Angelique International Limited vs Globelink Ww India Private ...
2016 Latest Caselaw 4145 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: 30th May, 2016

+                          Arb. P. No.131/2015

      ANGELIQUE INTERNATIONAL LIMITED           ..... Petitioner
                    Through   Mr.Tarun Singla, Adv.

                           versus

      GLOBELINK WW INDIA PRIVATE LIMITED       ..... Respondent
                    Through   Mr.K.Bijai Sunder, Adv. with
                              Ms.Sunita Bijai, Adv. with
                              Mr.Tishampati Sen, Adv.
      CORAM:
      HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The petitioner has filed the present petition under Section 11(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") for appointment of an Arbitrator.

2. Brief facts of the petition are that on 23rd March, 2010, the petitioner-Company placed the work orders as mentioned in para 3 of the petition, upon respondent-Company for transporting the petitioner's material from ICD Nagpur to Pul-e-Khumri, Afghanistan on door-to-door basis stipulating the total transit time of 31 days. The respondent was responsible for managing all activites and affairs for this transportation.

On 31st March, 2010, the respondent issued two Bills of Lading No.255288 and 255289 for transporting the petitioner's aforesaid material to Afghanistan. The total consideration for the work order amounted to USD 1,51,150 which were completely paid by the petitioner in the year 2010 itself.

3. It is further stated that despite of receiving the complete consideration and all the relevant documents from petitioner, the respondent committed delay in transporting the petitioner's shipments to destination. Moreover, six of the petitioner's containers got struck with Pakistani Custom Authorities and the respondent failed to get the same released for about 23 months and ultimately failed to transport them to the destination.

4. It is also stated that for the purpose of release of the aforesaid six containers from Pakistani Custom Authorities, the respondent demanded additional amount of Rs.1,57,94,050/- from the petitioner on the pretext for paying the same to its Pakistani Agents for onward payment thereof to Pakistani Custom Authorities towards demurrage charges, official charges, etc.

5. It is further stated by the petitioner that allthough the petitioner was not liable to pay the additional amount of Rs.1,57,94,050/- yet for the immediate transportation of its material to Afghanistan, the petitioner paid the aforesaid amount to respondent vide various cheques dated from 24th February, 2011 till 14th October, 2011.

6. On 17th February, 2012, the petitioner received a mail from Pakistani Agent namely M/s. Adam Shipping, wherein they said that they are ready to move the petitioner's containers but the respondent are not clearing their dues. Same day the petitioner updated respondent's representative namely Mr. Mohan with the information received from M/s Adam Shipping and further informed him that in these circumstances, the petitioner will directly deal with the respondent's Pakistani Agent, namely M/s. Adam Shipping. Vide

email on the same date, Mr. Mohan replied to the petitioner's email stating the following:

"Noted and we will revert to respondent with full details on Monday noon for your better understanding of the situation."

7. Further, M/s Adam Shipping charged a sum of USD 2,23,117 (equivalent to Rs.1,11,55,850/- at that time) from the petitioner for getting the petitioner's above mentioned six containers released from Pakistani Customer Authority. Ultimately, the petitioner's containers reached the destination on 5th August, 2012.

8. The petitioner then served a legal notice dated 14 th August, 2014 on respondent whereby a demand of Rs.2,69,49,900 (includes Rs.1,57,94,050/- charged by respondent from petitioner plus a sum of Rs.1,11,55,850/- charged by M/s Adam Shipping) along with interest thereon @ 18% p.a. till payment was raised upon the respondent. The respondent chose to give a meaningless interim reply dated 25th August, 2014.

9. The petitioner further invoked the arbitration agreement contained in the work orders through a legal notice dated 24 th September, 2014 seeking the respondent's concurrence for appointment of Hon'ble Ms. Justice Sharda Aggarwal (Retd.) as sole arbitrator for resolving the aforesaid disputes, however, vide reply dated 14th October, 2014 the respondent refused to acknowledge existence of any disputes between the parties.

10. Reply has been filed by the respondent wherein he stated that the petitioner has not approached this Court with clean hands and has made several false allegations and suppressed facts, attempting to mislead this Court. The petitioner has not filed all the documents

pertaining to the alleged dispute before this Court while filing an application under Section 11(5) of the Act.

11. The respondent denies the fact that the 6 containers detained by the Pakistan Custom Authorities were on account of the respondent's fault, rather it was detained on account of the petitioner's default due to non issuance of duty exemption certificates from the Ministry of Energy & Water (E&W) Afgahanistan. As such all payments towards detention and storage at the port of Karachi would only be to the account of the petitioner.

12. The respondent has further stated the various grounds for rejection in the reply to the petition. He states that the work order No.AIL/Globe/260310 dated 23rd March, 2010 is not a valid agreement containing the clause relating to arbitration within the meaning of Section 7 of the Act. The abovementioned work order was not acted upon by either of the parties for transporting of any material of the petitioner from ICD Nagpur to Pul-e-Khumri, Afghanistan on door to door basis.

