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2019 (1) TMI 1374 - HC - Indian LawsEnforcement of a foreign award - the case of the respondents in a nutshell is that the awards are not enforceable under the Act because the respondents were deprived of an opportunity to present their case and because the awards are contrary to public policy - scope for resisting enforcement pursuant to 2015 Amendment Arbitration Act - principles of natural justice - Held that:- The process adopted by the tribunal is transparent and across the three PFAs and the final award. Different views may have been possible, but merely because the tribunal adopted an unfavourable one, the award cannot be rendered unenforceable. Dealing with the respondents contention that merely because the respondents had not challenged the award at the seat of the arbitration did not prevent challenge resistance to enforcement, I have no hesitation in agreeing with that line of reasoning. Chapter I of Part II which deals with New York Convention Awards does not differentiate between enforcement of awards that have been unsuccessfully challenged at the seat or those which being not except for Section 48(1)(e) and Section 48(3). There is no doubt that failure to challenge the award in the seat of Arbitration would in any manner impact the right of a party to resist enforcement in this country. The Arbitration & Conciliation Act, 1996 in its current avatar also does not support the view that resisting enforcement would be subject to a prior challenge at the seat of arbitration. It does not support the view that absent a challenge in the seat of the Arbitration, a party could not resist enforcement of the award in a different jurisdiction. If that were to be so the legislature would have provided for appropriate pre-conditions to resist enforcement of foreign award and justifiably so because if an award were to be set aside in the seat, there may be no occasion to resist enforcement. On the other hand if a challenge at the seat is repelled, a losing party could still resist enforcement on available grounds. In order to succeed on the ground of being deprived of an opportunity of being heard, one has to establish that the tribunal did not offer an aggrieved party an opportunity of presenting their case. In the facts of the case at hand, it is obvious that ACPL declined to submit the documents on the ground of confidentiality. It is another matter that the petitioners apparently had control over ACPL and could have had a say in the response of ACPL especially since it was open for the petitioners to collect the information from ACPL which it had declined to do. Had it been the petitioners case it had no control over ACPL, there was no question of obtaining the response. Principles of natural justice - counter claims were not considered - Held that:- There is nothing in my view that obliged the tribunal to place before the parties of the view that it intended to take and I am unable to find any support from the submissions canvassed at the bar alluding to appointment of a conflicted party as a valuer to the extent the challenge concerned alleged inconsistencies in the first and second PFA’s. There is no merit in the contention that the tribunal shifted the goal post between the first and second PFA. The alleged inconsistencies only indicate that the Arbitral tribunal was actively considering all contentions on both sides. The respondents contention cannot be appreciated that the arbitrator was bound to express his views on expert evidence. It is open for the a tribunal to consider expert evidence without being obliged to express his views on the veracity of such evidence. The arbitrator in the instant case was under no obligation of respond to expert evidence led by the parties. No doubt it was open to the arbitrator to seek clarifications if he felt necessary. The Arbitrator was not bound to do so. More often than not consideration of witness statements, their relevancy, veracity and the impact would be considered not only when the evidence is recorded but that is at a later date prior to making of an award. An arbitrator would garner his thoughts not necessarily on being presented with the evidence but later, having considered the entire gamut of the proceedings. The scope of enquiry under Section 48 did not permit a review on merits and that under Section 48(2)(b) enforcement of a foreign award could be refused only if it is found to be contrary to (i)the fundamental policy of Indian Law; (ii) to the interest of India and (iii) justice of morality - Application of the doctrine of public policy in the field of contract laws is more limited than in the case of domestic law and the courts are slower to invoke public policy in cases involving a foreign element. The contention that failure to make and averment as to readiness and willingness to perform the contract is fatal since grant of relief in the absence of such mandatory averments would be against the fundamental policy of Indian law is misconceived since the effect of absence of such averments would depend on the facts of a case - In the case at hand, the respondents had not raised this contention before the tribunal. Although in the affidavit in reply one of the contentions taken up was that no oral hearing was granted, this has not been canvassed as an instance of lack of a proper opportunity to present the respondents case probably because written submissions were on the record of the tribunal. No other ground has been canvassed - the objections sought to be raised are in the nature of seeking a review on merits of the lis and calls for appreciation of evidence which cannot be done. The Awards are enforceable against the respondents. The petitioner may proceed in execution of the Awards - Till the Awards are enforced, there will be an order in terms of prayer clause (b) (vii)(a) - petition allowed.
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