- (1.) BY a chartered party dated January 29, 1996 Marco Shipping Agency the appellant abovcnamed chartered a motor vessel "harvest" to the respondent for carrying rice from India to Bangladesh. The charter party contained an arbitration clause. Under the arbitration clause each party in case of a dispute would nominate their representative as Arbitrator and the Arbitrators would appoint an Umpire whose decision would be final and binding upon the parties. It was agreed that the arbitration would be held at London. Disputes and differences arose by and between the parties. Marco Shipping Agency appointed their nominee, Mr. Patrick O'donovan as Arbitrator and asked the respondent to appoint their nominee. Respondent appointed Mr. Zahid Vohra, as their nominee at a belated stage. By that time arbitration already commenced. The Arbitrator, Mr. Patrick O'donovan so nominated by the appellant entered upon reference as sole Arbitrator as the respondent failed to appoint their nominee in time. Respondent's nominee after perusing the arbitration clause and the agreement also observed that since the sole arbitrator started functioning he should continue as sole Arbitrator. The respondent appeared before the sole Arbitrator filed their counter statement. The hearing was concluded on April 20, 1997. Before the Arbitrator published his award the respondent had approached the learned Single Judge by filing a civil suit in this Court as against the appellant and obtained an ex parte order of injunction restraining the appellant from giving any effect to the letter dated August 6, 1996. The contents of the said letter is quoted below: "we are London lawyers who have been instructed by Marco Shipping in respect of their claims against you under the above charterparty. Please take note that we have today appointed Mr. Patrick O'donovan of 611 Floor, wellington House, 125, Strand, London, WC. 2a GAP as Owners' Arbitrator in accordance with Clause 41 of the charterparly and Mr. O'donovan has accepted this appointment. We would now be grateful if you would appoint an Arbitrator of your own within 15 days as required by Clause 41. We also attach by way of service the Owners' Points of Claim and would be grateful to hear from you as to when you would anticipate being in a position to serve Points of Defence. "
(2.) THE order of the learned Single Judge was communicated to the arbitrator vide letter dated May 24, 1997. The relevant extract of the letter is quoted below: "you are requested to note that by an order passed on May 23, 1997 the said Ms. Marco Shipping Agency has been restrained from taking any step and making any demand pursuant to the notice dated 6th August, 1996. The said notice is the nonce issued by Ms Middleton Potts, the lawyers of the said Marco chipping Agency whereby we were notified inter alia, about your appointment as an arbitrator. "
(3.) M/s Middleton Potts, solicitors for the appellant then wrote a letter to the Arbitrator vide fax message dated May 23, 1997 to the following effect: "we thank you for your letter of 23rd May and confirm that our clients do not have a copy of any "final discharge report" for the third voyage apart from that already provided. With reference to the Charterers fax of today, they have once again failed to send us the enclosures. Given that they have taken part in the arbitration to date put indifference submissions and obtained innumerable extension of time. We find their commencement of legal proceedings in india to be cynical in the extreme. We invite you to disregard it, and put, as the Charterers no doubt hope to allow it to form yet another argument for delay in publishing an Award. We would ask you to reserve jurisdiction to yourself to deal with (he question of damages suffered by the Owners as a result of the charterers' breach in disregarding the arbitration clause and starting proceedings in India. ";