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2020 Supreme(Mad) 374
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
PUEBLO HOLDINGS LIMITED, Rep. by its authorised signatory Siddhesh Sham Kshirsagar - Appellant
Versus
EMIRATES TRADING AGENCY LLC, A company incorporated under the appropriate laws of the United Arab Emirates having its registered office and/or business address at ETA Star House, United Arab Emirates & Others - Respondent
E.P. No. 55 of 2019
Decided On : 03-06-2020
For the Petitioner:Ratnanko Banerji, Senior Counsel, K. Mukund Rao, Advocate. For the Respondents:R2, J. Sivanandaraj, K. Mahendran, R3 & R4, Chandraprabhu, R5, P. Giridharan, R6 to R8 & R10 to R17, Srinath Sridevan, Advocates, R1, Served - No Appearance.
Headnote:
Arbitration and Conciliation Act, 1996 - Code of Civil Procedure,1908 - Order XXI, Rule 46 - sale of debts and shares - petitioner submitted that it is a wholly owned subsidiary of Navios Maritime Holdings Inc, which specializes in worldwide carriage, trading, storage and related logistics of international bulk cargoes and got listed on the New York Stock Exchange - According to the petitioner, it is one of the leading shipping groups worldwide. The petitioner appointed a Sole Arbitrator on in terms of Clause of charterparty and filed a claim petition before him on with respect to the said charter-party and a Suspension Agreement being owners of vessel Navios Lumen seeking certain amounts which first respondent herein owed as charterers, by way of debt and/or damages with interest - Held, There it was held that more than one execution petition was permissible where properties fell in different areas - That decision would have no applicability to facts of the present case inasmuch as the territory over which district court has jurisdiction is also the territory over which this court has jurisdiction – Therefore it is not a case where assets and properties of a judgment debtor were located in different areas over which different courts had territorial jurisdiction - Clearly two decisions relied upon by the learned counsel for the petitioner would not be applicable to the facts of the present case - There is no difficulty in my coming to the conclusion that a second execution application filed in this court when the first application is pending before district court falling within the territorial jurisdiction of this court would not lie - Execution Petition is allowed
JUDGMENT
(Prayer: Petition filed under Order XXI, Rule 46 of the Code of Civil Procedure for attachment and sale of debts and shares as mentioned in the schedule.)
1. This Execution Petition is instituted by Pueblo Holdings Limited, a company incorporated under the laws of Marshall Islands, under Order XXI, Rule 46 of the Code of Civil Procedure (in short, “CPC”) seeking to attach and sell the debts and shares mentioned in the schedule appended to the petition for executing the foreign awards dated 09.04.2017 and 06.08.2017.
2. In other words, by virtue of this petition, the petitioner prayed that the judgment and order of this Court dated 02.11.2018 in O.P.No.416 of 2018, wherein and whereby, this Court held that the foreign awards dated 09.04.2017 and 06.08.2017 passed by a Sole Arbitrator stationed at London on the petition filed by the petitioner herein are enforceable against the assets of Emirates Trading Agency LLC, Dubai, United Arab Emirates/the first respondent herein, under Part II, Chapter 1 of the Arbitration and Conciliation Act, 1996 (“A & C Act”, for the sake of brevity), as the same deemed to be the decrees of this Court pursuant to Section 49 of the A & C Act, be executed under Order XXI, Rule 46 of the CPC.
2.1. It needs no mention that the said petition in O.P.No.416 of 2018 was filed under Sections 44, 47, 48 and 49 of the A & C Act with a prayer to declare the Foreign Awards dated 09.04.2017 and 06.08.2017 published by the arbitral tribunal consisting of the sole arbitrator, Mr.David Farrington be made enforceable as a decree of this Hon’ble Court in terms of Chapter 1, Part II of the A & C Act.
3. The petitioner submitted that it is a wholly owned subsidiary of Navios Maritime Holdings Inc, which specializes in worldwide carriage, trading, storage and related logistics of international bulk cargoes and got listed on the New York Stock Exchange. According to the petitioner, it is one of the leading shipping groups worldwide. The petitioner appointed a Sole Arbitrator on 23.09.2019 in terms of Clause 17 of the charterparty dated 09.04.2008 and filed a claim petition before him on 21.12.2016 with respect to the said charter-party and a Suspension Agreement dated 30.10.2012, being the owners of the vessel “Navios Lumen”, seeking certain amounts which the first respondent herein owed as charterers, by way of debt and/or damages, with interest. The first respondent chosen not to appear before the sole Arbitrator, and thus, the Arbitrator passed the Partial Final Award on 09.04.2017 and the Second Partial Final Award on 06.08.2017.
3.1. As indicated above, in O.P.No.416 of 2018, by order dated 02.11.2018, those Foreign Awards were made enforceable as decree of this Court in terms of Chapter 1, Part II of the A & C Act. In this backdrop, this execution petition is filed by the petitioner.
4. Interestingly, the petitioner arrayed 17 parties as respondents in this petition. The first respondent is the Award Debtor. The respondents 2 to 17 have been shown as Garnishees No.1 to 16. The attachment and sale of certain debts and shares of respondents 2 to 17 allegedly held by respondents 1 and 2 to 5 have been sought for in this execution petition.
5. The first respondent was ex-parte in the arbitral proceedings as well as before this Court. It is contended by the applicant that all the parties appearing now were aware of the Charterparty and Suspension Agreements, the arbitration agreement contained thereon and also the award passed, though they were all not parties to the arbitral proceedings.
6. Before delving into the merits of this petition, it is necessary to cull out certain factual matrix of the case briefly:
6.1. The ETA Group was originally established by Al Ghurair, Salahahuddin and Buhary families having its headquarters at Dubai. The first respondent Award Debtor is an entity based in Dubai and is, admittedly, held by ETA Ascon Holding LLC, Dubai, and Al Majal Group, Dubai. Both the first respondent and its two shar
