IMPORTANT POINT
The main legal point established in the judgment is that the court has jurisdiction to entertain enforcement proceedings based on the award debtor's assets within the court's jurisdiction, regardless of the quantum of assets available and their sufficiency for the purposes of the decree. The court also emphasized that the writing off of a debt in the award debtor's accounts does not mean that the debt becomes unrecoverable, and the creditor is entitled to pursue the debtor for the amount owed.

JUDGMENT

O.M.P.(EFA)(COMM.) 1/2018 & I.As. 5648-50/2018 and 5652/2018

1. The present enforcement proceedings have been filed for enforcement of a foreign award dated 24.01.2018, rendered by a three-member Arbitral Tribunal in an arbitration arising out of a Securities Purchase Agreement dated 19.09.2012 ["the SPA"]. The arbitration was held under the aegis of the Singapore International Arbitration Centre and the seat of the arbitration was in Singapore.

2. The award debtor has raised a preliminary issue as to the jurisdiction of this Court to entertain the enforcement proceedings. Learned counsel for the parties have been heard on this issue, and this judgment will dispose of the preliminary objections, as well as four applications which turn only on this issue (I.As. 5648-50/2018 and I.A. 5652/2018).

A. Submissions

3. The primary contention of the award debtor on the question of jurisdiction is that the award debtor is neither resident, nor does it possess assets within the jurisdiction of this Court, so as to attract the enforcement jurisdiction of this Court.

4. Dr. Amit George, learned counsel for the award debtor, submitted that in the original enforcement petition, the award holders have sought to invoke the jurisdiction of this Court only on the ground that the SPA was executed in New Delhi. It has been asserted that this Court would have original jurisdiction to decide the questions forming the subject matter of the arbitral award if the same had been the subject matter of a suit, relying upon the explanation to Section 47 of the Arbitration and Conciliation Act, 1996 ["the Act"]. He points out that, only in an additional affidavit dated 30.09.2021, have the award holders suggested that the award debtor has assets within the jurisdiction of this Court. For this purpose, the award holders have contended that the award debtor is owed an outstanding sum of Rs. 1,95,70,100/- plus interest of Rs. 1,08,38,000/- from an entity by the name of Himalayan Green Energy Private Limited ["HGEPL"], which has its registered address at B-392, S/F, Chitranjan Park, New Delhi-110019, within the jurisdiction of this Court. They have placed on record a copy of the master data of HGEPL, as available on the database of Ministry of Corporate Affairs, Government of India and its financial statements for the years 2018-19 and 2019-20[Two other contentions have been raised in the pleadings. The first relates to the award holders' dues from a company by the name of Cube Highways and Infrastructure Private Limited arising out of sale of shares in another company (Western UP Tollway Limited) registered within the jurisdiction of this Court. The final contention concerns amounts due to award holder No. 1 under the SPA which was executed in New Delhi. Neither of these grounds were pressed in the course of hearing, as recorded in the order dated 19.09.2023.].

5. Dr. George submitted that the jurisdiction of this Court cannot be founded upon the transaction relating to HGEPL, as the award debtor has written off the debt several years ago, on the ground that HGEPL is a defunct company which would not be able to pay its debts. Dr. George clarified that, although HGEPL is a partial subsidiary of the award debtor, the award debtor has taken a call not to pursue its claims against HGEPL, as the aforesaid subsidiary was unable to activate its only business - running an alternative energy project in Sikkim - due to adverse regulatory provisions.

6. Mr. Rajiv Nayar and Mr. Ashish Dholakia, learned Senior Counsel for the award holders, on the other hand, submitted that the debt of HGEPL has not been written off by the award debtor, but only treated as "doubtful". Without prejudice, they argued that the question of whether the award debtor has written off the debt or not, is not dispositive of the issue as to whether it has an asset available within the jurisdiction of this Court. They submitted that, factually, HGEPL continues as a going concern and shows the debt due