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TMI Blog2001 (5) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... assed an Award on 13-8-1996 allowing the claims of the appellant. The appeal filed by the respondent against the award before the IGPA Appellate Board was dismissed on 14-11-1998. Further, the appeal filed by the respondent before the Queen's Bench Division of the High Court of Justice at London was also dismissed on 29-1-1999. The appellant filed an execution application in August 1998 before the Delhi High Court for enforcement of said foreign Award dated 13-8-1996. An order of attachment was issued by the High Court against the respondent. The respondent filed an application under section 151 CPC (E.A. 347 of 1998) seeking dismissal of the execution petition. The respondent also filed O.M.P. No. 203 of 1998 under section 48 of the Arbitration and Conciliation Act, 1996 ('the Act'). The High Court varied its order of attachment and ordered the respondent to lodge security. A learned Single Judge of the High Court held that the execution application filed by the appellant for enforcement of foreign Award dated 13-8-1996 was not maintainable under the Act as the arbitration proceedings were commenced prior to the coming into force of the Act and dismissed the execution petition, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'per incuriam' on the ground that they hold 25-1-1996 as the date of commencement of the Act ignoring the specific provision and the Gazette Notification according to which the Act came into force on 22-8-1996; this Court was using the word 'Act' interchangeable with the first Ordinance which came into force on 25-1-1996; article 367 of the Constitution and section 30 of the General Clauses Act equate an Act with the ordinance and vice versa. Section 86(2) itself says that "all actions and orders under the ordinance as deemed to have been under the Act". Reference is invited to T.V. Venkata Reddy v. State of Andhra Pradesh [1985] (3) SCC 198. Thus, the learned senior counsel submitted that the contentions advanced by the respondent are untenable and unavailable and they cannot be permitted to re-open settled legal issues in relation to enforcement of a foreign award which has become final. 4. Shri K.K. Venugopal, the learned senior counsel for the respondent, urged that the date from which the Act came into force is an issue of fact and not an issue of law; this Court in the cases relied on behalf of the appellant has wrongly mentioned the date of commencement as 25-1-1996 instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion proceedings had commenced prior to the commencement of the Act. This Court having heard the learned counsels for the parties elaborately and after referring to a number of decisions of this Court as well as English Courts, arrived at the conclusions as stated in para 22 of the judgment. Conclusion relevant for the immediate purpose is in para 22(7) which reads :- "7. A foreign award given after the commencement of the new Act can be enforced only under the new Act. There is no vested right to have the foreign award enforced under the Foreign Awards Act [Foreign Awards (recognition and Enforcement) Act, 1961]." It is clear from conclusion extracted above that a foreign award given after the commencement of the Act can be enforced only under the new Act. In brief, the facts that gave rise to three appeals decided in the said case are: In the case of Thyssen Stahlunion GMBH's case (supra), contract for the sale and purchase contained an arbitration agreement. The arbitration proceedings commenced on 14-9-1995 under the Arbitration Act, 1940 (for short the 'old Act'). Award was given on 24-9-1997 by the time the Act had come into force on 25-1-1996; Thyssen filed petition in Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Part II of the new Act depending whether it is a New York Convention award or a Geneva Convention award. It is irrespective of the fact when the arbitral proceedings commenced in a foreign jurisdiction. Since no right has accrued, section 6 of the General Clauses Act would not apply. 40. In the very nature of the provision of the Foreign Awards Act it is not possible to agree to the submission that section 85(2)(a) of the new Act would keep that Act alive for the purpose of enforcement of a foreign award given after the date of commencement of the new Act though arbitral proceedings in a foreign land had commenced prior to that. It is correct that section 85(2)(a) uses the words "the said enactments" which would include all the three Acts, i.e., the old, the Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937. The Foreign Awards Act and even the 1937 Act contain provisions only for the enforcement of the foreign award and not for the arbitral proceedings. Arbitral proceedings and enforcement of the award are two separate stages in the whole process of arbitration. When the Foreign Awards Act does not contain any provision for arbitral proceedings, it