IMPORTANT POINTS
Non filing of arbitration agreement with application under section 47 for enforcement of foreign award is not mandatory and is a curable defect. The application should not be dismissed on this ground more so when such defect does not cause prejudice to the opposite party.
In the case of arbitration under English law, which do not require charter party to be signed by the parties, existence of arbitration agreement in such charter party cannot be denied.

JUDGMENT :

L. Nageswara Rao, J.

1. The judgment of the High Court of Delhi directing enforcement and execution of a foreign award dated 30.05.2001 is challenged in this appeal. The Appellant chartered MV “Rubin Halycon” from the Respondent for transportation of a minimum quantity of 16,500 MT upto a maximum of 17,000 MT of chickpeas in bulk from Geraldton Port, Australia to Jawahar Lal Nehru Port, India (JNPT). The Charter Party dated 20.04.2000 provided, inter alia, the following:

“Box 8

Discharge Port(s) or Place (s)

“ISP/1-2 SB JNPT See Cl.3 shifting time to control for 2nd berth as lay time at discharge port or time on demurrage.”

Box 14

Laytime

“Nonreversible load/discharge 3,000 mt. PWWD. Sat noon/SHEX EIU/2000 mt PWWD Sat Noon SHEX EIU time from noon on Sat or a day preceding legal holiday till 0800 hrs on Mon or next working day not to count.”

Box 19

Demurrage and Despatch Rate of Load (Cl.16) “USD 4,000 PD PR/half dispatch”

Box 23

Demurrage and Despatch Rate at Discharge (Cl.27)

“USD 5,000 PD PR/half dispatch”

Box 24

Cargo Discharge Rate – Metric Tonnes per weather

Working Day of 24 Consecutive Hours (Cl.25)

“Sat noon SHEX EIU, Time from noon on Sat or a day preceding a legal holiday till 0800 hrs on Mon or next wkg day not to count.”

Clause 24

Time for Discharging

“Time for discharging shall commence twenty-four hours after notice of readiness has been received by written/telegraphic or telefax notice during ordinary office hour as per the usual custom of the port, whether in berth or not at the first or sole port of discharge provided vessel within port limits and ready in all respects for discharging her cargo….”)

Clause 25

Discharging Rate

“Cargo is to be discharged free of expense to the Respondent at the average rate set out in Box 24”.

2. In accordance with the terms and conditions of the Charter Party, the lay time commenced at 0900 hours on 03.05.2000. The load rate of 3,000 MT per day was valid in accordance with the Charter Party and the lay time allowed for loading equated to 5.5 days. The loading of the Cargo commenced at Geraldton Port, Australia at 10.10 hrs on 01.05.2000 and was completed on 12.40 hrs on 02.05.2000. The Vessel arrived at JNPT at 0305 hrs on 15.05.2000 at which time the master tendered the notice of readiness. A request was made by the Appellant to take the vessel to a nearby port i.e. Mumbai. The request made by the Appellant was acceded to by the Respondent and the vessel was taken to the Mumbai port. The time allowed for discharge was calculated on the basis of discharge rate of 2,000 MT per day and the time allowed for discharge was 8.25 days. Taking into account the Cargo quantity being 16,500 MT, the Respondents calculated demurrage for a period of 20.9493 days at the rate of US $ 6250 per day and requested the Appellants to make the payment. A final freight account was submitted by the Respondent on 22.06.2000 taking into consideration the dispatch at Geraldton and the demurrage at Bombay. The final freight account showed that the Appellant had to pay the Respondent US $150,362.18.

3. The Respondent appointed Mr. William Robertson Esq, 47 Perrymount Road, Haywards Health, West Sussex, RH 16 3 BN as their nominated Arbitrator and the Appellant was called upon to appoint its Arbitrator. The Appellant did not appoint its Arbitrator within 14 days as mentioned in the letter dated 19.09.2000. On 13.03.2001, the Respondent filed its claims with the supporting documents. The Arbitrator directed the Appellant to submit its defense together with counter claims, if any, before 17.04.2001. The Appellant submitted a brief response but did not participate in the arbitration. The Arbitrator proceeded and finally awarded US $ 150,362.18 to the Respondent with interest at the rate of 8% per annum compounded at threemonthly intervals from 1st July, 2000 till the date of payment.

4. The reasons for the final award were given by the Arbitrator separately. The Arbitrator dealt with the submissions made on behalf of the Appel