M/S TRANS ASIAN SHIPPING SERVICES (PVT.) LTD.versusM/S BEACON SHIPPING LINES LTD. REPRESENTED BY MR. MOHAMMED S. ASLAM MANAGING DIRECTOR & OTHERS

                         [2018] 11 S.C.R. 687                               687


     M/S TRANS ASIAN SHIPPING SERVICES (PVT.) LTD.                          A
                                   v.
M/S BEACON SHIPPING LINES LTD. REPRESENTED BY MR.
MOHAMMED S. ASLAM MANAGING DIRECTOR & OTHERS
              (Arbitration Petition (Civil) No. 20 of 2012)                 B
                      SEPTEMBER 19, 2018
      [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                DR. D. Y. CHANDRACHUD, JJ.]
      Arbitration and Conciliation Act, 1996 – s.11(9) – Appointment
of arbitrator under – Agency Agreement between the petitioner and           C
the respondent – Petitioner asserting breach of various terms and
conditions of the agreement by the respondent, sought appointment
of a sole arbitrator – Held: An arbitration clause exists in the
Agreement which stipulates that any dispute or difference arising
under and/or out of or in connection with and/or relating to the            D
Agreement unless amicably settled, shall be determined by arbitration
– Disputes have arisen and remain unsettled – Justice Gyan Sudha
Misra, former Judge of Supreme Court, appointed as the arbitrator
to determine the dispute between the parties.
      CIVIL ORIGINAL JURISDICTION: Arbitration Petition (Civil)
                                                                            E
No. 20 of 2012
       Under Section 11(6) of the Arbitration and Conciliation Act, 1996
for the purposes of appointment of Arbitrator under Cl.5(1) of the Agency
Agreement dated 31.03.2010.
       C. N. Sree Kumar, Ms. Rasmita Chandarn, Amit Sharma, Advs.           F
for the petitioner.
      The Order of the Court was passed by
       DIPAK MISRA, CJI 1. The petitioner, by this petition under
Section 11(9) of the Arbitration and Conciliation Act, 1996 (for brevity,
‘the Act’), has prayed for appointment of arbitrator as per Clause 5(1)     G
of the Agency Agreement dated 31.03.2010 between M/s Trans Asian
Shipping Services (Pvt.) Ltd. and M/s Beacon Shipping Lines Ltd.


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                                     687
688             SUPREME COURT REPORTS                           [2018] 11 S.C.R.


A     2. The petitioner is an Indian company and the respondent company is
      registered in Bangladesh. It is averred that the petitioner is a multinational
      company having operations in the Indian Sub-Continent, Middle East
      and South East Asia and is actively engaged in diversified activities with
      its core business being shipping especially transportation of containerized
      cargo. Its activities are related to various shipping operations all over the
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      world and, therefore, it engages agents in various countries to undertake
      for and on behalf of it such functions. It involves their combined transport
      operations in the name of “Trans Asia Line”. It is urged that the valid
      subsisting agreement renewed from 31st March, 2010 was terminated
      only on 31st March, 2012 with respect to the combined transport
C     operations. It is asserted that the respondent committed breach of
      various terms and conditions of the agency agreement leading to disputes
      between the parties. The petitioner is entitled to recover dues of USD
      134875.8829. Various documents have been filed to show how the amount
      is due. It is asserted that though the petitioner company sent arbitration
      notice to the respondent requesting the latter to nominate the arbitrator
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      within 15 days of the receipt of the same so that the arbitration board
      could deal with the disputes, yet there was no response from the
      respondent. Under these circumstances, the petitioner has prayed for
      appointment of a sole arbitrator.
            3. Despite service of notice, there has been no appearance on
E     behalf of the respondent no. 1 and other respondents who are the
      Managing Directors and Directors of the respondent no. 1 company.
             4. We have heard Mr. C.N. Sree Kumar, learned counsel for the
      petitioner. Learned counsel has drawn our attention to Clauses 18 and
      19 of the agreement. The said Clauses read as under:-
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             “18. GOVERNING LAW
             This Agreement shall be governed by and construed in accordance
             with the Indian Law.
             19. DISPUTES AND ARBIRATION
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             Any dispute or difference arising under and or out of or in
             connection with and/or relating to this Agreement, which cannot
             be settled amicably between the parties, shall be determined by
             arbitration and shall be governed by the law of India. Each party
             shall appoint one arbitrator with power to such arbitrators to
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   M/S TRANS ASIAN SHIPPING SERVICES v. M/S BEACON                                689
         SHIPPING LINES LTD. [DIPAK MISRA, CJI]

       appoint, if necessary, an umpire. The language for arbitration             A
       shall be English, and shall be governed by the Indian Law.”
       5. On a perusal of the aforesaid Clauses, there can be no trace of
doubt that an arbitration clause exists and the same clearly stipulates
that any dispute or difference arising under and/or out of or in connection
with and/or relating to the Agreement unless amicably settled shall be            B
determined by arbitration. The assertions in the petition clearly state that
disputes have arisen and remain unsettled. In the obtaining factual matrix
and keeping in view the existence of arbitration clause meant for
determination of dispute by arbitration, we appoint Justice Gyan Sudha
Misra, formerly a Judge of this Court, to act as the arbitrator to determine
the dispute between the parties.                                                  C

       6. The Registry is directed to send a copy of this order to the sole
arbitrator. Learned counsel for the petitioner is also at liberty to bring it
to the notice of the arbitrator.
      7. The arbitration petition is, accordingly, allowed. There shall be        D
no order as to costs.


Divya Pandey                                                  Petition allowed.


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