1. Mr. Madan has strongly objected for entertaining motion on the ground that it is not lodged and that a copy thereof has been served at 11.23 a.m. He however submits that he is willing to go ahead with the preliminary objection of the defendant on the basis of denial of the averment made in the application.

2. Though I find some substance in the submissions made by Mr. Madan, I am inclined to entertain the notice of motion as taken out by defendants in the interest of justice.

3. The Notice of motion has been taken out by the defendant raising an objection that in view of the Section 45 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the “Said Act”) the present dispute between the parties needs to be referred to the arbitration as provided in Clause 24 of the Contract between the parties.

4. Heard Mr. Pratap, learned counsel appearing on behalf of the defendants in support of the objection. Mr. Pratap submitted that Section 45 of the said Act provides that when the Court is seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative and incapable of being performed. Learned counsel relying on the provisions of Section 7 of the said Act r/w. Article II (2) of Schedule I of the said Act, submitted that Arbitration Agreement will have to be inferred from the exchange of emails between the parties. Learned counsel has taken me to various emails that have been exchanged between the broker i.e. Seven Islands Shipping Ltd. and the defendant. He submits that perusal of the said emails would reveal that the parties were to be governed by the Asbatankvoy Charterparty and additional clause with the logical amendments. Learned counsel submits that additional clause provides that the arbitration would be held in London according to the English Law. He further submits that perusal of the final fixtures would reveal that though the parties have agreed to abide by Asbatankvoy Charterparty by advertisement, the additional clause with logical amendments is not written by inadvertence. Learned counsel therefore submits that it is necessary that the dispute be referred to arbitration under Section 45 of the said Act and during the pendency of the proceedings the said notice of motion be stayed. Learned counsel further submits that when the plaintiff himself is relying on some clauses in the said agreement i.e. 'Asbatankvoy Charterparty', it cannot say that it is not bound by the arbitration clause.

5. Mr. Madan, learned Senior Counsel appearing for the plaintiff, on the contrary, submits that the plaintiff as well as the defendants both are Companies incorporated in India. He therefore submits that in view of the view taken by the Apex Court in the case of TDM Infrastructure Pvt. Ltd. vs. UE Development India Private Limited 2008(2) UJ SC 0721, there cannot be an “International Arbitration Agreement” between two companies incorporated in India and as such assuming without admitting that there is clause which provides for arbitration, in view of clause (ii) of Section 2(1)(f) the same would not be valid. Learned counsel further submits that arbitration clause is a clause which can be severed from the contract and as such the submissions made by the defendant in that regard are without substance.

6. For appreciating rival submission, it will be relevant to refer to certain provisions of the said Act. Clause 2(1)(f) of the said Act reads thus :

“2(1)(f) “international commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is -i. an individual who is a national of, or habitually resident in, any country