TMI Blog2018 (10) TMI 1883X X X X Extracts X X X X X X X X Extracts X X X X ..... nted condition annexed to the Bill of Lading. Secondly, it must be remembered that the Respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of ₹ 26,53,593/- in the suit filed by it. The Respondent, therefore, cannot blow hot and 23-02-2021 (Page 2 of 3) www.manupatra.com Surender Gupta cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration Clause should be signed. The present is a clear case where, Under Section 7(5) of the Act read with M.R. Engineers and Contractors Pvt. Ltd. (supra) (paras 22 24), the reference in the Bill of Lading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Kochi to recover a sum of ₹ 26,53,593/- in which the Bill of Lading was expressly stated to be a part of cause of action. Soon after the Suit was filed, an I.A. being I.A. No. 486 of 2009 was filed by the Appellant Under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act ) in which it was pointed out to the Court that an arbitration Clause was included in the printed terms annexed to the Bill of Lading. The I.A. also pointed out that a Section 11 petition to appoint an Arbitrator in accordance with Clause 25, being the printed term in question, has also been filed in Chennai. The Sub-Court, Kochi, by its judgment dated 08.01.2013 dismissed the I.A., stating that printed conditions annexed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Madras High Court, by order dated 09.01.2015, has referred to the Kerala proceeding, but nonetheless applied the arbitration Clause and appointed a Senior Advocate to arbitrate between the parties in that proceeding. 6. On the other hand, Mr. P.A. Noor Muhamed, learned Counsel for the Respondent, invited our attention to Section 7(4) of the Act and argued that Section 7(4)(a) requires an arbitration agreement to be in a document that is signed by the parties. Since the Bill of Lading was not signed by his client, according to him, he is, therefore, not bound by the arbitration Clause contained in that document. Further, he has also argued that at present the stage of the suit is that issues have been struck and one witness is being e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, cannot blow hot and 23-02-2021 (Page 2 of 3) www.manupatra.com Surender Gupta cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration Clause should be signed. 9. In addition, we may indicate that the law in this behalf, in Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji AIR 1955 SC 812, is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
