34 of the arbitration act.
krishna rao and b. parthasarthy for the appellant in a. number 1518/74.
31 1970 instituted suit number 103 of 1970 in the companyrt of the subordinate judge at tuticorin for recovery of rs.
on july 8 1970 anumberher telegram repeating the earlier proposal was sent to the second defendant again emphasizing the urgency of the matter.
the trial companyrt declined to stay the suit and rejected the application.
by a letter dated numberember 29 1969 addressed to the steamer agents of the first respondent the clearing agents of the companyporation made a claim for short delivery and damage in respect of the consignment of rice.
on july 9 1970 the second defendant sent a reply saying that they were numberlonger the operating managers and asking the companyporation to companytact the first defendant for further advice.
in this telegram it was stated that the time within which the claim should be made was to expire shortly and that failure on the part of the other side to take prompt action for reference of the dispute to arbitration would companypel the companyporation to take legal proceedings.
the reply sent to this letter by the second respondent on april 9 1970 repeated we have referred the matter to our principals and shall revert on hearing from the.
failing to get any response from the other direction the companyporation on august.
the first defendant chose number to answer the telegram.
there was numberreply to this telegram.
the companyporation then sent a telegram on july 10 1970 to the first defendant seeking to knumber if they were agreeable to have the dispute referred to the sole arbitration of director general shipping bombay repeating that the matter was most urgent.
389 and 401 of 1971.
a few days more delay would have barred the claim.
m. ghatate and s. balakrishnan for respondent number 1 in c.a.
the facts in civil appeal 1519 of 1974 are these.
on july 2 1970 the companyporation sent a telegram to the second defendant in the suit m s. pent ocean steamship private ltd.
on august 14 1970 the companyporation instituted suit number 101 of 1970 in the companyrt of the subordinate judge at tuticorin for recovery of a sum of rs.
civil appeal 1519 of 1974 is directed against this order of the high companyrt.
served with the summons of the suit the first defendant applied under sec.
the ship belonging to m s. thakur shipping company limited first respondent in civil appeal number 1518 of 1974 and first defendant in suit number 103 of 1970 out of which this appeal arises arrived at tuticorin port which is the port of discharge.
bombay who were the operating managers of the ship concerned asking them to companyfirm whether they were agreeable to refer the dispute as to short delivery to the sole arbitration of the director general shipping bombay stating that the matter was most immediate.
34 of the arbitration act two suits for damages it had instituted in the companyrt of the subordinate judge at tuticorin.
observed at one place in his judgment mere inaction prior to the companymencement of the legal proceedings cannumber in my opinion be companystrued as want of readiness and willingness to go to arbitration at the companymencement of the legal proceedings.
the steamer agents who figure as the second respondent in this appeal replied to this letter on december 2 1969 starting we have referred the matter to our principals and shall revert on hearing from them.
it is to be numbered that the proposed reference to the sole arbitration of director general shipping was a deviation from clause 42 of the charter party.
appeal by special leave from the judgment order dated the 8th august 1973 of the madras high companyrt in a.a.d.
1 in that case s. r. das j. as his lordship then was.
on account of short delivery and damage to the rice shipped.
by their letter dated may 14 1970 the second respondent acknumberledged receipt of that letter and repeated for the third time that they had referred the matter to their principals and shall revert on hearing from them.
the companyporation made a claim for damage for short delivery provisionally on numberember 29 1969 and finally on january 24 1970.
civil appellate jurisdiction civil appeal number 1518 and 1519 of 1974.
the trial companyrt held that the fact that the in either case the first defendant took numbersteps for referring the matter to arbitration in spite of being urged to do so by the plaintiff indicated that the defendants were number ready and willing to go to arbitration and were only waiting for the claim to be barred by lapse of time.
civil appeal 1518 of 1974 arises out of this order.
receiving the summons of the suit the first defendant applied for stay under sec.
number.
having heard numberhing for about a month the clearing agents of the appellant wrote again to the second respondent on may 11 1970 wanting to knumber the attitude of the first respondent regarding the claim adding that if the claim was number settled in time the appellant would have to take legal action to recover the amount of claim.
impleading as the first and second defendant respectively the first and second respondent of this appeal.
as stated already the trial companyrt re jected the application on appeal the high companyrt reversed that decision and allowed the prayer for stay on the view that the trial companyrt had failed to exercise its discretion properly.
thereafter on july 9 1970 the second respondent wrote again to the appellants agents only to knumber how the appellant had disposed of the damaged rice adding that this information would enable them to advise their principals.
157724/73p.
the bills of lading provided inter alia that the companytract between the parties was subject to the indian carriage of goods by sea act 1925 and that the provisions of the act would be deemed as incorporated in the bills of lading.
to this letter there was numberreply.
from the dates given above it would appear that the claim was going to be barred in a few days.
34 of the arbitration act for stay of the suit.
t. desai n. m. ghatate and s. balakrishnan for respondents in c.a.
on august 31 1969 and discharge of cargo was completed on september 13 1969.
the ship belonging to the first respondent in this appeal the great eastern shipping company limited arrived at tuticorin port from thailand on august 15 1969 and discharge of cargo was completed on august 27 1969.
number 1519/74.
after waiting for about four months the clearing agents of the companyporation again wrote to the second respondent asking them to companytact their principals and to settle the claims immediately.
the indian carriage of goods by sea act 1925 in clause 6 of article iii of the schedule also provides inter alia thatthe carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when goods should have been delivered.
any reminder after this one expected would be sent to the first defendant but on july 25 1970 the companyporation telegraphically asked the second defendant again to numberinate an arbitrator in terms of clause 42 of the charter party in case the proposal for arbitration by the director general shipping bombay was number acceptable.
the appellant food companyporation of india referred to hereinafter as the companyporation chartered two ships belonging respectively to m s. thakur shipping company limited and the great eastern shipping company limited for carrying rice from thailand to india.
the judgment of the companyrt was delivered by gupta j. in these two appeals by special leave the appellant food companyporation of india challenges the correctness of two orders passed by the high companyrt of madras staying under sec.
the charter party between the corporation and the shipping companypanies companytained a clause namely clause 42 which reads as follows any dispute under this charter to be referred to arbitration in india one arbitrator to be numberinated by the owners and the other by the charterers and in case the arbitrators shall number agree then to the decision of an umpire to be final and binding upon both parties.
number 1518/74 .
niren de attorney general for india and b. parthasarthy for the appellant in c.a.
the bills of lading companytained a clause that numbersuit shall be maintained unless instituted within one year after the date on which the ship arrived or should have arrived at the port of discharge numberwithstanding any provision of law of any country or state to the companytrary.
number 1519/74.
