1. ' MRS. QAISER IQBAL, J.---Through this suit under sections 4, 5 and 6 of the Arbitration (Protocol and Convention) Act of 1937, (hereinafter referred to as the Act) filed by the plaintiff having their registered office at Valletta, Malta, seeking the enforcement of the Foreign Award. The plaintiff has prayed for the following reliefs:-- "(A) It is therefore, prayed that this Honourable Court may be pleased to order that the Foreign Award, annexed herewith in original as Annexure "A" be filed and pronounce the judgment and decree in terms thereof against the defendants for the following sums:---
(i) US$ 55,988.77 by way of demurrage.
(ii) Interest at the rate of 7.5% per annum on the said US$ 55,988.77 from 21-5-1999 till payment.
(iii) Ponds 4,800 being the professional fee of the Arbitrator.
(iv) Interest at the rate of 7.5% per annum on the said Ponds 4,800 from the date of Award till payment.
(v) Plaintiffs cost or the Award as agreed between parties or as may be determined by Arbitrator subsequently.
(B) Grant such other relief(s) as this Honourable Court may deem fit and proper under the circumstances of the case."
2. ' The facts leading to the filing of the above suit are that the plaintiff Chartered Vessel m.v. Junior "M" for the carriage of cargo from Karachi to Moroni in the Comoros Island, as per terms and conditions set-forth in the Charter party agreement dated 29-1-1999, it was agreed between the parties that in the event the cargo could not be discharged in Cormores Island alternative arrangements shall be made in accordance with the terms agreed in Addendum-I, under clause 54 of the Charter party agreement any dispute arising under the charter was to be referred to arbitration in London and decided under the law of England, one Arbitrator to be nominated by owners and the others by charters and in case the Arbitrators shall not agree then to the decision of the Umpire to be appointed by them the award of the Arbitrators or the Umpire would be final and binding upon both the parties. The dispute had arisen between the parties due to the delay and failure to discharge the cargo at Moroni. The Addendum is reproduced hereinbelow for to sake of convenience:-- "It is hereby mutually agreed:---
(1) Detention is to be paid immediately at a rate of US$ 4,750 per day Plus bunkers consumed at US$ 600 per day from arrival at Moroni on 22 February, 1999 until conclusion of the agreement and receipt of funds into Owners bank.
(2) Demurrage incurred at the first charge port, Antisiranana, of US$ 10,117 is payable as 2 greed by Charters immediately.
(3) Freight at US$ 1.50 per MT on entire quantity of cargo i,e, 9,032 MTh for each discharging port of Mahajunga/ Antisiranana/Tamatave to be paid in advance immediately.
(4) Disbursement accounts at all discharge ports to be settled by Charter including port disbursement and agency fees (excluding Owners items).
(5) FRF 89,814 was advanced to agents at Moroni on account of disbursements. Owners request that this is paid by Charters to Owners and Owners subrogate their rights and authorize Charters to request reimbursement from agents.
(6) New bills of lading are issued in relation to cargo to be taken to each discharge port forthwith.
3. The old original bills of lading for Moroni and Madagascar are returned to Owners for cancellation forthwith. No,LO(s) will be accepted. In addition the notice from Stephenson Harwood dated 18th March, 1999 is hereby deemed incorporated into this Addendum and Charterparty and a copy of this notice is attached hereto and the content of which hereby quoted."
4. ' It was the case of the plaintiff that the defendant has failed to settle the claim on the basis of the Addendum mutually agreed upon between the parties, on account of the dispute arisen between the parties ' due to delay and failure to discharge cargo at Moroni, the plaintiffs appointed Mr. Sonja Fink in London as the sole Arbitrator nominated by them on 16-3-1999. The defendants were informed about the appointment of the Arbitrator through a fax to nominate their arbitrator and if the Arbitrator was not nominated up to 6-5-1999, the sole Arbitrator would commence the arbitration proceedings. The defendants failed to appoint their Arbitrator in terms of section 17(2) of the Arbitration Act. The plaintiff filed their claim before the Arbitrator, the notice was issued to the defendants, they also filed counter-claim amounting to US$ 128,464.65 in accordance with the terms of the Charterparty towards half of the demurrage rate to the time last, while waiting at Moroni in accordance with the provision of clause XV of the Charterparty. The Arbitrator pronounced an award on 21-12-1999 in the following terms:--
(b) "I therefore, award and direct that the Charters shall forthwith pay to the owners -US$ 55,988.77 (United States Dollars Fifty Five Thousand Nine Hundred and Eighty Eight and Seventy Seven Cents) together with interest thereon at the rate of 7.50% per annum compounded at quarterly rests from the 21st May, 1999 until the date of payment.
(c) I further, award and direct that the Charterers shall bear and pay their own and the owners 'costs of the reference (the latter to be determined by me if not agreed, for which determination I hereby 'reserve my jurisdiction) and that the Charterers shall bear and pay the costs of this Final Award in the sum of L 4,800.00 (Four Thousand Eight Hundred Sterling), inclusive of my fees, interlocutory charges and disbursement provided, however, that if, in the first instance, the owners shall have paid all or any part of the costs of this my final award, they shall be entitled to an immediate reimbursement by the Charterers of the sum so paid, together with interest thereon, calculated at the rate of 7.50% per annum compounded at quarterly, rests, from the date of payment until the date of reimbursement."
