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2023 Supreme(Mad) 3283

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Abdul Quddhose, J.
Lss Ocean Transport Dmcc - Petitioner
Versus
K.I. (International) Limited and ors. - Respondents
Arb.O.P.(Com.Div) No.195 of 2022 and A.Nos.60 of 2023 and 1733 and 1734 of 2022
Decided On : 16-10-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. P. Giridharan, Mr. H. Siddarth
For the Respondent: Mr. B. Arvind Srevatsa, Mr. Ramaswamy Meyyappan, Mr. Pranav V. Shankar

Headnote:(A) Arbitration and Conciliation Act, 1996 - Sections 47, 48, and 49 - Enforcement of foreign arbitral award - Petition filed for enforcement of an award against the first respondent, while seeking to pierce the corporate veil to enforce against the second respondent, who was not a party to the arbitration. The arbitral award dated 26.03.2021 directed payment to the petitioner. The second respondent's contention of being non-party and the principle of natural justice were upheld. Petition allowed against the first respondent; dismissed against the second respondent. (Paras 1, 4, 10, 38, 55)

(B) Corporate Veil - Lifting - Requirement of impropriety and evidence to pierce corporate veil not satisfied. Mere familial connection is insufficient to attribute liability. (Paras 36, 38)

Table of Content
1. overview of petition and arbitral award enforcement. (Para 1 , 2 , 3 , 4)
2. petitioner's demands for payment and enforcement. (Para 5 , 6 , 7)
3. arguments regarding enforceability of the arbitral award. (Para 8 , 10 , 11)
4. issues for consideration on enforceability of the award. (Para 12 , 13 , 14)
5. definition and essentials of a foreign arbitral award. (Para 15 , 16 , 17)
6. requirements for foreign awards and legal relationships. (Para 18 , 19 , 20)
7. binding nature of foreign awards under law. (Para 21 , 22 , 23)
8. conditions under which enforcement may be refused. (Para 24 , 25 , 26)
9. corporate veil piercing in relation to enforceability. (Para 27 , 28 , 29)
10. natural justice principles governing arbitration. (Para 30 , 31 , 32)
11. enforcement of an award against non-parties. (Para 33 , 34 , 35)
12. criteria for piercing the corporate veil. (Para 36 , 37 , 38)
13. evidence concerning corporate relationships. (Para 39 , 40 , 41)
14. issues requiring adjudication in piercing the veil. (Para 42 , 43)
15. court's power limits and arbitration review scope. (Para 44 , 46 , 51)
16. court's finding on reasons for liability. (Para 47 , 48)
17. final determination and precedent cases. (Para 49 , 52 , 53)
18. conclusion and order regarding the enforcement. (Para 55)

ORDER :

Prayer: Arbitration Original Petition (Commercial Division) filed under Sections 47 - 49 of the Arbitration and Conciliation Act, 1996 to:

a) declare that the award dated 26.03.2021 and corrected award dated 17.05.2021 be a decree of this Court;

b) direct the respondent No.1 and respondent No.2 to jointly and severally pay the petitioner a sum of Rs.2,28,91,856.20/- equivalent to USD 3,06,655.81/- (Being USD 294,816.67 towards principal plus interest of USD 11,839.14/- @ 4.5% per annum compounded at three monthly rests from 26.03.2021 till payment / realization);

c) direct the respondent No.1 and respondent No.2 to jointly and severally pay the petitioner a sum of Rs.67,66,770.10/- equivalent to USD 90,646.62/- (Being legal expenses in the Madras High Court of USD 87,147/- plus interest of USD 3,499.62 @ 4.5% per annum compounded at three monthly rests from 26.03.2021 till payment / realization);

d) direct the respondent No.1 and respondent No.2 to jointly and severally pay the petitioner a sum of Rs.32,91,147.96/- equivalent to arbitration cost of GBP 32,588.85/- (Being GBP 31,350 towards principal plus interest of GBP 1,238.85 @ 4.5% per annum compounded at three monthly rests from 01.04.2021 till payment / realization)

e) direct the respondent No.1 and respondent No.2 to pay the petitioner the costs of this petition.

Arb.O.P.(Com. Div.)No.195 of 2022 has been filed by the petitioner under Sections 47 to 49 of the Arbitration and Conciliation Act, 1996 (in short 'the Act'), seeking enforcement of a foreign arbitral award dated 26.03.2021, which was corrected under a corrective award dated 17.05.2021.

2. The first respondent had chartered a vessel from the petitioner, who is the deponent owner, under a Voyage Charterparty dated 22.11.2018. According to the petitioner, demurrage is payable by the first respondent to the petitioner as per the terms and conditions of the Charterparty dated 22.11.2018. According to the petitioner, the first respondent took 33.5972 days in discharging the cargo and hence, demurrage is payable by them for 27.0727 days. There arose disputes between the petitioner and the first respondent with regard to the demurrage payable by the first respondent. In accordance with the arbitration clause contained in the Voyage Charterparty dated 22.11.2018, the petitioner had referred the dispute to arbitration in London and the first respondent had also participated in the arbitration at London. The arbitral tribunal passed a foreign arbitral award dated 26.03.2021 in favour of the petitioner, who is the claimant in the arbitration against the respondent, by granting the following reliefs:-

    (a) The first respondent was directed to pay the petit

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