Austbulk Shipping Sdn Bhd vs P.E.C. Limited
2005 Latest Caselaw 278 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present petition is filed by the petitioner seeking enforcement and execution of the foreign award dated 30th May, 2001 passed by the sole arbitrator Mr.William Robertson. The said award was made at London as per the English law on 30th May, 2001 and 1st November, 2001. The records placed before me reveals that the said award was an ex parte award. The petitioner has alleged in the petition that it had entered into a charter party agreement with the respondent on 20th April, 2000 containing an arbitration clause. It is also alleged that the said charter party governed the rights of the parties. According to it the charter party was duly signed on behalf of the petitioner and was forwarded to the respondent's agent M/s.Forbes Gokak Limited, Patvolk Division , Mumbai for obtaining signature of the respondent under FAX dated 29th April, 2000. It is also alleged that the respondent also opened a Letter of Credit dated 13th March, 2000 with the desire to import 15,000 MT western Australian farmers dressed Tyson Chickpeas, which was followed by the said charter party agreement between the parties. Even subsequently, the respondent opened another Letter of Credit on 12th May, 2000 in respect of freight in favor of M/s. Challenge Shipping SDN BHD. It is the case of the petitioner that it arranged a vessel for the said purpose for carriage of the aforesaid quantity of Chickpeas to be carried to Jawahar Lal Nehru Port Trust. The vessel Rubin Halcyon arrived at the discharge port on 15th May, 2000 and it is alleged that even notice of readiness was duly served on the respondent by FAX dated 15.5.2000. The said FAX was replied to by the respondent on 18th May, 2000 wherein a request was made to the petitioner to change the discharge port from Jawahar Lal Nehru Port to Mumbai. The respondent by its letter dated 18th May, 2000 informed the petitioner of appointment of M/s.Unimarine Agencies Private Limited as charterer's nominated agent at the discharge port. In its letter dated 19th May, 2000 the respondent also undertook to indemnify the petitioner and its agents in respect of any liability, loss, damage or expenses of whatsoever nature, which it may sustain by reason of the vessel proceeding and giving delivery of the cargo in accordance with their request. In terms thereof the petitioner, on 22nd June, 2000 submitted to the respondent their statement of amount due to them due to the change of port and demurrage charges. The respondent by its letter dated 26th July, 2000 to M/s.Sealine International, their brokers, admitted the receipt of laytime statement forwarded by the petitioner and instructed them to proceed further in the matter with the petitioner for amicable settlement of demurrage. As no payment was made in terms of the request of the petitioner, the petitioner invoked the arbitration clause in the charter party agreement and appointed Mr.William Robertson as their arbitrator under letter dated 19th September, 2000 claiming for balance of freight and demurrage in terms of the said charter party agreement. The petitioner also requested the respondent to appoint its arbitrator in respect of the aforesaid claim. It is alleged that even subsequent thereto the respondent vide its FAX dated 6th October, 2000 instructed M/s.Sea Line International for settlement with the petitioner contending that without prejudice if the petitioner is willing to amicably settle all the claims, they would be prepared to pay US$ 71,207.79 in full and final settlement of all claims pertaining to the vessel. The petitioner, however, by its letter dated 24th October, 2000 informed the respondent that settlement at the aforesaid quoted amount was not possible as the respondent owed a sum of US $ 150,362.18. It was stated that in the absence of a more realistic settlement proposal the arbitration proceedings should continue. It was also pointed out in the said communication that since the respondent failed to appoint its own arbitrator, therefore, they had appointed Mr.William Robertson as the sole arbitrator.

2. Mr.William Robertson accepted the aforesaid appointment as the sole arbitrator and he also received claims submitted by the petitioner along with the supporting documentation. The arbitrator passed an order and sent a message on 20th March, 2001 ordering that the respondent should serve their submission of defense together with counter-claim on/or before 17th April, 2001. The respondent, however, sent a FAX dated 20th March, 2001 contending, inter alia, that it had not signed any charter party agreement nor is it was a party to the said charter party and hence it is not liable under the arbitration agreement contained therein. By a subsequent FAX dated 22nd March, 2001, the said position was reiterated. The sole arbitrator, however, proceeded with the reference and passed an award in respect of the claim as also in respect of cost. For enforcement and execution of the said foreign award, the present petition is filed in this court.

