Point of law: With reference to Section 2(1)(e)(II) of Arbitration and Conciliation Act, the subject matter of arbitration in this case cannot be decided by this Court in exercise of its ordinary original civil jurisdiction. A suit for damages cannot be laid by the petitioner in this Court, against the first respondent, on the ground of breach of contract, which it intends to propound. Both these parties are not ordinarily residents or carrying on business within the jurisdiction of this Court. Nor any part of cause of action has arisen, to initiate a civil action in this Court, within territorial jurisdiction. Presence of a vessel owned by the second respondent at Krishnapatnam Port and Harbour, since being a part of its voyage, cannot vest this Court with such jurisdiction.

ORDER:

I.COM.A.O.A.No.1 of 2021 is a petition filed by the petitioner against the respondents under Section 9 of Arbitration and Conciliation Act for the following reliefs:

“a) an order of status quo, injunction and attachment of the respondent’s bunkers on board the vessel NIKOMARIN, IMO 9401506 presently lying at Krishnapatnam Port and Harbour towards security for the petitioners’ claim pending in Arbitration in London.

b) an order directing the respondent to furnish security in favour of the petitioner for the sum of US $ 1,536,114 pending the issuance of the arbitration Award;

c) costs of and/or incidental to this application be borne by the respondent.”

2. The petitioner described itself as an incorporated company at Mongkok, Hongkong engaged in business of ship chartering. The first respondent is another company carrying on business of ship chartering at Singapore. The respondents 2 and 3 got themselves impleaded as proper and necessary parties as per orders of this Court in I.A.Nos.2 and 5 of 2021 dated 02.03.2021.

3. The parties as arrayed in the petition shall be referred to hereinafter, for convenience.

4. The petitioner claimed that there has been breach of the contract by the first respondent, of Clean Fixture Recap voyage charter dated 30.07.2020 between itself and the first respondent for the vessel for a shipment of HSS (Heavy Grains, Soya Beans and Sorghums) from East Coast South America to China and the voyage was to commence in March 2021. The first respondent had to pay freight of US dollars 27.5 per metric ton approximately. However, according to the petitioner, there was a serious breach in nominating vessels either M.V.PRABHU DAS or MV CHOLA VIRTUE leading to exchange of a series of ‘e’ mails in between them. Ultimately, according to the petitioner, it invoked arbitration clause and had sent a ‘e’ mail dated 15-02-2021 as legal notice to the first respondent and appointed Ms.Sarra Kay, London as their nominee arbitrator/sole arbitrator.

5. The petitioner quantified its claim for damages in all in the region of 1,236,114 + interest + 150,000 legal costs + 150,000 arbitration costs in US dollars.

6. Stating that the bunkers of vessel MV NIKOMARIN, IMO 9401506 flying the flag of Cyprus belonged to the first respondent, since purchased at Singapore, which have approximate value of 900,000 US dollars and a quantity of 1,600 MT IFO and 175 MT LSMGO, the petitioner requested an order of the nature described in para-1 above, in order to provide security for its claim for damages against the first respondent.

7. By an order dated 25.02.2021, attachment of the bunkers on board the vessel MV NIKOMARIN, IMO 9401506 was directed in the event of respondent failing to furnish security for 1,536,114 US dollars within 48 hours of service of notice and a copy of the said order, upon hearing for the petitioner and considering the urgency expressed particularly having regard to the allegation of the petitioner that the vessel in question would be sailing away from Krishnapatnam Port and Harbour, where it was then available.

8. On account of the order so passed, the second respondent claiming as the owner of the ship MV NIKOMARIN and the third respondent as the charter of the vessel MV NIKOMARIN came on record seriously opposing the claim of the petitioner raising different grounds.

9. The second respondent filed I.A.No.6 of 2021 to vacate the order granted on 25.02.2021. The contentions of the second respondent are that it is the owner of the vessel MV NIKOMARIN along with bunkers on board. Another submission of the second respondent is that the first respondent is not the charter of this vessel and it is the third respondent. It further questioned the jurisdiction of this Court to entertain this petition and contended that it would affect enormously if the order of attachment continued, since the vessel cannot sail out of the present location. It also contended that the bunkers on the vessel are not owned by the first res