TMI Blog2009 (9) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent put appearance in the Court on 5th November, 2007 when the matter was taken up by the Court. The respondent sought time to file response to the Execution Petition of the petitioner however, despite repeated opportunities no application under Section 48 of the Arbitration Conciliation Act, 1996 was filed nor the response was filed to the Execution Petition. The matter was ultimately fixed for arguments on enforceability of the award. On 3rd July, 2009 none appeared for the Judgment Debtor, the Judgment Debtor was proceeded ex parte. Thereafter, Judgment Debtor on 7th July, 2009 was permitted to address arguments on the enforceability of the award. 2. The Counsel for the petitioner submitted that the petitioner had complied with all conditions as laid down under Section 47 of the Arbitration Conciliation Act, 1996 to show that the award was enforceable in India. The petitioner filed duly authenticated copy of the original award as required by the law of this Court. The petitioner also placed on record duly certified copy of the arbitration agreement between the parties. The award was in English language so, no translation was required to be furnished and it was plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and void therefore the award was contrary to public policy. 3. The third issue raised by the JD was that the award was not stamped as per the Indian Stamp Act, and therefore was not enforceable. To press this issued the JD relied on Gujrals v. M.A. Morris AIR 1962 P H 167. 4. All the above contentions of the Judgment Debtor have been refuted by the Decree Holder/petitioner and it was submitted that the issues raised by the Judgment Debtor were not at all issues and the law on these issues was well settled. 5. Part II of the Arbitration Conciliation Act, 1996 deals with enforcement of certain awards. Chapter I deals with the New York Convention Awards and Section 44 defines foreign award as under: 44. Definition - In this Chapter, unless the context otherwise requires, 'foreign award' means an arbitral award on differences between persons arising out of legal relationship, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960-- (a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and (b) in one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was incapable of settlement by arbitration under the law of India or the enforcement of award would be contrary to public policy. Section 48(3) reads as under: (3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in Clause (e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. 8. Section 48(1)(e) read with Section 48(3) of the Arbitration Conciliation Act, 1996 makes it clear that the competent authority in this case is the authority of the country of origin, where the award has been made and the party against whom the award has been made was in the process of taking steps before the Courts of that country in challenging the award. The competent authority is not the authority in India. 9. Had the JD taken steps to challenge the award in England and any proceedings were pending between the petitioner and the respondent/Judgment Debtor in England, it was reasonable for the Judgment Debtor to argue that the awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, and then delaying the entry to that port, was a deliberate and calculated breach of contract and that the pressure consequently exerted upon them by the Owners was unjustified, unwarranted and illegal with the result that Addendum 3 had clearly been agreed by the Charterers under duress whose buyers were demanding prompt delivery of the cargo in West Africa. However, in view of the threat given, it had no option but to sign Addendum 3, Addendum 3 having been obtained under duress was not binding. On the other hand it was submitted by the owners that a contract procured under duress was voidable and was not void ab initio and every threat given by a person would not amount to economic duress and in case the Charterers had entered into the contract of addendum 3 under duress, the Charter would have revoked the contract soon thereafter. The owners also pleaded that they were not aware during the voyage that they had no lien on the cargo at material time. They understood it from their P I Club that they had a lien and a huge demurrage at the load port had already accrued due to delay. For this reason they had acted under a bona fide belief about the existence of their right of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t voidable and the Charterers by their subsequent conduct affirmed the contract and lost any right to avoid the contract (Addendum 3). 13. I find no infirmity in the reasoning given by the learned Arbitrator regarding the issue of duress. The Arbitrator is the judge chosen by parties not only to decide issues of facts but also to decide issues of law. Duress is a mixed issue of law and facts. The Arbitrator has decided this issue after considering the evidence of both the parties and material on record. This Court cannot sit in appeal over the findings of the Arbitrator as to whether there was duress or not and what was the effect of duress and whether the contract has been evaded or not. I consider that decision of the Arbitrator on the issue of duress going against the Judgment Debtor cannot be considered an issue of public policy and the award cannot be held to be non-enforceable under Section 48(2) on the ground of public policy. 14. The third issue raised by the Judgment Debtor is about non stamping of the award. The Judgment Debtor has relied on Punjab Haryana High Court Judgment however, after this judgment of Punjab Haryana high Court, the Supreme Court in Haren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not require registration and can be enforced as a decree. In any case the issue of Stamp Duty cannot stand in the way of deciding whether the award is enforceable or not. Supreme Court in M. Anasuya Devi and Anr. v. M. Manik Reddy and Ors. (2003) 8 SCC 565 had observed that at the time of deciding objections under Section 34 of the Arbitration Conciliation Act, 1996, the Court cannot set aside the award for want of stamping and registration. I consider that the Court while deciding enforceability of foreign award under Sections 47 48 cannot hold the award non-enforceable on the ground of award being not registered or unstamped. 16. It is settled law that a foreign award can be enforced or executed in the same proceedings as was held by the Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356. The present award was passed in England and it became binding between the parties since its validity was not assailed by the Judgment Debtor in England. The Judgment Debtor did not assail the award under Section 48 raising grounds as given in Section 48 of the Act, or produce any evidence in respect of any of the grounds available to the Judgment D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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