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IN THE HIGH COURT OF DELHI
Vibhu Bakhru, J.
Karam Chand Thapar & Bros. (Coal Sales) Ltd. - Appellant
Versus
MMTC Ltd. - Respondent
OMP (ENF.) (COMM.) 258 of 2018 & EA(OS) Nos. 1026 of 2019, 188 of 2020, 16240 of 2018 & 8918 of 2019
Decided On : 04-04-2022
| Table of Content |
|---|
| 1. controversy over foreign exchange conversion rate. (Para 1 , 2) |
| 2. factual basis of the dispute and award details. (Para 3 , 4) |
| 3. parties' arguments regarding the applicable conversion rates. (Para 6 , 7 , 8 , 9) |
| 4. court's reasoning on enforcement of the arbitral award. (Para 10 , 11 , 12 , 13) |
| 5. precedent and its implications on the current case. (Para 14 , 15 , 16) |
| 6. final decision on the applicable exchange rate and order. (Para 25 , 26 , 27 , 28) |
JUDGMENT
Vibhu Bakhru, J. The petitioner (Decree Holder) has filed the present petition under Section 36 of the Arbitration and Conciliation Act, 1996 (hereafter 'the A&C Act') seeking to enforce an Arbitral Award dated 07.01.2017 (hereafter the 'Arbitral Award'). The Arbitral Award has been enforced to a substantial extent.
2. The only contentious issue that remains to be addressed is regarding the rate of conversion of foreign exchange to be applied for determining the amount required to satisfy the Arbitral Award to the extent of the amount awarded in foreign currency (US Dollars). The petitioner claims that the rate of conversion is to be determined with reference to the date on which the respondent's (Judgment Debtor's) Special Leave Petition (SLP) was dismissed by the Supreme Court and the Arbitral Award became final. The respondent (hereafter 'MMTC') contends that the rate of conversion is to be reckoned in reference to the date when the demand for the same was made by the petitioner for the first time (that is, on 15.05.2010).
3. Briefly stated the relevant facts necessary to address the aforesaid controversy are as under:
3.1. The petitioner is a company incorporated in India and is engaged in the business of stevedoring and handling, cleaning and forwarding, transportation and escorting etc. MMTC is a Public Sector Undertaking.
3.2. National Thermal Power Corporation Ltd. (hereafter 'NTPC Ltd.'), a public sector undertaking, had placed an order with MMTC for import of coal and supply to its various power stations in the country. Accordingly, MMTC had entered into an Agreement dated 01.06.2005 with the petitioner, whereby the petitioner was engaged as a stevedoring and handling contractor for handling imported coal from foreign vessels at the port of discharge (Paradip Port) and, for its transportation to NTPC Ltd's Thermal Power Station, Kaniha at Talcher, for the period June, 2005 to May, 2006.
3.3. Disputes arose between the parties in connection with the said contract. The same were referred to arbitration under the aegis of the Indian Council for Arbitration. The Arbitral Tribunal comprised of three former High Court Judges. The arbitral proceedings culminated in the Arbitral Award dated 07.01.2017, which is sought to be enforced in this petition.
3.4. The operative part of the Arbitral Award reads as under:
"AWARD
Accordingly, the Arbitral Tribunal proceeds to make this award holding the Claimant entitled to recover from the Respondent the following amounts:
1. Rs.1,27,62,425/- under claim No.1 on account of service charges;
2. USD 2,42,445.03 under claim No.2 on account of despatch money;
3. Rs.17,46,576/- with Rs.2,22,688.44 towards interest @10% per annum from 02.06.2009 till 09th September, 2010, the date of the filing of the statement of Claim, total Rs.19,69,264.44, under claim No. 3, on account of bank guarantee charges.
4. Under claim No.1 for an amount of Rs.95,30,830.50 towards pendente lite interest from 09th September, 2010, the date of filing of the claim till the date of the award, at the rate of 12% per annum on Rs.1,27,62,425/-.
5. Under claim No.2 for an amount of USD 1,81,106.43 towards pendente lite interest from 09th September, 2010, the date of filing of the claim till the date of the award, at the rate of 12% per annum on USD 2,42,445/43.
6. Under claim No.3 for an amount of Rs.13.04,692/27 towards pendente lite interest from 09th September, 2010, the date of filing of the claim till the date of the award, at the rate o
In enforcement of arbitral awards, the applicable exchange rate for foreign currency amounts is determined by the date the award became final, not the date of demand.
Point of law: It is not necessary that the commercial transactions between Indian parties be confined to Indian territories alone.
The relevant date for converting a foreign arbitral award to Indian rupees is when objections are finally decided, while deposits made during proceedings are converted at the date of deposit.
The enforceability of foreign arbitral awards requires adherence to contractual terms, specifically for currency conversion, guiding the execution process without altering the award's substance.
The court confirmed that an arbitral award requires strict adherence to interest rates and currency components as specified in the original award and Supreme Court orders, preventing unauthorized mod....
Award i.e. amounts calculated in EURO are to be paid in INR as per exchange rate prevalent at the time of filing of the claim petition
Post-award interest is governed by Section 31(7)(b) of the Arbitration and Conciliation Act, entitling the award holder to statutory interest unless otherwise directed by the arbitrator.
Payment recognized under decree requires unconditional compliance; bank guarantees do not suffice, and interest continues until funds are available to the decree holder.
Arbitration - Application for setting aside arbitral award – Enforcement of – Amounts awarded in different currencies – Execution of award - it necessary to clarify that the calculations for discharg....
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