Case: Lpg Shipping S.A Vs. Ege Denizcilik Ticaret Ve Sanayi A.S

2.On June 30, 1993 the respondents chartered vessel S. Araz to the appellants for the carriage of cargo of merchandise on a time charter trip via India to the Middle East,y Mediterranean on the terms and conditions as set out in the said charter party. Clause 17 and additional Clause 85 of they inter alia provided that if any dispute arises between the owners and charterers then the matter shall be referred to 3 persons at London, one to be appointed by each of the parties and third by the two and their decision shall be final and for the purpose of enforcing any award, agreement may be made a rule of the Court. The clause further provided that arbitration shall be held in London and as per English Arbitration Act. The dispute did arise between the parties in respect of withdrawal of the vessel by appellants and dispute was referred to the arbitrators. The arbitrators published their award on August 12, 1993. Arbitrators held (a) that appellants were entitled to withdraw vessel from the time charter service because the third instalment was paid late and because of short payment of the third instalment and (b) that the appellants shall pay a sum of Sterling Pounds 5672 as costs of arbitrators. Award further provided thus :... and we reserve to ourselves the right to make a further award or awards as may be appropriate in respect of the matters still outstanding between the partiesThe respondents forwarded their bill of costs and arbitrators issued an Award of taxed costs on April 5, 1994. The arbitrators held that the respondents are entitled to costs of Sterling Pounds 26,757.573.The respondents then preferred Arbitration Petition No. 170 of 1993 against petitioners and to this petition Sai Shipping Co. Pvt. Ltd. were joined as respondent No. 2. Sai Shipping Co. Pvt. Limited acted as an agent of the appellants in respect of the business of charter and certain amount payable to the appellants was lying in the Bank account maintained by the said Sai Shipping Co. Pvt. Ltd. The respondents sought judgment and decree in accordance with the Award passed by the arbitrators in the petition.

Reasoning:
It is not possible to accede to the submission of learned Counsel. Once costs was awarded by arbitrator or the Court, it forms part of the Award already decreed and it is futile to suggest that amount of costs is not a part of decree and cannot be considered as decree proceedings for payment of money. In our judgment, once the amount is crystalised, then it becomes a part of money decree and is perfectly executable and as the amount is admittedly available within the jurisdiction of Bombay Court, the contention that Bombay Court could not have entertained the petition cannot be acceded to. The first contention of learned Counsel is, therefore, required to be turned down6.The second contention urged by learned Counsel in support of the appeal is that the learned Judge was in error in passing judgment and decree in terms of the Award when the Award in respect of the costs was not filed before the learned Judge. Petition was lodged on September 13, 1993 while Award of taxed costs was declared on April 5, 1994 determining that appellants are liable to pay Sterling Pounds 26,757.57 towards costs of the respondents and Sterling Pounds 1075 towards costs of arbitration. Prithviraj Arya, Constituted Attorney of the respondents filed affidavit dated April 7, 1994 before the learned Single Judge and produced a copy of taxed costs declared on April 5, 1994. Smt. Iyer submits that this copy is neither the original Award nor duly authenticated as required by section 8 of the Foreign Awards Act. Section 8(1)(a) provides that the party applying for the enforcement of a Foreign Award shall, at the time of the application, produce the original award or a copy thereof, duly authenticated in the matter required by the law of the country in which it was made. This Court has framed rules under the Foreign Award Act and rules are included in Chapter XVIII of High Court of Judicature at Bombay, Original Side Rules. Rule 801 sets out documents to be produced with the petition. Relying on the provisions of Rule 801 Smt Iyer submitted that neither the original award declaring the taxed costs nor the copy duly authenticated is produced. The learned Single Judge was in error in passing the judgment and decree in terms of the Award. We found considerable merit in the submissions urged by learned Counsel and we called upon Shri Pratap to either produce the original or duly authenticated copy. Shri Pratap sought an adjournment and today produced the original Award dated April 5, 1994 duly signed by the arbitrators and witnesses. Original Award is taken on record and marked X in appeal. In view of the production of the Original Award, grievance of the appellants on this count does not survive. Smt. Iyer submitted that section 8(1)(a) of the Foreign Award Act demands that the document ought to have been produced at the time of presentation of the petition and as it is produced for the first time in appeal, the same should be ignored. It is not possible to accede to the contention for more than one reason. In the first instance Rule 802 provides that if the petition is presented without the documents supporting then the same shall be returned to the party and the Judge may allow time to file such document. It is, therefore, obvious that power has been conferred upon the Court to grant time to file the document and filing of document at the time of presentation of the petition is notn of valid presentation. Secondly, filing of the original award in appeal has not caused any prejudice whatsoever to the appellants. The appellants did not dispute that arbitrators had passed the Award providing for taxed costs and only contention was that original or copy duly authenticated was not produced. It is not open for the appellants now to claim that if the original is produced the same should not be taken on record. In our judgment, the order of the learned Single Judge does not suffer from any infirmity and appeal must fail.