PERMA CONTAINER Vs. PERMA CONTAINER LINE

JUDGEMENT

(1.) PETITIONERS in Arbitration Petition No. 259 of 2013 are the original claimants in the arbitration proceedings and seek a declaration that the arbitration award dated 30th January, 2013 is enforceable as a decree of this court and seeks enforcement of the said award under sections 44 to 49 of the Arbitration and conciliation Act, 1996 (for short the said Act). Respondents to this petition are the original respondents in the arbitration proceedings. Arbitration Petition No. 406 of 2013 is filed by the original respondents to the arbitration proceedings under section 34 of the said Act inter alia praying for setting aside the partial award dated 7th December, 2009 and partial final award dated 30th January, 2013. The petitioners in Arbitration Petition No. 259 of 2013 i.e. Perma Container (UK) Line Ltd. are hereinafter referred to as the claimant. The original respondents i.e. Perma Container Line (India) Pvt. Ltd. are hereinafter referred to as the respondent. Some of the relevant facts for the purpose of deciding these two petitions are as under : -

(2.) THE claimant company is registered under the Laws of England, United Kingdom and carries on business of transporting cargo in containers. Respondent is a company registered under the provisions of the Indian Companies Act, 1956. The respondent was registered on 6th July, 2004 with an authorised share capital of Rs.1 crores. According to the claimant, it was intention of the claimant that they would appoint respondent as their agents in India. There were two directors, Mr. Ajith Menon and Mr.F.C.George. It is case of the claimant that Mr.Ajith Menon was in complete management and control of the respondent and was responsible for its day to day activities and operated the bank accounts of the respondents and took all decisions in respect of the activities of the respondent whether financial or otherwise at all relevant times. Mr.George was at all relevant times and still an employees of Simotech Shipping, an associate company of the claimant and based in Dubai and was so employed in Dubai at all relevant times and was not involved in day to day activities or running of the respondent.

(3.) ON 1st April, 2004, the claimant and respondent entered into an agency agreement by which the claimant appointed the respondent as its agent for the purpose of handling the cargo services of the claimant in Mumbai, Nhava -Sheva, Kandla, Mundra, ICD Delhi and ICD Ludhiana on the terms and conditions setout therein. According to the claimant the said agency agreement was for a period of one year. Upon expiry of the said period, parties entered into a fresh agency agreement dated 1st August, 2005 appointing the respondent as agent of the claimant in the territories mentioned therein on the terms and conditions setout in the said agreement. Clause 11 of the said agreement provided that the respondent will be responsible for all collections including freight collection, line demurrage, terminal handling charges etc. Clauses 30, 31 and 32 provided for preparation of the monthly disbursements account and for remittance of surplus funds by the respondent to the claimant. Clause 36 of the said agreement provided that the said agreement shall continue until terminated by either party giving one month notice to the other in writing. Clause 38 of the said agreement provided that the agreement shall be construed as having been entered into at London and will be governed by English Law. Clause 39 provided that the agreement shall be governed by and construed in accordance with English Law and any dispute arising out of the agreement shall be referred to arbitration in London. Clause 38 and 39 of the said agreement are extract as under : -