I.P. Mukerji, J. - (1.) THE first defendant is a Liberian company. They deliver sea going vessels on charter. On 29th January, 2008 they entered into a time charterparty agreement with the first plaintiff. A vessel was to be let out on time charter for worldwide trading for a minimum period of 82 months which could extend to a maximum period of 86 months. The vessel was to be delivered straight from the yard. A delivery period was fixed between 1st June, 2011 and 31st December, 2011 as provided in Clause 82 of the charterparty. This clause further provides for notice to be given by this defendant about their readiness to deliver the vessel. The terms in this clause are in a language peculiar to the shipping trade. They provide for 90 days' notice by this defendant about their readiness to deliver the vessel followed by other notices indicating the exact time period within which the vessel would be delivered. On 18th April, 2011, they gave 90 days' notice. The vessel was to be delivered on 16th July, 2011 from the shipping yard at London. This was followed on 25th May, 2011 by 60 days' notice of delivery on or about 23rd July, 2011 from the same yard. This was backed up by another notice of 23rd June, 2011 giving 30 days' notice. The date of delivery remained the same i.e. 23rd July, 2011. This defendant says that the plaintiff was never ready to take delivery of the vessel. On their part they had made the vessel ready to be delivered from the yard on the appointed date.
(2.) THE charterparty, according to the document stated that it was executed in London. It contained an Arbitration Clause. It was Clause 84. I will set out the terms: Dispute Resolution Clause English Law, London Arbitration (a) This contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Contract shall be referred to arbitration in London in accordance with the Arbitration Act, 1996 or any statutory modification or re -enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Associaiton (LMAA) Terms current at the time when the arbitration proceedings are commenced. The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint it arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 days specified, the party referring a dispute to arbitration may without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator. In cases where neither the claim not any counterclaim exceeds the sum of USD 1000, 000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced. (b) Notwithstanding the above, the parties may agree at any time to refer to mediation any difference and/or dispute arising out of or in connection with this Contract. (i) Either party may at any time and from time to time elect to refer the dispute or part of the dispute to mediation by service on the other party of a written notice (the "Mediation Notice") calling on the other party or agree to mediation. (ii) The other party shall thereupon within 14 calendar days of receipt of the Mediation Notice confirm that they agree to mediation, in which case the parties shall thereafter agree a mediator within a further 14 calendar days, failing which on the application of either party a mediator will be appointed promptly by the Arbitration Tribunal ("the Tribunal") or such person as the Tribunal may designate for that purpose. The mediation shall be conducted in such place and in accordance with such procedure and on such terms as the parties may agree or, in the event of disagreement, as may be set by the mediator. (iii) If the other party does not agree to mediate, that fact may be brought to the attention of the Tribunal and may be taken into account by the Tribunal when allocating the costs of the arbitration as between the parties. (iv) The mediation shall not affect the right of either party to seek such relief of take such steps as it considers necessary to protect its interest. (v) Either party may advise the Tribunal that they have agreed to mediation. The arbitration procedure shall continue during the conduct of the mediation but the Tribunal may take the mediation timetable into account when setting the timetable for steps in the arbitration. (vi) Unless otherwise agreed or specified in the mediation terms each party shall bear its own costs incurred in the mediation and the parties shall share equally the mediator's costs and expenses. (vii) The mediation process shall be without prejudice and confidential and no information or documents disclosed during it shall be revealed to the Tribunal except to the extent that they are disclosable under the law and procedure governing the arbitration. It stipulated that the contract would be governed and interpreted according to the English Law. The place of arbitration would be London. Arbitration would be in accordance with the English Arbitration Act, 1996. If a dispute arose a party proposing to refer it to arbitration was to appoint its arbitrator and send notice of it to the other party. The other party would have to appoint its own arbitrator within 14 calendar days of that notice. If the other party did not appoint its arbitrator the arbitrator appointed by the first party would automatically assume office as the sole arbitrator.
(3.) ON 13th July, 2011, the plaintiff filed a suit in this Court against the defendants. It was numbered as C.S. No. 161 of 2011. The plaintiff, inter alia, sought a decree restraining the first defendant from proceeding in terms of the charterparty agreement. It also sought a declaration that the arbitration agreement between the first plaintiff and the first defendant was void and a money decree, damages and so on.;