Clauses 20 to 41, and the arbitration clause was 43: Delhi HC halts a London arbitration

A Division Bench holds that a signed Booking Note incorporating rider clauses 20 to 41 did not carry the arbitration clause at 43, and restrains the LMAA reference.

A shipment of military cargo for a United Nations peacekeeping force never sailed, and the dispute about who pays for that has been running in London since 2023. On 18 September 2026 the Delhi High Court stopped it. In SARR Freights Corporation & Anr. v. Argo Coral Maritime Ltd., a Division Bench of Justice Vivek Chaudhary and Justice Renu Bhatnagar allowed an appeal, set aside a Single Judge’s refusal of an anti-arbitration injunction, held that no arbitration agreement exists between the parties, and restrained the respondent from continuing, pursuing or taking any steps in the arbitration before the London Maritime Arbitrators Association.

The decision turns on a detail that reads like a proofreading point and is not one: the signed contract incorporated additional rider clauses 20 to 41, and the arbitration clause was number 43.

Cargo for Sudan, and an advisory that stopped it

The appellants were to move military cargo for a United Nations peacekeeping force from New Delhi to Sudan, the sea leg running from Nhava Sheva Port, Mumbai, to Port Sudan. Terms were negotiated between the appellants’ broker, Pirama, and the respondent’s booking agent, Ocean7, through an exchange of emails recorded in a Fixture Recap dated 4 April 2023, followed by a Booking Note of the same date signed on 5 April 2023.

On 18 April 2023 the United Nations released an advisory declaring cargo movements through all ports of Sudan unsafe. The appellants cancelled the Booking Note, invoking force majeure. The respondent issued a notice invoking arbitration under Clause 43 of the Booking Note, and the appellants agreed to participate subject to their right to dispute the tribunal’s jurisdiction.

What followed was two references. The first, commenced by the respondent on 27 July 2023, ran into a problem of identity: the LMAA recorded on 22 November 2024 that while the arbitration was asserted to be against SARR Freights as charterer, the Booking Note was signed by SARR Freights Corporation, whereas the arbitrator had been appointed only on behalf of SARR Freights Limited.

A partial award by majority, and an English answer

In the second reference the tribunal framed four preliminary issues, of which the first asked whether any arbitration agreement had been agreed between the parties in either or both of the Fixture Recap and the Booking Note.

By a partial award dated 18 October 2025 the tribunal divided. One member held in favour of the appellants. The majority, applying English common law, held that the parties had agreed to English law and London arbitration under the Fixture Recap and that, on a true construction of the Booking Note consistent with business common sense, disputes were to be referred to London arbitration under Clause 43 of the additional rider clauses, the BIMCO Law and Arbitration Clause London 2020 being the latest edition for the purposes of that clause.

Before the Single Judge, the appellants failed. Relying on Govind Rubber Limited v. Louis Dreyfus Commodities Asia Private Limited and Trimex International FZE Limited v. Vedanta Aluminium Limited — authorities holding that an agreement may be spelt out from correspondence even where it is not signed — the Single Judge held that the reference to clauses 20 to 41 in the Booking Note was an inadvertent error and an oversight, and read the parties’ intention from the Fixture Recap.

Two readings of one transaction

For the appellants, Mr Dayan Krishnan argued that part of the cause of action arose in Delhi, the Booking Note having been signed there by Delhi-based appellants for cargo moving out of Delhi in the first instance. On the merits his case was simple: the Booking Note is the final agreement duly signed between the parties, it contains all the terms finally agreed, it expressly provides that it shall prevail over any previous arrangements, and it must therefore prevail.

For the respondent, Mr Sandeep Sethi objected first to jurisdiction, submitting that a Booking Note for cargo moving from Mumbai to Sudan belonged before the courts at Mumbai. On the merits he contended that the terms had been finalised by the Fixture Recap and carried over into the Booking Note, that the two documents cannot be read in isolation, and that Clause 23 of the Fixture Recap had settled English law and London arbitration between them.

Three questions, and the codified answer to the second

The Bench framed three issues: whether the Delhi High Court had jurisdiction; whether the Booking Note is the final agreement and whether a court may modify it by reading in the earlier emails; and whether an anti-arbitration injunction ought to be granted.

Jurisdiction was disposed of shortly. The Booking Note was signed in Delhi by plaintiffs based in Delhi, the cargo was to be transported from Delhi in the first instance, and enforcement proceedings would be pursued in Delhi. A fundamental and substantial part of the cause of action therefore arose within the Court’s territorial jurisdiction, and the respondent’s objection that Mumbai alone would have jurisdiction was rejected.

