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2018 Supreme(Guj) 806

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.M. Chhaya, J.
Asean Lng Trading Co Ltd. Now Known As Petronas Lng Ltd. – Appellant
Vs.
Adani Energy Ltd. – Respondent
Petition Under Arbitration Act No. 55 of 2017
Decided On : 05-07-2018

Advocates Appeared:
Deven Parikh, Adv., Vimal Patel, Adv., Rupa Daya, Adv., Hitesh Patel, Adv., Suren Patel, Adv., Mihir Joshi, Adv., Sandip Singhi, Adv., Poonam Mathur, Adv.

Headnote:

Arbitration and Conciliation Act, 1996- section 47 - Arbitration - original execution petition, was filed before the City Civil Court and by order passed by the learned Principal City Civil Judge, the execution petition was ordered to be transferred to the commercial division of this Court and on such transfer, this Court was pleased to issue notice to the opponent - Held, In light of the aforesaid therefore, this Court is of the opinion that the findings arrived at by the learned arbitral tribunal are perverse, irrational and are such that it shocks the conscience of this Court - Even the basic ingredients of take or pay are also not coming out from the bare reading of the record as well as conclusion arrived by the learned Tribunal as mentioned herein above, still however, a huge claim of take or pay is allowed by the arbitral tribunal and the same in opinion of this Court, with respect, is based on irrelevant consideration and perverse, irrational, defies logic and it shocks conscience of the Court and therefore, even within the limited jurisdiction of section 48 of the Act, the same is against fundamental public policy which falls within explanation 2 of section 48(2) - Even considering the binding decisions of the Apex Court and this Court, as well as the judgment rendered in petition no.2/17, there is no blanket bar that a foreign award cannot be examined even within the limited scope of explanation 2 of section 48(2) - Having examined the same within that limited scope, the impugned arbitral award is perverse, irrational and is against fundamental public policy and is such that it shocks conscience of this Court and therefore, the execution of the award in question is refused - Application dismissed. (Para 83, 84)

JUDGMENT & ORDER :

R.M. Chhaya, J.

1. The present petition is filed under the Arbitration Act for execution of the Award passed by arbitral tribunal. It is the say of the petitioner that opponent entered into a contract for supply of Liquid Natural Gas (hereinafter referred to as "LNG" for the sake for brevity), by way of Master Agreement dated 02.08.2006. It is further the say of the petitioner that based upon the concluded contract, the petitioner is liable to pay the amount as determined by the arbitral tribunal as per the award being Arbitration No.81013 dated 25.06.2009.

2. The record indicates that opponent herein preferred application under section 34 of the Arbitration Act before the City Civil Court at Ahmedabad being Misc. Civil Application No.803/09. The petitioner herein preferred an application as provided under Order 7 Rule 11, which was dismissed by the City Civil Court, Ahmedabad vide order dated 03.03.2012. The petitioner challenged the same before this Court by way of filing Civil Revision Application No.118/12 which was allowed by this Court (Coram : M.R. Shah, J.). The opponent challenged the same before the Hon'ble Apex Court by way of filing Special Leave Petition (Civil) CC No.19011/13, which came to be dismissed by the Hon'ble Apex Court vide order dated 29.03.2013.

3. The original execution petition, which was numbered as 71 of 2014 was filed before the City Civil Court, Ahmedabad and by order dated 16.03.2017 passed by the learned Principal City Civil Judge, Ahmedabad, the execution petition was ordered to be transferred to the commercial division of this Court and on such transfer, this Court was pleased to issue notice to the opponent.

4. The petitioner has produced on record duly certified copy of the agreement as well as the original award in English, which is on record and therefore, for recording compliance of section 47 of the Arbitration Act, this Court passed following order on 06.03.2018

"Heard Mr. Deven Parikh, learned Senior Advocate assisted by Mr. Vimal Patel for the petitioner and Mr. Mihir Joshi, learned Senior Advocate assisted by Ms. Poonam Mathur, learned advocate with Ms. Trisha Baxi, learned advocate for Singhi & Co.

On perusal of the original record, the true copy of the award is produced by the petitioner in consonance with the provisions of section 47. The original award is in English. Duly certified copy of the agreement is also on record. Hence, there is compliance of section 47 of the Act. S.O. to 23.03.2018."

5. Heard Mr. Deven Parikh, learned senior counsel assisted by Mr. Vimal Patel, Ms. Rupa Dayal, Mr. Hitesh Patel, and Mr. Suren Patel, learned advocates for the petitioner and Mr. Mihir Joshi, learned senior advocate assisted by Mr. Sandip Singhi and Ms. Poonam Mathur, learned advocates for Singhi and Company.

6. It may also be noted that the learned counsels appearing for the parties were extensively heard and written submissions have also been submitted by both the sides, which are also taken on record and the same is also made basis of this judgment and order.

7. Mr. Deven Parikh, learned counsel appearing for the petitioner submitted that petitioner has satisfied condition as envisaged under section 47 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") and considering the limited jurisdiction of this Court under section 48 of the Act, this Court may pass appropriate orders and declare that the award is deemed to be decree of this Court.

8. Mr. Mihir Joshi, learned counsel appearing for the opponent has opposed the application. Mr. Joshi has taken this Court through the factual matrix which is initiated by Master Agreement dated 02.08.2006 and the relevant important documentary evidence, which was produced before the learned arbitral tribunal. Mr. Joshi contended that the findings arrived at by the Tribunal are irrational, unreasonable and even though there is no concluded contract between the parties, the Tribunal has wrongly assumed that ther










































































































































































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