Disputes having arisen between the parties, the Respondent herein by its letter dated 20th December, 2008, invoked the arbitration clause and requested the Petitioner Company to companyfirm the appointment of a retired Judge of the Gujarat High Court, Honble Mr. Justice K.M. Mehta, to be the Sole Arbitrator.
Clause 11 of the aforesaid agreement companytains an Arbitration Clause which reads as under In case of any dispute or difference arising between the parties hereto or any claim or thing herein companytained or the companystruction thereof or as to any matter in any way companynected with or arising out of these presents or the operation thereof or the rights, duties or liabilities of either party thereof, then and in every such case the matter, differences in disputes shall be referred to an arbitrator in Kolkata, West Bengal, India in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996, or any other enactment or statutory modifications thereof for the time being in force.
Emphasis supplied Pursuant to the aforesaid agreement dated 29th April, 2005, the parties entered into a specific High Seas Sale Agreement on 7th May, 2005, wherein it was specified that the companytracted companyl would be supplied to the Respondent from a vessel named MV Gulf Ranger.
On 29th April, 2005, the Petitioner Company entered into an agreement with the Respondent Company to supply 15,000 Metric Tonnes of companying companyl of Indonesian Origin.
A preliminary objection was also raised by the Petitioner to the appointment of Mr. Justice M. Mehta as the Sole Arbitrator in terms of Clause 11 of the Agreement dated 29th April, 2005, particularly when the said clause stipulates that the disputes shall be referred to an Arbitrator in Kolkata, West Bengal, India, and Mr. Justice K.M. Mehta was based in Ahmedabad.
The petitioner wrote back to the Respondent on 9th January, 2009, denying all the allegations and in particular denying the fact that it had received any sum of money from the Respondent or that the Respondent was entitled to receive any material, as alleged.
Briefly stated, the facts are that the Petitioner Company registered under the Companies Act and having its registered office at 12, Ho Chi Minh Sarani, Flat 2B, Second Floor, Kolkata, is carrying on business in the trade of companying companyl.
Clause 14 of the said High Seas Sale Agreement provided that the sale companytract would be subject to Kolkata jurisdiction.
What was disclosed was merely the agreement to sell dated 29th April, 2005.
Ltd., pending in the Court of the Principal Senior Civil Judge at Bhavnagar Gujarat to the Calcutta High Court.
It was alleged that the Petitioner was number issuing delivery orders in favour of the Respondent for release of the said material and that the same was currently lying in a plot owned by the Respondent, but under the companytrol and supervision of the Petitioner in Gujarat within the jurisdiction of the Bhavnagar Civil Courts.
The agreement to sell provided that the cargo would be sold to the Respondent on High Seas basis.
The said agreement was executed in Kolkata within the jurisdiction of the Calcutta High Court.
The total sale companysideration for the companysignment was mentioned as Rs.8,11,80,000/ .
It was also alleged that the Respondent was entitled to receive 6,793 Metric Tonnes of material from the Petitioner on the basis of the aforesaid sum lying with the Petitioner.
The place of arbitration shall be Kolkata.
In the said letter, the Respondent alleged that the Petitioner was in possession of Rs.3,43,73,485/ which belonged to the Respondent and was being enjoyed by the Petitioner instead of handing over the same to the Respondent.
