- (1.) THEPRESENT application was taken out by the petitioner under section 34 of the arbitration Act of 1940 for stay of the pending suit No. 295 of 1978 filed by the respondent against the petitioner in this Court. The facts of this case shortly are that in January 1977 the petitioner had agreed to carry 19. 408 metric tones of rapeseed oil belonging to the respondent from Port of Vancohver, Canada, to ports of Kandla, Bombay, Madras and Calcutta in India. The goods were carried by the vessel M. T. Anatoli on terms and conditions contained in the chart emparty dated 27. 1. 77. This contract contains three arbitration clauses : els. 20 and 8 - General Average)Arbitration at London (Page 21 and 28 of the petition) CI. 31. "arbitration. Any dispute arising from the making, performance or termination of this charter party shall be settled in New York, Owner and Characters each appointing an arbitrator, who shall be a merchant, broker or individual experienced in the shipping business, the two thus chosen if they cannot agree, shall nominate a third Arbitrator who shall be an Admiralty lawyer. Such arbitration shall be conducted in conformity with the provisions and procedure of the United States Arbitration Act and a judgment of the Court shall be entered upon any award made by said Arbitrators. Nothing in this clause shall be deemed to waive owner's right to lien on the cargo for freight, dead freight or demurrage. " (Page 26 of Petn ).
(2.) IT is alleged in the petition that due to unusually heavy weather, turbulent seas and violent waves the gas pipe leading to the starboard Tanker No. 2 broke up and the goods in the tanker became damaged by mixing with sea water entering into the Tank through the broken ans pipe. According to the petitioner, it is not liable for this damage as there is an exemption clause in the contract. The respondent, however, filed the aforesaid suit on 10. 5. 78 in this Court claming Rs. . 91,669. 72 against the petitioner. Hence this application. In the affidavit -in -opposition filed on (behalf of the respondent through one Dwijesh Chandra Bhowmic, the respondent alleged that the arbitration clause 31 was not binding on the respondent inasmuch as all evidence in support of the respondents' case were available in Calcutta and the respondent was willing to go to arbitration provided the same could be held in Calcutta. Reading this affidavit as a whole, it appears that the respondent is not disputing the existence or validity of the arbitration agreement in clause 31 but considering the balance of convenience, the respondent thinks the arbitration should be held in Calcutta.
(3.) THE petitioner thereafter applied for the amendment of the clause title of the petition by inserting therein section 3 of the Foreign Awards (Recognition and Enforcement) Act 1961. That application was keenly contested by the respondent. The amendment was, however, allowed. The respondent did not file any additional affidavit -in -opposition dealing with the amended portion although liberty was given to the respondent to file the same.;