The definition of “Court” under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 does not apply to international commercial arbitrations taking place outside India, and the appropriate “Court” for the purposes of Section 9 applications in such cases is the High Court having jurisdiction to decide the questions forming the subject matter of the arbitral award, as defined in the Explanation to Section 47 of the Act.

1. A short but interesting issue arises in this petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’), before the parties could be heard on the merits of the matter. The petitioner who holds a foreign arbitral award against the respondent, seeks interim reliefs pending enforcement and execution of a foreign arbitral award. On behalf of the respondent an objection has been raised as to the territorial jurisdiction of this Court to entertain this petition, referring to the amended provisions of the Act, incorporated by the Amendment Act No.3 of 2016, with effect from 23 October 2015 (for short ‘the 2015 amendment Act’). The focus of the arguments as advanced on behalf of the parties, thus are the provisions of the Act, as amended by the 2015 amendment Act. By virtue of the amended provisions, the definition of “Court” under Section 2(1)(e) of the Act stands amended interalia in relation to an international commercial arbitration. Further a ‘‘proviso’’ has been inserted to subsection (2) of Section 2, making the provisions of Sections 9, 27 and clause (a) of sub-section (1) and subsection (3) of section 37 of the Act applicable to international commercial arbitrations, even if the place of arbitration is outside India and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of the Act. The definition of “Court” as contained in the ‘Explanation’ to Section 47 of the Act also stands amended by conferring jurisdiction exclusively on the High Court to decide the questions forming the subject matter of the award.

FACTS

2. The controversy envelopes under the following factual matrix:

(i) The petitioner in this petition has invoked Section 9 of the Act read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) seeking interim reliefs, to secure the award amounts, which would entail to its benefit in the international commercial arbitration held between the petitioner – Trammo DMCC (formerly known as Transammonia DMCC) as the claimant and the respondent. The arbitral awards were made and published in London, being (a) First Interim Final Award dated 4 December 2015 (as amended on 4 July 2016), (b) the First Costs Award dated 5 February 2016 as amended on 16 February 2016 and 4 July 2016; and (c) the Costs of Costs Award dated 10 March 2016 (as amended on 4 July 2016); (d) second Interim Final Award dated 20 September 2016; (e) third Interim Final Award dated 25 November 2016 (as amended on 14 December 2016). Under these Awards, the petitioner has claims to be entitled and the respondent liable to pay to the petitioner, an amount of US $ 16,427,310.80 and GB £ 606,628.29.

(ii) It is not in dispute that the arbitral awards are foreign awards as defined under Section 44 of the Act. Under the provisions of the Act, the enforcement and recognition of the Arbitral Awards are governed by Part II of the Act. The respondent has not challenged the arbitral awards before the appropriate foreign Court. The petitioner, therefore, has also filed proceedings under Section 47 read with Section 49 of the Act before this Court, being Arbitration Petition (Lodg) No.340 of 2017, interalia seeking enforcement and execution of the awards and for reliefs as more particularly prayed thereunder.

(iii) The petitioner, however, at an earlier point of time had bonafide believed, that the respondent possessed assets within the territorial jurisdiction of the Delhi High Court in the form of money lying in the respondent’s’ bank account at New Delhi and accordingly had filed a petition [O.M.P. (EFA)(COM) No.4 of 2017] under Sections 47 and 49 of the Act before the Delhi High Court, praying for enforcement and execution of the said arbitral awards. In the said petition an application I.A.no.4251 of 2017 was filed by the petitioner praying for a disclosure to be made by the respondent on oath, of the assets and properties of the respondent