While granting anti-arbitration injunction restraining LMAA proceedings, the Delhi High Court has held that under codified Indian evidence law, prior correspondence cannot be used to rewrite clear and unambiguous terms of a signed contract. The Court clarified that a signed Booking Note containing an express clause that it ‘shall prevail over any previous arrangements’ supersedes the earlier Fixture Recap, and prior correspondence or emails cannot be looked into to rewrite its terms.
Under Sections 91, 92 and 94 of the Indian Evidence Act, 1872, where the language of a signed contract is clear and unambiguous, no extrinsic evidence is admissible to contradict, vary, add to or subtract from its terms, and the English Common law doctrine of rectification has no application under Indian codified law, added the Court.
The High Court emphasised that the Special Terms box of the Booking Note specifically incorporated only Clauses 20 to 41 of the additional riders, deliberately leaving out Clauses 42 and 43, and this conscious exclusion cannot be treated as a typographical error merely because the parties signed at the bottom of the last page. Essentially, an arbitration clause being an integral part of a contract perishes when the contract is superseded or novated by a later agreement that does not carry forward the arbitration clause, and the arbitration clause cannot be treated as surviving independently of the main contract.
The Division Bench comprising Justice Vivek Chaudhary and Justice Renu Bhatnagar observed that the Booking Note was the final written and signed agreement between the parties, and it expressly contained a clause overriding any previous arrangements, namely, that ‘this Contract shall be performed subject to the terms contained on Page 1 and 2 hereto which shall prevail over any previous arrangements’. The Special Terms box was not mechanically adopted but was specifically filled in by the parties with four additional negotiated terms, while retaining the reference to ‘20-41’ and consciously excluding Clauses 42 and 43.
The Bench noted that the booking agent of the respondent fills such Standard Forms daily for parties across the world, and it was difficult to accept that a routine mistake was committed in a clause that was not part of standard business practice. The Bench further observed that the Booking Note materially differed from the Fixture Recap on several points, including the vessel description and detention clauses, demonstrating that the parties applied their conscious mind and re-settled several terms. Importantly, Clause 23 of the Fixture Recap (English law and London arbitration) was entirely different from Clause 43 of the additional riders (BIMCO Dispute Resolution Clause, subject to English Law and LMAA Terms and Procedures), which the parties had never agreed to even under the Fixture Recap.
Briefly, Sarr Freights Corporation and its related entity (the appellants) were engaged to transport military cargo for the United Nations Peace Keeping Force from New Delhi to Sudan, with the transit leg to be shipped from Nhava Sheva Port, Mumbai to Port Sudan. The terms were first negotiated through emails and a Fixture Recap dated April 04, 2023, between the appellant’s broker (Pirama) and the respondent’s booking agent (Ocean7), where Clause 23 of the Fixture Recap recorded ‘English law and London arbitration’. This was followed by a final Booking Note dated April 04, 2023, signed on April 05, 2023, which carried additional rider Clauses 20 to 41 only, deliberately leaving out Clauses 42 and 43. The arbitration clause appeared only in Clause 43 of the additional riders (BIMCO Dispute Resolution Clause, subject to English Law and LMAA Terms). No bill of lading was issued.
On April 18, 2023, the United Nations declared cargo movement through all Sudanese ports unsafe, prompting the appellants to cancel the Booking Note invoking force majeure. The respondent then issued a Notice of Arbitration dated July 27, 2023, under Clause 43, and later a fresh notice dated Dec 06, 2024, against Sarr Freights Corporation after the LMAA observed that the original appointment was only on behalf of Sarr Freights Limited. Both references were consolidated. By a partial award dated Oct 18, 2025, the majority of the Tribunal held that the parties had agreed to English law and London arbitration, and that the reference to ‘20-41’ in the Booking Note was a typographical error to be rectified to ‘20-43’. The appellants then approached the Single Judge of the Delhi High Court seeking an anti-arbitration injunction, which was rejected.
