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Caravel Shipping Services Pvt. Ltd. v. Premier Sea Foods Exim Pvt. Ltd.
Factual and Procedural Background
The review petition arises from the dismissal of the original petition filed by the petitioner challenging the order in I.A No. 486/2009 in O.S No. 9/2009 of the Principal Sub Court, Kochi. The court below held that the suit was not referable to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996. This Court confirmed that finding and dismissed the original petition on 8th September 2015.
The petitioner seeks review on two grounds: first, disputing the factual basis that the transportation involved was not multimodal; second, relying on a judgment by the Madras High Court in O.P No. 244/2014, which appointed an arbitrator invoking the Arbitration and Conciliation Act before this Court's judgment, contending that the arbitration clause should apply in the present case.
Legal Issues Presented
- Whether the transportation of goods involved in the suit qualifies as multimodal transportation, thereby invoking the arbitration clause under the Arbitration and Conciliation Act, 1996.
- Whether the prior appointment of an arbitrator by the Madras High Court in a related proceeding renders the suit non-maintainable and requires arbitration.
- Whether the newly raised facts constitute valid grounds for review under Section 114 of the Civil Procedure Code.
Arguments of the Parties
Review Petitioner's Arguments
- The transportation involved was from Allapuzha to Bandar Abbas, Iran, and involved multiple modes: road transport from Allapuzha to Cochin Port, sea transport from Cochin to Colombo, and further road transport during transshipment at Colombo before sea transport to Bandar Abbas.
- The original finding that only one mode of transport was involved was factually incorrect as the transshipment and road movement at Colombo were not disclosed earlier.
- The Madras High Court's appointment of an arbitrator in O.P No. 244/2014 indicates applicability of the arbitration clause in the present case.
- The nondisclosure of these facts at the original petition stage was due to the absence of necessity to file a written statement then, not due to concealment.
Court's Observations Regarding Arguments
- The court noted that the original finding was based on available materials which did not disclose the transshipment or road transport at Colombo.
- The petitioner failed to disclose these facts earlier despite having knowledge, and these facts were first introduced in the review petition.
- The court clarified that the original finding was limited to a preliminary question of whether the multimodal transportation provisions applied and whether arbitration could be invoked.
- The court observed that the petitioner could raise factual questions in other forums but not in this review petition.
- Regarding the Madras High Court order appointing an arbitrator, the court noted that this fact was not brought to its notice during the original petition hearing.
- The court held that failure to bring these facts earlier, despite knowledge, does not constitute sufficient grounds for review under Section 114 CPC.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court's analysis focused on the material facts available at the time of the original petition. It found that the transport agreement and documents did not sufficiently disclose that the petitioner was responsible for the entire multimodal transport, including transshipment at Colombo. The court emphasized that the new facts presented in the review petition were within the petitioner's knowledge and could have been presented earlier. The court held that such failure to disclose does not meet the threshold for review under Section 114 of the Civil Procedure Code. Additionally, the court noted that the order of the Madras High Court appointing an arbitrator was not brought to its attention during the original petition and that this omission similarly does not justify review. The court thus limited its earlier finding to a preliminary question and allowed the petitioner to raise factual issues in other forums but not through review. Consequently, the review petition was found legally unsustainable.
Holding and Implications
The review petition is dismissed.
The court's decision maintains the original dismissal of the petition challenging non-referral to arbitration. The petitioner is not permitted to reopen the factual findings via review, as the new facts were known but not timely presented. No new precedent was established; the ruling reinforces the principle that review petitions under Section 114 CPC will not be entertained for facts known but not disclosed earlier. The petitioner remains free to raise factual questions in appropriate forums other than review.
Sunil Thomas, J.:— This review petition is filed by the original petitioner seeking a review of the judgment of this Court dated 8th September 2015, by which the original petition was dismissed. The original petition was filed challenging the order in I.A No. 486/2009 in O.S No. 9/2009 of the Principal Sub Court, Kochi, by which the court had held that the suit was not liable to be referred for arbitration under Section 8 of the Arbitration and Conciliation Act 1996. This finding of the court below was confirmed in the original petition and consequently the original petition was dismissed.
