FOOD CORPORATION OF INDIA versus M/S. THAKUR SHIPPING CO. LTD. & ORS.

FOOD CORPORATION OF INDIA

M/s. THAKUR SHIPPING CO. LTD. & ORS.

December 19, l 974

IV. R. KRISHNA !YER, P. K. GoswAMt AND A. C. GurB, JJ.]

Arbitration Act (10 of 1940), s. 34--'Ready and willing JI tile time when the proceedin:;s were commenced to do all things 11ocesi:~ry Id the proper con· duct of arbilration'.-.\'cope of.

'The appellant chart::rcd two ships bclongi,1g to the 2 respondents for cmying ric fr Gm Thailund to India. The Charter-party providrd imer alia that any Jispu'.r: s!1odd be referred to 2 arbicrntors one to be nomirw.terl by th~ owne·s and the 0thc:· by the Chnrtcrers. The appellam made claims :!~:.:inst one :respond1:nt fOi' dan1agcs for short Gelivcry, and against the other for damages far short dcli1ery and da10<1ge in respect of the consignrmmt of ;·ice. Th" oppr:i!ai:t, thereafter. suggested to one of the respondents to agn;e ~o arb;crJtio.a by !;ingle arbitrator, but there was no respcnse from 'that i ~spor:d~ot. Th appellant also "··rote to the ugents of the other respondent mgin.i:: them tc ta!;c step' for referring the dispute, but the <ippellant only got cvasi ve replies.

The app;;Jli:nt, few days before the claims would be barred by time. iiled suits ag~i!'st each of' the respondents for recov~ry of the amounti; claimcu by it. The respo:iJents ~pplieJ for stay of trial of the suits under s. :4 of the Arbitration Act, 1940. The trial court rejected the applications, but the High Court allowed ihe prayer for stay on the ground that the decision of the trial court was 11-~n erse.

Allowing the appeals to this Court,

HELD': ( l) Under s. 34, one of the conditions that the applicant for >tay should sal isfy the court is that not only he is but also was, at the com-mencement of tbe proceedings, ready and willi.ng to do every thing nec«:ssary for the ·proper conduct of the arbitration. Where party to an arbitration, agreement choc ses to maintain silence in the face of repeated requests by the other party to take steps for arbitration, the case is not onP, of mere im,ction. Failing to act \\'hen party is rnlled upon to do so is positive gesture signifying unwillingness or want of readiness to go to arbitration esoecially when fogal proceedings in Court were .about to be barred by time. [150F-G; 151E-F; 152Cj

In the present case. one of the respondents sent evasive replies to the appel-lant in reply to the appellants Jetter urging them to take steps for referring the dispute to arbitration.

As regards the other respondent. the appellant's suggestion of :.ole arbi-trator was contrary to the arbitration clause of the charter-party., but the appellant's deviation was not valid excuse for that respondent to remain silent and inactive. If the respon_dent was ready and willing t;i go to arbitra-tion. the respo!'.dent would have replied that it was not willing to any depar-ture from the arb'tration clause, but it did not send any replies to the appellant or do anything for reference of the dispute to arbitration according to the arbitration clause. [152A-Cl

Th\: trial court found as fact that the respondents were not readv and willing to go to arbitration at the t.ime when tho snit was instituted. Silence and inaction on the'r pait m_av in t.he circumstances, very.. well justify the inference that they were not ready and willing to go to arbitration. The con-clusion was not arbitrary. or perverse and the High Court wa.s wrong in so characterizing it [151G; 152C]

Anderson Wriglrt Ltd. v. Moran and Co111pa11y [1955] 1 SCR 86:i followed.

.C.I, v. THAKUR SHIPPING co. LTD. (Gupta; J.)

