M/S TRANS ASIAN SHIPPING SERVICES (PVT.) LTD. versus M/S BEACON SHIPPING LINES LTD. REPRESENTED BY MR. MOHAMMED S. ASLAM MANAGING DIRECTOR & OTHERS on 19 September 2018

M/S TRANS ASIAN SHIPPING SERVICES (PVT.) LTD.

v.

M/S BEACON SHIPPING LINES LTD. REPRESENTED BY MR.MOHAMMED S. ASLAM MANAGING DIRECTOR & OTHERS

(Arbitration Petition (Civil) No. 20 of 2012)

SEPTEMBER 19, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Arbitration and Conciliation Act, 1996 – s.11(9) – Appointmentof arbitrator under – Agency Agreement between the petitioner andthe respondent – Petitioner asserting breach of various terms andconditions of the agreement by the respondent, sought appointmentof a sole arbitrator – Held: An arbitration clause exists in theAgreement which stipulates that any dispute or difference arisingunder and/or out of or in connection with and/or relating to theAgreement unless amicably settled, shall be determined by arbitration– Disputes have arisen and remain unsettled – Justice Gyan SudhaMisra, former Judge of Supreme Court, appointed as the arbitratorto determine the dispute between the parties.

CIVIL ORIGINAL JURISDICTION: Arbitration Petition (Civil)No. 20 of 2012

Under Section 11(6) of the Arbitration and Conciliation Act, 1996for the purposes of appointment of Arbitrator under Cl.5(1) of the AgencyAgreement dated 31.03.2010.

C. N. Sree Kumar, Ms. Rasmita Chandarn, Amit Sharma, Advs.for the petitioner.

The Order of the Court was passed by

DIPAK MISRA, CJI 1. The petitioner, by this petition underSection 11(9) of the Arbitration and Conciliation Act, 1996 (for brevity,‘the Act’), has prayed for appointment of arbitrator as per Clause 5(1)of the Agency Agreement dated 31.03.2010 between M/s Trans AsianShipping Services (Pvt.) Ltd. and M/s Beacon Shipping Lines Ltd.

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A2. The petitioner is an Indian company and the respondent company isregistered in Bangladesh. It is averred that the petitioner is a multinationalcompany having operations in the Indian Sub-Continent, Middle Eastand South East Asia and is actively engaged in diversified activities withits core business being shipping especially transportation of containerizedcargo. Its activities are related to various shipping operations all over theBworld and, therefore, it engages agents in various countries to undertakefor and on behalf of it such functions. It involves their combined transportoperations in the name of “Trans Asia Line”. It is urged that the validsubsisting agreement renewed from 31[st] March, 2010 was terminatedonly on 31[st] March, 2012 with respect to the combined transportCoperations. It is asserted that the respondent committed breach ofvarious terms and conditions of the agency agreement leading to disputesbetween the parties. The petitioner is entitled to recover dues of USD134875.8829. Various documents have been filed to show how the amountis due. It is asserted that though the petitioner company sent arbitrationnotice to the respondent requesting the latter to nominate the arbitratorDwithin 15 days of the receipt of the same so that the arbitration boardcould deal with the disputes, yet there was no response from therespondent. Under these circumstances, the petitioner has prayed forappointment of a sole arbitrator.

3. Despite service of notice, there has been no appearance onEbehalf of the respondent no. 1 and other respondents who are theManaging Directors and Directors of the respondent no. 1 company.

4. We have heard Mr. C.N. Sree Kumar, learned counsel for thepetitioner. Learned counsel has drawn our attention to Clauses 18 and19 of the agreement. The said Clauses read as under:- F

“18. GOVERNING LAW

This Agreement shall be governed by and construed in accordancewith the Indian Law.

19. DISPUTES AND ARBIRATION

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Any dispute or difference arising under and or out of or inconnection with and/or relating to this Agreement, which cannotbe settled amicably between the parties, shall be determined byarbitration and shall be governed by the law of India. Each partyshall appoint one arbitrator with power to such arbitrators to H

appoint, if necessary, an umpire. The language for arbitrationshall be English, and shall be governed by the Indian Law.”

5. On a perusal of the aforesaid Clauses, there can be no trace ofdoubt that an arbitration clause exists and the same clearly stipulatesthat any dispute or difference arising under and/or out of or in connectionwith and/or relating to the Agreement unless amicably settled shall bedetermined by arbitration. The assertions in the petition clearly state thatdisputes have arisen and remain unsettled. In the obtaining factual matrixand keeping in view the existence of arbitration clause meant fordetermination of dispute by arbitration, we appoint Justice Gyan SudhaMisra, formerly a Judge of this Court, to act as the arbitrator to determinethe dispute between the parties.

6. The Registry is directed to send a copy of this order to the solearbitrator. Learned counsel for the petitioner is also at liberty to bring itto the notice of the arbitrator.

7. The arbitration petition is, accordingly, allowed. There shall beno order as to costs.

Divya Pandey

Petition allowed.

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