CZECH OCEAN SHIPPING Vs. M M T C

JUDGEMENT

(1.) Petitioner filed application under Section 28 of the Arbitration Act, 1940 alleging that it is a joint stock company and, inter-alia, carries on business as carriers by sea. Respondent is a limited company and carries on business as can alysing agents for import and export- of minerals and metals including rock phosphate. By a charter party dated 10th October, 1988 petitioner's Vessel m. v. 'Mir' was let out for carriage of bulk rock phosphate of the quantity not exceeding 13,650 M.Ts. and not less than 12,350 M.Ts. from % Safe Berths Aqaba to 1 or 2 Safe Berth(s) or 2 Safe Port(s) Anchorages India. Disputes having arisen between the parties regarding computation of allowable time at load port and discharge port, the matter was referred for arbitration. Petitioner appointed K.P. Patel while the respondent appointed G.N.Saxena as the Arbitrators. Arbitrators held a preliminary hearing on 14th March, 1992 in New Delhi on which date they issued directions to the parties to file the statement of claims/reply etc. Arbitrators further informed at the preliminary hearing that they have appointed H.M. Singh as the Umpire. Accordingly, petitioner filed their statement of claims. Next hearing in the matter was held in Bombay on 8th September, 1992 on which date respondent sought an adjournment on the ground that they were negotiating a settlement with the petitioner. Since the settlement was not arrived at, the Arbitrators held a further hearing on 25th August, 1994 at New Deli. Respondent's Counsel in that hearing raised the objection that as four months period for making and publishing the award had already expired the Arbitrators had become functus officio. It is further alleged that the respondent is yet to file their reply to the statement of claims filed by the petitioner and the respondent is trying to stall the arbitration proceedings as much as possible. It was prayed that time for making and publishing the award by the Arbitrators be extended for a further period of six months.

(2.) In the reply respondent has not denied the referring of the disputes in regard to the computation of allowable time at the load port and discharge port to K.P. Patel and G.N. Saxena, Arbitrators and the nature of the proceedings which took place on 14th March, 1992, 8th September, 1992 & 25th August, 1994, as alleged. However, it is stated that the petitioner after 8th September, 1992 did not even bother to attend to the matter as a result whereof for about 2 years there was absolutely no hearing in the arbitration case. It is denied that the petitioner is entitled to the extention of time as prayed for.

(3.) Submission advanced by the learned Counsel of the petitioner was that on 8th September, 1992 instead of filing reply to the petitioner's statement of claims, adjournment was sought by the respondent on the ground of negotiating a settlement with the petitioner and on the subsequent date of hearing on 25th August, 1994 an objection was raised on respondent's behalf of the Arbitrators having become functus officio for their haying not made and published the award within a period of four months of their entering upon the reference. Thus the respondent by their conduct are stopped from opposing the extension of time sought for in the application. On the other hand, the argument advanced by the learned Counsel of the respondent was that there is a time gap of about 14 months in between the filing of the present application and the arbitration proceedings lastly held on 25th August, 1994 and the petitioner has not furnished any reason whatsoever in regard to the late filing of the application. According to him, discretion under Section 28 of the Act has to be exercised in a judicious manner and for cogent reasons by the Court. Strong reliance was placed on J.W. Oliver v. Mian Dost Mohammad, AIR 1935 Lahore 191; M/s. Hindustan Steel Ltd. v. Amarnath Sharma, AIR 1971 Orissa 288; M/s. Mohinder Singh and Co. v. UOI & Ors., AIR 1972 Jamuu & Kashmir 63 & M/s. Lila Kishan Kailash Kumar v. DDA, AIR 1985 NOC 121 Delhi. '