M/S. CARAVEL SHIPPING SERVICES PVT. LTD. versus M/S. PREMIER SEA FOODS EXIM PVT. LTD.

Citation: [2018] 14 S.C.R. 289 · Decided: 29-10-2018 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Leave Granted & Allowed

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Judgment (excerpt)

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M/S. CARAVEL SHIPPING SERVICES PVT. LTD.
v.
M/S. PREMIER SEA FOODS EXIM PVT. LTD.
(Civil Appeal Nos. 10800-10801 of 2018)
OCTOBER 29, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Arbitration and Conciliation Act, 1996: ss.7(3), 7(4), 8 – Bill
of lading –  Suit for recovery by respondent-consignor in Kochi
court – Application filed by appellant, who is agent to facilitate
transport under s.8 of AC Act on the basis of arbitration clause in
Bill of Lading – In the application, it was pointed out that s.11
application was also filed in Chennai court – Kochi court dismissed
s.8 application on the ground that the printed conditions annexed
to the Bill of Lading would not be binding upon the parties and
also that as no part of cause of action arose in Chennai, application
was not maintainable – High Court dismissed the Original Petition
filed under Art.227 of the Constitution of India accepting the view
of Kochi court – On appeal, held: Respondent expressly agreed to
be bound by the arbitration clause despite the fact that it was a
printed condition annexed to the Bill of Lading – Further, respondent
itself had filed recovery suit by relying upon the Bill of Lading as
part of its cause of action – Therefore, respondent cannot blow hot
and 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 that the arbitration
clause should be signed is not fulfilled – The order of High Court is
set aside.
Allowing the appeals, the Court
HELD:1. The Bill of Lading makes it clear that the term
“Merchant” (which is defined in the Standard conditions
Governing Multimodal Transport Documents - Clause (1) (e) as
meaning shipper, consigner or consignee) expressly agrees to
be bound by all the terms, conditions, clauses and exceptions on
both sides of the Bill of Lading whether typed, printed or
otherwise.  A perusal of the arbitration clause, which is Clause
25 being a printed condition annexed to the Bill of Lading, shows
[2018] 14 S.C.R. 289
289
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290                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
that the respondent has expressly agreed to be bound by the
arbitration clause despite the fact that it is a printed 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 5 of action to recover the sum of Rs.26,53,593/-
in the suit filed by it. The respondent, therefore, cannot blow hot
and 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. [Paras 7, 8][292-E-F;
293-A-B]
2. 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 mentioned in the three sub-clauses that make
up Section 7(4). This does not mean that in all cases an arbitration
agreement needs to be signed. The only pre-requisite is that it
be in writing, as has been pointed out in Section 7(3). This being
the case, the present is a clear case where,under Section 7(5) of
the Act the reference in the Bill of Lading is such as to make the
arbitration clause part of the contract between the parties.
[Paras 9, 10][293-D-E]
M.R. Engineers and Contractors Private Limited v. Som
Datt Builders Limited (2009) 7 SCC 696 : [2009] 10
SCR 373 ; Jugal Kishore Rameshwardas v. Mrs.
Goolbai Hormusji AIR 1955 SC 812 : [1955] SCR 857
– relied on.
Case Law Reference
[2009] 10 SCR 373
relied on
Para 5
[1955] SCR 857
relied on
Para 9
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10800-
10801 of 2018.
From the Judgment and Order dated  08.09.2015 of the  High
Court of  Kerala at Ernakulam in OP(C) No. 522 of 2013 (O) and
Judgment and Order dated 14.06.2016 in R.P. No. 135 of 2016.
Ms. Liz Mathew, M. F. Philip, Advs. for the Appellant.
P. A. Noor Muhamed, Sunny P. Markose, Ms. Giffara S.,
Bilal Niamathulla, Advs. for the Respondent.
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The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted.
2. The present appeals arise out of a document styled as
“Multimodal Transport Document/Bill of Lading” dated 25.10.2008.
This Bill of Lading states that the Consignor/Shipper is o

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