- (1.) This application, under Section 48 in Chapter-I of Part-II of the Arbitration and Conciliation Act 1996, (for short-'the Act of 1996') has been filed in the matter of foreign arbitral award dated 18.05.2016 passed by Mr. David Aikman, the Sole Arbitrator at London, in the arbitral reference titled as the "vantage key" between Django Navigation Ltd. of Liberia and Indo Ferro Metal Pvt. Ltd. of Jaipur, India, in relation to the vessel MV vantage key and charter party dated 24.12.2015. The petitioner company- Django Navigation Ltd. has prayed that the aforesaid award dated 18.05.2016 passed by Mr. David Aikman be declared as decree of this Court for being enforced.
(2.) The petitioner-company is incorporated under the laws of Liberia having its registered office at 80 Broad Street Monrovia, Liberia. Petitioner-company is in the business of owning and Chartering out ships. Respondent is a private company limited by shares having its registered office at Jaipur and engaged in the business of exporting, importing various commodities such as Minerals, Ores and Indonesian Coal. The above-referred to award is a "foreign award" as contemplated under Section 44 of the Arbitration and Conciliation Act , 1996 and published in the United Kingdom, which is a reciprocating territory notified by the Indian Government and is therefore enforceable under the provisions of Chapter-I of Part-II of the Act of 1996. As per averments of the application, the foreign award is final and binding under the English Law pursuant to Section 47 (1)(c) of the Act of 1996. In this regard, one Mrs. Electra Panayotopoulou, an English Solicitor and Partner of Holman Fenwick Willan LLP of Friary Court, 65 Crutched Friars, London EC3N 2AE United Kingdom, practicing in the aforementioned firm's Piraeus office located at 83 Akti Miaouli & Flessa Street, 185 38 Piraeus, Greece, which is the Solicitor on record of the Award Holder in the arbitration proceedings, has affirmed an affidavit on 29th August, 2016 authenticating the Foreign Award in accordance with English law as required by Section 47 (1)(a) of the Arbitration and Conciliation Act , 1996 and has confirmed that the Foreign Award has become final and binding under English law. Foreign award has been passed in favour of the petitioner pursuant to the Charterparty and the arbitration clause contained therein as evidenced by way of the fixture recap dated 24.12.2015 ("the Charterparty") between the respondent as the charterer and the petitioner as the owner of the vessel MV Vantage Key ("the Vassel") chartered to the respondent. In this regard, one Konstantinos Savvidis, General Manager of Vantage Shipping Lines SA, the appointed Commercial Managers of the Vessel on behalf of the petitioner company, has sworn an affidavit dated 29.08.2016, enclosing a copy of the Charterparty as evidenced by way of the fixture recap dated 24.12.2015, in which he has certified that the arbitration agreement concluded in the Charterparty by way of the arbitration clause is in writing and was made by exchange of communications in writing, so far as relevant, through email, telex or other means of telecommunications, as contemplated under Section 47 (1) (b) of the Arbitration and Conciliation Act , 1996. Pursuant to the Charterparty, the respondent agreed to take on charter and the Owners agreed to charter, the vessel to carry a cargo of 12,500 mts bagged rice from Krishnapatnam, East Coast, India to Lattakia, Syria ('the Cargo"). The fixture note dated 24.12.2015 makes specific reference to the Charterparty, which in its Clause 20 states as under: "20) ENGLISH LAW/ARB LONDON/LMAA RULES TO APPLY".
(3.) As per the contents of the application, the petitioner on 28.12.2015 informed the respondent of the vessel's expected arrival at the landport of Krishnapatnam and requested confirmation that the cargo would be ready for loading. The respondent informed the petitioner of delay of 2-3 days due to alleged documentation issues of the Shipper, but confirmed that respondent would pay any applicable demurrage for delay as per the Charterparty. Subsequently between 02.01.2016 and 11.01.2016, the respondent kept assuring, but failed to provide any cargo for loading as per the Charterparty. In fact, on 07.01.2016, the respondent requested that the Charterparty be called and refixed for cargo at a later date to which the petitioner agreed only on the respondent's confirmation to reimburse the petitioner for damages suffered. Subsequently, on respondent's failure to provide cargo even by 12.01.2016, the petitioner was constrained to accept the respondent's conduct, (including the attempt on 07.01.2016 to cancel the Charterparty), as evidence of the respondent's renunciation and termination of the Charterparty and sailed the vessel out. Subsequent to termination, the petitioner attempted to find alternative employment for the vessel, but no fixture could be concluded due to the collapse of the dry bulk market. Therefore, the petitioner was constrained to lay up the vessel in Malaysia on 22.01.2016 to mitigate the losses due to the respondent's breach and the prevailing market conditions. The respondent's failure to provide cargo for the vessel amounted to a repudiatory breach of contract entitling the petitioner to terminate the Charterparty and recover damages suffered as a result of the breach. The petitioner calculated its damages on the basis of the freight and demurrage and what it would have earned, had the cargo been shipped, less the costs that would have been incurred, had the voyage being performed. The damages calculated were amounted to a sum of US$ 172,255.17, for which the petitioner issued a final freight invoice on 15.01.2016. Petitioner on 13.01.2016 received a payment of only US$ 18000/- from the shippers/cargo interests, which the petitioner has offset with its claim against the respondent to reduce the total sum claimed in the arbitral proceedings to US$ 154,255.17.;