TaxTMI 
TaxTMI 
2006 (6) TMI 521
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....the letter of credit for realization of the value of the cargo by causing delivery of the same to its buyer. The defendant No. 1 contended that since the freight was not paid they were entitled to have a lien on the goods. It was contended that the buyer of the goods did not pay the freight charges and as such bill of lading was not issued. The plaintiff filed the above suit, inter alia, claiming for decree for US$7,28,000 as well as for mandatory injunction directing the defendant No. 1 as well as defendant No. 2 being the agent of the defendant No. 1 to issue bill of lading. 2. Pending Applications: (1) G.A. No. 531 of 2006: This application was filed by the plaintiff, inter alia, asking for mandatory direction upon the respondents to issue bill of lading in terms of the mate receipts dated January 19 and January 22, 2006. (2) G.A. No. 637 of 2006: This application was also filed by the plaintiff, inter alia, praying for direction upon the respondents to issue bill of lading in terms of the advocate's letter dated March 2, 2006 as well as for variation and/or modification of the order dated March 2, 2006 passed in G.A. No. 531 of 2006. ....
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....o furnished by the plaintiff for the balance claim of the defendant No. 1. In fact by the subsequent development the grievance of the plaintiff was almost met, what was left is adjudication of the claims of the rival parties. The plaintiff claimed damage because of the delay in discharging of the cargo and they made the defendant No. 1 responsible for the same as they delayed the process of issuance of bill of lading. The defendant No. 1 claimed damages because of the sufferance of the defendant No. 1 for non-payment of freight at the appropriate time and thereby delayed the process of delivery. Parties started corresponding with each other with regard to the claims and cross claims through their respective advocates. The defendant No. 1 referred the dispute to arbitration at Hongkong. They nominated their arbitrator and asked the plaintiff to nominate their arbitrator or to concur such appointment. The arbitral tribunal at Hongkong also wrote to the plaintiff suggesting name of one individual to act as the arbitrator of the plaintiff. Plaintiff, however, refused to appoint arbitrator and contended that there was no arbitration agreement between the parties and the disputes would h....
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....ming the plaintiff wanted to dispute the jurisdiction of the arbitral tribunal they would have to approach the tribunal itself under Section 16. (7) Under Section 45 the suit was liable to be stayed. (8) Foreign arbitration could not be stayed by this Court as prayed by the plaintiff and this Court had no other alternative but to stay the suit under Section 45 of the said Act, 1996. (9) The fixture note was issued in January, 2006 before the filing of the suit and Clause 11 of the fixture note was sufficient enough to bind the parties with the terms of the charter party including the arbitration clause. Cases Cited: 7. Mr. Mitra did not cite any decision whereas Mr. Sarkar cited the following decisions: (1) [2000]2SCR684 P. Anand Gqjapathi Raju and Ors. v. P.V.G. Raju (Dead) and Ors. (2) AIR2001SC3381 Owners and Parties Interested in the vessel M.V. "Baltic Confidence" and Anr. v. State Trading of India Ltd. and Anr. (3) [2002]2SCR411 Bhatia International v. Bulk Trading S.A. and Anr. (4) AIR2005SC3766 Shin Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. (5) 1....
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....een the parties. If the test is positive the suit is liable to stayed, if not the plaintiff would be entitled to proceed with the suit. However, in my view, the law does not permit me as discussed above to stay any foreign arbitration proceeding initiated by one of the parties while suit is pending for adjudication before this Court. Applying the law in the present scenario: 13. Test: On January 6, 2006 the fixture note was issued appearing at page 56 of the petition being G.A. No. 1164 of 2006. In terms of Clause 11 of the fixture note the freight was payable as per bill of lading and bill of lading was to be issued strictly in accordance with the mate receipt. The mate receipt was issued by the defendant No. 2 as an agent of the defendant No. 1, inter alia, on January 19, 2006 and January 22, 2006. Neither the fixture note nor the mate receipt contained any arbitration clause. In an admiralty transaction when goods are booked on board and mate receipt and fixture note are issued the shipper always have a lien on cargo till the freight is paid of. Once freight is paid of and goods are booked on board bill of lading is issued which can be negotiated through letter of credit. ....
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....se, the plaintiff approached this Court at a stage when there was no concluded contract between the parties. In terms of the order of this Court the bill of lading was issued and that too without prejudice to the rights and contentions of the parties. Hence, it cannot be said that the arbitration clause stipulated in the charter party would have a binding effect on the plaintiff. The clause relating to arbitration mentioned in fixture note, in my view, is not an appropriate arbitration clause which could bind the plaintiff. The plaintiff filed the suit in this Court for specific performance of the contract between the parties, inter alia, for compelling the defendants for issuance of the bill of lading. The same was done in terms of the order of the Court which was interim in nature and that too without prejudice to the rights and contentions of the parties. Hence, in my view, the arbitration clause contained in the bill of lading would have no binding effect on the plaintiff. Secondly, the defendant No. 11 is not entitled to have an order of stay of the instant suit under Section 45 of the said Act of 1996 in absence of a valid arbitration agreement between the parties. 16. The....