3. Counsel appearing for the petitioner submitted that the award passed is a foreign award and, therefore, the same is required to be enforced and executed in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The aforesaid petition was, however, contested by the respondent on various grounds including the ground of non- maintainability of the same. The first objection, which was raised by the respondent, is that there was no written agreement containing an arbitration clause between the parties and, therefore, there could not have been any reference either to the arbitrator nor could there be any award in respect of the alleged claims of the petitioner. It was also submitted that while filing the petition in this court, the petitioner has failed to comply with the provisions of Section 47 of the Arbitration and Conciliation Act and, therefore, this petition is not maintainable and should be rejected. It was also submitted that the award is not a foreign award as defined in Section 47 of the Arbitration and Conciliation Act, 1996. In that view of the matter and the nature of the objections raised regarding the maintainability and merit of the present petition, I may proceed to examine the various pleas that have been raised.

RELEVANT STATUtorY PROVISIONS:-

4. Part-2 of the Arbitration and Conciliation Act deals with the enforcement of certain foreign awards.

5. Section 44 of the Act defines the expression foreign award to mean an arbitral award on differences between persons arising out of legal relationship, whether contractual or not but considered as commercial under the law in force in India, which is made on or after the 11th day of October, 1960 and pursuant to an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies and in relation to one of such territories, as the Central Government, being satisfied that reciprocal provisions have been made.

6. The date stipulated in the said provision is 11th October, 1960, which is the date on which New York convention of 1958 came into force in India. It is also stipulated that the said foreign award must be made in pursuance of an agreement in writing and the award should be made in one of such territories which is a party to the convention and with which reciprocal provisions have been made.

7. The expression "arbitration agreement" is also defined in Section 2 of the Act as an agreement referred to in Section 7.

Section 7(4) of the Arbitration and Conciliation Act, on the other hand, provides that 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 defense in which the existence of the agreement is alleged by one party and not denied by the other.

8. Since the present Arbitration and Conciliation Act has been enacted taking into account the UNICITRAL Model Law and Rules, some of the provisions relating to foreign award in the present Act are similar to New York Convention. Article (22) Clause 2 of the New York Convention, which is set out in the First Schedule to the aforesaid Act provides that the term "in writing " shall include an arbitration clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams. Section 7(4) of the Arbitration and Conciliation Act is similar to Section 2 of the Foreign Awards (Recognition and Enforcement) Act, 1961.

Section 45 deals with the question of recognition of an arbitration agreement while Section 46 provides that the foreign award which is enforceable under the said Chapter, shall be treated as binding for all purposes.

Section 47 of the Act deals with the evidence, which is to be produced before the court at the time of filing the application for enforcement of the foreign award, in the following manner:-

(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

(c) such evidence as may be necessary to prove that the award is a foreign award.

(2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

Explanation:- In this section and all the following sections of this Chapter, "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

9. Section 48, on the other hand, deals with the conditions for enforcement of foreign awards, in the following manner:-

(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 -

(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.

Explanation: - Without prejudice to the generality of clause (b) of this section, it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.

(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

10. It is also to be noted, at this stage, that Section 47 is in identical terms with Section 8 of the Foreign Awards (Recognition and Enforcement) Act, 1961 except to the extent that the word "court", which is defined in the explanation incorporated under Section 47, but the said expression is not defined under Section 8 of the Foreign Awards (Recognition and Enforcement) Act, 1961. Section 48, on the other hand, provides the grounds on which the enforcement, which is sought for under Section 47, could be refused.

From the aforesaid discussion it is crystal clear that Sections 47, 48 and 49 of the Act lay down the procedure to be followed for enforcing of foreign award when it is held that the foreign award could be enforced, then only performance of the award is ensured through execution by compelling the losing party to do in terms of the award when he is unable or unwilling to perform the same voluntarily.

ALLEGED NON-COMPLIANCE OF SECTION 47 OF THE ACT:-

11. It was submitted by the counsel appearing for the respondent by way of one of the objections that when the present petition was filed by the petitioner, the original agreement for arbitration or a duly certified copy thereof was not produced and since the said document was not produced before this court at the time of filing the petition, the petition cannot be entertained and is required to be dismissed. In support of the said contention, reliance was placed on the provisions of Section 47 of the Act, which according to the counsel was mandatory in nature.

