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2020 (6) TMI 734 - HC - Indian LawsEnforcement of final Foreign Award - Territorial Jurisdiction - Respondent has filed an application objecting to the maintainability of the petitions on the ground that no part of cause of action in respect of the subject matter of the Award has arisen within the jurisdiction of this Court and since the assets of the JD are not located within the jurisdiction of this Court, there is lack of territorial jurisdiction to entertain the petitions. HELD THAT - The arbitration can be at a neutral Forum between the two parties and the assets may or may not be at either of the two places. This is the Forum where parties to an Arbitration Agreement agree to the arbitration proceedings being held and is the subject matter of arbitration. However, if an enforcement of the Award is filed, it is maintainable only where the properties/assets of the JD are located, which may or may not be the chosen place of the parties for subject matter of arbitration. It needs to be noticed that in WIRELESS DEVELOPERS INC VERSUS INDIAGAMES LTD 2012 (1) TMI 391 - BOMBAY HIGH COURT , the Appellant had an Arbitral Award which was a Foreign Award in its favour and filed an application for its execution. Respondent had challenged the Award in a petition filed under Section 34 of the Act. The Appellant had sought enforcement on the ground that the Bank Account of the Respondent was within the jurisdiction of the Bombay High Court. Learned Single Judge did not entertain the enforcement petition on the ground of lack of territorial jurisdiction. It was held that impugned order refusing to exercise jurisdiction on the ground that merely because the bank account of the respondent was within its territorial jurisdiction is, therefore, incorrect and must be set aside. This Court would have to exercise its jurisdiction to enforce the award. Thus, this Court would have territorial jurisdiction to entertain the petition. Mr. Banerjee is right in his contention that the subject matter of the Award is money and the JD has its assets within the territorial jurisdiction of this Court. The Award holders have made a categorical averment in the petitions that the JD has an Administrative Office in Delhi, as also some moveable properties lying in those premises. It is also averred that the JD has Bank Accounts in Delhi. Significantly, the JD in its application, objecting to the maintainability, has admitted that there is an Administrative/ liaison office, though on a Lease from the Government. There is no document on record at present to corroborate the stand that the premises are on Lease. Insofar as the averment of Bank Accounts or other movables are concerned, there is not even a denial. In any case, in present times, there is a Centralized Banking Systems and Accounts can be operated from any part of the country. Insofar as the argument of the JD that it has challenged the Awards under Section 34 read with Section 48 of the Act and the appeal is pending before the Rajasthan High Court, suffice would it be to state that pendency of those proceedings cannot come in the way of the Petitioners enforcing the Award before this Court. This issue is no longer res integra and has been settled by the Supreme Court in EITZEN BULK A/S, ASHAPURA MINECHEM LTD. VERSUS ASHAPURA MINECHEM LTD. ANOTHER, EITZEN BULK A/S, ARMADA (SINGAPORE) PTE LTD. 2016 (5) TMI 770 - SUPREME COURT . In the said case, Ashapura Minechem Ltd. had filed a petition against Eitzen Bulk under Section 34 of the Act before the Court in Gujarat and Eitzen Bulk had filed an application for enforcement of the Foreign Award before the Bombay High Court. Contention of Ashapura was that in view of Section 42 of the Act, the application for enforcement ought to have been made before the Gujarat High Court. Bombay High Court rejected the contention of Ashapura on the ground that Section 42 is in Part I of the Act and since Part I itself had no application to a Foreign Award, Section 42 would have no application. This view of the Bombay High Court was upheld by the Supreme Court. Insofar as the issue of maintainability of the petition under Section 34 filed by the JD in Rajasthan High Court is concerned, the said issue is irrelevant to the present controversy in these petitions. The JD is directed to file an Affidavit in Form 16-A, Appendix E‟ CPC and disclose all its assets moveable immoveable and tangible/intangible within a period of five weeks from today. Documents relating to the immoveable property alleged to be on lease at the address given above would also be filed by the JD, along with the Affidavit. Depending on the disclosure in the Affidavits, the issue of territorial jurisdiction of this Court would be finally decided. List the petitions on 13.07.2020.
Issues Involved:
1. Maintainability of petitions for enforcement of foreign arbitral awards. 2. Territorial jurisdiction of the Delhi High Court. 3. Pending proceedings in the Rajasthan High Court and their impact on enforcement petitions. Detailed Analysis: 1. Maintainability of Petitions for Enforcement of Foreign Arbitral Awards: The petitions were filed for enforcement of final awards on costs and interest on costs passed by the Tribunal in LCIA arbitrations. The Decree Holder (DH) argued that the awards are foreign awards under the New York Convention and enforceable in India as decrees of the court. The Judgment Debtor (JD) contested the petitions, arguing that no part of the cause of action arose within the jurisdiction of the Delhi High Court and that the assets of the JD were not located within its jurisdiction. 2. Territorial Jurisdiction of the Delhi High Court: The primary contention was whether the Delhi High Court had the jurisdiction to entertain the enforcement petitions. DH argued that the JD had an office and bank accounts within the territorial jurisdiction of the Delhi High Court. The JD countered that the property identified by the DH was leased and not owned by the JD, and thus not within its disposing power. The court examined relevant provisions of the Arbitration and Conciliation Act, 1996, and the CPC, concluding that the subject matter of the award, being money, could be enforced where the JD's assets are located. The court relied on precedents such as Tata International Ltd. v. Trisuns Chemical Industry Ltd., Wireless Developers Inc. v. India Games Ltd., and Brace Transport Corporation of Monrovia, Bermuda v. Orient Middle East Lines Ltd., Saudi Arabia & Ors., which established that enforcement could be sought in any court where the JD had assets. 3. Pending Proceedings in the Rajasthan High Court and Their Impact on Enforcement Petitions: The JD argued that the petitions were not maintainable as applications under Section 34 read with Section 48 of the Act challenging the awards were pending in the Rajasthan High Court. The court noted that the Rajasthan High Court had dismissed these applications as non-maintainable, and an appeal was pending. The court held that the pendency of these proceedings could not prevent the enforcement of the awards in the Delhi High Court. This position was supported by the Supreme Court's ruling in Eitzen Bulk A/S v. Ashapura Minechem Limited and Another, which clarified that Section 42 of the Act, which pertains to the jurisdiction of courts in arbitration matters, does not apply to foreign awards. Conclusion: The court directed the JD to file an affidavit disclosing all its assets, both movable and immovable, within five weeks, and to provide documents relating to the leased property. The court will decide the issue of territorial jurisdiction based on the disclosures. The petitions were listed for further hearing on 13.07.2020.
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