Consent and consensus ad idem are essential for the validity of an Arbitration agreement. Consignees may not be bound by an Arbitration clause in a Bill of Lading if they have not received the original Bill of Lading and have not taken delivery of the cargo.

JUDGMENT

(Prayer: Arbitration Original Petition (Commercial Division) filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (Amended) to appoint a sole Arbitrator to adjudicate upon the dispute arisen between the petitioner and the respondents.)

1. The issue that arises for consideration is whether a Consignee under a Bill of Lading who has not taken delivery of the goods due to a dispute with the Shipper is bound by the Arbitration Clause contained in the Bill of Lading. The petitioner claiming to be the Carrier which has issued the Bill of Lading to the Shipper at Iran is claiming demurrage against the respondents, who is a Consignee under the Bill of Lading but has admittedly, not taken delivery of the Cargo due to a dispute with the Shipper in Iran. It is also an admitted fact that the original Bill of Lading was never delivered by the Shipper to the Consignee due to the dispute and transfer of title of the cargo in favour of the Consignee never took place.

2. Based on an Arbitration Clause contained in the terms and conditions of the Bill of Lading, this petition has been filed under Section of the Arbitration and Conciliation Act seeking for appointment of an Arbitrator by this Court.

3. The dispute between the parties arises out of a Bill of Lading dated 14.03.2021. According to the petitioner, the demurrage charges arising out of the said Bill of Lading has not been paid by the respondents. According to the petitioner, since there is an Arbitration clause in the Bill of Lading dated 14.03.2021, the present petition is maintainable. The petitioner has also invoked Arbitration in accordance with the Arbitration clause by sending a notice to the respondents on 14.02.2022. The said notice has also been replied by the respondents disputing the applicability of the Arbitration clause to the respondents. In the Bill of Lading dated 14.03.2021, the first respondent has been disclosed as Consignee and also as the Notify Party. In the Bill of Lading dated 14.03.2021, the shipper is Saeid Sahebolzamani, Iran. The first respondent has contended that due to poor quality of cargo which had arrived by the subject vessel named in the Bill of Lading dated 14.03.2021, the first respondent did not take delivery of the cargo and further it is their contention that the original Bill of Lading was never given to them by the shipper and they are not aware of the terms and conditions of the Bill of Lading, which includes the Arbitration clause. The respondents also contend that since the transfer of title of the cargo has not taken place, they are not bound by the terms and conditions of the Bill of Lading, which includes the Arbitration Clause.

4. Apart from raising the contention that there is no valid Arbitration agreement, the first respondent has also questioned the maintainability of this petition filed by the petitioner as they claim that they are only an agent of a Foreign Disclosed Principal. According to them, if the foreign disclosed principal is the party making the claim, the present petition under Section 11 of the Arbitration and Conciliation Act is not maintainable, as the dispute will amount an International Commercial Arbitration and therefore, this Court will not have jurisdiction and only the Hon''ble Supreme Court will have jurisdiction to entertain an application seeking for appointment of an Arbitrator. The first respondent has also questioned the territorial jurisdiction of this Court as the place of delivery of cargo under the Bill of Lading dated 14.03.2021 is Nhava Sheva and therefore, according to them, Mumbai Courts alone will have the jurisdiction to entertain this petition.

5. In respect of the second and third objections raised by the first respondent, namely, a)jurisdiction of this Court and b)claim made by an agent of a Foreign Disclosed Principal which amounts to International Commercial Arbitration are concerned, the said objections may not require this Court''s consideration if the respondents