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2015 Supreme(Bom) 1374
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Armada (Singapore) Pte. Ltd. - Petitioner
Versus
Ashapura Minechem Ltd. - Respondent
ARBITRATION PETITION NO.1359 and 1360 OF 2010
along with
CHAMBER SUMMONS NO.639 and 638 OF 2011
along with
NOTICE OF MOTION NO.657and 656 OF 2014
with
NOTICE OF MOTION NO.373 and 374 OF 2013
Decided On : 8.9.2015
Mr.Rahul Narichania, Senior Advocate a/w Mr.Prathamesh Kamat a/w Mr.Siddharth Thacker a/w Ms.Pooja Kapadia i/by M/s.Mulla & Mulla & Craigie Blunt & Caroe for the petitioner.
Mr.Mustafa Doctor, Senior Advocate a/w Mr.M.S. Bodhanwalla a/w Mr.Mayur Bhatt a/w Mr.Rushabh Sheth a/w Ms.Pooja Batra i/by M/s.M. S. Bodhanwalla & Co. for the respondent.
The main legal point established in the judgment is that foreign awards can be enforced as decrees of the Court under the Arbitration and Conciliation Act, 1996, and that objections to enforcement must fall within the limited grounds permissible under Section 48 of the Act.
Headnote:
Arbitration - Foreign Awards - Sections 47, 48, 49 of the Arbitration and Conciliation Act, 1996 - Summary of Acts and Sections: The judgment discusses the enforcement of foreign awards under the Arbitration and Conciliation Act, 1996, and the implications of Sections 47, 48, and 49. It also addresses the exclusion of Part I of the Act, the application under the Sick Industrial Companies (Special Provisions) Act, 1985, and the appointment of judicial managers.
Fact of the Case:
The petitioner filed arbitration petitions for the enforcement of foreign awards as decrees of the Court. The respondent raised objections, including the exclusion of Part I of the Arbitration Act, the application under the Sick Industrial Companies (Special Provisions) Act, 1985, and the appointment of judicial managers.
Finding of the Court:
The Court held that the foreign awards were enforceable as decrees of the Court, dismissed certain prayers due to the petitioner's application before the BIFR, and rejected the respondent's motions. The arbitration petitions were disposed of accordingly, and no costs were awarded.
Issues: The issues included the maintainability of the arbitration petitions, the impact of the application under the Sick Industrial Companies (Special Provisions) Act, 1985, and the objections raised by the respondent.
Ratio Decidendi: The Court found that the foreign awards were enforceable as decrees, rejected certain prayers due to the petitioner's application before the BIFR, and dismissed the respondent's motions. The Court also held that the objections raised by the respondent were without merit.
Final Decision: The Court declared the foreign awards as enforceable decrees, rejected certain prayers, dismissed the respondent's motions, and disposed of the arbitration petitions accordingly, without awarding costs.
Arbitration Petition No.1359 of 2010 and the Arbitration Petition No.1360 of 2010 are filed by the petitioner under Sections 47, 48 and 49 of the Arbitration and Conciliation Act, 1996 for declaration that the foreign awards both dated 16th February 2010 are enforceable as decrees of this Court and for direction to enforce and/or execute the said two awards as decrees in favour of the petitioner and against the respondent.
2. Chamber Summons Nos.639 of 2011 and 638 of 2011 are filed by the petitioner in the arbitration petitions respectively for an order and direction to the respondent to disclose the details of various assets, all pending litigations, list of all creditors, debtors etc. and for furnishing security in favour of the petitioner, for an injunction and for attachment of the assets.
3. Notices of Motion No.373 of 2013 and 374 of 2013 are filed by the respondent inter alia praying for dismissal of the Arbitration Petition Nos.1359 of 2010 and 1360 of 2010 respectively. Notices of Motion No.657 of 2014 and 656 of 2014 are filed by the petitioner inter alia praying for an injunction against the respondent from proceeding with or prosecuting with the Miscellaneous Application Nos. 196 of 2013 and 284 of 2013 in BIFR Case No.34/2011 filed by the respondent against the petitioner respectively. By consent of parties, all the aforesaid proceedings were heard together and are disposed of by a common judgment.
4. Arbitration Petition No.1359 of 2010 has been filed for enforcement of the foreign award dated 16th February 2010 arising out of the dispute between the parties under COA dated 12th April 2008. The Arbitration Petition No.1360 of 2010 has been filed for enforcement of the foreign award dated 16th February 2010 arising out of the dispute between the parties under COA dated 4th April 2008.
5. Some of the relevant facts in Arbitration Petition No.1359 of 2010 are set out hereinafter which was argued as a main matter by the learned senior counsel for both the parties. The facts of the Arbitration Petition No.1360 of 2010 are similar to the facts in Arbitration Petition No.1359 of 2010.
6. By a Contract of affreightment dated 12th April 2008 based on an amended Gencon Form with additional clauses, the petitioner as owner or disponent owner contracted with the respondent as charterer for the carriage of 32 cargoes on the terms and conditions therein. It was the case of the petitioner that by its email dated 30th September 2008, the respondent sought to terminate the contract falsely alleging frustration and/or force majeure for the reasons stated therein. The petitioner disputed the termination maintaining that there was no justification on the part of the respondent to terminate the said contract.
On 4th November 2008, the petitioner invoked the arbitration agreement recorded at clause 28 of the said contract. Clause 28 of the said contract is extracted as under :-
“Clause 28 :
Any dispute arising under this C.O.A. is to be settled and referred to Arbitration in London. One Arbitrator to be employed by the Charterers and one by the Owners and in case they shall not agree then shall appoint an Umpire whose decision shall be final and binding, the Arbitrators and Umpire to be Commercial Shipping Men. English Law to apply. Notwithstanding anything to the contrary agreed in the C.O.A., all disputes where the amount involved is less than USD 50,000/- (fifty thousand) the Arbitration shall be conducted in accordance with the Small Claims Procedure of the L.M.A.A.”
7. On 4th November 2008, the solicitors of the petitioner appointed Mr.Michael Baker as an arbitrator and called upon the respondent to appoint its own arbitrator. The respondent, however, failed to appoint its own arbitrator. On or about 11th November 2008, the respondent filed a Special Civil Suit No.56 of 2008 and moved an ex parte application in the Court of Principal Senior Civil Judge at Jam- Khambhalia in Gujarat seeking an injunction restraining the petitio