13. The respondent further states that this Court has no territorial jurisdiction to entertain the present petition. The respondent has also referred to clause 8.1 of the work order which says that either party should be excused of any failure to perform if it is caused by any law, order, direction or regulation of governmental agency having jurisdiction. The alleged 6 containers were under the order, direction and regulation of Pakistan's Custom Authorities hence the respondent is excused from performing any obligation.

14. The petitioner has filed the rejoinder who has mainly reiterated the averments made in the petition. It is denied by the petitioner that the containers were detained by the Pakistani Custom

Authorities due to the fault of the petitioner and all the payments towards the detention charges or storage charges were on account of the petitioner. It is submitted by the petitioner that it is for the respondent to prove the contents of the e-mail dated 20th February, 2012 before the Arbitrator. However, it is an undisputed fact that the Work Order dated 23rd March, 2010 contains the arbitration clause. It is submitted by the petitioner that the Multimodal Transportation of Goods Act, 1993 deals with consignor's claims against transport operator only with respect to two circumstances referred to in Section 13(1) thereof, i.e. (a) any loss of, or damage to, the consignment; (b) delay in delivery of consignment and any consequential loss or damage arising from such delay. The petitioner's claims are not in respect of any of the aforesaid two circumstances. The said claims relate to recovery of excess money charged by the respondent and also for the recovery of money paid by the petitioner to respondent's agent for getting the containers released from Pakistani Custom Authorities.

15. It is further submitted that the Multimodal Transportation of Goods Act, 1993 nowhere bars the jurisdiction of Civil Courts/Civil Forums for adjudication of disputes between the transport operator and the consignor. Section 24 of the said Act merely prescribes limitation in respect of claims to be made. The petitioner is not making any claim against the respondent under the provisions of the said Act and, therefore, Section 24 of the said Act will not be applicable in the present case. The said Act does not bar the transport operator to enter into a contract other than multimodal transport document. In fact, Section 7 of the said Act clarifies that Multimodal Transport Document shall be issued after entering into

contract for multimodal transport between multimodal transport operator and the consignor.

16. No doubt, the respondent has raised various contentions in its reply about the merits of the case. The same cannot be decided while considering the application under Section 11 of the Act. There are disputed facts which are to be decided by the Arbitral Tribunal in view of the issues raised by the petitioner in its petition. It is not denied by the learned counsel for the respondent that the Work Order dated 23rd March, 2010 (Annexure P-1) contains the arbitration clause which is binding upon the parties.

17. The arbitration agreement is contained in work order No.AIL/Globe/260310 dated 23rd March, 2010 as clause No.12 which reads as follows:

"That in case of any dispute both the parties agree to settle the same amicably in good faith, however in case of failure to arrive at any settlement, the matter shall be referred for arbitration under the Arbitration and Conciliation Act, 1996 and the jurisdiction of all the legal proceedings will be New Delhi, India."

Hence, the present petition has been filed by the petitioner.

18. With regard to the issue of limitation, it is a matter of fact that the parties were corresponding with each other. Learned counsel for the petitioner has referred the respondent's e-mail dated 17th February, 2012. The petitioner has also issued the legal notice dated 14th August, 2014 followed by another notice dated 24th September, 2014. The same are duly replied by the respondent.

19. Under these circumstances, the issue of limitation has become a mixed question of law and facts in the present case. The respondent would always be entitled to raise this issue before the Arbitral Tribunal who will decide the same in accordance with law.

20. As far as the prayer made in the present petition is concerned, the same in view of the facts and circumstances of this case is allowed. Accordingly, Mr.Pradeep Chaddah (Retd. District & Sessions Judge (North) R/o 37/29 East Patel Nagar, New Delhi-1100 08, Mobile No.9910384665) is appointed as sole Arbitrator to adjudicate the disputes arising between the parties as mentioned in the present petition. The parties are also allowed to file their respective claims and counter-claims before the Arbitrator. Liberty is granted to the respondent to raise all the grounds as mentioned in the reply to the petition.

21. The arbitration shall take place under the aegis of Delhi International Arbitration Centre ('DAC'). The Arbitrator shall ensure the compliance of the provisions of Arbitration and Conciliation (Amendment) Act, 2015 before commencing the arbitration. The fees of the learned Arbitrator shall be in terms of the schedule of the amended Act. The parties to appear before the Arbitrator on 25th July, 2016 at 4.00 pm for directions.

22. The petition is accordingly disposed of.

23. No costs.

24. Copy of this order be given dasti to the learned counsel for the parties and a copy thereof be delivered to the learned Arbitrator as well as Additional Coordinator, DAC forthwith.

(MANMOHAN SINGH) JUDGE MAY 30, 2016