Delhi High Court Austbulk Shipping Sdn Bhd vs P.E.C. Limited on 18 February, 2005 Equivalent citations: 2005(2)ARBLR6(DELHI) JUDGMENT Mukundakam Sharma, J. 1. The present petition is filed by the petitioner seeking enforcement and execution of the foreign award dated 30th May, 2001 passed by the sole arbitrator Mr.William Robertson. The said award was made at London as per the English law on 30th May, 2001 and 1st November, 2001. The records placed before me reveals that the said award was an ex parte award. The petitioner has alleged in the petition that it had entered into a charter party agreement with the respondent on 20th April, 2000 containing an arbitration clause. It is also alleged that the said charter party governed the rights of the parties. According to it the charter party was duly signed on behalf of the petitioner and was forwarded to the respondent's agent M/s.Forbes Gokak Limited, Patvolk Division , Mumbai for obtaining signature of the respondent under FAX dated 29th April, 2000. It is also alleged that the respondent also opened a Letter of Credit dated 13th March, 2000 with the desire to import 15,000 MT western Australian farmers dressed Tyson Chickpeas, which was followed by the said charter party agreement between the parties. Even subsequently, the respondent opened another Letter of Credit on 12th May, 2000 in respect of freight in favor of M/s. Challenge Shipping SDN BHD. It is the case of the petitioner that it arranged a vessel for the said purpose for carriage of the aforesaid quantity of Chickpeas to be carried to Jawahar Lal Nehru Port Trust. The vessel Rubin Halcyon arrived at the discharge port on 15th May, 2000 and it is alleged that even notice of readiness was duly served on the respondent by FAX dated 15.5.2000. The said FAX was replied to by the respondent on 18th May, 2000 wherein a request was made to the petitioner to change the discharge port from Jawahar Lal Nehru Port to Mumbai. The respondent by its letter dated 18th May, 2000 informed the petitioner of appointment of M/s.Unimarine Agencies Private Limited as charterer's nominated agent at the discharge port. In its letter dated 19th May, 2000 the respondent also undertook to indemnify the petitioner and its agents in respect of any liability, loss, damage or expenses of whatsoever nature, which it may sustain by reason of the vessel proceeding and giving delivery of the cargo in accordance with their request. In terms thereof the petitioner, on 22nd June, 2000 submitted to the respondent their statement of amount due to them due to the change of port and demurrage charges. The respondent by its letter dated 26th July, 2000 to M/s.Sealine International, their brokers, admitted the receipt of laytime statement forwarded by the petitioner and instructed them to proceed further in the matter with the petitioner for amicable settlement of demurrage. As no payment was made in terms of the request of the petitioner, the petitioner invoked the arbitration clause in the charter party agreement and appointed Mr.William Robertson as their arbitrator under letter dated 19th September, 2000 claiming for balance of freight and demurrage in terms of the said charter party agreement. The petitioner also requested the respondent to appoint its arbitrator in respect of the aforesaid claim. It is alleged that even subsequent thereto the respondent vide its FAX dated 6th October, 2000 instructed M/s.Sea Line International for settlement with the petitioner contending that without prejudice if the petitioner is willing to amicably settle all the claims, they would be prepared to pay US$ 71,207.79 in full and final settlement of all claims pertaining to the vessel. The petitioner, however, by its letter dated 24th October, 2000 informed the respondent that settlement at the aforesaid quoted amount was not possible as the respondent owed a sum of US $ 150,362.18. It was stated that in the absence of a more realistic settlement proposal the arbitration proceedings should continue. It was also pointed out in the said communication that since the respondent failed to appoint its own arbitrator, therefore, they had appointed Mr.William Robertson as the sole arbitrator. 2. Mr.William Robertson accepted the aforesaid appointment as the sole arbitrator and he also received claims submitted by the petitioner along with the supporting documentation. The arbitrator passed an order and sent a message on 20th March, 2001 ordering that the respondent should serve their submission of defense together with counterclaim on/or before 17th April, 2001. The respondent, however, sent a FAX dated 20th March, 2001 contending, inter alia, that it had not signed any charter party agreement nor is it was a party to the said charter party and hence it is not liable under the arbitration agreement contained therein. By a subsequent FAX dated 22nd March, 2001, the said positio