IN THE HIGH COURT OF MADHYA PRADESH AT INDORE (M/S TRICON ENERGY UK LIMITED THROUGH ITS AUTHORIZED SIGNATORY MR. SANTOSH KOLI Vs M/S KRITI INDUSTRIES (INDIA)

LIMITED )

Dated : 15-07-2024 Shri Ashwin Shanker – Advocate assisted by Shri Rishi Murarka –

Advocate for applicant.

None for the non-applicant, despite service of notice.

ORDER

1] As per the service report submitted by the applicant, notice has been served on the non-applicant on 14.06.2024, 15.06.2024 and 24.06.2024, however, there is no representation on behalf of the non-applicant. In such circumstances, non-applicant is proceeded ex-parte.

2] This application has been filed under Sections 47, 48 and 49 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996’) for enforcement of a foreign award passed by the sole Arbitrator at New York.

3] Shri Ashwin Shanker, learned counsel for the applicant has fairly informed this court that a Civil Suit No.COMMS.51/2020 was also filed by the non-applicant Kirti Industries India Limited, seeking declaration that there is no valid and enforceable sale contract between the parties and, therefore, the Arbitration Award dated 21.09.2015 passed by the sole Arbitrator is nullity and not binding on the plaintiff, and, which suit has been decreed vide judgement and decree dated 31.01.2024, by the Commercial Court, Indore holding that the Arbitration Award dated 21.09.2015 passed by the sole Arbitrator is null and void and is not binding on the plaintiff.

Signature Not Verified Signed by: PANKAJ

4] Shri Shanker has also submitted that since there was a typographical error crept in the cause title of the aforesaid final award dated 21.09.2015, in respect of the name of the applicant, hence, an application was also filed before the Arbitrator for correction of the same, which has been corrected vide the final award dated 31.05.2017, which has not been challenged by the non-applicant.

5] It is also submitted that against the aforesaid judgement and decree dated 31.01.2024 passed by the Commercial Court in COMMS.51/2020, an appeal has already been preferred by the applicant herein in F.A. No.608 of 2024 which is pending. Shri Shanker has also submitted that, admittedly despite service of notice, none has appeared on behalf of the non-applicant, and there is no objections filed by the non-applicant as provided under Section 48 of the Act of 1996. Thus, it is submitted that the execution case may be proceeded with.

6] Heard, and perused the record. So far as the mandate of Section 48 of the Act of 1996 is concerned, the same reads as under:-

“Conditions for enforcement of foreign awards. (1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that—

(a) the parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which Signature Not Verified Signed by: PANKAJ contains decisions on matters submitted to arbitration may be enforced;

or (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place ; or (e) the aw