ORDER

% 03.01.2024

1. This is a petition under section 36 of the Arbitration and Conciliation Act, 1996 seeking enforcement of the Arbitral Award dated 17.03.2023 made by International Court of Arbitration („ICC‟). As per the Award, the claims of the decree-holder were allowed and the total amount awarded in favor of the decree-holder is EUR 17,365,866.94 and USD 1,60,385.38. The total Award debt, with post-award interest at the rate of LIBOR + 3% is EUR 1,80,65,702.24 and USD 1,68,559.47 (as of 2 November 2023). Interest continues to run on the Awarded Amount till date of full payment by the Respondent.

2. It is stated by Mr Rewari, learned counsel appearing for the decree- holder that no amounts have been paid.

3. Mr Gupta, learned senior counsel appears for the judgment-debtor and has not filed any reply. The respondent has in fact filed a copy of the petition under section 34 of the Arbitration and Conciliation Act, 1996 filed by the judgment-debtor and has drawn my attention to Clauses W, X, Y, Z, DD, EE, LL and MM of the Grounds in the petition, which reads as under:

“W. Because the claim of Respondent no.1 with respect to Engineering expenses is based on false and fabricated documents and as such has played fraud upon the Arbitral Tribunal and the Tribunal without recording a finding as to the authenticity of such invoices, the “Fundamental Policy of India” has been violated and the Award is in conflict with the most basic notions of morality and justice.

X. Because the claim of Respondent no. 1 with respect to Engineering expenses (allegedly Respondent no.1 only did Basic Engineering) is of Rs.71.74 Crores while the contract price of total Engineering (includes Basic as well as Detailed Engineering) is Rs.22.7 Crores. Despite the same and beyond the contractual terms, the Arbitral Tribunal has awarded the full amount of Rs.71.74 Crores to Respondent no.1 and that too on the basis of false and fabricated documents/ invoices.

Y. Because the Arbitral Tribunal has given total perverse findings on the face of it with respect to the errors in the invoices related to Engineering expenses. The witness of Respondent no. 1 has categorically admitted that there are errors in such invoices and despite the same the Arbitral Tribunal has rendered a finding that the said witness did not accept any error in such invoices.

Z. Because on the basis of fake and fabricated invoices, huge sum of Rs.71.74 crores is awarded to the Respondent no. 1, which is against the fundamental policy of India and also the most basic notions of morality and justice.

DD. Because the Arbitral Tribunal has wrongly allowed various claims of the Respondent no. 2 just on the basis of some entries in the SAP system and without there being any corroborative evidence on record despite the same being unreliable and manipulated document.

EE. Because the witness of Respondent no. 2 has admitted in his statement that the column of “WBS Element” is the most important column in the SAP sheets which is missing in those documents and without which such sheets could not be related to the instant project and further also admitted that the SAP sheets can be manipulated. Despite the same the huge claims of Respondent no. 2 have been allowed.

LL. Because the impugned award has been obtained by playing fraud and as such the impugned award is liable to be set aside. It is well settled that no Court will allow the person to get an advantage which he has obtained by fraud. No Award of the Arbitral Tribunal can be allowed to stand if it has been obtained by fraud. Fraud unveils everything. The Court should find the fraud and once it is proved it vitiates judgment, contract and the transactions whatsoever.

MM. Because various Hon’ble Courts has held as under with regard to if any party plays fraud upon Court:………”

4. Mr Gupta, learned Senior Counsel states that detailed instances of fraud have been highlighted by the JD and has drawn my attention to Section 36(3) 2nd Proviso of t