JUDGMENT The facts and the matters in record which are material and are not in dispute in this proceeding are as follows :- Brennan Corporation, the petitioner No. 1 in this application and defendant No.1 in the suit, hired Motor Tanker "Kampos" a Greek vessel (and hereinafter referred to as the said vessel) under a time charter. Thereafter a voyage Charter Party dated the 8th August, 1979 was executed in Paris between the petitioner No. 1 as the disponent owner of the said Vessel and Messrs. Caprosal of Geneva the charterer for carriage of a quantity of crude rapeseed oil from the Port Vancouver in Canada to Ports in India. 2. The said Charter Party contains an arbitration clause as follows: "Any dispute arising from the making, performance or termination of this Charter Party shall be settled in London, Owner and Charterer each appointing an arbitrator, who shall be a merchant, broker or an individual in the shipping business: the two thus chosen, if they cannot agree, shall nominate a third arbitrator who shall be an Admiralty lawyer. Such arbitration shall be conducted in conformity with the provisions and procedure of London and a judgment of the Court shall be entered upon any award made by the said arbitrators". 3. Pursuant to the said Voyage Charter the said vessel proceeded to the Port of Vancouver where a quantity of rape-seed oil was shipped for and on behalf of Messrs. Caprosal for delivery to the State Trading, Corporation of India Limited, the respondent herein and the plaintiff in the suit. A Bill of Lading dated the 17th August, 1978 in respect of the said cargo was issued by the petitioner No.1 in favour of the shippers, which contains a clause typed on its face as follows:- "All terms, conditions and exceptions as per existing Charter Party to be considered as incorporated herein as if fully written, anything to the contrary contained in the Bill of lading notwithstanding". 4. The said Vessel arrived at the Port of Calcutta in December, 1978 and discharged the said cargo of rape-seed oil on or about the 25th December, 1978. 5. On the 22nd December, 1979, the respondent filed this suit against the petitioners claiming, inter alia, a decree for Rs. 3,34,895.85 jointly and severally for loss and damages allegedly suffered by the respondent for short delivery of the said cargo. 5. On the 22nd December, 1979, the respondent filed this suit against the petitioners claiming, inter alia, a decree for Rs. 3,34,895.85 jointly and severally for loss and damages allegedly suffered by the respondent for short delivery of the said cargo. Alternatively, the respondent claimed an enquiry into the loss and damages suffered by it and a decree for such sum as may be found due thereon and other ancillary and incidental reliefs. 6. It is alleged in the plaint that the respondent was the owner of the said cargo and for consignee thereof under the said Bill of lading and that the property in the said cargo had passed in its favour. Alternatively, it is contended that the respondent was the holder for value of the said Bill of lading and entitled to delivery of the entire cargo deliverable thereunder. It is alleged that in breach of the contract contained in the said Bill of lading or negligently, or in breach of duty, as a common carrier or bailee, the petitioners failed and neglected to deliver 68.3681 metric tonnes of the said cargo causing loss and damages to the respondent assessed at the aforesaid sum of Rs. 3,34,895.85. 7. On the 31st March, 1981, the Advocate on Record for the petitioners took out the notice of motion in respect of this application praying, inter alia, that the said suit be stayed. 8. It is alleged in this application that the respondent's claim in the suit relates to the performance by the petitioner No. 1 of its obligations under the said Charter and/or the Bill of lading and that the dispute relating thereto are covered by the arbitration clause in the Charter Party which has been incorporated in the Bill of lading. 9. It is contended that the arbitration agreement is one to which Article II of the Convention set out in the Schedule to the Foreign Awards (Recognition and Enforcement) Act, 1961 applies and that the said agreement is valid, operative and capable of being performed. It is alleged that though the petitioners have entered appearance in the suit they have not filed any "written statement" or taken any other steps therein. 10. This application is opposed. It is alleged that though the petitioners have entered appearance in the suit they have not filed any "written statement" or taken any other steps therein. 10. This application is opposed. Dwijesh Chandra Bhowmik, the Acting Branch Manager of the State Trading Corporation of India Ltd., Calcutta has affirmed an affidavit on the 24th April, 1981, which has been filed in opposition to this application. It is, inter alia, contended in this affidavit that the arbitration clause in the Charter Party is not binding on the respondent, who is a stranger to the Charter Party did not know the terms thereof and never agreed to go to arbitration. It is contended that the arbitration clause in the Charter Party is not incorporated in the Bill of lading on which the respondent's cause of action is founded. 11. It is denied that Article II of the Convention in the Schedule to the Foreign Awards (Recognition and Enforcement) Act, 1961 applies to the alleged arbitration agreement or that the said agreement is valid or operative. It is contended that the petitioners are guilty of delay and laches and their object is to harass the respondent and to delay the hearing of the suit. Allegations have been made to establish that it would not be convenient for the parties to go to a foreign arbitration. 