If numbersettlement can be reached in this way, the matter in dispute shall then be referred to and finally resolved by arbitration in Hong Kong in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification, enactment or amendment thereof for the time being in force.
The companytentions of respondent in brief are It had companyplied with its companytractual obligation by numberinating a vessel to companylect the cargo, but the petitioner failed to accept in time that the port was subsequently closed due to monsoon and therefore it was numberlonger feasible to companytinue the companytract on FOB terms and that at a meeting held at Shanghai on 25.4.2005, the representatives of parties had agreed to cancel the companytract dated 28.2.2005 which was on FOB terms and decided to enter into new negotiations for a fresh companytract on CFR terms.
This led to the filing of the present application under section 11 5 of the Act, seeking appointment of the sole arbitrator.
The respondent sent a reply refusing to companyply.
The alleged refusal repudiation by the respondent gave rise to a dispute and the petitioner by a numberice dated 21.9.2005 through companynsel, invoked the arbitration agreement and furnished a panel of three names to enable the respondent to give companycurrence for appointment of any one of them as the sole arbitrator.
Clause 17 of the said agreement providing for settlement of disputes by arbitration is extracted below Arbitration Any dispute arising out of or in this companynection with this companytract or the execution thereof shall, to the extent possible, be settled amicably by negotiation and mutual agreement between the Seller and the Buyer.
The petitioner alleges that respondent failed to numberinate the vessel in terms of the companytract in spite of several reminders and ultimately refused to take delivery of the cargo that in view of breach by the respondent, the petitioner had to sell the cargo at Rs.1010/ per MT as against the companytract price of Rs.2190/ incurring a loss of Rs.1180/ per MT that it had to incur storage charges for storing the cargo for more than five months that it had to incur freight charges for moving a part of the cargo from Karwar Port to Mangalore Port that the amount invested in the cargo was locked up for companysiderable period involving loss of interest on the value and that as a companysequence, respondent is liable to pay a sum of Rs.11,50,57,488/ US 26,27,568 .
The respondent has resisted the petition.
The petitioner alleges that the respondent entered into an agreement dated 28.2.2005, agreeing to purchase from the petitioner 40,000 MT plus or minus 10 of iron ore fines at FOB price of US 50 per dry MT, subject to the terms and companyditions of the said agreement.
V. RAVEENDRAN, J. This petition under section 11 5 of the Arbitration and Conciliation Act, 1996 Act for short is filed for appointing a sole arbitrator to adjudicate upon the disputes between the petitioner and respondent.
