JUDGMENT :

1. These two Arbitration Applications are disposed of by the following order.

2. Both Arbitration Applications are filed by Alliance Import and Export – a partnership firm seeking appointment of Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (for short “the said Act”). Applicant is common in both the Arbitration Applications. Respondent in Arbitration Application (L) No. 23497 of 2022 is GHCL Limited (for short “GHCL”). Respondent in Arbitration Application (L) No.23500 of 2022 is Nirma Limited (for short “Nirma”). Arbitration Agreement between the Applicant and GHCL is identical to the Arbitration Agreement between Applicant and Nirma.

3. Facts in brief are outlined herein under:-

(i) GHCL and Nirma approached Applicant for undertaking shipment of cargo (Soda Ash) from Porbandar port in Gujarat to Chittagong in Bangladesh. Terms and conditions of charter agreed between parties are set out in the Charter Party / Fixture Note dated 12.05.2021 which is signed by Applicant and Respondents. Duly signed Fixture Note dated 12.05.2021 is received by Applicant on email dated 25.05.2021. There is no dispute about this.

(ii) Both Charter Party / Fixture Notes in respect of GHCL and Nirma are nearly identical and of the same date.

(iii) Applicant carried GHCL’s cargo of 5018.5 MT alongwith Nirma's cargo of 5520.9 MT on vessel viz. M.V. IDM Doodle from Porbandar port to Chittagong. There was a delay in the period of almost berthing of 17 days for which period GHCL and Nirma were liable to pay aggregate detention charges @USD 11,000 per day aggregating to USD 193,325. Applicant raised their detention laytime invoice dated 29.06.2021 for Rs.68,40,160/- being the proportionate charges attributable to GHCL and detention laytime invoice dated 29.06.2021 for Rs.75,23,888/- being the proportionate charges attributable to Nirma on Respondents. Respondents admittedly paid the freight charges to the Applicant at Mumbai, however did not make payment demanded by the Applicant under the Detention Charges Invoices.

(iv) After taking of cargo, Respondents have disputed the Applicant's claim for detention charges raised under the Detention Charges Invoices. Applicant filed Arbitration Application No.72 of 2022 under Section 11 of the said Act in this Court earlier. However, since Applicant had not invoke the arbitration, the said Application was withdrawn with liberty to file a fresh Application after issuance of Invocation Notice upon the Respondents. This court vide order dated 06.06.2022 granted liberty to and allowed Applicant to withdraw the Application.

(v) Applicant by its Advocate's Notice dated 06.06.2022 invoked arbitration under Clause 18 of the Fixture Note dated 12.5.2021. Clause 18 reads thus:-

“18. ARBITRATION IN INDIA, ENGLISH LAW TO APPLY”

(vi) GHCL replied to the Invocation Notice vide letter dated 04.07.2022. Nirma also replied separately to the Invocation Notice vide letter dated 04.07.2022. Both Respondents did not agree to refer the dispute to the Arbitration.

(vii) Hence, the present Arbitration Applications.

4. By a common order dated 13.04.2023 passed in both Arbitration Applications Mr. Priyank Kapadia, learned Advocate / Counsel practising in this Court was appointed as Amicus Curiae to assist the Court in the present proceedings in view of the interpretation of the Arbitration clause contained in the Fixture Notes, which was contested vehemently by the parties.

5. Mr. Bhogle, learned Advocate appearing for the Applicant has made the following common submissions in both matters:-

(i) In the present case, GHCL and Nirma have communicated their acceptance of the Fixture Note by signing it and returning a scanned copy of the signed Fixture Note by email. The email is received by the Applicant in Mumbai which is the place at which the contract is formed. Thus, a part of the cause of action in the presen