1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 13 OF 2007 The Great Eastern Shipping Co. Ltd. ... Applicant Vs 1. MEGA FREIGHT ... Respondent Mr. A. Majmudar with Mr. Shiv Iyer, Mr. Saurabh Gadkari, Ms. Chitra Saxena-Nagpal i/b Bose & Mitra & Co. for the Applicant. Mr. Amit Shroff for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 24TH JUNE, 2010. P.C. : 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996. 2. The Applicant had forwarded an e-mail message dated 7th June, 2004, to the Respondent setting out the terms and conditions of a charter-party agreement. The same pertained to the charter of a vessel owned by the Applicant. It is not necessary to refer to the commercial terms and conditions contained therein. For the purpose of this 2 application, it is sufficient to note that one of the terms stated : “All other terms/conditions as per our last GESCO/MEGAFRIEGHT TCT”. The last GESCO TIME CHARTER, in turn, contained the following clause : “ALL OTHER TERMS/CONDITIONS AS PER GESCO EXECUTED FIXTURES BASED ON NYPE PROFORMA CHARTER PARTY”. The GESCO EXECUTED FIXTURE, in turn, contained the following clause pertaining to arbitration :- “That should any dispute arise between Owners and Charterers, the matter in dispute shall be referred to three persons at Mumbai one to be appointed by each of the parties hereto, and the third by the two so chosen; their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial men. Indian arbitration to apply.” 3. The charter-party agreement, therefore, contains an arbitration clause by incorporation of the said two documents. 4. The affidavit-in-reply is vague. It denies the transaction generally. What is important to note, however, is that there is no specific denial of the fact that several e-mail messages were sent by the parties to each other. These e-mail messages establish clearly the 3 existence of the contract. It is important to note firstly that the e-mail message dated 7th June, 2004, was replied to on the same day by the Respondent stating : “WE CONFIRM AGREEMENT”. Thereafter, by an e-mail dated 12th June, 2004, the Applicant called upon the Respondent to accept delivery of the vessel. There was no response expressing surprise at the same, which I would have expected, had there been no agreement. Further, the e-mails give details of the arrival of the vessel and the same being anchored. It is important to note Exhibit-K, wherein the Respondent has signed as “Charterers”. 5. In the circumstances, there is no doubt that the charter agreement had been arrived at, which contained the said arbitration clause by incorporation. 6. Mr. Shroff, however, states that without prejudice to the Respondent’s rights and contentions in the application, the dispute be referred, not to a Tribunal of three Arbitrators, but to a sole Arbitrator. 7. As the arbitration clause specifies that the arbitrators shall be commercial men, Mr. Majmudar handed over a list of arbitrators from 4 `Indian Council of Arbitration - List of Panel of Arbitrators. It is from this list that I have named the learned Arbitrator. 8. In the circumstances, the Arbitration Petition is disposed of by the following order :- (i) Capt. M. Agarwala is appointed as a sole Arbitrator. (ii) No order as to costs.