12. There is no dispute in the present case that the award sought to be enforced was made at London and that the United Kingdom is a party to the New York convention. The United Kindgom is also a reciprocating territory and to that extent a notification has been duly issued. But, still the objection which is raised and the question that falls for my consideration is whether the original agreement or a duly authenticated copy thereof having not been filed at the time of presentation of the application, the present petition could be said to be not maintainable. The records placed before me reveal that a duly certified copy thereof was placed on record by the respondent along with the reply filed by it. The petitioner also, at the stage of arguments, filed an application for allowing it to place on record the original Charter Party agreement containing an arbitration clause, which allegedly could not be filed by the petitioner at the time of presentation of the petition as it was misplaced. Therefore, as of now, there is compliance of the provisions but the fact remains that at the stage when the petition was presented in this court, it did not contain either the original arbitration agreement or a duly certified copy thereof. The original award was, however, annexed with the petition and was produced for perusal of the court at the time of filing of the petition.

13. Once a foreign award is passed, the same cannot be enforced immediately like a domestic award. The said award has to be initially put through the process of enforcement, which is mandatory before an award could be executed. The provisions of the Act, particularly Sections 47, 48 and 49 envisage the mode and manner in which a foreign award is to be enforced and could be executed. The party seeking to enforce the award has to make an application under Section 47 of the Act enclosing therewith the evidence as mentioned therein. Such an application could be resisted by the party against whom enforcement is sought by furnishing proof to the court of the existence of one or more of the defenses as set out in Section 48 of the Act. It is only when the Court decides and records its satisfaction that the award is enforceable, then only the award could be enforced as a decree of the court. It is now a settled law as laid down in Fuerst Day Lawson Ltd. v. Jindal Export that it is not necessary to take up separate proceedings one for deciding the enforceability of the award and the other to take up execution thereafter and that both the reliefs could be sought for in the same proceeding and one single petitioner, where both the reliefs could be combined together and sought for. When an application is made in terms of the provisions of Section 47 of the Act for enforcement of the said award, the court may refuse enforcement of the foreign award on any of the grounds set forth in Section 48 of the Act. A perusal of Section 48 would indicate that there are seven grounds in all. The first five grounds indicated in the said section deal mainly with the procedural defects vitiating a foreign award in the country under the law of which that award was made. The court may exercise jurisdiction to refuse enforcement only when the party resisting the enforcement of the award makes an application to the court for refusing its enforcement and furnishes proof to it on existence of one or more of said grounds. But so far other two grounds are concerned, as contained in Section 48(2), the same are to be examined by the court passing an order for enforcement and execution. So far those two grounds are concerned, it is necessary for the party resisting enforcement of the award to prove existence or the court may on its own take notice of existence of the said ground and refuse enforcement of the foreign award on the said ground. But none of the aforesaid grounds, namely, all the seven grounds, envisage a ground on which a prayer for enforcement could be refused when it is not accompanied by any of the evidence/document as mentioned n Section 47 of the Act. The aforesaid documents are required to be placed on record along with the application in order to prove that the award sought to be enforced is a foreign award and is based on a valid agreement for arbitration. The same are required to be placed before the court by the party seeking to enforce the award. In order to prove that the award is a foreign award , he is required to file the said documentary evidence before the court along with the application seeking for enforcement. The original award or a duly authenticated copy thereof, the original arbitration agreement or a duly certified copy thereof and other relevant evidence necessary to prove that the award is a foreign award, are prima facie evidence to prove that the award is an actual and genuine foreign award. In the present case, a duly authenticated copy of the original award was placed on record. The original arbitration agreement or a duly certified copy of the said arbitration agreement was not, however, produced by the petitioner along with the petition for enforcement. A certified copy thereof is placed on record by the respondent themselves with the reply filed by it. Subsequently, during the course of pendency of the said petition in this court the petitioner has also sought to brought the original charter party agreement said document on record by producing the same through an application.

