A foreign arbitration award cannot be enforced where the tribunal conclusively finds no valid arbitration agreement exists, as per Sections 44 and 48 of the Arbitration and Conciliation Act, 1996.

JUDGMENT :

S. MANU, J.

1. Enforceability of an award for payment of costs rendered by an Arbitral Tribunal in Sweden is the issue arising for consideration in this case.

2. Petitioners are the respondents in Annexure 1 award. The respondent instituted arbitral proceedings against them before an Arbitral Tribunal in Sweden, consisting of three members. The Tribunal concluded that no arbitration agreement had come into existence and rejected the claims of the respondent. Nevertheless, the Tribunal directed that the respondent shall bear 100% of the costs of the arbitration. In this E.P.(ICA) the petitioners are seeking to execute the award, contending that the respondent is liable to pay Rs.10,51,23,485/- along with interests and costs under the award.

3. The respondent entered appearance. He contends that the E.P. is not maintainable and even if it is assumed that the same is maintainable, the award is unenforceable.

Arguments advanced on behalf of the Respondent, objecting enforcement

4. The learned Counsel for the respondent Sri.Saiby Jose Kidangoor, raised serious objections regarding maintainability of this execution petition. The learned Counsel made extensive reference to the provisions of the Arbitration and Conciliation Act, 1996. He made specific reference to various provisions in Part-II Chapter I. The learned Counsel referred to Section 47 of the Act and contended that the party applying for enforcement of a foreign award shall, at the time of application, produce before the Court the original award or a duly authenticated copy thereof, in the manner required by law of the country in which it was made. As provided under (1)(b), the original agreement for arbitration or a duly certified copy thereof shall also be necessarily produced before the Court. The learned Counsel pointed out that the language of (1) makes it clear that, the production of the original award or duly authenticated copy thereof as well as original agreement or a duly certified copy thereof are mandatory and they shall be produced at the time of filing of the application. He submitted that, if the application is filed without producing the key documents stipulated under (1)(a) and (b) at the time of filing of the application, the application shall be treated as not supported by evidence contemplated under of the Act.

5. As an extension of the said contention, the learned Counsel submitted that production of the original arbitration agreement or a duly certified copy has been made mandatory under Section 47 of the Act with a specific purpose. The learned Counsel made reference to the provisions of the First Schedule in this regard. He contended that, in the instant case, the finding of the Arbitral Tribunal is that there was no valid agreement between the parties for arbitration. He further pointed out that the said contention was raised by the petitioner herein in it’s defense before the Arbitral Tribunal. The said contention was analyzed by the Arbitral Tribunal in detail. The learned Counsel referred to Paragraph Nos.71 to 90 of Annexure 1 award. He made sp