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2003 Supreme(Bom) 538

IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
Liverpool London Steamship Protection
and Indeminity Association Ltd..... Petitioner.
Versus
Arabian Tankers Co., LLC others.... Respondents.
Arbitration Petition No. 105 of 2003, decided on 30-4-2003.
Advocates appeared :
G.A. Rebello, V. Sett, i/b. R.A. Fernandes, for petitioners.
D.C. Gomes with Ms. F. Sethna, Ms. Anuradha Nadar Ms. Dipti Das, i/b. Dunmorr Sett, for defendant No. 4.

Headnote:Arbitration and Conciliation Act, 1996 - Section 4 - Pendency of arbitration proceeding in English Court. - An Award passed by English Court would still be enforced in this country as foreign award as prima facie it would not be against public policy of India.

       Civil Procedure Code, 1908 - Section 11, Order II, Rule 2 - Arbitral proceedings. - Invocation of Section 9 of Act is only an interim measure pending commencement and not for substantive relief where Court can pass a decree for final relief.

JUDGMENT - REBELLO F.I., J.:---The petitioners have described themselves as non-profit making mutual ship owners insurance association who provide insurance cover to their members. The petitioners have been constituted by and comprise ship owners themselves. Each member makes proportionate contribution to the club fund and all claims made against any member by third parties are settled by the petitioners from out of the said fund after scrutiny. The case of the petitioners is that one Faisal Al Suwaidi is an individual concerned with the ownership and shares in various vessels as described in paragraph three of the petition. It is also averred that Mr. Suwaidi has represented/held himself out to be and acted in the capacity of the owner/individual concerned with the ownership of the respondent Nos. 1, 2 and 3 as well as the shares in the vessel. The petitioners had invoked the admiralty jurisdiction of this Court for recovery of assets described as Insurance premium not only in respect of the said vessel but also insurance dues of the fleet, on the ground that it will constitute a maritime claim. This Court by order dated January 22, 2003 in Notice of Motion No. 3110 of 2002 in Admiralty Suit No. 13 of 2002 granted part relief. There are also arbitral proceedings which are presently going on at London. The plaintiffs have framed rules which are known as Liverpool and London Steamship Protection Indemnity Association Limited. Rule 47 pertains to disputes and the resolution thereto. Rule 47-C reads as under :-

"Nothing herein shall affect or prejudice the right of the Association to take action and/or commence proceedings in any jurisdiction to enforce its rights of lien on ships or to otherwise obtain security by seizure, attachment or arrest of assets for any amount owed to the association."

Clause 48 pertain to law governing the parties and it reads as under:-

"These rules and any special terms of entry form a contract of insurance between the association and a member, and subject to the right of the association under Rule 47-C to enforce its right of lien in any jurisdiction in accordance with local law in such jurisdiction, shall be construed in accordance with English law."

Subsequent to the order of this Court dated January 22, 2003, the petitioners have taken out this petition under section 9 of the Act of 1996. Admittedly, the defendants 1, 2 and 3 are foreign companies. The action against the said respondents has been commenced in this Court for what is set out in paragraph twenty six of the petition. It is averred that the 1st and 2nd respondents have traded within the jurisdiction of this Court by bringing the vessel m.t. Symphony-I as well as other vessels owned by them, into the jurisdiction of this Court and having them entered with the port and customs authorities. On entry, it is contended that the vessel becomes subject to all municipal and local laws. The assets of the 1st and 2nd respondents are presently within the jurisdiction of this Court and consequently this would entitle this Court to pass orders in respect of such an asset. The 1st and 2nd respondent, it is averred, have specifically appointed M/s. J.M. Baxi Co., who have acted as agents on their behalf in respect of the vessel m.t. Symphony-I. Further M/s. J.M. Baxi Co., have also acted on behalf of respondent Nos. 1 and 2, on past occasions in respect of the same as well as other vessels owned/operated/managed by the respondent Nos. 1 and 2. M/s. J.M. Baxi have accepted and disbursed monies on behalf of the vessels owned by the 1st and 2nd respondents. It is then averred that the vessel is presently anchored within the jurisdiction of this Court. In these circumstances, it is contended that this Court would have jurisdiction to try and dispose of this petition as the 1st and 2nd respondents carry on business within the jurisdiction of this Court. It is also averred that the vessel m.t. Symphony-I is the only asset of the 1st and 2nd respondents

















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