- (1.) Parties entered into a Charter Party Agreement on January 29, 2008 by which it was agreed that the respondent would offer a vessel to the appellant at Dalan Ship Yard said to be in China for 82 months with a maximum limit of 86 months. Vessel was to be delivered at Dalan Ship yard on or before December 31, 2011. Appellant would contend, the agreement was signed at Calcutta. We, however, find from the Charter Party Agreement appearing at page 40 onwards, the agreement was concluded in London. The appellant would contend, they hired the vessel for the purpose of bringing coal from abroad for consumption of its power plants at various places within the country, all outside jurisdiction of this Court.
(2.) The Charter Party agreement contained a clause for alternate dispute resolution. Clause 84 would inter-alia provide as follows: - "Clause 84 Arbitration General Average/Arbitration in London and English Law to apply. Latest BIMCO/LMAA Arbitration Clause to apply with US $100,000 for Small Claims Procedure. 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 Association (LMAA). Terms current at the time when the arbitration proceedings are commenced." The dispute arose when despite notice of intention given by the respondent to deliver the vessel within the stipulated period the appellant declined to accept it on the ground, the ownership had changed without any notice to them in breach of the Charter Party Agreement. On June 23, 2011 the respondent gave notice tentatively fixing the date of delivery on July 23, 2011. The respondent approached this Court in its Original Side by filing a suit being CS No. 161 of 2011 on July 13, 2011 inter-alia praying for a declaration that the Arbitration Agreement was illegal null and void and prayed for consequential injunction restraining the respondent from taking any step in terms thereof. On August 01, 2011 filed an interim application to the said extent. On the same day the respondent approached the Queen's Bench Division, London High Court of justice of England and obtained an anti-suit injunction directing the appellant to withdraw their suit and the application before this Court.
(3.) There was correspondence with regard to appointment of arbitrator between the respective advocates. On August 4, 2011 appellant filed its second suit before the City Civil Court inter-alia asking for an order of restraint as against the respondent from proceeding with the English suit on the ground that there would be conflict of decision in case parallel proceedings were allowed to continue. The City Civil Court suit was subsequently transferred to this Court and renumbered as E.O. Suit No. 6 of 2011. The City Civil Court initially did not pass any interim order, subsequently on an appeal appellant got a time bound order of restraint that spent its force by efflux of time.;