14. Whatever documents are required to be annexed and produced at the time of filing of a petition/application are to be so filed and produced and if the same are not filed or produced, it is the obligation of the forum receiving it or the court dealing with it to return the same to the concerned party as the same is not filed in accordance with the requirement of the aforesaid provision. In that event, it is possible for the party desiring to enforce a foreign award to file a fresh petition after satisfying all the requirements. No period of limitation is also provided in the Act for filing such a petition. Therefore, to such a petition general law of limitation would apply as there is no special law of limitation prescribed. Therefore, the petitioner in this case could have filed a fresh petition accompanied by all the documents, provided the same was returned to it immediately after filing on the ground that the petition/application is not accompanied by all the documents, which are to be placed on record. The aforesaid documents are required to be placed as matters of evidence for the satisfaction of the court that the award, whose enforcement is sought, is a foreign award within the meaning of the Chapter-I, Part-II of the Arbitration and Conciliation Act, 1996. When the foreign award is filed along with the petition, that also prima facie indicates as to whether or not the award passed is a foreign award within the meaning of the aforesaid provisions of the Arbitration and Conciliation Act, 1996. During the pendency of the petition the said document, namely, the duly certified copy of the arbitration agreement was placed on record. Therefore, I hold that there is substantial compliance of the provisions of the Act. The original award was on record which also prima facie proves and establishes that the award is a foreign award and, therefore, the court did not chose to return the petition. But, at this stage, when there is evidence on record to prove and establish that the award passed is a foreign award within the meaning of the Act, the same cannot be refused to be enforced on the aforesaid preliminary objection, which is raised by the learned counsel appearing for the respondent.

15. The respondent has filed a copy of the agreement, which is accepted as a correct copy. On comparison with the original now placed, I find no variation at all and, therefore, no prejudice would be caused if , at this stage, an order is passed admitting original of the charter party agreement, which is placed on record by the petitioner. I pass an order accordingly for taking on record original of the charter party agreement filed by the petitioner. Therefore, the application E.A.432/2004 stands allowed in terms of this order passed.

WHETHER THERE WAS AN ARBITRATION AGREEMENT?

16. The next contention that is raised by the learned counsel appearing for the respondent is that there was no charter party agreement between the parties in writing and, therefore, there could not have been any arbitration agreement between the parties. Consequently,therefore, no award could have been passed which could be enforced through this proceeding. In support of the said contention, learned counsel appearing for the respondent submitted that even before the sole arbitrator such an issue was raised by the respondent to the effect that it was neither a signatory nor a party to the charter party and, therefore, was not liable under the arbitration agreement. It was also submitted by him that various documents were placed by the petitioner before the arbitrator, contending the same to be of contemporaneous nature, for showing that the charterers, namely, the respondents herein had authorised its broker to enter into the charter party and treating the same as confirmation that the said broker was authorised to act on behalf of the respondent for the fixtures in question were misread and misinterpreted. The learned arbitrator has considered a similar contention raised by the respondent before him. The said contentions are dealt with by the learned arbitrator in para 8 of his award. While recording his findings and conclusions therein he has considered the fixture correspondence including the statements of the witnesses and thereafter held that the respondent was a party to the contract, namely, the charter party, which contains the arbitration clause.

17. My attention was also drawn by the learned counsel appearing for the petitioner to the letter of indemnity requesting change of ports, which was issued on behalf of the respondent. Reference was also made to a FAX message dated 30th October, 2000 from one Mr.Kumar , who had signed the said FAX message on behalf of the respondent. The freight invoice was also placed on record, which also indicates that it is the respondent, who had paid the freight. Reference was also made and reliance was placed on various documents stated to be of contemporaneous nature to prove and establish that the respondent had authorised their brokers to enter into the charter party agreement.

18. It is an admitted position and established situation that the charter party agreement, which contains the arbitration agreement is not signed by the respondent. Section 7 of the Arbitration and Conciliation Act, 1996, to which reference was made, provides that the arbitration agreement should be in writing and should be signed. It is indicated from the award passed that under the English law by which the parties had agreed to govern themselves as well as the law of England where the arbitration proceedings were held, a charter party is not required to be signed by the charterer or the owner, which is presumably in view of the fact that charter parties are, at times, negotiated and concluded through brokers.

