The main legal point established in the judgment is that only the High Court of Gujarat has jurisdiction to execute a foreign award under section 47 of the Arbitration and Conciliation Act, 1996, and the court's decision was based on the interpretation of the relevant legal provisions and the impact of the amended provisions of Section 87.

JUDGMENT :

A.J.DESAI, J.

(1) By way of present Appeal under Clause 15 of Letters Patent, the appellant - original respondent has challenged an oral judgment dated 29.04.2022 passed by the learned Single Judge in the captioned writ petition, by which the learned Single Judge has accepted the petition filed by the present respondent by holding that High Court of Gujarat has jurisdiction to execute the foreign award dated 26.04.2016 passed by the learned London Court of International Arbitration (hereinafter referred to as ‘the LCIA’ for short), under section 47 of the Arbitration and Conciliation Act, 1996.

(2) The Appeal came to be admitted on 05.07.2022. In response to the notice issued by this Court, the respondent has appeared and contested the Appeal. The matter is taken up for final hearing today.

(3) The short facts emerged from the records are as under : -

(3.1) That the parties to the present proceedings entered into a contract for supply of coal on 05.12.2014. The said contract was executed on certain terms and conditions. One of the condition was to refer the dispute, if arises, between the parties to LCIA for its resolution. In view of the dispute that arose between the parties, the matter was referred to LCIA and thereafter the award was passed by the said LCIA.

(3.2) The present appellant filed a suit being Special Civil Suit No. 1 of 2015 before the District Court, Mehsana being Principal Senior Civil Judge for declaration and injunction against the present respondent raising contention about the applicability of the arbitration clause. It was the case of the present appellant that there was no arbitration clause. The said suit is pending before the concerned Court.

(3.3) Meanwhile, the present respondent has filed the petition for execution of award under section 47 of the Act being IAAP No. 106 of 2016 for execution of the award. The said proceedings were pending. During the pendency of the said proceedings, by an amendment i.e. Act No. 33 of 2019, Section 87 was amended and by amending the said provision, the jurisdiction of the execution of the arbitration award was to be decided by the concerned Court having jurisdiction.

(3.4) The effect of Section 33 of 2019 was given from 23.10.2015. Considering the amended provision, the learned Single Judge by common oral dated 19.09.2019 disposed of the said arbitration petition being IAAP No. 106 of 2016 by holding that the Mehsana Court has jurisdiction to execute the award. The amended provisions were a subject matter of challenge as the constitutional validity of the provisions of the amended section 87 was pending before the Hon’ble Apex Court in the case of Hindustan Construction Company Limited and Another versus Union of India and Others reported in (2020) 17 SCC 324. The Hon’ble Apex Court by its judgment dated November 27, 2019 held that amended provisions of Section 87 which gave retrospective effect from 23.10.2015 is contrary to the provisions of Article 14 of the Constitution of India and struck down the said provision.

(3.5) The present respondent therefore, immediately approached this Court by way of filing captioned writ petition and by relying upon the said decision of Hindustan Construction Company Limited and Another versus Union of India and Others, which is reported as (2020) 17 SCC 324, prayed as under : -

“24. (A) Your Lordships may be pleased to declare that this Hon’ble Court has the jurisdiction to hear the petition under Arbitration Act IAAP No. 106 of 2016 in terms of the explanation to section 47 of the Arbitration Act.

(B) Your Lordships may be pleased to pass appropriate directions restraining the District Court at Mehsana from hearing the petition under Arbitration Act i.e. IAAP No. 106 of 2016;

(C) Your Lordships may be pleased to direct the Registry of the District Court at Mehsana to return the records and proceedings of the petition under Arbitration Act, i.e. IAAP No. 106 of 2016, to this Hon’ble Court and further pass appropriate directions to