Subal Chandra Bhur v. Md. Ibrahim & ;!Hr. AlR 194) Cal. 481. referred to. ·

(2) It i; true that court should not allow party to an arbitration agree-ment to proceed with the suit in breach of the solen111 obligation to seek resort to the tribunal selected .by him; but this is subject to the terms of s. 34, one of which is that the other party to the agreemwt must remain 'ready and willing to do all things necessary for the proper conduct of the arbitration.' \I52E-F]

Michael Colodetz & Ors. v. Serajuddin and Company [J 964] 1 SCH I 'J rcforred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1518 and 1519 of 1974.

Appeal by special leave from the judgment & order dated the 8t:1 August 1973 of the Madras High Court in A.AD. Nos. 389 and 401 of 1971.

M. Krishna Rao and B. Parthasarthy, for the appellant (in C.1\. No. 1518/7.J..)

Niren De, Attorney General for India and B. Parthasarthy, for th~ appdlar.t (in C.A. No. 1519/74.)

N. M. Ghatate and S. Ba/akris!nan, for respondent No. 1 (in C.A. No. 1518/74).

S. T. Desai, N. M. Glwtatc and S. Balakrish11a11, for respondents (in C.A. No. 1519/74.)

The J udg~1ent of the Court was delivered by

GUPTA, J. In these two <lppeals by special leave the appellant, Food Corporation of India, challenges the correctness of two orders passed by the High Court of Madras staying under sec. 3~ of the Arbitration Act two suits for damages it had instituted in the Court of the Sub-ordinate Judge at Tuticorin. The question for consideration is whether · the first respondent in each of these two appeals, who are the first de-fendant in the respc::tivc suits out of which these appeals arise, was "ready and willing to do all things necessary to the proper conduct of the arbitration" as required by se::. 34. This is really question of fact and the trial court found that in neither case the defendant who applied for stay satisfied this test. On appeal, the High Court stayed the suits reversing the decision of the trial court by two separate orders passed on the same day. Whether the High Court acted rightly would depend upon the facts and circumstances of the two cases which are essentially similar. It is necessary therefore to state briefly the facts leading to the institution of the suits.

The appellant Food Corporation of India, referred to hereinafter as the Corporation, chartered two ship~ belonging re~pectively to M/s. Thakur Shipping Co. Ltd. and the Great Eastern Shipping Co. Ltd. for carrying rice from Thailand to India. The Charter-Party between the

Corporation and the shipping companies contained clause, namely clause 42, which reads as follows :

"Any dispute under this charter to be referred to arbitra-tion in India one Arbitrator to be nominated by the owners and the other by the charterers and in case the Arbitrators shall not agree then to the decision of an umpire to be final and binding upon both parties."

The bills of lading provided inter alia that the contract betw1~en 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. The bills of Jading contained clause that "no suit shall be maintained· unless instituted within one year after the date on which the ship arrived or should have arrived at the port of dis-charge notwithstanding any provision of law of ariy country or state to the contrary .. · The lndian Carriage of Goods by Sea Act, 1925 in clause 6 of Article III of the Schedule also provides inter alia that"thc 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".The ship belonging to M/s. Thakur Shipping Co. Ltd., first rc>-pondent in Civil Appeal No. 1518 of 1974 and first defendant in suit No. 103 of 1970 out of which this appeal arises, arrived at Tuticorin Port, w!;tich is the port of dischd!gc, on August 31, 1969 and discharge of cargo was completed on September 13, 1969. The Corporation made claim for damage for short delivery, provisionally on November 29, 1969 and finally on January 24, 1970. On July 2, 1970 the Corpora-tion sent telegram to the second defenda11t in the suit, M/s. Pent Ocean Steamship Private LW., Bombay, who were the Operating Mana-gers of the ship concerned, asking them to confirm 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". It is to be noted that the proposed reference to the sole arbitration of Director General Shipping was deviation from clause 42 of the Charter-Party. TI::ere was no reply to this te:legram. On July 8, 1970 another telegr:im repeating the earlier proposal was sent to the second defendant again emphasizing the urgency of the matter. On July 9, 1970 the second defendant sent reply saying that th(;y were no longer the Operating Managers and asking the Cor-poration to contact the first defendant for further advice. The Cor-poration then sent telegram on July 10, 1970 to the first ddendant seeking to know if they were agreeable to have the dispute reforred to the sole arbitration of Director General Shipping, Bomhay repeating that the matter was "most urgent". The first defendant chose not to answer the telegram. Any .reminder after this, one expected, would be sent to the first defendant but on July 25, 1970 the Corporation telegraphically asked the second defendant again to nominate an arbi-trator in terms of clause 42 of the Charter Party in case the proposal for arbitration by the Director General Shipping, Bombay was not ac-ceptable. In this telegram it wa~ stated that the time within w:hich the daim should be made was to expire shortly and that failure on the part

