A suit filed for securing an award that may be obtained in arbitration proceedings is not violative of public policy and does not prevent the enforcement of the foreign award.

P.S. Patankar, J. - This petition has been filed under the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Act of 1996) for enforcing the foreign award dated 25-2-1997 passed in favour of the petitioners.

2. There was charter agreement entered into between the petitioners and the respondents whereunder the petitioners' Vessel M.V. VINTA was chartered to the respondents for carriage of bagged rice and wheat from Calcutta to Dar-es-Saleem.

3. Dispure arose between the parties in respect of the said contract. Clause 24 of the charter party provided for reference to Arbitration and the English Law to apply in that event. In spite of the notice to the respondents the respondents failed to appoint the Arbitrator. The petitioners appointed the arbitrator in accordance with Clause 24 of the Charter Party. As the respondents failed to appoint their arbitrator, the Atbitrator appointed by the petitioners acted as Sole Atbitrator in view of Section 7(b) of Atbitration Act, 1950. In spite of notices to the respondents, respondents failed to appear before the Arbitrator. On 11-6-1996 the respondents informed the Sole Arbitrator that they objected to the appointment of the Sole Arbitrator because the petitioners have failed a suit in the Bombay High Court. Later on the respondents addressed a fax message dated 4-10-1996 to the Atbitrator for extending the time by one month to enable them to file their defences. This said parayer was granted and the Arbitrator directed the respondents to file their defence before 8-11-1996. The respondents failed. Hence the award was made and published by the Arbitrator on 25-2-1997 in the sum of U.S. $ 1,37,109.57 with interest at 8% from 1-7-1996 till date of the Award. Costs of 1200 pounds sterling were also awarded.

4. The enforcement of the said Award is objected by the respondents, first on the ground that there was no proper opportunity given to them to defend. However, the respondents were required to admit that those averments made in the affidavit in reply were not correct and they were unconditionally withdrawn. This was recorded by my order dated 12-11-1998.

5. The enforcement of the said award is objected on the ground that the suit was filed by the petitioners in this High Court on Original Sode i.e. Suit No. 1846 of 1996 in May 1996. This was in respect of the same subject matter which was referred for the Arbitration. Notice in respect of the said suit was also given to the Arbitrator. Hence the petitioners could not have proceeded with the arbitration proceedings. It amounted to forum shopping and hence enforcement of the award would be contrary to the public policy of thus country. It is violative of Section 48(2) of Act of 1996.

6. The learned Counsel for the petitioners submitted that the said suit was not for recovery of the amount. It was for the purpose of securing the award that may be obtained by the petitioners against the respondents in the arbitration proceedings. It was for security only.

7. In view of the above contention, it is necessary to examine the nature of the suit filed by the petitioner. The learned Counsel for the petitioners invited my attention to the various averments made in the said plaint and particularly paras 10, 13, 16, 18 and 19. It is clear from the averments in the suit that the petitioners have not suppressed about the arbitration proceedings in the plaint and clearly pointed out about reference sought to the arbitration under Clause 24 of the Charter Party. I has been mentioned in para 9 that the respondents have failed in appoint their Arbitrator and hence the Sole Arbitrator is required to proceed and they are pursuing the arbitration proceedings in London. In para 10, it was averred that they are entitled to obtain security in respect of the award which is to follow since the repudiation of the claim by the defendants is with a view to delay the entitlement of the petitioner for demurrage. In para 11 again