The main legal point established in the judgment is the applicability of Part-II of the Arbitration and Conciliation Act, 1996 to the erstwhile State of Jammu and Kashmir and the compliance with the provisions contained in Section 47 of the Act for enforcement of a foreign award.

JUDGMENT :

1. The instant petition has been filed by the petitioner under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act of 1996”), for enforcement of a foreign award dated 11.02.2015.

2. The respondent has filed the objections, supplementary objections and additional affidavit to object the petition filed by the petitioner.

3. Learned counsel for the respondent has raised a preliminary objection in respect of the maintainability of the present petition on the ground that Part-II the Act of 1996 was never made applicable in the erstwhile State of Jammu and Kashmir, as only Parts I, III and IV of the Act of 1996 were extended to the erstwhile State of Jammu and Kashmir so far as relating to International Commercial Arbitration and Commercial Conciliation. He has further submitted that even if for the sake of arguments it is accepted that Part-II of the Act of 1996 was applicable in the erstwhile State of Jammu and Kashmir, still the petitioner has not complied with the provisions contained in Section 47 of the Act of 1996, as the award is in German language though translated into English but the same has not been certified by the Diplomatic or Consular agent and further has also not been certified as correct in accordance to the law prevailing in India. He has placed reliance on a judgment of the High Court of Calcutta in the case of KTC Korea Co. Ltd. Vs. Hobb International Private Ltd. 2004 SCC OnLine Cal 179.

4. Per contra, Mr. Faisal Qadiri, the learned senior counsel appearing for the petitioner, has submitted that the Act of 1996 applied in its entirety to the erstwhile State of Jammu and Kashmir in respect of the International Commercial Arbitration or Conciliation. He has further submitted that the petitioner has complied with the provisions contained in Section 47 the Act of 1996 and, as such, the contentions raised by the learned counsel for the respondent are misconceived. He has further adverted that the provisions contained in section 47 the Act of 1996 are not mandatory in nature but directory and the enforcement and execution of a foreign award cannot be refused on the ground that the provisions of Section 47 are not complied. He has placed reliance upon the judgments of the Hon’ble Supreme Court of India in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 and PEC Ltd. v. Austbulk Shipping Sdn. Bhd., (2019) 11 SCC 620.

5. Heard and perused the record.

6. The perusal of the record reveals that the petitioner has filed the present petition for enforcement and execution of the award dated 11.02.2015 passed by the Arbitral Tribunal in Hamburg, Germany. The perusal of the record further reveals that the said award is in German language and a translated version of the award from German to English language has also been placed on record.

7. The following questions arise for the consideration of this Court:

(I) Whether Part-II of the Arbitration and Conciliation Act, 1996, was applicable in the erstwhile State of Jammu and Kashmir?

(II) If the answer to question No.(I) is in affirmative, whether petitioner has complied with the provisions contained in Section 47 the Act of 1996?

8. Now this Court would examine the questions as framed above.

Question No.(I): Whether Part-II of the Arbitration and Conciliation Act, 1996, was applicable in the erstwhile State of Jammu and Kashmir?

9. In order to determine Question No.(I), this Court deems it proper to extract the provisions contained in Section 1(2) of the Act of 1996, as was applicable at the time of filing of the present petition, as under:

(1)------

(2) It extends to the whole of India:

Provided that Parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation.

Explanation.-In this sub-section, the expression "international commercial conciliation" shall have th