SOUMEN SEN,J. - (1.) All the applications are taken up together and disposed of by this common judgment and order.
(2.) The plaintiff has filed a suit under Order 37 of the Code of Civil Procedure for a summary judgment. The cause of action in the plaint is the dishonour of few bills of exchange all dated 22nd February, 2013. The plaintiff alleged that the defendant duly accepted the said bills of exchange, but in spite of such acceptance the defendant has not paid the same although the bills of exchange being presented for payment on the due dates. The plaintiff refers to a contract dated 26th March, 2012 by which the parties alleged to have entered into a contract for sale and purchase of 50,000 WMT of iron ore lumps (?10%) of FE 46.00% basis/46.00 minimum at a price of US$ 35 per DMT. The goods of the total quantity of 49,500 WMT were shipped on board in vessel M.V. Xin Hong Bao Shi under the said contract on 8th July, 2012. After the shipment of the said cargo the plaintiff duly raised and submitted its invoice dated 26th July, 2012 on the defendant for the value of the goods being a sum of US$ 1427840.81. The plaintiff also issued a bill of exchange dated 27th July 2012 for the said goods through the defendant's banker Bank of Baroda and required the defendant to pay to the plaintiff 90 days from the date of the bill of exchange. The defendant thereafter raised a claim of a sum of US$ 12,70,127.15 against the plaintiff for alleging demurrage charges, dead freight and local port charges incurred in respect of the vessel M.V. Xin Hong Bao Shi. It is alleged that the said claim of the defendant was wrongful and denied by the plaintiff. The plaintiff alleged that thereafter notwithstanding the claim and the counter-claim raised by the parties in between, the parties had mutually settled their disputes and agreed to make payment of US$ 10,00,000 to the plaintiff in full settlement of its claim. It was in this context the plaintiff has referred to five bills of exchange all dated 22nd February, 2013 issued by the defendant in discharge of its debt. The plaintiff alleged that in spite of acceptance of the bills of exchange, the defendant has not paid the same though presented for payment. Subsequently, on 20th and 21st April, 2013 the representatives of the defendant had visited the plaintiff and assured that payment would be made under the said five bills of exchange and requested that as and when payment is made, corresponding bill of exchange would be discharged for payment and would be returned by the plaintiff to the defendant. The plaintiff claims that the defendant, in acknowledgement of its dues, made part payment thereof being a sum of US$ 200,000 in two instalments of US$ 100,000 each received on 26th April, 2013 and 10th May, 2013. In view of such prayer, the first bill of exchange dated 22nd February, 2013 stood discharged. The said bill of exchange was retired and the original bill of exchange was sent to the defendant on 8th May, 2013. Thereafter a further payment of US$ 75,000 was paid in two instalments of US$ 50,000 on 22nd February, 2013 and also US$ 25,000 on 21st December, 2013. The defendant had sued the plaintiff on the remaining bills of exchange that were returned unpaid on presentation.
(3.) The defendant upon being served with a copy of the plaint, filed an application being GA No.513 of 2015 in the nature of an application under section 45 of the Arbitration and Conciliation Act, 1996 with a prayer for referring the dispute between the parties to arbitration in terms of Clause 14 of the agreement dated 29th February, 2012 and its four several addendums. In the application, the defendant had alleged that the plaintiff has intentionally not annexed copy of the contract between the parties which forms the basis of the transaction. The transaction referred to in the plaint was actually executed between the parties on 29th February, 2012 and subsequently modified by four several addendums dated 6th March, 2012, 20th March, 2012, 4th June, 2012 and 8th June, 2012. The defendant in paragraph 4 of the petition has referred to the arbitration clause which reads: "14. Arbitration 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 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 its 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. If the other party does appoints its own Arbitrator and give 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 advice the other party accordingly. The Award of the 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 nor any counter-claim exceeds the sum of USD 50,000 (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.";