19. Section 7 of the Arbitration and Conciliation Act also recognises that an arbitration agreement could be said to be in writing and is a document signed by the parties when it is proved from exchange of letters, telegrams, telex or other means of telecommunications or from exchange of statement of claim and defense, which provide a record or existence of the agreement. In this connection, I may also appropriately refer to the decision of the Supreme Court in SMITA CONDUCtorS LIMITED v. EURO ALLOYS LIMITED reported in AIR 2001 SC 3730. It was held in the said decision by the Supreme Court as follows:-

"What is an agreement in writing is explained by para 2 of Article 2. If we break down para 2 into elementary parts, it consists of four aspects. It includes an arbitral clause, (1) in a contract containing an arbitration clause signed by the parties, (2) an arbitration agreement signed by the parties, (3) an arbitral clause in a contract contained in exchange of letters or telegrams, and (4) an arbitral agreement contained in exchange of letters or telegrams. If an arbitration clause falls in any one of these four categories, it must be treated as an agreement in writing. In the present case, we may advert to the fact that there is no letter or telegram confirming the contract as such but there is certain correspondence which indicates a reference to the contract in opening the letters of credit addressed to the Bank to which we shall presently refer to. There is no correspondence between the parties either disagreeing with the terms of the contract or arbitration clause. Apart from opening the letters of credit pursuant to the two contracts, the appellant also addressed a telex message on 23.4.1990 in which there is a reference to two contracts bearing Nos. S-142 and S-336 in which they stated that they want to invoke force majure and the arbitration clauses in both the contracts which are set forth successively and thus it is clear that the appellant had these contracts in mind while opening the letters of credit in the bank and addressing letters to the bank in this regard. May be, the appellant may not have addressed letters to the respondent in this regard but once they state they are acting in respect of the contracts pursuant to which letters of credit had been opened and they are invoking the force majure clause in these two contracts, it obviously means that they had in mind only these two contracts which stood affirmed by reason of these letters of credit. If the two contracts stood affirmed by reason of their conduct as indicated in the letters exchanged, it must be held that there is an agreement in writing between the parties in this regard".

20. Therefore, I am required to examine and analyze the correspondences exchanged between the parties and the documents, which are stated to be contemporaneous in nature to ascertain whether their exists valid and legal written agreement between the parties containing the arbitration agreement. A duly certified copy of the charter party is placed on record by the respondent themselves in their reply. Therefore, it is even the case of the respondent that their exists a document of the nature of a charter party agreement which contains the arbitration clause. Reference is already made to the letter dated 19th May, 2000 from the respondent to the petitioner undertaking to indemnify the petitioner for the consequences arising for change of port of discharge from Jawahar Lal Nehru Port, Mumbai to the Port of Mumbai, India. The same is also supported by a FAX communication of the respondent to the petitioner requesting for change of port from Jawahar Lal Nehru Port, Mumbai to the Port of Mumbai, India and also undertaking to pay the difference of freight due to change of port and instructing their broker to amend the charter party agreement. Therefore, the respondent referred to and relied upon the charter party agreement and sought for amendment in the said charter party agreement for change of discharge port from Jawahar Lal Nehru Port, Mumbai to the Port of Mumbai. The respondent had also issued a letter in respect of freight in favor of M/s.Challenge Shipping in the care of the petitioner. Mr.Shasi Nair of Forbes Gokak Limited had also sent an email accepting all the terms and conditions of the charter party including reference of all disputes to arbitration in London. To that effect is also the affidavit of Mr. Ian Rodney Latimer, which was placed before the learned arbitrator. It is, however, denied by the respondent that said Mr.Sasi Nair could act on behalf of the respondent.

The letter of the respondent dated 18th May, 2000 to the petitioner requesting for change of discharge port is placed at page 108 of the paper book. Para 2 of the said communication reads as follows:-

"2. Change of Discharge Port to Mumbai:

We are enclosing the port D/A for discharging the vessel at Mumbai Port. You will note total D/A works out to be US $ 27,314.00 as against the D/A for discharging the vessel at JNPT for US $ 22,537.00. Hence, we agree to pay difference between port charges for Mumbai and JNPT.

Para 3 thereof also has relevance and, therefore, the same is also extracted below:-

"3. NOTICE OF READINESS:-

Since freight has been received by and additional costs agreed to be paid by the charterers, kindly request your agents to give fresh NOR on 18/5/2000 which will be accepted as per CP DTD 20/4/2000."

21. Having referred the aforesaid contents, I may also extract the concluding part of the said letter, which states as follows:-

"We are marking a copy of this message to M/s.Sea Line International, our brokers who through their regular brokig channels will conclude the necessary addendum to CP on our behalf."