2. The review petition is laid mainly on two grounds. Firstly, that the factual basis for the finding of this Court that the transportation involved was not a Multimodal Transportation is wrong. Secondly, in O.P No. 244/2014, initiated at the instance of the petitioner herein, the Hon'ble High Court of Madras by its judgment had appointed an arbitrator invoking the provisions of the Arbitration and Conciliation Act even before this Court had pronounced the Judgment. On the basis of that judgment, it was contended that the arbitration clause was applicable in the present case.
3. According to the review petitioner, the transportation of goods involved in the present case was from Allapuzha to to Bandar Abbas in Iran. On facts, this Court held that transportation in the present case by Ext.P3 transport contract involved only one mode of transport by ship from Cochin to Bandar Abbas. The petitioner herein, relying on paragraph 7 of the written statement filed in the suit, pointed out that the consignment was brought from Allapuzha to Cochin Port Trust by road and was loaded on the vessel. Thereafter, the consignment was taken to Colombo from where it was transshipped to Bandar Abbas in Iran. During the transshipment, the container was unloaded and taken to the yard at Colombo by road and thereafter re-loaded on to the truck and then moved into the nominated vessel. Hence, it was pleaded that it involved two modes of transport.
4. Admittedly the transshipment at Colombo and movement by road were not disclosed at the time of consideration of original petition. According to the learned counsel for the petitioner, the above facts were not disclosed at the time of hearing of the original petition since the necessity of filing the written statement had not arisen at that point of time. The apprehension of the petitioner herein is that the finding of this Court that there was only one mode of transport involved is sustained, it would cause great prejudice to the petitioner herein in future.
5. It is pertinent to note that the finding of this Court on the basis of the transport document was essentially on the basis of the available materials in which, though it was claimed that transport was from Allapuzha to Iran, the available materials only disclosed the transport from Allapuzha to Cochin by road and thereafter by ship. There was no material to hold that the transport from Allapuzha to Cochin by road was undertaken by the petitioner herein pursuant to the transport agreement so as to bring it within the ambit of multimodal transport. Further, the petitioner herein pursuant to the transport agreement, who was expected to submit all the materials facts in relation to the contention, had not disclosed that there was a transshipment at Colombo. This is a new fact disclosed for the first time in the review petition only. Hence, the finding of this Court on the multimodal contract was essentially on the basis of the available materials and that it was only for a limited purpose of deciding the preliminary question whether the multimodal Transportation of Goods Act would apply and consequently whether an arbitration clause can be invoked. However, it is made clear that this will not prelude the petitioner herein from raising the question of facts in any other forum.
6. The second limb of the argument of the learned counsel for the petitioner was based on Annexure A2 which shows that the Hon'ble Chief Justice of Madras High Court by order in O.P No. 244/2012 had appointed an arbitrator. According to the learned counsel for the petitioner herein, this showed that the arbitration clause would be applicable in this case also and consequently the suit is not maintainable. It is pertinent to note that the above order is dated 9/1/2015 wherein the pendency of O.P No. 522/2013 is referred to. However, the order in the present original petition is dated 8 September, 2015, and at the time of hearing, the facts about the order in O.P No. 244/2012 was not brought to the notice of this Court.
7. Though it may appear that if both the grounds now raised had been brought to the notice of this Court at the appropriate stage, the fate of the original petition would have been different, the question is whether it amounts to ground for review under Section 114 of CPC. Evidently, both the new facts now raised were within the knowledge of the petitioner. If that was not properly conveyed to the counsel at the relevant time, as is clear from the reasons stated in the application to condone the delay, that will not arm the petitioner herein with a ground for review. Evidently, it was a fact which could have been brought to the notice of this Court at the time of hearing, had the petitioner applied due diligence. Hence, Section 114 is not attracted in this case.
8. In the light of the above findings, the review petition is not legally sustainable and is liable to be dismissed. The review petition is accordingly dismissed.
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