The main legal point established in the judgment is that the application under Section 9 of the Arbitration and Conciliation Act, 1996, for interim relief is maintainable, and the court has the authority to direct the petitioner to deposit the entire awarded amount in the Court as a pre-condition to entertaining the arbitration petition.

ORDER

1. Heard Mr. D. Panda, learned counsel for the Petitioner M/s. Uniexcel Group Holding Co. Ltd. (UGHCL) and Mr. S. Parekh, learned counsel for the Opposite Party National Aluminium Company Limited (NALCO).

2. NALCO has filed this application under Section 9 of the Arbitration and Conciliation Act, 1996 (in short 'Act') for a direction to UGHCL to deposit the entire amount awarded under the arbitral Award dated 15th July, 2019 in the Registry of this Court as a pre-condition for hearing of the arbitration petition i.e. ARBP No.63 of 2019 filed by UGHCL under Section 34 of the Act and for securing the said amount awarded by the sole Arbitrator in favour of NALCO.

3. The background to the present application is that UGHCL is a company incorporated under the Laws of British Virgin Islands, having its registered office at Fu Hsing North Road Tapiei 10476 Taiwan (Republic of China). A fact, which is not in dispute, is that UGHCL is not operating in India and has no assets in India. Another admitted fact is that along with its petition under Section 34 of the Act i.e. ARBP No.63 of 2019, UGHCL did not file any application under Section 36 (2) of the Act seeking stay of the Award dated 15th July, 2019.

4. The arbitration by a sole Arbitrator was an international commercial arbitration and took place under the aegis of the International Chambers of Commerce. The case of NALCO, which was the claimant, was that UGHCL committed a breach of the contract of sale of goods by refusing to take the last shipments of the goods. The sole Arbitrator awarded NALCO damages constituting the difference between the contract price and the market price of the goods on the date of the breach. The sole Arbitrator awarded NALCO a sum of USD 469,850 together with the post award interest @ 9.5%.

5. Mr. Sameer Parekh, learned counsel for NALCO submits that since UGHCL has no assets in India, NALCO is not in a position to file an application for the execution of the Award in India. He submits that even if ARBP No.63 of 2019 filed by UGHCL under Section 34 of the Act is dismissed, NALCO would not be able to enforce the Award in India. Additionally, Mr. Parekh points out that the entire fees of the ICC arbitration, including UGHCL's share, was deposited by NALCO. It is also pointed out that the Award is a foreign award in an international commercial arbitration and, therefore, the scope to challenge under Section 34 of the Act, after the amendment to the Act with effect from 23rd October 2015, is narrow since no review on merits of the dispute is permissible. The ground of patent illegality on the face of the award is no longer available. He urges that UGHCL should be asked to either deposit the entire awarded sum in this Court or provide adequate security to ensure its enforceability in the event of UGHCL failing in its challenge to the Award.

6. Mr. Parekh, in support of his submissions on the maintainability of the application under Section 9 of the Act relied on the decision of the Supreme Court in Hindustan Construction Company Ltd. v. Union of India, 2019 SCC Online SC 1520 (hereafter HCCL), the decision of the Delhi High Court in Power Mech Projects Ltd. v. SEPCO Electric Power Construction Corporation (decision dated 17th February, 2020 in O.M.P.(I) (COMM) 523 of 2017) (hereafter 'Power Mech'), the decision of the Calcutta High Court in Candor Gurgaon Two developers & Projects Pvt. Ltd. v. Srei Infrastructure Finance Ltd. 2018 SCC Online Cal 2430, and the decision of the Madras High Court in M/s. Samson Maritime Limited v. Hardy Exploration & Production (India) Inc. 2016 SCC Online Mad 9122.

7. UGHCL resists the application. It is first submitted by Mr. D. Panda, learned counsel for UGHCL, that the timing of present application is suspect. It is pointed out that no reply was filed by NALCO to UGHCL's petition under Section 34 of the Act for about seventeen months, and when the petition was ripe for arguments, the present application has been filed only to s