of ~he ~thcr side to take prompt action for reference of the dispute to arb1trat10n would compel the Corporation to take legal proceedings. Failing to get any re~ponse from the other direction, the Corporation on August 31, 1970 instituted suit No. 103 of 1970 in the Court of the Subordinate Judge at Tuticorin for recovery of Rs. 1,57,724;73p. on account of short delivery and damage to the rice shipped. few days more delay would hav~ barred the claim. Served with the sum- -mans of the suit, the first defendant applied undh sec. 34 of the Arbi-tration Act for stay of the suit. As stated already, the trial court re-jected the application, on appeal the High Court reversed that decision' and allowed the prayer for stay on the view that the trial court had· failed to exercise its discretion properly. Civil Appeal 1518 of 1974 arises out of this order.

The facts in Civil Appeal 1519 of 1974 are these. The ship be-longing to the first respondent in this appeal, the Great Eastern Ship-ping Co. Ltd., arrived at Tuticorin Port from Thailand on August 15, 1969 and discll'arge of cargo was completed on August 27, 1969. By letter dated November 29, 1969 addressed to the steamer agents of the first respondent, the cleari1,1g agents of the Corporation- made claim for short delivery and damage in respect of the consig,1ment of rice. The steamer agents, who figure as the second respondent in this appeal, replied to this letter on December 2, 1969 st•ating: "We have referred the matter to our principals and shall revert on hearing from them". After waitrag for about four months, the clearing agents of the Corporation again wrote to the second respondent asking them to contact their principals and to "settle the daims immediat.:-ly". The - reply sent to this letter by the second respondent on April 9, 1970 re-peated : "We have referred the matter to our principals and shall revert on hearing from them". Havr,1g heard nothing for about month, the clearing agents of the appellant wrote •again to the second respondent on May 11, 1970 wanting to know the attitude of the first respondent regarding the claim adding that if the claim was not settled in time the appellant would have to take legal •action to recover the amount of claim. By their letter dated May 14, 1970 the second respondent acknowledged 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". Thereafter on July 9, 1970 the second respon-dei11t wrote again to the appellant's agents only to know how the appel-lant had disposed of the damaged rice adding that this information would enable them to advise their principals. Finally, on July 29, 1970 the District Man•ager, Food Corporation of Jndia, Tuticorin, wrote to the first respondent stating, inter alia, that if the claim was not settled on or before August 13, 1970 the appella!nt would be con-strained to take legal action. From the dates given above, it would appear that the daim was going to be barred in few days. To this letter there was no reply. On August 14, 1970 the Corporation insti-tuted suit No. 101 of 1970 in the Court of the ~ubordinate Judge at Tuticorin for recovery of sum of Rs. l,12.4J20.70p. impleading as the first a".1d second defendant respectively the first and second resoondent of this appeal. Receiving the summQns of the suit, the first defendant applied for stay under· sec. 34 of the Arbitration Act. The trial court

declined to st:~y the suit and rejected the application. On appeal the High Court held that the decision of the trial court was pervers1~ and allowed the application for stay. Civil Appeal 1519 of 1974 is direct-ed against this order of the High Court.

