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2004 (3) TMI 810

fore the City Civil Court at Ahmedabad. The said petition is preferred by the present respondent, Tata International Ltd., for enforcement of a foreign award. In the aforesaid application, the petitioner herein, who is the original opponent of that application has raised various preliminary objections, which are negatived by the trial Court. The petitioner-original opponent has approached this Court by way of this revision under Section 115 of C.P.C. Since, the present petitioner has also filed a suit for declaration and injunction, which is pending in the Court of Civil Judge (S.D.) at Gandhidham, the present petitioner has also filed an application under Section 24 of C.P.C., being M.C.A. No. 1501 of 2002, for transfer of Execution Petition pending in the City Civil Court to the Court of Civil Judge (S.D.) at Gandhidham. The present respondent, Tata International Ltd., has filed a Special Civil Application No. 11866 of 2003, under Article 227 of the Constitution of India, by which certain observations made by the trial Court in its judgment are challenged. Since, decision in Special Civil Application and Misc. Civil Application depends upon the decision of this Civil Revision App .....

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er and the petitioner requested the Court to decide the same. By way of preliminary objection, an objection is raised to the effect that the original arbitral award is an ex parte award and that the award is given by the arbitrator in collusion with the respondent herein. It was also argued before the trial Court that the request of the present respondent, for referring the dispute to arbitration, was rejected by the learned Civil Judge (S.D.), Gandhidham in Special Civil Suit No. 19 of 2001. It is also the say of the present petitioner that the suit, being Special Civil Suit No. 19 of 2001 is pending before the Gandhidham Court for setting aside the arbitration award and till the said suit is decided, the foreign award cannot be executed or enforced. Another objection was taken about the maintainability of the said proceedings before the City Civil Court on the ground that such Execution Petition is not maintainable as the respondent was required to prefer an application for making such award a decree of the Court and without there being any application of making such award a decree of the Court, the Execution Petition straightaway is not maintainable. 5. After considering the arg .....

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ction 34 is decided by the Court, and only thereafter, the award in question will become final and binding to the parties. It is argued by Mr. Gupta that the civil suit filed by the petitioner therefore, is in the nature of objections against the arbitral award, and it is in the nature of an application under Section 34 of the Act. Mr. Gupta has also placed reliance on Section 36of the Act. 8. On behalf of the respondent, it is submitted by learned Advocate Mrs. Mehta that Section 34 or Section 36 is not applicable in the present case, as this is a case of enforcement of foreign award, which is required to be considered as per the provisions contained in Part II of the Act. It is submitted by Mrs. Mehta that there is a special procedure provided in the Act for enforcement of the foreign award. Therefore, it is submitted that there is no substance in the preliminary objections raised by the present petitioner before the trial Court and the trial Court is justified in rejecting said objections. 9. It is required to be noted that there is a special machinery in the Act for enforcement of foreign award. The point which is required to be considered is whether the civil suit filed by the .....

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ntains decisions on matters beyond the scope of the submission to arbitration : Provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, that, part of the award which contains decisions on matters submitted to arbitration may be enforced; or (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. (2) Enforcement of an arbitral award may also be refused if the Court finds that - (a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or (b) the enforcement of the award would be contrary to the public policy of India. Explanation :- Without prejudice to the generality of Clause (b) of this sub-section, it is hereby declared, for the avoidance of any doubt, mat an award is in conflict with the public policy .....

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Civil Suit of the petitioner is decided by the Gandhidham Court. Even limitation prescribed for raising objections under Section 34 is also different than the limitation regarding filing of a substantive civil suit. It is required to be noted that in the aforesaid Civil Suit, the petitioner has filed an application to obtain interim relief, but till date the same is not granted. 11. I am not impressed by the argument of Mr. Gupta that in view of the substantive civil suit, which is filed by his client, the award in question cannot be enforced till the suit is decided and that such foreign award is not enforceable in view of the pendency of the civil suit. Only remedy available to the petitioner is to invoke provisions of Section 48 of the Act and the petitioner can always lodge objections as provided by the said provisions and after considering such objections, the Court has to reach the satisfaction whether such foreign award is enforceable, and ultimately, if any such order is passed under Section 48 of the Act, such order is deemed to be the decree of the Court. Looking to the scheme of the Act, it is clear that whatever objections, which are required to be raised, are required .....