5. ' The application under sections 4, 5 and 6 of the Arbitration (Protocol and Convention) Act, 1937 is supported by the affidavit of Jeremy Brooker Burgess of the City of London, which shows that the award was made by an agreed tribunal in pursuance of a valid agreement for arbitration and has become final in terms of section 2 of the Act.
6. ' The defendants have raised objection which are as follows:--
(i) Suit filed by the plaintiff is not maintainable in law as the arbitration proceedings were bias based upon the mala fides without jurisdiction and suffers from illegalities.
(ii) That defendants were forced to sign, addendum under pressure and coercion by she plaintiffs though another port was available to discharge the cargo.
(iii) The arbitrator has, misconducted by relying upon facts, which were not part of the submission of any party.
7. ' It is submitted that the defendant entered into an agreement for the export of 9000 metric ton of bagged rice to its foreign buyers according to the agreement the cargo was to be delivered at the port of Antsiranana, Mahajanga, Madagascar and Moroni in the Comoros, the defendant entered into the Charterparty, the freight rate of the goods was agreed US$ 30.50 per metric ton FIOS basis 1/1 and US$ 1.50 metric tons extra of entire cargo for each additional discharge port use thus envisage a possibility of additional discharge port other than nominated according to terms of Charterparty, the cargo was loaded at m.v. Junior M and a notice of readiness was de' ivered to the defendants on 2-2-1999, by a fax 2-5-1999, the defendants were informed that vessel sailed from Karachi and will reach on 14-2-1999 at the first discharge port of Antsiranana, after discharge of 2000 metric ton of cargo at the port Antsiranana the vessel reached at the port of Moroni on 23-2- 1999, the plaintiff through their agent at Moroni informed the defendant on 23-2-1999, as follows:-- ' Please be informed that above vessel arrived this morning. But it seems that there is a problem between the Receiver and the Government to point that we got instructions not to let anchor the vessel.
8. ' Please find a copy of letter of the Government. We hope that this problem will be resolved soon.
9. ' It is urged that clause XV of the Charterparty provides for the contingency, which has arising and read as follows:--- "The Owner's claim submissions with supporting documents were served by letter dated 2nd July, 1999. The letter was sent to the Charterers under cover of a fax dated 5th July, 1999 and contained a request that the Charterers indicate whether they would be in a position to submit their defence submissions within 28 days of receipt of the letter."
10. ' On behalf of the defendants, it is contended that on account of the situation arisen at the nominated port of discharge the vessel was not allowed access by the foreign authorities of the port of its discharge the situation continued for 48 hours in terms of the above clause of the receiver had the option of keeping the vessel waiting until blockade against paying half demurrage after expiry of the time provided for discharge or of order the vessel to a safe port the defendant was not responsible for the situation confronted to the vessel at Moroni Port, there was no change in the situation till 3-8-1999 and the goods were not discharged. The defendant with the object of avoiding delay and expenses advised the plaintiff to discharge the goods at the Port of Madagascar, the plaintiff refused the request of the defendant on the ground that it will be breach in the Charterparty agreement, the plaintiff refused to discharge cargo on an another port and offered to discharge the goods on the request of the defendant subject to the conditions reproduced at page 31 of the award.
11. ' It is urged that the demand of the plaintiff was unjustified and against the Charterparty agreement. The defendant disclosed to the plaintiff that the demurrage will be settled in accordance with the Charterparty agreement. The plaintiff prepared Addendum-I and forwarded to the defendant for his signature, the defendants were pressurized to sign the Addendum under duress and coercion. In the grave circumstances, the defendant was compelled to approach the High Court for cancellation of Addendum by filing Suit No,1051 of 1999. It is urged that the Addendum is not inherent part of the Charterparty agreement. Clause 54, relating to the arbitration agreement cannot be read in line with' the Addendum.
12. ' Section 7 of the Act, 1937, provides for the jurisdiction relating to a foreign award, which becomes enforceable if made in pursuance of an agreement for the arbitration, which will be valid under the law, upon which it was governed. The award was made in England in terms of the agreement between the parties, therefore, it has attained finality in the country in which it was made. The defendant had a right to resist enforcement of foreign award, they were required to prove nonexistence of the conditions laid down in subsection (2) of section 7.
