EITZEN BULK Vs. ASHAPURA MINECHEM LTD.

JUDGEMENT

(1.) By this petition filed under Sections 44 to 48 of the Arbitration and Conciliation Act, 1996 (for short "Arbitration Act"), the petitioner prays for a declaration that the arbitral award dated 26th May 2009 is enforceable as a decree of this Court and seeks various interim reliefs including an order and direction against the respondent to file an affidavit through its Directors disclosing its assets, bank accounts and receivables wherever these be located in India and overseas. Some of the relevant facts for the purpose of deciding this petition are as under :-

(2.) On 18th January 2008, the petitioner as an Owner and the respondent as a Charterer entered into a Contract of Affreightment (COA) at Copenhagen, Denmark for various shipments of bauxite from India to China spread over the periods 2008 to 2010. Clause 28 of the said contract provides "Any dispute arising under this COA is to be settled and referred to Arbitration in London and English law to apply. During the period between February 2008 and April 2008, two shipments were performed by the respondent. On 29th September 2008, the respondent terminated the contract with effect from June 2008 alleging force majeure/ frustration on the ground that Gujarat Government had interfered with the export of bauxite. The petitioner vide their letter dated 1st October 2008 denied any force majeure/ frustration and accepted the termination as a repudiatory breach and reserved its rights to claim damages.

(3.) On 23rd October 2008, the petitioner lodged its claim on the respondent at Mumbai for US $ 36 million and invoked arbitration agreement in terms of clause 28 of the COA and appointed Mr.Tim Marshall as an Arbitrator. Vide their letter dated 24th October 2008, the respondent confirmed that they would appoint an arbitrator shortly but did not appoint any arbitrator. On 10th November 2008, the respondent raised a new plea that the COA itself was illegal and void as the Directorate General of Shipping, Mumbai had on 3rd November 2008 refused to grant a license of the respondent for charter of foreign ships. According to the letter dated 3rd November 2008, the respondent had not followed the prescribed guidelines.