioner furnishing an attested copy of the same.
Sd/-
JUDGE PNV/nd List No.: 1 Sl No.: 6