IMPORTANT POINT
Scheme of Section 48 of Arbitration and Conciliation Act, 1996 does not envisage piecemeal consideration of issue of maintainability of execution case concerning foreign awards.

JUDGMENT

A.M. Khanwilkar, J.

These special leave petitions emanate from the judgment and orders dated 22nd August, 2017 passed by the High Court at Calcutta in G.A. No. 3306/2016 in E.C. No. 487/2013 and dated 9th July, 2018 in G.A. No. 3307/2016 in E.C. No. 488/2013, respectively. The special leave petitions pertain to two execution petitions filed by the respondent - award holder concerning two separate foreign awards. Since the questions raised in both these petitions are overlapping, the same are being answered together.

2. The parties had entered into separate contracts for sale of Non Basmati Parboiled Rice, Thailand origin, on the terms and conditions specified in the contracts. The contract contained a stipulation that the quantity would be final at the Port of loading as per the official weight certificate issued by SGS at the cost of the seller, meaning thereby the respondent. The consignments were shipped by the seller as per the said contract. The contract was an FOB contract and the goods were meant for the Government of People's Republic of Bangladesh. The contract in "other terms" envisage that on terms and conditions not in contradiction with the stipulated terms of contract shall be governed by GAFTA 48 and disputes to be resolved by Arbitration 125 as per GAFTA 125 in London. The buyer had opened letters of credit on different dates and the consignments were shipped by the seller. For each single shipment, invoices had been issued by the seller in accordance with the addendum to the contract. Shorn of unnecessary details, be it noted that some dispute arose regarding the inferior quality of rice and non-release of the payment towards the invoices raised by the seller in respect of certain shipment, which eventually became the subject matter of arbitration proceedings. The respondent, on 28th July, 2011, invoked the arbitration clause and eventually appointed Mr. R. Barber as its Arbitrator. As the petitioner failed to respond, the respondent requested GAFTA to appoint an arbitrator on their behalf in accordance with GAFTA Arbitration Rules 125. GAFTA duly appointed Mr. R. Eikel as the second Arbitrator on 22nd September, 2011. On 25thJune, 2012 GAFTA appointed Mr. C. Debattista as the third Arbitrator and Chairman of the Tribunal.

3. The respondent filed its claim submissions dated 11th May, 2012 in the two independent arbitration proceedings, concerning contract-I and contract-II, respectively. These claim submissions came to be filed after giving various opportunities to the petitioner. Resultantly, the Arbitral Tribunal passed two separate awards in relation to the concerned contracts, being Arbitration Case No. 14/456 (pertaining to contract-I) and Arbitration Case No. 14/457 (pertaining to contract-II). Be it noted that the Arbitral Tribunal proceeded ex-parte against the petitioner as, despite notice, the petitioner refused to participate in the arbitration proceedings. Neither did it file any statement of defence or counterclaim nor did it adduce any evidence.

4. On 19th November, 2013, the respondent filed two execution cases, being Execution Case No. 487/2013 (pertaining to contract-I) and Execution Case No. 488/2013 (pertaining to contract-II), under Part-II of the Arbitration and Conciliation Act, 1996 (for short "the Act"), before the High Court at Calcutta for enforcement of the foreign arbitral awards. The learned Single Judge of the High Court passed a common order in the said execution cases rejecting the objection purportedly regarding the maintainability of the subject foreign awards vide judgment and order dated 4th December, 2014. The learned Single Judge noted that the petitioner did not file any affidavit or formal application to oppose the execution case, but chose to raise objections orally, only through his counsel, before the Court. The Single Judge noted the objections of the petitioner. The Court also noted that the Court ought to be satisfied that the foreign award was enforceable and