2019 Supreme(P&H) 1007

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAJ MOHAN SINGH, J.
Pari Agro Exports - Appellant
Versus
Soufflet Alimentaire and Another - Respondents
Civil Revision No. 6519 of 2018
Decided On : 02-08-2019

Headnote:

[CATEGORY] [SUB-CATEGORY]

Fact of the Case:

The present revision petition has been preferred by the petitioner against the order dated 31.08.2018 passed by Additional District Judge-cum-Commercial Court, Amritsar, vide which objections filed by the petitioner against the enforcement of foreign award dated 14.02.2014/07.05.2014 were dismissed.

Finding of the Court:

The Court held that the award was not enforceable under Section 48 of the Act. The stage before the Hon'ble Division Bench was a pre-cognizance stage. The controversy at that stage was only with regard to maintainability of the petition i.e. whether before the Commercial Court or before Commercial Division of the High Court. The dismissal/withdrawal of transfer application in my considered opinion would not take away right of the petitioner arising out of impugned order.

Issues: 1. Whether the agreement dated 03.12.2012 was a concluded contract? 2. Whether there was any arbitration agreement between the parties? 3. Whether the award passed by the arbitral Tribunal stood vitiated for want of jurisdiction? 4. Whether the award was unenforceable? 5. Whether the jurisdiction of the High Court under Article 227 of the Constitution of India can be invoked in the facts and circumstances of the case? 6. Whether the award was the result of fraud?

Ratio Decidendi: 1. The Court held that there was no concluded contract between the parties. The draft E-mail dated 03.12.2012 had reference of incograin contract No.12 in the general conditions, but there was no arbitration clause contained therein, nor any such clause was referred to in the draft E-mail dated 03.12.2012. The copy of incograin contract No.12 was not attached with the draft agreement dated 03.12.2012, nor the same was supplied at any point of time before reply to the objections filed by the petitioner before the executing Court. It was only in the reply to the objections in para No.3, it was disclosed that incograin contract No.12 was under Clause XXL provided for an arbitration before the Chambre Arbitrale International De Paris. 2. The Court held that there was no arbitration agreement between the parties. The incograin model contract had an arbitration clause, but the same was neither signed by the petitioner, nor the same was ever served upon the petitioner by way of any exchange of letter or telegram or exchange of Emails. In the absence of any concluded arbitration agreement inter se the parties, the award passed on such alleged concluded agreement is a nullity in the eyes of law and Tribunal had no jurisdiction to arbitrate upon such an issue. 3. The Court held that the award passed by the arbitral Tribunal stood vitiated for want of jurisdiction. The arbitral proceedings were initiated on the basis of unconcluded contract. There was no arbitration agreement draft dated 03.12.2012. The applicability of incograin contract No.12 was not attracted in view of nomenclature of the said model contract itself, therefore, arbitral Tribunal had no jurisdiction and the failure on the part of the petitioner to participate in the proceedings and further failure to assail the same before the Appellate Tribunal in France would not bar to challenge the enforceability of the award in India. 4. The Court held that the award was unenforceable. The award holder has to comply with the requirements of Section 47 of the Act. Objections under Sections 34 and 48 of the Act are different in character. Under Section 48 of the Act, the Court does not set aside the award, but only decides its enforceability, whereas under Section 34 of the Act, the award can be set aside. Enforceability of the award in terms of Section 36 is different than enforceability of foreign award under Section 49 of the Act. 5. The Court held that the jurisdiction of the High Court under Article 227 of the Constitution of India can be invoked in the facts and circumstances of the case. The power of superintendence and the power of judicial review of the High Court under Article 226/227 of the Constitution of India cannot be taken away by law or even by constitutional amendment. Despite Section 8 of the Act of 2015 barring revision petition against any interlocutory order before the Commercial Court and Section 13 of the Act of 2015 confining appeals, apart from the final judgment, to the orders specifically enumerated under Order 43 CPC, there can be no impediment for exercising power of supervisory jurisdiction under Article 227 of the Constitution of India. 6. The Court held that the award was the result of fraud. The detailed discussions on incograin contract No.12, disclosure of said model contract only in the reply to the objections under Section 48 of the Act, non-verification/non-certification of the translated copies of award by the competent authority, the apparent tampering in the draft agreement dated 03.12.2012 vis-a-vis copy attached by respondent No.1 in the list of documents as Ex.H in the High Court and non-disclosure of material information with regard to intended re-working on the agreement after 05.02.2013 when owner of respondent No.1 visited India with French President Mr. Francois Hollaride would bring the issue under the ambit of fraud and therefore, the controversy would be covered under original explanations to Section 48(2)(b) of the Act as well as explanation added vide Amendment Act No.3 of 2016.

Final Decision: The revision petition was accepted. Impugned order dated 31.08.2018 passed by Additional District Judge-cum-Commercial Court, Amritsar was set aside. Normal consequences to follow. All pending applications were accordingly disposed off in the light of order passed in main case.