M/S Rameshwar Dass & Sons (Huf) vs M/S Caravel Logistics Pvt. Ltd. & ...
2015 Latest Caselaw 580 Del

$~3
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                  RESERVED ON : December 11, 2014
                                  DECIDED ON : January 21, 2015

+                                 CS(OS) 2492/2012
       M/S RAMESHWAR DASS & SONS (HUF)                       ..... Plaintiffs
                           Through :     Mr.Aditya Singh, Advocate.
                           VERSUS
       M/S CARAVEL LOGISTICS PVT. LTD. & ANR. ..... Defendants
                           Through :     Mr.C.N.Sreekumar, Advocate.

CORAM:
HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

IA No.3075/2014 (u/S 8 of Arbitration Act)

1. The plaintiffs have instituted the instant suit for recovery of ` 26,67,230/- for the loss suffered on account of fault attributed to the defendants.

2. In the instant application the defendant No.1 has averred that there was an arbitration agreement between the parties to refer the dispute within the limits of Chennai. This fact finds mention in various invoices filed on record by the plaintiffs. The claim is contested by the plaintiffs.

3. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the defendant No.1 urged that invoices filed on record by the plaintiffs, which are not in dispute,

illustrate that there was an agreement between the parties to refer the disputes to arbitration. This fact was concealed by the plaintiffs in the plaint. The proceedings are liable to be stayed under Section 8 of the Arbitration and Conciliation Act, 1996. It is further stated that provisions of Section 26 of the Multimodal Transportation of Goods Act, 1993 (Act No.28 of 1993) are applicable. Reliance has been placed on „Orchid Electronics vs.Vinitec Electronics Pvt. Ltd.‟, 2007 (supp.) ALR 266 (Delhi). Learned counsel for the plaintiffs contended that there was no arbitration agreement between the parties any time and the dispute raised in the instant suit is beyond the scope of the alleged arbitration agreement.

4. The application in hand does not disclose as to when and with whom any written contract containing arbitration clause was executed. It merely refers to various invoices where under the head „Terms and Conditions‟ at Sl.No.2, it is mentioned that "all disputes are subject to the Arbitration jurisdiction within the limit of Chennai."

5. Admitted position is that defendant No.1 had provided only shipping services to the plaintiffs. Specific question was put to learned counsel for the defendant No.1 on 17.02.2014 as to whether any contract was entered into at the time of taking the consignment for shipping; whether there was any arbitration clause therein; when was the invoice on which the reliance was placed raised; and, whether the aforesaid clause could be said to contain any agreement for arbitration. The response was that Bill of Lading also contained an arbitration clause. It was further pointed out that the invoice was raised in the interregnum between taking the goods for shipping and delivering the same. At the request of the learned counsel for defendant No.1, matter was adjourned to enable to file

the Bill of Lading. It appears that the Bill of Lading was not filed on record. On 04.04.2014, reliance on Section 26 of the Multimodal Transportation of Goods Act, 1993 was placed. It was specifically recorded in the order that the said Act did not provide for statutory arbitration. It merely provided that the parties to a Multimodal Transportation Contract "may provide therein that any dispute which may arise in relation to multimodal transportation under the provisions of this Act shall be referred to arbitration." It was further observed that merely because freedom was given to the parties to agree for arbitration, did not amount to the parties having agreed to arbitration.

6. In the present case, admittedly, no contract in writing for importing the goods through the shipping line of the defendant No.1 was executed containing any arbitration clause. Emphasis has been laid on various invoices executed subsequent to the placing of the oral order for importing the goods. In my considered view, no inference can be drawn about existence of any arbitration agreement. Only purpose to raise invoice was to get payment of the amount detailed therein from the plaintiffs, which they did. There is nothing on record to show if at any time invoices containing terms and conditions including arbitration clause were ever accepted by the plaintiffs. The invoices even do not bear signatures on behalf of the plaintiffs to show if the terms and conditions incorporated unilaterally in the printed invoices were accepted by the plaintiffs. Three characteristics of a valid arbitration agreement enshrined in „Chloro Controls India (P) Ltd. vs. Severn Trent Water Purification Inc.‟, 2013 (1) SCC 641 i.e. a) It is consensual and is based on the parties‟ agreement; b) It leads to a final and binding resolution of the dispute; and,

c) It is regarded as a substitute for the court litigation and results in the passing of a binding award, are lacking here.

7. Arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen, or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement has necessarily to be in writing. It may contain, inter alia, in a document signed by the parties, or in an exchange of letters, telex, telegrams or any other means of telecommunication, which provide a record of the agreement. In this case, there is no arbitration agreement which could be described to be "contained in a document signed by the parties." The so called arbitration agreement is contained in the printed invoices delivered by the defendant No.1 subsequent to the placing of the order. For the existence of an agreement there has to be "consensus at idem‟‟ between the parties i.e. they should agree to the same thing in the same sense. The terms and conditions mentioned in the invoices were never accepted by the plaintiffs. The defendant No.1 acted upon the previous offer of the plaintiffs by effecting supply of the goods in compliance of the oral order and raised the various invoices from time to time. Mere payment pursuant to the receipt of invoices by the plaintiffs did not bind them to the unilateral terms and conditions entered in the invoices by the defendant No.1. It was an acknowledgement of receipt of goods and nothing more.

8. Besides above, in my considered view, the dispute raised in the instant suit against the defendants is beyond the scope of the alleged arbitration agreement. The plaintiffs have instituted the suit for claiming demurrage paid by them due to the alleged faults of the defendant No.1.

No dispute had arisen with the supplier over the delivery of the goods for which the order was placed through the shipping line of the defendant No.1.

9. The application is unmerited and is dismissed.

CS(OS) 2492/2012 List before the Roster Bench on 28.01.2015 for further directions.

(S.P.GARG) JUDGE JANUARY 21, 2015 tr