JALDHI OVERSEAS PTE. LTD Vs. AMBO EXPORTS LIMITED

JUDGEMENT

(1.) The Execution Application is filed to enforce a foreign award dated 7th January, 2013 under Section 46 of the Arbitration and Conciliation Act. The enforcement is further sought to the final award for costs dated 1st March, 2013. The salient facts as would emerge from the affidavit in support of the tabular statement are that the petitioner chartered the vessel for carriage of the cargo from Haldia and Sagar to a port in China. The said vessel was chartered for shipment of the iron ore fines to the respondent under the Fixture Note dated 30th March, 2011. The vessel arrived at Haldia on 1st April, 2011 and tendered Notice of Readiness (N.O.R) to the respondent. After having loaded the goods on the said vessel the respondent utilized time in excess of laytime allowed under the said Fixture which attracted the demurrage and therefore the respondent became liable to the petitioner to pay an aggregated sum of USD 28,068.82/ -. On failure to pay the demurrage the petitioner invoked the arbitration agreement and requested the respondent to agree on sole arbitrator. Since, there was no agreement on such appointment an application was made before the Hong Kong International Arbitration Centre (HKIAC) which appointed the sole arbitrator who intimated the parties of his appointment on 18th June, 2012.

(2.) Subsequently, the Claim Submissions with supporting documents were filed by the petitioner and the copy thereof was served on the respondent. The respondent did not file the Defence Submissions. The arbitrator extended the time and communicated the same to the respondent. The time to file Defence Submissions was extended from time to time until the request was made by the petitioner to proceed with the arbitral proceeding for making and publishing the award. The arbitrator published the final award whereby and whereunder the claim of the petitioner was accepted with interest and costs. The arbitrator, however, reserved his power to tax the costs and subsequently make a final award on costs. Both the awards are sought to be enforced through the instant Execution Application.

(3.) It is stated in the said affidavit that the award was served on the respondent but the failure to pay the awarded sum the award becomes enforceable. In the opposition to the Execution Application several points are raised but the respondent ultimately based his objection on interpretation of Clause 13 of the Fixture Note. For the purpose of convenience, Clause 13 is quote herein below: -