The main legal point established in the judgment is that a foreign award, once final and binding in the country of its origin, is enforceable in India under the Arbitration & Conciliation Act, 1996, and objections related to public policy and stamping cannot render the award non-enforceable.

The Execution Petitioner/Decree Holder filed this petition/application for enforcement of foreign award dated 22.1.2001 under Part II Chapter I of the Arbitration & Conciliation Act, 1996. Along with the petition, the petitioner has filed a certified copy of the award, a certified true copy of the Charter Party Agreement containing arbitration clause and a certified copy of the notice issued to the respondent at the behest of Counsel for the Petitioner seeking remittance of the amount in terms of the award and an affidavit of the Solicitor of the petitioner to the fact that no appeal has been preferred against the award in the country of its making i.e. England and the limitation for filing appeal against the award expired on 19th February, 2001. The Judgment Debtor/respondent put appearance in the Court on 5th November, 2007 when the matter was taken up by the Court. The respondent sought time to file response to the Execution Petition of the petitioner however, despite repeated opportunities no application under Section 48 of the Arbitration & Conciliation Act, 1996 was filed nor the response was filed to the Execution Petition. The matter was ultimately fixed for arguments on enforceability of the award. On 3rd July, 2009 none appeared for the Judgment Debtor, the Judgment Debtor was proceeded ex parte. Thereafter, Judgment Debtor on 7th July, 2009 was permitted to address arguments on the enforceability of the award.

2. The Counsel for the petitioner submitted that the petitioner had complied with all conditions as laid down under Section 47 of the Arbitration & Conciliation Act, 1996 to show that the award was enforceable in India. The petitioner filed duly authenticated copy of the original award as required by the law of this Court. The petitioner also placed on record duly certified copy of the arbitration agreement between the parties. The award was in English language so, no translation was required to be furnished and it was pleaded that the award should be held enforceable.

3. The learned Counsel for the Judgment Debtor on the other hand argued that the award was not an enforceable award on the following grounds:

1. The award had not yet become binding between the parties in view of Section 66 of English Arbitration Act, 1996. An award made by Tribunal in England pursuant to an arbitration agreement could only be enforced by leave of Court in England. It was argued that unless leave of the Court in England was sought the award would not be a binding award. Reliance was placed also on Section 48(1)(e) of the Arbitration and Conciliation Act, 1996 (India) which reads as under:

48. Conditions for enforcement of foreign awards – (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that – x x x x x x x x (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.”

It is argued that the issue whether the foreign award, sought to be enforced in India under Section 48 has become „binding?, has to be determined in accordance with the laws of the country where it was made. Therefore, an Indian Court under Section 48 may refuse to enforce a foreign award if it has not yet become binding. Reference was made to the commentaries of the Arbitration Act to press this point.

2. The second argument advanced by the learned Counsel for the Judgment Debtor is that the award was contrary to public policy of India and was not enforceable. He submitted that the learned Arbitrator had acknowledged in para 25 of the award that the owners did not have a lien on the cargo at the material times but they threatened the respondent that unless the respondent did not agree to addendum 3 they would exercise a lien over the cargo and/or divert the vessel en route to the first disc