12. Subir Mazumder, the constituted attorney of the petitioner No. 1, has affirmed an affidavit on the 4th May, 1981 which has been filed in reply to the aforesaid affidavit of Dwijesh Chandra Bhowmick. 13. At the hearing, learned Counsel for the petitioners drew my attention to the Arbitration clause in the Charter Party and emphasised that all disputes arising from the performance of the Charter Party were agreed to be referred to arbitration. Clause 24 of the Charter Party permitted the issue of the Bills of lading signed by the Master or agent of the owner and provided that such Bills of lading would be without prejudice to the terms, conditions of and exceptions of the Charter and subject thereto. 14. In support of his contention learned Counsel cited (1) The Merak, reported in (1965) 1 A.E.R. page 230. In this case the plaintiffs chartered a Vessel for carriage of a cargo of timber. 14. In support of his contention learned Counsel cited (1) The Merak, reported in (1965) 1 A.E.R. page 230. In this case the plaintiffs chartered a Vessel for carriage of a cargo of timber. Clause 32 of the Charter Party provided that any dispute arising out of the Charter or any Bill of lading issued thereunder was to be referred to arbitration. A sub-Charter Party was thereafter executed with the defendants which provided that Bills of lading for the cargo were to be signed with reference to the Charter Party. Bills of lading, were thereupon issued, each of which recited that the voyage would be in terms of the original Charter and a clause was incorporated as follows: "All the terms, conditions, clauses and exceptions including Clause 30 contained in the said Charter Party apply to this Bill of lading and are deemed to be incorporated herein." 15. Alleging that some of the cargo was damaged in course of the voyage the plaintiffs without going to arbitration instituted, a suit for damages. The defendants applied for stay of the suit under the Arbitration Act on the ground that the parties had agreed to refer the disputes to arbitration in terms of the Charter Party. As the Bills of lading specifically incorporated Clause 30 and not Clause 32 of the Charter Party, which contained the arbitration clause, the question arose whether the arbitration clause was to be deemed to have been incorporated in the Bill of lading. It was held by the majority in the Appeal Court that the arbitration clause was so incorporated and that though Clause 32 could not be substituted in place of Clause 30, in the incorporation clause the words "including Clause 30" should be struck out as having been inserted in error. The remaining words in the incorporation clause would then be, effective to incorporate the arbitration clause. 16. Learned Counsel for the petitioner submitted that following the principle laid down in the above decision in the instant case, it should be held that the incorporation clause was wide enough to bring in the arbitration clause in the Bill of lading. 17. Learned Counsel appearing for the respondent contended to the contrary. He submitted that the respondent was a stranger to the Charter Party and that the Charter Party had not been assigned in favour of the respondent. 17. Learned Counsel appearing for the respondent contended to the contrary. He submitted that the respondent was a stranger to the Charter Party and that the Charter Party had not been assigned in favour of the respondent. He submitted further that the claim of the respondent in the suit was de hors the Charter Party. In support of his contention learned Counsel cited a decision of the House of Lords in (2) T. W. Thomas & Co. Ltd. v. Port sea Steamship Co. Ltd., reported in 1912 A.C. 1. In this case the Charter Party contained an arbitration clause as follows :- "Any dispute or claim arising out of any of the conditions of this Charter Party shall be adjusted at Port where it occurs, and the same shall be settled by arbitration." 18. A cargo of timber was shipped in the Vessel and in the Bills of lading issued there was a marginal clause as follows :- "Deck load at shipper's risk, and all other terms and conditions and exceptions of Charter to be as per Charter Party, including negligence clause." 19. The House of Lords considered whether the arbitration clause in the Charter Party was incorporated in the Bill of lading by such reference. It was held by Lord Loreburn, L. C. that the Bill of lading itself was the primary document to be considered and that the words of incorporation of the terms of the Charter Party were such that it could not be said that the arbitration clause in the Charter Party was incorporated in the Bill. The Lord Chancellor observed further that the arbitration clause was not one which would govern the shipment or carriage or delivery or the terms on which delivery was to be made or taken but would only govern the way of settling disputes between the parties to the Charter Party and disputes arising out of the conditions thereof and not disputes arising out of the Bill of lading. 20. Learned Counsel for the respondent also cited another English decision in (3) The Annefield, reported in (1971) 1 A.E.R. 394. In this case Clause 39 of the Charter Party provided that all disputes from time to time arising out of this contract should be referred to arbitration. 20. Learned Counsel for the respondent also cited another English decision in (3) The Annefield, reported in (1971) 1 A.E.R. 394. In this case Clause 39 of the Charter Party provided that all disputes from time to time arising out of this contract should be referred to arbitration. In the Bill of lading issued pursuant to the Charter Party it was stated as follows :- "All the terms, conditions and exceptions of which Charter Party, including the negligence clause, are incorporated herein." 