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nt of the Act, the law of arbitration in this country was substantially contained in three enactments, namely, (1) the Arbitration Act, 1940, (2) the Arbitration (Protocol and Convention) Act, 1937, and (3) the Foreign Awards (Recognition and Enforcement) Act, 1961. A party holding a foreign award was required to take recourse to these enactments. The Preamble of the Act makes it abundantly clear that it aims at consolidating and amending Indian laws relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards. The object of the Act is to minimize supervisory role of the Court and to give speedy justice. In this view, the stage of approaching the Court for making the award a rule of Court as required in the Arbitration Act, 1940 is dispensed with in the present Act. If the argument of the respondent is accepted, one of the objects of the Act will be frustrated and defeated. Under the old Act, after making an award and prior to execution, there was a procedure for filing and making an award a rule of Court i.e. a decree. Since, the object of the Act is to provide speedy and alternative solution to the dispute, the same procedure c .....

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roceeding, as already stated above, the Court enforcing a foreign award can deal with the entire matter. Even otherwise, this procedure does not prejudice a party in the light of what is stated in Para 40 of Thyssen judgment. 32. Part II of the Act relates to enforcement of certain foreign awards. Chapter I of this Part deals with New York Convention awards. Section 46 of the Act speaks as to when a foreign award is binding. Section 47 states as to what evidence the party applying for the enforcement of a foreign award should produce before the Court. Section 48 states as to the conditions for enforcement of foreign awards. As per Section 49, if the Court is satisfied that a foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court and that Court has to proceed further to execute the foreign award as a decree of that Court. If the argument advanced on behalf of the respondent is accepted, the very purpose of the Act in regard to speedy and effective execution of foreign award will be defeated. Thus, none of the contentions urged on behalf of the respondent merit acceptance so as to uphold the impugned judgment and order. We have no hesi .....

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wo Paragraphs from the judgment may be reproduced. "14. It was then submitted by Dr. Ghosh that the subject-matter of the award was money and the 1st and 2nd respondents had money in the jurisdiction of the Bhavnagar Court in the form of part of the purchase price of the said vessel payable to them by the 3rd and 4th respondents." "15. This being an award for money its subject-matter may be said to be money, just as the subject-matter of the money decree may be said to be money." It is, therefore, clear that in respect of an award for money, subject-matter can be said to be money. In other words, therefore, petition for enforcement of the foreign award can be filed to the Court where the party may have money. This is important consideration considering a party need not be tied down as in the case of Part I where the subject-matter is the subject-matter of the arbitration. In other words, if the party has a foreign award in its favour, it can seek to enforce the award in any part of the country where it is sought to be enforced as long as money is available or suit for recovery of money can be filed. In my opinion, therefore, expression subject-matter of the awar .....

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the award is money payable by the petitioner to the respondent as per the foreign award declared by the Arbitral Tribunal at London and for enforcing such an award, the respondent can approach the Court, within whose local limits the money is available. Therefore, it cannot be said that no part of the cause of action has arisen within the territorial limits of the City Civil Court, Ahmedabad, especially, when the money of the petitioner is available within the local territorial limits of the Ahmedabad city itself. Therefore, considering the special provision regarding enforcement of a foreign award and considering the fact that the money is available, which can satisfy the foreign award, within the territorial limits of City Civil Court, Ahmedabad, it cannot be said that the "City Civil Court, Ahmedabad, is lacking the territorial jurisdiction. Even otherwise, between the same parties, the Bombay High Court itself has observed that such award can be enforced at a place where money is available and it is also an admitted fact that the petitioner-Company is having its branch office at Ahmedabad and it is also not in dispute that the petitioner is a public limited company having .....

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