22. When addendum to the charter party is requested by the respondent themselves, therefore, they cannot wriggle out from the fact that the said charter party agreement was agreed upon and was finalised between the parties and that the respondent was a party to the same. In my considered opinion, the ratio of the decision of the Supreme Court in Smita Conductors Limited (supra) applies in fully force to the facts of the presence case, where the conduct of the parties proves and establishes that they acted upon the charter party agreement.

23. It was contended by the learned counsel appearing for the respondent that there was neither any authority given to Forbes Gokal Ltd. (Patvok Division) by the respondent nor to M/s.Sea Line International. It was submitted that they could not have acted as the brokers of the respondent unless there were specific instructions to them to act in that capacity. I have scrutinised the said submission in the light of the contemporaneous documents that are placed on record.

24. Letters of M/s.Sea Line International and of Forbes Gokak Limited are also placed on record as contemporaneous documents. The letter written by M/s.Sea Line International to the Solicitor of the petitioner is dated 16th February, 2001 whereas the letter of Forbes Gokak Limited is also dated 16th February, 2001 which was also written to the solicitor of the petitioner. In the letter of M/S.Sea Line International, it was stated as follows

"We have no objection whatsoever for providing you with information that you seek. On the other hand, we have received strict instructions from our principals M/s.PEC Limited not to pass on any information/correspondence concerning the above matter to any person without their permission. In view of our principals instructions we are uncertain how to proceed.

In the letter of Forbes Gokak Limited (Patvolk Division) it was stated as under:-

"We have no objection whatsoever for providing you with information that you seek. On the other hand, we have received strict instructions from M/s.PEC Limited through brokers not to pass on any information /correspondence concerning the above matter to any person without their permission. In view of the said instructions from PEC Ltd we are uncertain how to proceed."

25. The said two letters clearly indicate that Forbes Gokak Ltd. were receiving instructions from the petitioner through brokers. M/s.Sea Line International categorically writes that the respondent is their principal. M/s.Sea Line International appears to be the brokers of the respondent, who had appointed a sub-agent, which is Forbes Gokak Ltd. (Patvolk Division). It also cannot be denied that Mr.Sasi Nair was working with Forbes Gokak Limited (Patvolk Division). The award passed by the learned Arbitrator also refers to and relies upon other documents.

26. All the aforesaid documents, therefore, clearly prove and establish that the respondent gave charge to Forbes Gokal Ltd. (Patvolk Division) and M/s.Sea Line International to enter into a charter party agreement. The said agents brought forth the charter party agreement between the parties which was acted upon. The said respondent paid for the freight and also provides a letter of indemnity themselves for change of destination of the vessel from Jawaharlal Nehru Port Trust, Mumbai to Port of Mumbai to discharge the cargo. Therefore, it is clearly established that the the charter party which contains the arbitration clause was agreed to and entered upon between the parties, which is established from the correspondence available on record. The second submission of the learned counsel appearing for the respondent, therefore, also fails and is rejected.

AWARD NOT A VALID AWARD:-

27. It was also sought to be submitted by the learned counsel appearing for the respondent that the award passed by the learned arbitrator is not a valid foreign award as defined under Section 44 of the Arbitration and Conciliation Act, 1996. The said submission is also found to be without any merit as the documents on record, which are already referred to, clearly prove and establish that the award passed by the learned arbitrator is a foreign award. Their cannot be any dispute with regard to the said position and situation. Therefore, the said submission is also rejected.

28. The learned arbitrator has given detailed reasons. It also cannot be said that the award passed by the learned arbitrator is against the public policy of India. Accordingly, I hold that the aforesaid award could be enforced in India. All the objections raised are found to be without any merit and are rejected. The award is held to be enforceable in accordance with the provisions of the Arbitration and Conciliation Act, 1996. In this petition there is also a prayer for execution of the award as a decree. The award having been found to be capable of execution is to be now treated as a decree. The respondent is given four weeks time to make payment of the decretal amount to the petitioner, failing which it shall be open to the petitioner to place on record a list of movable and immovable assets of the respondent so as to enable the court to take action for realisation and recovery of the amount in accordance with law.

29. The matter shall now be listed before the appropriate court on 4th April, 2005 for execution of the decree, after obtaining orders from Honble the Chief Justice.