21. On discharge of the cargo, the buyers, as Charterers and as the holders of the Bill of lading, claimed arbitration alleging damage. No reference followed and later, the owners of the cargo, the shippers, brought an action in Rem against the ship-owners for breach of contract. The ship-owners applied for stay on the ground that the dispute ought to have been submitted to arbitration. It was held both in the Court of the first instance and in the Court of Appeal that the arbitration clause was not incorporated in the Bill of lading. In the Court of the first instance, Brandon, J. observed as follows :,- "......... First, in order to decide whether a clause under a Bill of lading incorporates an arbitration clause in a Charter Party it is necessary to look at both the precise words in the Bill of lading alleged to do the incorporating, and also the precise terms of the arbitration clause in the Charter Party alleged to be incorporated. Secondly, it is not necessary, in order to effect incorporation, that the incorporating clause should refer expressly to the arbitration clause. Thirdly, when the arbitration clause is, by its terms, applicable only to disputes under the Charter Party, general words will not incorporate it into the Bill of lading so as to make it applicable to disputes under the contract contained in, or evidenced by, that document. Fourthly, where the arbitration clause by its terms applies both to disputes under the Charter Party and to disputes under the Bill of lading, general words of incorporation will bring the clause into the Bill of lading so as to make it applicable to disputes under that document". 22. Fourthly, where the arbitration clause by its terms applies both to disputes under the Charter Party and to disputes under the Bill of lading, general words of incorporation will bring the clause into the Bill of lading so as to make it applicable to disputes under that document". 22. In the appeal Lord Denning, M. R. observed as follows :- ".........I would follow the test laid down by Russell, L. J. in The Merak, but I would adapt it slightly, I would say that a clause which is directly germane to the subject-matter of the Bill of lading (i.e. to the shipment, carriage and delivery of goods) can and should be incorporated into the Bill of lading contract, even though it may involve a degree of manipulation of the words in order to fit exactly the Bill of lading. But, if the clause is one which is not thus directly germane, it should not be incorporated into the Bill of-lading contract unless it is done explicitly in clear words either in the Bill of lading or in the Charter Party." ".........In this case the words in the Charter Party are any disputes under this contract'. Those words, in this context, meant: under this Charter Party contract'. They do not include the Bill of lading contract. In any case they are not so explicit as to bring in disputes under the 'Bill of lading." 23. It appears to me that the law at least in England is well settled on the point. In the instant case it is to be considered whether in the facts, it should be held that the words of incorporation in the Bill of lading brings in its wake the arbitration clause in the Charter Party to bind the holder of the Bill of lading. The decision in The Merak (supra) can be distinguished on facts from the instant case. In The Merak the Charter Party expressly provided that any dispute arising out of a Bill of lading issued under the Charter would be referable to arbitration. It was on this ground it was held in The Annefield (supra) that there was no conflict between the decision in The Merak and the decision in T. W. Thomas & Co. Ltd. 24. In the case before me the arbitration clause in the Charter Party does not refer to disputes under the Bill of lading. It was on this ground it was held in The Annefield (supra) that there was no conflict between the decision in The Merak and the decision in T. W. Thomas & Co. Ltd. 24. In the case before me the arbitration clause in the Charter Party does not refer to disputes under the Bill of lading. The words of incorporation in the Bill of lading are general and do not specifically mention the arbitration clause in the Charter Party. In my view therefore the disputes which are meant to be decided in arbitration are disputes between the parties to the Charter including those arising out of performance of the Charter Party and not disputes where a party to a Bill of lading who is not a party to the Charter is involved. 25. For the reasons above, I am unable to accept the contentions of the petitioner that the disputes in the suit are covered by the arbitration agreement in the Charter Party. 26. Arguments were also advanced on behalf of the respondent to the effect that the Foreign Awards (Recognition and Enforcement) Act, 1961 and the Schedule thereto do not apply in the facts of this case but in view of what I have held above, it is not necessary for me to adjudicate on any other point. 27. There will be no order on this application. Costs cost in the cause. 28. Liberty is given to the petitioner on an oral application on its behalf to file their "written statement" within eight weeks from date. The plaintiff does not object to such direction being given. 29. There will be cross-orders for discovery within four weeks after the filing of the "written statement". Inspection forthwith thereafter. Liberty to apply for early hearing of the suit after the same is ready for hearing. All parties and the Department to act on a signed copy of the minutes of this order on the usual undertaking.