SHAKTI BHOG FOODS LTD Vs. KOLA SHIPPING LTD

JUDGEMENT

(1.) The challenge in this petition under Section 34 of the Arbitration and Conciliation Act, 1996 ('Act') by the Petitioner, Shakti Bhog Foods Ltd., is to an Award dated 11 th February 2009 passed by the sole Arbitrator (Respondent No.2) in the dispute arising between the Petitioner and Kola Shipping Ltd., Respondent No.1, arising out of a voyage Charter Party ('CP') (fixture note) dated 18 th July 2005, claimed by Respondent No.1 to have been executed between it and the Petitioner to load 13,500 metric tonnes ('MT') of bagged sorghum on board M.V. Kapitan Nazarev at the port of Kakinada, India.

(2.) The Petitioner is engaged in the business of manufacturing and exporting food products, cereals, grains etc. It states that in the first week of July 2005 it was negotiating a deal with the Government of Niger for export of Sorghum (Jowar), which was to be shipped to the port of Cotonou in Benin in West Africa. The Petitioner states that it was looking for a ship and at that time the Respondent No.1 contacted it and offered its services since it was already having a vessel under a time charter with the head owners N.B. Two Shipping Ltd. (hereafter referred to as 'head owners'). According to the Petitioner, it informed the Respondent No.1 that it might be in a position to charter the vessel only if the deal with the Government of Niger came through. According to the Petitioner, the deal did not come through despite negotiations and it kept Respondent No.1 apprised of the developments. According to the Petitioner since the Respondent No.1 was nevertheless insisting upon a regular CP (to be executed between them) and since the deal with the Government of Niger did not come yet through, the Petitioner offered Respondent No.1 in the alternative of export of Sorghum through the vessel for which the Respondent No. 1 had time charter, a consignment of maize for Colombo. The Petitioner maintains that there was no signed CP, and therefore no arbitration agreement between the parties.

(3.) The Respondent No.1 maintains that there existed a concluded CP agreement between the Petitioner and Respondent No.1. It further states that the question as to the existence of the CP between the parties has been examined in the earlier proceedings before this Court and the Supreme Court and similar contentions of the Petitioner have been negated by both Courts. Respondent No.1 contends that it was not concerned with the Petitioner's deal with the Government of Niger. According to the Respondent No.1 it signed CP on 22 nd July 2005 and sent the original to the Petitioner. Respondent No.1 claims that the Petitioner counter-signed the CP on 28 th July 2005 and sent that copy by fax. Respondent No.1 has produced before this Court a photocopy of the fax of the CP counter-signed by the Petitioner. Respondent No.1 relies on the arbitration clause forming part of the said agreement.