The objector in enforcement proceedings of a foreign arbitration award must furnish convincing proof as mandated by Section 48 of the Arbitration and Conciliation Act, 1996.

JUDGMENT

The captioned writ petitions are filed challenging the order of the III Addl. District Judge, Kollam dated 04.10.2016 in E.A.No.69 of 2016 in E.P.No.131 of 2013 and E.A.No.68 of 2016 in E.P.No.129 of 2013 respectively, filed by the petitioners in the writ petitions. The subject matter of the writ petitions are offshoot of execution proceedings of Foreign Arbitration Awards filed under Sec.49 of the Arbitration and Conciliation Act, 1996 [for short, 'Act, 1996']. The execution applications are filed by the judgment debtor under Order XVI, Rule 10 read with Sec.151 of the Code of Civil Procedure, and Rules 3 and 11 of the Kerala Arbitration and Conciliation (Court) Rules, 1997, seeking direction to the Association of Food Industries Inc., USA to produce the entire file relating to the final award dated 07.02.2012 in Arbitration Index #2561 and 2562 respectively, to furnish proof in contemplation of Sec.48 of Act, 1996.

W.P.(C) Nos.36054 & 36055 of 2016 2

2. The registry of this Court has noted a defect that the challenge is not maintainable under Article 226 of the Constitution of India. However, the petitioners sought the matters to be placed before the Court, on the basis of the judgment of the Apex Court in 'M.S. Kazi v. Muslim Education Society and others' [2016 (9) SCC 263]. When the matter was so placed, it was informed by learned counsel appearing for the petitioners that an arrest warrant was issued against the petitioners without issuing any notice and therefore, the subject matter is to be considered under Article 226 of the Constitution of India. Therefore, I directed the registry to number the writ petitions and ordered stay of operation of the arrest passed by the court below in the respective execution applications for a short period, which was being extended periodically. Therefore, learned counsel for the respondent sought to consider the said question as a preliminary point, especially stating that the afore-quoted judgment has no bearing to the issue.

3. True, under normal circumstances, proceedings of this nature can only be challenged invoking Article 227 of the Constitution of India, especially in view of the peculiar nature W.P.(C) Nos.36054 & 36055 of 2016 3 of the provisions of Part-II, Chapter I of the Arbitration and Conciliation Act, 1996. Anyhow, when it was brought to my notice that arrest warrant was issued without issuing notice to the writ petitioners, in order to avoid any consequential action on the same, taking into account the larger aspects of the rights and liberties conferred under Part-III of the Constitution of India, I thought that the matter can be heard invoking the power under Article 226 of the Constitution of India. Learned counsel for the petitioners has invited my attention to the judgment of the Apex Court in 'Surya Dev Rai v. Ram Chander Rai and others' [AIR 2003 SC 3044], wherein a similar question was considered. Paragraph 25 of the said judgment is relevant to the issue, which read thus:

“25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. First, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction W.P.(C) Nos.36054 & 36055 of 2016 4 and in this sense it is akin to appellate revisional or cor