KOLA SHIPPING LIMITED Vs. SHAKTI BHOG FOODS LIMITED

JUDGEMENT

(1.) The petitioner, above named, has filed this petition under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Act) seeking interim measures in the matter of discharge of 1,100 metric tons of Sorghum loaded by the respondent company on board the petitioner's vessel m.v.Kapitan Nazarev at Kakinada port Andhra Pradesh.

(2.) Briefly stated the facts leading to the petition are that an agreement (charter party) dated 18th July, 2005 was executed between the parties at New Delhi wherein the respondent agreed to load 13,500 metric tons of bagged Sorghum on board the petitioner's vessel (m.v.Kapitan Nazarev) at the port of Kakinada, Andhra Pradesh for carriage to and discharge at the port of Cotonou, Benin (East Africa). The said agreement provided for freight to be paid at the rate of US% 60.00 per metric ton and demurrage at the rate of US $8,000/- per day. Under the said agreement, all the disputes were to be referred to arbitration at London under the English Arbitration Act. The petitioner's vessel arrived at the port of Kakinada on 24th July, 2005. The respondents surveyors accepted the vessel for loading on 25th July, 2005. The respondent were to load the cargo within nine days failing which they were liable to pay demurrage at the rate of US$ 8,000 for every days delay beyond the said nine days. It is alleged that respondent loaded only 1,100 metric tons of bagged Sorghum on 6th August, 2005 as against the contractual quantity of 13,500 mt. On 24th August, 2005 the respondent sent a letter informing that they were not in a position to provide any further cargo and requesting the petitioner that they may be permitted to unload the said cargo of 1,100 mt and also agreed to pay compensation amount of US$ 90,000 to the petitioner. According to the petitioner, by that time, the demurrage had gong upto US$ 2,32,000 and the compensation offered by the respondent was totally inadequate and not acceptable. Under the terms of the charter party/agreement, petitioner shall have a lien on the cargo for recovery of freight, dead-freight, demurrage, damages for detention and all other amounts which may be found due. Accordingly, the petitioner's agents South India (Agencies) Limited addressed a letter dated 1st September, 2005 to the port and customs authorities at Kakinada seeking permission to discharge the cargo under lien and to store the same in a bounded warehouse or such other place as may be permitted. In the said letter, the petitioner's agents further confirmed that they would bear the cost of discharge and storage and requested the port and customs authorities to permit the petitioner to discharge the cargo and allow the vessel to sail from the Kakinada Port but the customs authorities at Kakinada port informed the petitioner by letter dated 6th September, 2005 that since the cargo was loaded by the respondent, the request for discharge of the cargo should come from the respondent. In the meantime, the respondent themselves sent a letter dated 5th September, 2005 to the Master of the vessel stating that they would make the necessary arrangement to discharge the cargo on board the vessel. Accordingly, the petitioner's agent addressed a letter dated 8th September, 2005 to the customs authorities at Kakinada Port informing that they had no objection to the discharge the cargo by the respondent at his own costs and risk subject to the respondent's surrendering the Mate Receipts and the original tally sheets to the Master of the vessel. This, according to the petitioner, was necessary because the cargo was not being carried by the vessel and consequently, the receipts issued by the Master of the vessel confirming receipt of the cargo on board the vessel was required to be returned to the Master and cancelled. Despite this, respondent took no steps for unloading the cargo as a result petitioner's vessel continues to remain at Kakinada port incurring demurrage and detention which aggregates to an amount in excess of US$ 737,577 till the date of filing the petition. It is alleged that the respondent has neither discharged the cargo nor has permitted the petitioner to discharge the cargo by putting in a written request for re-landing of the cargo to the port and customs authorities at Kakinada port as required by the said authorities vide letter dated 6th September, 2005. According to the petitioner, detention charges continue to accrue at the rate of US$12,346.30 per day. Petitioner has expressed its readiness to refer the dispute for arbitration in London in respect of its claim for freight, dead-freight, demurrage and damages for detention. In the meantime, petitioner has filed petitioner under Section 9 of the Act seeking direction to the the respondent to forthwith discharge the quantity of 1,100 mt of Sorghum loaded by the respondent on board at the petitioner's vessel. In the alternative, petitioner seeks a direction to the respondent to request the port, customs and other authorities at Kakinada port in writing to grant permission for unloading of respondent's cargo on board at the risk and cost of the respondent. Petitioner seeks further direction to the respondent to surrender to the Master of the vessel the mates receipts and all other export documents in respect of the cargo loaded at Kakinada port.

(3.) In the written reply filed by the respondent, respondent has admitted loading of 1,100 mt of Sorghum on board the petitioner's vessel. According to the respondent, they have been persistently requesting the petitioner to allow them to discharge the goods and even offered a sum of US$ 90,000 but the petitioner, in order to blackmail the respondent, came out with an unfounded, unrealistic and illegal claim of over 4.56 lac US $ as a pre-condition for the release of the goods to which the respondent did not agree. Not only that the petitioner has sent e-mails to all shipping lines warning them not to deal with the respondent without first contacting the petitioner. This, according to the respondent, amounts to defamation for which the respondent claims damages to the tune of US $ 3,00,000. As regards the agreement namely charter party, respondent's versions is that they have signed only fixture note and not any charter party/agreement. Respondent has further taken a preliminary objection regarding territorial jurisdiction of this Court to entertain this petition. I have heard learned counsel for the parties and perused the record.