The trial court held that the fact that the in either case the first defendant took no steps for referri~1g the matter to arbitration in spite n of being urged to do so by the plaintiff indicated that the defendants were not ready and willing to go to arbitration and were only waiting for the claim to be barred by lapse of time. As stated already, the bills of lading contained provision that no suit to enforce such cllaims would be maintainable after one year from the date of arrival of the ship at the port of discharge. The Indian Carriage of Goods by Sea Act also provides in clause 6 of Article III of the Schedule that "the 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 the goods should have been delivered". The High Court reversed the decision of the trial court relying on decision of the Calcutta High Court reported in Subal Chandra Bhur v. Md. Ibrahim & Anr.([1]) In that case S. R. Das J., as his Lordship then was. observed at one place in his Judgment : "Mere inaction prior to the commencement of the legal proceedings cannot, i,1 my opinion, be construed as want of readiness a•,1d willingness to go to arbitration at the commencement of the legal proceedings". The proceeding sought to be stayed in tlmt case was partnership actio1,1 and the observation was made in repelling contention that there should be no stay as none of the partners thought fit to take advantage of the arbitration clause for lon~ time after the partnership came to an end. Apparently, in this case inaction did not affect in any way the matter proposed to be r,eferred to arbitration. But the two suits out of which the instant appeals arise were instituted just before the plaintiff's clafm in either case was going to be barred by time; it is not disputed that after the lapse of o,1e year from the date when the goods were to be delivered, the defendants would have been discharged from all liability in respect of any loss or damage and there would have been no live dj.<pute to be referred to arbitratio1a. Where party to an arbitration agreement chooses to mainl'ain o.i1ence in the f~c~ of reo~atcd rc011e<t~ bv the nther partv •o take steljls for arbitration the case is not one of "mere inaction". Failing to act when party is called uo0n to do so is positive gesture signifying unwillingness or waht of rea<li1ness to go to arbitrati0n: The oaforesaid observation in Subal Chandra Bhur's case (suora) does :not therefore appear to have any application on the facts of the cases 1be-G fore us.

The High Court pointed out that in each of these two suits the first defendant applied for stay under sec. 34 as showa as thev receive<l the summons of the suit stating in the aonlkatinn th'::lt thev were rearlv find willing to have the dispute settled by arbitration. The Hi11h .Court hf~ld that the requirement of sec. 34 is satisfied if the defendant exores~es ---·····---his willingness to go -to arbitratign af the earliest opportunity after ' the (I) AJ.!1.. 1943 cal. 481.

suit is instituted. In our opinion the High Court was wrong in taking this view. Sec. 34 of the Arbitration Act reads :

"Where any party to an arbitration. agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claim-ing under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satis-fied that there is no sufficient reason why the matter should · •,1ot be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."

The obsermtion of Das J. in Subal Chandra Bhur's case on which the High Court relied, is preceded by the following sentence : "Further, the readiness and willingness required by sec. 34 of the Act has to · · ·exisfat the commencement of the legal proceedings and has to conti-nue up to the d.ate of the application for stay". In Anderson Wright Ltd. v. M-oran and Company ( [1]) , this Court enumerating the conditions that should be fulfilled before stay may be granted under sec. 34 notes as one of the conditions that the applicant for stay "should satisfy the court ~lot only that he is but also was at the commencement of the . proceedings ready and willing to do everything necessary for the pro-per conduct of the arbitration". It is thus quite cle•ar O!l the authori-ties and from the terms of sec. 34 that the readiness and willingness must exist not only when an application for stay is made but also at the commeo,1cement of the legal proceedings. From the conduct of the first defendant in either of these two suits the trial court found that they were not ready and willing to go to arbitration at the time when the suits were instituted. This is finding of fact and we are afraid there was no valid ground in either case for interference with this fh1d-ing. From the letters written on behalf of the Corporation to the agents of the first defendant in the suit giving rise to Civil Appeal 1519 of 197 4 urging them to take steps for referring the dispute to ,arbitra-tion and the evasive replies sent to these letters, the trial court came to the conclusion that the first defendant was not ready and willing to go to arbitration at the time when the suit was instituted. We do not think this was an arbitrary or· perverse conclusion as the High Court · characterized it. In our ooinion the High Court went wrong in disre-garding relevant and significant material, namely, the correspondence· that passed between the parties, as "innocuous" a!ad erred in disturbing the finding of fact for no ·mlid reason.

