ISPAT INDUSTRIES LTD Vs. M V THOR ORCHID

JUDGEMENT

(1.) THIS Notice of Motion has been taken out by defendant. The principal relief that is claimed by this motion is that the suit be dismissed because it is barred by the provisions of the Arbitration and Conciliation Act, 1996.

(2.) THE facts that are relevant for deciding this Notice of Motion are, Adm. Suit No. 4 of 2004 has been filed. The plaintiff is a company incorporated under the provisions of the Companies Act, 1956 and it deals in iron ore. The defendant is the Foreign flag vessel flying the flag of Tahiland. According to the plaintiff, the defendant/vessel is owned, controlled and managed by Thor orchid Shipping Co. Ltd. The plaintiff states that a charter party dated 24-12-2003 was entered into between the plaintiff and the owner of the defendant/ vessel, whereby the plaintiff chartered the defendant/vessel for carriage of iron are from the Port of Vishakapatnam to the Port of Bombay. The dispute between the parties arises out of this charter party agreement. According to the plaintiff, the owners of the defendant/vessel are liable to refund to the plaintiff a sum of US $ 72,787,47. The plaintiff further states that as per the terms of the charter party the dispute in relation to the recovery of the above amount by the plaintiff from the owners of the defendant/vessel is to be referred to LMA arbitration in England. The arbitration proceeding have not yet commenced. But the plaintiffs have stated that they are taking steps to initiate the process of arbitration. The plaintiffs state that the vessel at the time when the suit was instituted was within the admiralty jurisdiction of this Court and therefore this suit was filed by the plaintiffs to secure the award that may be made by the arbitrator in arbitration between the parties. The plaintiff states that the suit is maintainable in view of the judgment of the Supreme Court in the case of (m. v. Elizabeth v. Harwan Investment and trading Pvt. Ltd.), A. I. R. 1993 S. C. 1014, and the judgment of the Division bench of this Court in the case of (Islamic Republic of Iran v. m. v. Mehrab and others), 2002 (Supp. 2) Bom. C. R. (O. O. C. J.)539 : A. I. R. 2002 Bombay 517, as also according to the provisions of the Brussels Arrest Convention 1952 and the Geneva Arrest Convention 1999. The plaintiff prays for following reliefs

(3.) BY order dated 19-1-2004 the vessel was arrested. The defendant thereafter moved the Court for vacating the order of arrest relying on the judgment of the Division Bench of this Court in the case of (Blue Diamond Freight pvt. Ltd. v. m. v. Indurva Valley and another), dated 15-9-2003. In view of the judgment of the Division Bench, this Court by order dated 23-1-2004 vacated the order of arrest of the vessel. Thereafter, the defendant took out this notice of Motion for dismissal of the suit is view of the judgment of the Appeal court in the case of m. v. Indurva Valley referred to above.