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N THE HIGH COURT OF JUDICATURE AT BOMBAY
A.K. MENON, J.
Aircon Beibars FZE – Appellant
Versus
Heligo Charters Private Limited – Respondent
Commercial Arbitration Petition No.1130 OF 2019
Decided on : 17-02-2022
Companies Act, 1956 - Arbitration and Conciliation Act, 1996 – Sections 44, 47 and 49 - Business of leasing and chartering of aircraft and/or helicopters – Breach of fundamental policy of Indian law - Seeking enforcement of Final Arbitration Award - Settlement Deed - Whether non-compliance of the settlement deed to deprive petitioner from receiving its dues under settlement - Whether enforcement of an award of a tribunal would involve disregard of any order of a court - Petitioner and respondent entered into a Lease Agreement in respect of one Bell 412 EP Helicopter - Under said lease agreement, respondent agreed to pay to petitioner a sum of USD 5.5 million and a monthly lease charge of USD 80,000 + variable flying hour charges all which remained unpaid - Both parties entered into a Settlement Deed, which provided for settlement of outstanding sum payable under lease agreement to petitioner and for sale of used helicopter.
Finding of the court :
To lead to a conclusion that arbitral tribunal had violated a fundamental policy of Indian law by granting price of helicopter, would be difficult to accept – Court have already found that Award of tribunal was not such as to constitute a violation of fundamental policy of Indian law - Unjust enrichment may be contrary to fundamental policy of Indian law but in present case factual aspect whether award amounts to unjust enrichment has not been made out. To hold that enforcement should not be allowed would amount to expanding scope of award itself which has held by tribunal did not contemplate status of helicopter in reference and tribunal was therefore not required to decide that issue. This must also be reviewed in the light of the suit pending for Specific Performance of Sale. Once payment is made the transfer would have to follow - It is not possible for this court in its jurisdiction under Section 48 to enter upon this controversy and that would clearly amount to entering upon merits to ascertain whether in the eyes of this court overall justice had been done – Court not satisfied that any grounds to obstruct enforcement has been made out and to my mind considering the factual aspects I am clearly on the view that even assuming there is a breach of substantive provisions of a statute, it was not breach of fundamental policy of Indian law and overall justice appears to have been done. Court do not find that the arbitral tribunal has traveled beyond the scope of the reference and beyond the jurisdiction of the tribunal - Thus, there is no reason whatsoever for preventing enforcement - Petition is absolute in terms of prayer clause (a), (b)(i), deposit to be made within four weeks from today.
Result : Petition allowed
JUDGMENT :
1. The petitioner, a company incorporated in Sharjah, UAE, under the laws of UAE, is engaged in the business of leasing and chartering of aircraft and/or helicopters. The respondent, a private limited company, incorporated under the Companies Act, 1956, is carrying out a business of providing helicopter services to the oil and gas industry in India. By this petition, filed under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996, the petitioner seeks enforcement of the Final Arbitration Award dated 25th January 2017 (“Award”).
2. The Award is a foreign award within the meaning of Section 44 Part II of the Arbitration and Conciliation Act made pursuant to an agreement in writing for arbitration to be held in Singapore. The seat of arbitration under the Settlement Deed was at Singapore. The Awards directs the respondent to pay sum of USD 6,563,700/- and SGD 775,462.28.
3. The opposition to enforcement on behalf of the respondent is on five grounds which are briefly as follows;
(ii) The respondent was unable to defend the petitioner’s amended claim which changed the nature of the claim. As a corollary, it is contended that the award contains no discussion and does not render any findings on this objection;
(iii) The award is unreasoned to the extent it relates to amounts awarded under clauses 2(c) and 2(d) of the Settlement Agreement;
(iv) Enforcement of the award would lead to unjust enrichment of the petitioner which would be contrary to the public policy of India; and
(v) The petitioner’s contention that the award may be enforced since overall justice has been done, is not justified.
4. Save and except these grounds, no other ground has been pressed into service in the respondent’s attempt to oppose enforcement of the award.
Facts in brief :
5. The brief facts giving rise to the present petition are as under :
The petitioner and the respondent entered into a Lease Agreement on 3rd July 2012 in respect of one Bell 412 EP Helicopter. Under the said lease agreement, the respondent agreed to pay to the petitioner a sum of USD 5.5 million and a monthly lease charge of USD 80,000 + variable flying hour charges all which remained unpaid. On 9th September 2014, both the parties entered into a Settlement Deed, which provided for settlement of outstanding sum payable under the lease agreement to the petitioner and for sale of the used helicopter. The respondent having failed and neglected to pay the sum due under the Settlement Deed, despite numerous demands made by the petitioner, the petitioner initiated arbitration proceedings against the respondent. On 8th April 2015, the respondent was served with notice of arbitration.
The respondent replied on 4th May, 2015 nominating an arbitrator. On 5th May 2015, Arbitrators nominated by the parties came to be appointed by the President of the Court of Arbitration of Singapore International Arbitration Centre (SIAC). On 2nd June 2015 by consent, Chairman of the Tribunal was then appointed.
6. At a preliminary meeting of the tribunal held on 8th June 2015, a procedural order came to be passed, by which both the parties were directed to serve submissions, file disclosure affidavits and affidavit-of-evidence. Dates of hearing were fixed. These directions were duly complied by the parties on 20th July 2015/23rd July 2016 and 14th September 2015 respectively. Having considered the submissions advanced by both the parties and having perused the documents and evidence on record, the tribunal passed the Award on 25th January 2017. Since there were some typographical errors in the Award, by consent, corrections were carried out and accordingly an Addendum came to be issued on 8th March 2017. Since there was no challenge to the Award in any court in Singapore, on 9th May 2017, the High Court of Republic of S
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