TMI Blog2014 (12) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the materials on record it cannot be said that GAFTA Rules have not been followed with regard to the appointment of the Arbitrator. This Court is of the view that the objection raised by Mr. Mitra with regard to the maintainability of the petition cannot be accepted. Such objection is overruled. This execution application is held to be maintainable. - EC No. 487 of 2013, EC No. 488 of 2013 - - - Dated:- 4-12-2014 - The Hon'ble Justice Soumen Sen For the Petitioner : Mr. Tilok Bose, Senior Advocate withMr. Dhruba Ghosh, Advocate and Mr. A. Dey, Advocate For the Respondent : Mr. Surojit Nath Mitra, Senior Advocate with Mr. Shyamal Sarkar, Senior Advocate and Mr. D. N. Sharma, Advocate ORDER The Court : The execution application was moved on 16th January 2014 for enforcement of a foreign award. At the time of receiving the said application an interim order was passed restraining the judgment debtor from withdrawing any sum from the bank accounts mentioned in paragraph 26 of the affidavit in support of the Tabular Statement, save and except, in the usual course of business. The original award and the certified copy of the agreement were produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he maintainability of the execution application. It is submitted that sufficient opportunity was given to the respondent to deal with the maintainability, but surprisingly the said respondent did not choose to file any objection or affidavit questioning the maintainability. The petitioner also referred to the affidavit filed in this proceedings by the respondent and submitted that it only reveals the impecunious situation of the respondent and it gives a clear impression that the respondent is trying to avoid execution of the award passed against it. Mr. S. N. Mitra, learned senior counsel appearing with Mr. Shyamal Sarkar, Senior Advocate on behalf of the judgment-debtor, submitted that before any order could be passed in this proceeding, the Court is required to be satisfied that such foreign award is enforceable. The learned Senior Counsel referred to Section 45 of the said Act and submits that Section 47 is dependent upon a satisfaction being recorded by the Court that such award is enforceable. Section 48 lays down the condition for enforcement of the foreign award and it is only on a decision being arrived at with regard to the enforcement of a foreign award after consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules 125. It is submitted that there is no averment in the petition that before invoking the arbitration clause there was any attempt to settle the disputes amicably. Since this stage has not been reached, the invocation of Arbitration Clause is void ab initio. In this regard, the learned Senior Counsel has referred to an unreported decision of a single Bench of this Court in AP 112 of 2008 [Waidhan Engineering Industries Private Limited vs. The board Of Trustees For The Port Of Kolkata] decided on 5th May 2010. The fourth objection is that even if it is assumed for the sake of argument that this amicable settlement was not followed, even then Rule 3.1 was not followed with regard to the appointment of the sole Arbitrator. It is submitted that it was incumbent upon the decree-holder to inform the respondent about the appointment of a sole arbitrator and it was only on refusal to accede to such request that other procedures prescribed under the rules shall follow. The fifth and the last objection appears to be that the nominee arbitrator of the respondent was appointed de hors the provisions of GAFTA Rules and accordingly the procedure adopted is irregular from the very be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic policy of India if the making of the award was induced or affected by fraud or corruption. (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. Of the various grounds referred to in Section 48, the real objections raised by Mr. Mitra come very close to section 48 (b) of the said Act with regard to the prior notice of the appointment of arbitrator. On the basis of the disclosures made in this petition it appears that the decree-holder invoked the arbitration Clause by a communication dated 28th July 2011. The subsequent communications disclosed in this proceedings would show that after giving opportunity to the judgment-debtor to appoint an Arbitrator, the Tribunal had exercised its power under Rule 3.3. Mr. Bose has referred to the preamble and the other provisions of the Act in order to impress upon the maintainability of the petition. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed with regard to the appointment of the Arbitrator. In fact the judgment-debtor was informed about the exercise of option and by reasons of failure of the said judgment-debtor to appoint the arbitrator the Dispute Resolution Service on 22nd September, 2011 appointed the nominee arbitrator on behalf of the judgement-debtor. Even otherwise, it is always open for either of the parties to waive a particular procedure. Mr. Mitra would submit that mere silence would not amount to waiver or acquiescence. There cannot be any dispute with regard to the same but this is a factual matter which can be decided only on evidence. It is too late in the day to argue that there is procedural irregularity or the judgment-debtor has not waived its right. Moreover, having regard to the fact that a suit has been filed, it is very clear that question of amicably settlement of dispute by negotiation was far fetched. In such facts and circumstances, this Court is of the view that the objection raised by Mr. Mitra with regard to the maintainability of the petition cannot be accepted. Such objection is overruled. This execution application is held to be maintainable. This Court is informed by the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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