As regards the suit which gives rise to Civil Appeal 1518 of 1974, the trial court reoelled the contention that as the Corporation's propo-sal to rellir the dispute to the sole arbitration of the Director General ---· (i) [19SSf fS.C.R. 1!62.

Shipping, Bombay was different from what clause 42 of the Charter-Party provided, the defendant was justified in Mt replying to the tele-grams or doing anything for the proper conduct of the arbitration. The argument that the trial court rejected found favour with the High Court. That the Corporation's proposal was deviation from clause 42 of the Charter-Party was hardly •a valid excuse for the filrst defen-dant to remain silent and inactive. If the first defendant were ready and willing to go to arbitration, one would have expected them,. as the trial court observed, to reply to the telegrams saying that they were not agreeable to any departure from the terms of clause 42 and could insist on compliance with that clause. But they did not reply to t'he tele-grams or do anything for reference of the dispute to arbitration · as provided in clause 42. Silence a~1d inaction on their part may in these circumstances very well justify the inference that they were nc•t ready or willing to go to arbitration. The finding of the High Court that the trial court had exercised its discretion not judicially cannot therefore be supported. And in this case really no question arises as to exercise pf discretioa. Granting stay under sec. 34 is of course discretionary as the section indicates but the occasion for the exercise of discretion does not arise unless all the conditions stated in the section are fulfilled. In this case the trial court found as fact thnt the first defendant was not ready llnd willing to go to arbitration whe1,1. the suit was instituted and we have held that the finding is not perverse or arbitrary; one of the requirements of the section not having ~een fulfilled, sec. 34 could not be invoked in this case.

Mr. Desai for the respondent relied on certain observations of this Court in Michael Colodetz & Ors. v. Seraiuddin and Company([1]) in support of the proposition that the Court should not allow party to an arbitration agreement to proceed with the suit in "breach of the solemn obligation to seek resort to the tribunal selected by him". It is however made clear in that decision that these observations are sub-ject to the terms of sec. 34, oae of which is that the other party to the agreement. must remain "ready and willing to do all things necessary for the. proper conduct of the arbitration". The legal positiion is ex-plained in that decision as follows :

"The Court ordinarily requires the parties to resort for resolving disputes arising under contract to the tribunal co.1t•emplated by them at the time of the contract. That is not because the Court regards itself bound to abdicate its jurisdiction in respect of disputes within its cognizance, it merdv seeks to promote the sanctity of contracts, and for that purpose stays th.e suit. The jurisdiction of the Court to try the suit remains undisputed : but the discretion of the court is on grounds of equity interposed. . . . . . . . . It is for the court, having regard to 1111 the circumstances, to arrive at conclusion whether sufficient reasons are made out for refusing to grant stay. Whether th.e circumstances in given case make out sufficient reasons !or refusing to stay suit is essentially question of fact." -- -------

(I) [1964] I S.C.R. 19.

For the reasons stated above we think that the appeals must succeed. Accordingly we allow both the appeals ai.ud set aside the order of the High Court and restore that of the trial court in each of these two cases. In Civil Appeal 1519 of 1974 the appellant will be entitled to its costs in this Court and in the High Court against the contesting respondent. In Civil Appeal 1518 of 1974, considering all aspects, we direct the parties to bear their own costs throughout.

Appeals allowed.