13. ' Mr. Yousaf Moulvi, learned counsel for the defendant has contended that the Addendum arrived at between the parties was under duress and coercion thus there is the element of misconduct in the enforcement of foreign award. In support of the above contention reliance is placed on Nan Fung Textiles Ltd. v. Nichimen & Co. (Pakistan) Limited 1999 YLR 2232, the dictum laid down is how can a party prove misconduct of Arbitrator, when the Arbitrator's proceedings were conducted outside Pakistan., It is observed:- "In the instant case, the entire record of the two proceedings, one held before the Arbitrators and second held before Technical Committee in appeal, are in the possession of the Liverpool Cotton Association (L.C.A), for this limited purpose and in order to enable the respondent to prove misconduct on the part of their arbitrator, this Court was competent to order examination of such arbitrator on commission. This does not mean that in all cases, where obligations of misconduct are raised the Court should invariably order the examination of arbitrator. This exercise should be ordered in very rare and exceptional cases as of the instant case, or where the party raising such allegations prima facie, establishes before the Court a case of misconduct of his arbitrator."
14. ' The learned counsel appearing for the plaintiff has contended that there was no instance of misconduct on the part of the Arbitrator, the requirements of subsection (2) of section 7 were complied with by the Arbitrator. The appointment of sole Arbitrator Mr. Sonja Fink was in terms of the agreement. The award attained finality as no appeal was filed by the defendant on the contrary the award is deemed to be filed and no appeal is allowed, therefore, the same may be made as a rule of the Court. In support of the above contentions reliance is placed on the case of Ralli Brothers and Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 CLC Kar. 83; Nan Fung Textiles Ltd. v. Sadiq Traders Limited PLD 1982 Kar. 619 and lvlessrs European Grain and Shipping Ltd. v. Messrs Poliychem Company Ltd. PLD 1990 Kar.
254. In the above referred case, the dictum laid down was that subsection ( 1) of the sec on 7 provides that a foreign award may be enforceable if in, due in pursuance of an agreement for arbitration, which was valid under the law by which, it was governed and has been made by a tribunal provided by the agreement by the parties in conformity with the law governing the arbitration procedure in respect of the matter which may lawfully be referred to arbitration under the law of Pakistan and that the award had become final in the country, in which it was made whereas subsection (2) of section 7 provides three grounds for rendering a foreign award unenforceable.
15. ' The learned counsel for the defendant has contended that under clause 54 of the agreement, the defendants were also required to nominate Arbitrator, therefore, an ex parte award is subject- matter of the case to meet the above observations and objections. The counsel appearing for the plaintiff has pointed out that the dispute has arisen due to delay in discharge of the cargo at Moroni Port, the defendants were informed by the sole Arbitrator through a fax on 16-3-1999 and were called upon to appoint their Arbitrator in accordance with clause 54. On 6-5-1999, the Swedish Club sent a fax to the Charterparty calling upon to nominate their own Arbitrator, no response from the defendant was received. On 3-6-1999, the sole Arbitrator received a fax from Swedish Club, which was copied to the Charterparty, the defendants submitted their claim with supporting documents, in the meanwhile defendants filed a Civil Suit No,1051 of 1999 in the High Court of Sindh at Karachi, arbitration had already begun subsequent thereof, the defendant had submitted to the jurisdiction of the Arbitrator. The ground agitated by the defendants was that Addendum was obtained under duress and pressure.
16. ' It is an admitted fact that both the parties were governed by law of England, therefore, the finding of the Arbitrator was not based upon an Addendum, allegedly obtained under duress and coercion by the plaintiff. The proper forum was the Court of law in England and not this Court, which has limited jurisdiction. The arguments of the learned counsel for the defendant that the award is based upon the misconduct on the part of the Arbitrator as he had proceeded ex parte without affording to the defendant an opportunity to contact is not borne out from the record. There is ample evidence of the record to suggest that the defendants were duly served and all the facts were taken into consideration before arriving at the final conclusion by the Arbitral Tribunal. The Arbitrator as well as Swedish Club had left no stone unturn to apprise the defendants to participate in the arbitration proceedings. I am not impressed by the arguments of the learned counsel for the defendants that the Arbitrator committed misconduct by holding ex parte proceedings the objection is hereby repelled.
17. ' The learned counsel appearing for the defendant has further contended that the Arbitrator had granted the claim of the plaintiff without taking into consideration the facts constituting the claim of the plaintiff. The learned counsel appearing for the other side has vehemently opposed the above position, contended the award has become final; therefore, evidence cannot be examined by this Court. The defendants have failed to make out a case that the Addendum was result of coercion and pressure on the part of the plaintiffs, the award rendered by the Arbitrator Tribunal constituted under the agreement was not challenged in appeal, therefore, it has attained finality and cannot be questioned on the factual aspects, objection raised by the defendants is misconceived.
18. ' The learned counsel for the defendant has contended that the Arbitrator had also awarded interest which is against the Islamic law and cannot be enforced in view of the rule laid down by the Supreme Court of Pakistan in the case of M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225.
19. ' The enforcement of interest in Pakistan is repugnant to the injunction of Islam, therefore, the enforcement of interest as awarded would be against the law prevalent in Pakistan.
20. ' For the reasons discussed above, since award has become final in England, where it was made enforceable under the Act, 1937, the defendant had failed to make out any ground to nullify the award, the objection raised by the defendants are hereby rejected. The award is made rule of the Court excluding the interest. The decree shall follow in terms thereof. The suit is hereby decreed in above terms with no order as to costs.