TaxTMI 
TaxTMI 
2008 (9) TMI 996
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....is appeal, as emerging from the case made out by the appellant, may be summarized as follows: 3. The appellant is a company dealing in the business of manufacturing and exporting food products and cereals/grains etc. The appellant was to export sorghum (hereinafter referred to as the "cargo") to the State of Niger. The appellant thereafter negotiated with the head of the State of Niger through a lady Principal Officer for an export order. In that process, the appellant herein obtained an irrevocable letter of credit from the State Bank of India, Overseas Branch, New Delhi, on 12th of July, 2005. On 26th of July, 2005, the appellant addressed an e-mail to the respondent through its broker Brisk Marine Services. As per the contents of the mail the appellant promised to load 13,500 MT of the cargo at Kakinada Port for transportation to Cotonou. The respondent herein, issued a bill of lading. As per the terms and conditions of the Charter Party Agreement, the appellant had to load the said cargo within nine days on or before 6th of August, 2005. The vessel M.V. Kapitan Nazarev arrived at Kakinada Port on 24th of July, 2005. The surveyor of the appellant inspected the vessel ....
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.... Pradesh. The respondents then entered into appearance in O.S. No. 44 of 2005 and moved an application under Section 45 of the Act to refer the dispute between the parties to arbitration in London under the provisions of the English Arbitration Act, 1996 and stay all further proceedings in the suit pending arbitration. The Learned III Additional District Judge, Kakinada, allowed the application by an order dated 30th of November, 2006. Feeling aggrieved, the appellant filed a Civil Revision Petition before the High Court of Andhra Pradesh at Hyderabad which was dismissed on a finding that there was a Charter Party Agreement in existence and the appellant could not deny the existence of the same. 4. It is this order of the High Court, which was under challenge by way of a Special Leave Petition, which on grant of leave, was heard in presence of the learned Counsel for the parties. 5. Having heard the learned Counsel for the parties and after examining the impugned judgment of the High Court and also the order of the trial court, we do not find any reason to interfere with the concurrent orders of the High Court as well as of the trial court in the exercise of our discretionary pow....
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....ons is that they have signed only fixture note and not any charter party agreement. Respondent has further taken a preliminary objection regarding territorial jurisdiction of this Court to entertain this petition. When a corporation/company has its subordinate office at the place where cause of action arose, only local courts will have jurisdiction to try the suit notwithstanding the fact that the corporation/company has its registered office somewhere else, where no part of cause of action arose. In the present case, petitioner's contention that Delhi Courts have jurisdiction to try the suit is based on Sub-clause `c' and not Sub-clause `a' of Section 20 of CPC. According to the petitioner Charter Party was signed at Delhi. Respondent did not deny their signatures on the first page of Charter Party, which shows that the agreement was signed at New Delhi and place of arbitration as London. Thus, a part of cause of action arose in Delhi where the principal office of the respondent is also situated. In this case there is no agreement between the parties excluding the jurisdiction of Delhi Courts. Therefore, Delhi Courts have jurisdiction to entertain the present petitio....
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....r which may arise between them in respect of a defined legal relationship, whether contractual or not 2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. 3) An arbitration agreement shall be in writing. 4) An arbitration agreement is in writing if it is contained in: a) A document signed by the parties; b) An exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or c) An exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. 5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. 11. Therefore, it is clear from the provisions made under Section 7 of the Act that the existence of an arbitration agreement can be inferred from a document signed by the parties, or an exchange of letters, telex, telegrams or other means of telecommunication, which provide a record of the agreement. In the p....
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....ision of Section 7 of the Act is concerned, an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement and furthermore an arbitration is considered to be in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement or an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. So from the provisions of Section 7, it is clear that a Charter Party Agreement need not be in writing signed by both parties and this could as well be made out from the acts of the parties to the agreement by way of their exchange of letters and information through fax, e-mails etc. It is clear from the records that in this case the agreement between the appellant and the respondent was entered into through Brisk Marine Services, and a letter addressed to Kola Freight for arranging a vessel for carrying the cargo of 13,500 MT from Kakinada Port to Cotonou was delivered. The appellant had vehemently contended before us that there was no Charter ....
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.... not contain any terms of the agreement. 16. It is clear from the documents produced before us that as on the date of loading of the cargo into the vessel on 6th of August, 2005 there was no final cancellation of the orders from the Government of the State of Niger and that the appellant was loading the said cargo with the hope that the Government of Niger would accept the proposal. The appellant during that time was not in a position to load the total amount of the cargo as produced to the tune of 13,500 MT as the deal with the Government of Niger was not yet finalized. But then in such a situation, if the so called Charter Party Agreement, relied upon by the respondent, is absent, then there has to be some other agreement to that effect under which, the appellant herein agreed to load the vessel with a cargo of 1,100 MT of sorghum. But such an agreement has not come to our notice. 17. The appellant contended that the loading of the sorghum was done pursuant to a fixture note. A careful perusal of the fixture note reveals that the place of arbitration has been mentioned as London. Moreover, with regard to Clause 14-19, it has been mentioned in the said fixture note that it is re....
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....idering the clauses thereof. 20. The learned Counsel appearing on behalf of the appellant had drawn our attention to the fact that the appellant had sent an email to the respondent on 26th of July, 2005 stating that it had not signed any Charter Party. We have gone through the said email. It has been clearly stated in the email that the appellant had received the Charter Party with regard to Cotonou but had not received anything for Colombo. Therefore he had not signed the same. The said portion of the email is quoted herein for convenience: I am in receipt of CP and Fixture Note for Cotonou but nothing for Colombo therefore, not signed so far. To this effect it can be said that the appellant had not signed the said charter party. But if we proceed towards the end of the said email sent by the appellant, we may say that there is a clear disparity as to the contention of the appellant that there was no agreement between the parties regarding the loading of the cargo. We feel it necessary to refer to the relevant portion of the email pointing out to this disparity: Above for your info. And action pls. Am trying my best to engage your vessel just to honour the negotiations. Let&....