The second question decided the appeal, and the Bench answered it by drawing a line between two legal systems. Under codified Indian law, once terms have been reduced to a written and signed agreement, prior negotiations, correspondence or communications cannot be relied upon to contradict, vary, add to or subtract from that agreement, unless its terms are ambiguous or defective. English common law approaches the matter differently. The Indian position is not merely settled, the judgment records, but materially different from the foreign law, and the Court cannot rely on a foreign judgment applying that different rule.

Govind Rubber and Trimex were distinguished on a point of fact rather than doctrine. In both, there was no signed written agreement, so correspondence had to be examined to find whether the parties had reached consensus and intended to be bound. Here the parties had negotiated and then executed a signed written agreement which states in terms that it prevails over any previous arrangements.

What the parties actually filled in

The Bench then examined the document itself, and its reasoning is granular in a way that will be useful to anyone drafting on a standard form.

The standard form of the booking agent’s Booking Note carries a Special Terms box reading “Special terms, if agreed” and “As per additional rider clause 20-41 in attached”. The arbitration clause at 43 does not appear in the standard form at all. That, the Court observed, shows that an arbitration clause is not part of standard business practice on this form and has to be specifically agreed — which is reasonable, since parties from all over the world contract with this agent.

In the signed Booking Note the parties did not adopt the standard form mechanically. They applied themselves to the Special Terms box and filled in four additional terms: a 24-hour reversible grace time for berthing or port congestion; delays due to swell not to count as detention; slings, wires, cradles, saddles, spreaders and bars not already on board to be arranged by owners; and a daily noon position report from the carrier. Having consciously set down the special terms they wanted, while retaining the reference to clauses 20 to 41, they did not add arbitration to the list.

Other differences pointed the same way. On the vessel, the Fixture Recap provided for “Mv Pelagica / Mv Panthera J or sub, in Carriers option”, while the Booking Note named “Mv Pelagica or Sub” and added an express substitution provision. There was a material difference on detention. And the arbitration provisions themselves were not the same: Clause 23 of the Fixture Recap provided for English law and London arbitration, whereas Clause 43 of the riders provided for the BIMCO Dispute Resolution Clause, latest edition, subject to English law and LMAA terms and procedures — a forum with its own specific and detailed rules that the parties had never agreed to even on the respondent’s own case.

The conclusion followed. The language incorporating clauses 20 to 41 is clear, unambiguous and admits of only one meaning. There is no reference to clauses 42 or 43 and no language that can reasonably be construed to incorporate 43. That clauses 41, 42 and 43 appear on the same page of the riders, and that the parties’ signatures sit below clause 43, cannot make clause 43 part of the contract.

The effect of an overriding clause of this kind is not new ground. The Bench drew on Union of India v. Kishorilal and on Joshi Technologies International Inc. v. Union of India, where the Supreme Court held that the intention behind such clauses is more than apparent — not to look into any other document or correspondence preceding the signing, and to ignore even a so-called understanding between the parties. On that approach it was impermissible to construe the signed contract by reference to what had been exchanged before it.

The Bench added a point about what the parties would have done had they meant to drop arbitration after the Fixture Recap: they would omit the clause on arbitration and applicable law and insert a term providing that previous arrangements and exchanged documents would not apply and that the Booking Note would prevail. That is exactly what these parties did, through the term appearing in both the standard form and the signed document that the contract shall be performed subject to the terms on pages 1 and 2, which shall prevail over any previous arrangements. The respondent’s whole argument was that the earlier intention had been mis-recorded — which, the Court said, may be a sound argument under English common law but cannot stand under Indian codified law.

When a court may stop an arbitration

Once there is no arbitration agreement, the foundation for the reference goes. The Bench took the jurisdiction to injunct from the Division Bench decisions of the same Court in McDonald’s India and Dr Bina Modi, which hold that a court may grant an anti-arbitration injunction where the party seeking it can demonstrably show that the agreement is null and void, inoperative or incapable of being performed.

The judgment is careful to keep two remedies apart. Following the approach in Excalibur Venture LLC v. Texas Keystone Inc, it holds that there must be a distinction between an anti-suit injunction and an anti-arbitration injunction, and that the principles applying to one will not necessarily apply to the other. The exceptional cases in which an arbitration may be restrained are those in which the proceedings would be oppressive or unconscionable. Having found that no arbitration agreement exists, the Court held that the case fell within those exceptional circumstances.

Order

The order of the Single Judge dated 13 March 2026 was set aside and the appeal allowed. The respondent, Argo Coral Maritime Ltd., was restrained from continuing, pursuing or taking any steps in the LMAA arbitration titled Argo Coral Maritime Ltd. v. SARR Freights Ltd / SARR Freights Corporation. Pending applications were disposed of.