Curzon Maritime Ltd. Vs Pec Ltd.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 ADMS NO. 2 OF 2005

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 CURZON MARITIME LTD. .. Plaintiff.

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vs.

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 PEC LTD. .. Defendants.

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 Mr. P.S. Pratap with Ms. Monica Kohli

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 for the plaintiff.

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CORAM : S.U.KAMDAR, J.

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DATE : 5th August,2005.

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 P.C.

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 . The present suit is filed for the recovery

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 of a sum of US$ 1,93,80 together with interest at
 the rate of 9% on principal amount of US$
 1,52,689.23. In the present suit it is an admitted
 position that in respect of the suit claim an
 arbitration proceedings were initiated by the
 plaintiffs themselves and the said arbitration
 proceedings were in progress even before filing of
 the suit. The said arbitration proceedings
 culminated by passing an award dated 30.9.2002.
 Inspite of an award in his favour, the plaintiff has
 filed the present suit purportedly to save the claim
 becoming barred by law of limitation.

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 2. Today, the learned counsel for the plaintiff
 states that the Arbitration Petition No. 239 of
 2003 has been disposed of by this Court by an order
 and judgment dated 14.3.2005 and the award has
 culminated in a decree of this Court. However, the
 learned counsel insists on the prosecution of the
 present suit inter alia on the ground that the
 appeal preferred therefrom being Appeal (Lodging)
 No. 554 of 2005 is still pending and till the
 appeal is finally determined one way or the other,
 he wants to keep the present suit alive.

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 3. In my opinion, the present suit is a
 frivolous suit and is a total abuse of the process
 of the Court. Once a party exercises the right
 under the arbitration agreement and invokes the
 agreement clause and commences the arbitration
 proceedings, he is not entitled to simultaneously
 also litigate by filing a suit. Secondly in the
 present case at this stage, the said award has
 already culminated in a decree. There cannot be
 second decree in respect of the same claim. The
 contention of the learned counsel for the plaintiffs
 that the suit should be kept pending because he
 wants to save the period of limitation is a misnomer
 in view of section 43 (3) of the Arbitration and
 Conciliation Act, 1996. In my opinion the question
 of suit becoming barred by limitation does not

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 arise. Inspite of the aforesaid the learned counsel
 for the plaintiff has taken out a notice of motion
 being Notice of Motion No. 2139 of 2005 for stay of
 the suit which I have already dismissed by my
 separate order passed today.

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 4. In view of my finding that the present suit
 is frivolous and an abuse of the process of the
 Court, I dismiss the present suit. I propose to
 impose heavy cost in the following circumstances.
 Firstly this matter was heard on earlier four
 occasions. Inspite of repeatedly pointing out that
 the proceeding is not an appropriate proceeding
 particularly in view of the provisions of
 sub-section 4 of section 43 of the Arbitration and
 Conciliation Act, 1996, the plaintiff who is a
 foreign party and situated at Greece through its
 learned counsel has insisted on prosecution of the
 present suit. Not only that, on the earlier
 occasions after taking two adjournments for
 considering the legal position, the motion is taken
 out for stay of the suit till the hearing and final
 disposal of pending appeal arising in arbitration
 proceedings. The said motion I have heard and
 dismissed today. It is well known fact and it has

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 been established by various authorities of English
 Court that costs awarded in the foreign countries is
 commensurate with the actual cost incurred by the
 parties even if a proceeding is not a frivolous one.

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 In the present case, inspite of repeatedly pointing

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 out that the present proceeding is not proper and

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 legal, still the said proceeding is prosecuted.
 Having come to the conclusion that the proceedings

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 is frivolous and an abuse of the process of law, I

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 also saddle the plaintiff with cost quantified at

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 Rs. 25,000/- The said cost to be paid by the
 plaintiff to the Maharashtra State Legal Services
 Authority.

Curzon Maritime Ltd. v. Pec Ltd.

Case brief

What is this about?

What did the court decide?

Curzon Maritime Ltd. v. Pec Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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