is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction. Section 2(2) read with section 2(7) and section 21 falling in Part I of the new Act make it clear that these provisions would apply when the place of arbitration is in India, i.e., only in domestic proceedings. There is no corresponding provision anywhere in the new Act with reference to foreign arbitral proceedings to hold as to what is to be treated as "date of commencement" in those foreign proceedings. We would, therefore, hold that on a proper construction of section 85(2)(a) the provision of this sub-section must be confined to the old Act only. Once having held so it could be said that section 6 of the General Clauses Act would come into play and the foreign award would be enforced under the Foreign Awards Act. But then it is quite apparent that a different intention does appear that there is no right that could be said to have been acquired by a party when arbitral proceedings are held in a place resulting in a foreign award to have that award enforced under the Foreign Awards Act. 42. We, therefore, hold that the award given on 24-9-1997 in the case of Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. (Civil appeal No. 6036 of 1998) when the arbitral pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Under articles 123 and 213, subject to the limitation, stated therein, an Ordinance promulgated shall have the same force and effect as an Act of the Parliament or an Act of a Legislature of a State. 12. A Constitution Bench of this Court in A.K. Roy v. Union of India [1982] (1) SCC 271 has in clear terms stated that "an ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is, fortunately and unquestionably, subject to the same inhibitions. In those inhibitions lies the safety of the people". Para 18 of the said judgment reads thus : "In one sense, these contentions of Shri Garg stand answered by what we have already said about the true nature and character of the ordinance-making power. The contention that the word 'law' in article 21 must be construed to mean a law made by the Legislature only and cannot include an ordinance, contradicts directly the express provisions of articles 123(2) and 367(2) of the Constitution. Besides, if an ordinance is not law within the meaning of article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by article 13(2) of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment is 'per incuriam' or not as to the date of commencement of the Act in the given situation. 18. In Mamleshwar Prasad v. Kanhaiya Lal [1975] (2) SCC 232 reflecting on the principle of judgment per incuriam, in paras 7 and 8, this Court has stated thus :- "7. Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam. 8. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here, we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind." 19. This Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996 which was promulgated on 16-1-1996 and brought into force with effect from 25-1-1996. The second Ordinance, 1996 was also promulgated on 26-3-1991 as a supplement to main Ordinance giving retrospective effect from 25-1-1996. The Ordinance received assent of the President on 16-8-1996 giving the retrospective effect from 25-1-1996. Thus, the Ordinance has now become an Act. All the provisions of the Ordinance as well as Act are same. Therefore, the use of word "The Ordinance" shall also mean the Act and vice versa." It appears in the portion extracted above that there is a mistake as to the date of promulgation of the second Ordinance as 26-3-1991. But the correct date is 26-3-1996. 23. It is noticed in the above paragraph that all provisions of the Ordinance as well as the Act are same; therefore, use of the word 'the Ordinance' shall also mean the Act and vice versa. The said judgment of the Gujarat High Court is affirmed by this Court in Thyssen Stahlunion GMBH's case (supra). The Thyssen Stahlunion GMBH's case (supra) has not failed to notice either a statutory provision in substance and effect or a binding precedent running counter to the reasoning and the result reached. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve also contributed in mentioning the date of commencement of the Act as 25-1-1996. Be that as it may, in the light of the successive Ordinances and the provisions of the Ordinances and the Act being same, the new Law continued with the same effect and force from 25-1-1996. There is no alteration or change in the legal position and effect in relation to enforcement of foreign award including the one made between the period 25-1-1996 and 22-8-1996, the date on which the Act came into force in terms of section 1(3) read with the Gazette notification inasmuch as the first Ordinance was operative with the same force and effect from 25-1-1996. In the present case with which we are concerned in this appeal, a foreign Award was passed on 13-8-1996 and as such in terms of the conclusion arrived at in Thyssen Stahlunion's case (supra) the said award is to be enforced only under the Act. Even in the impugned judgment, it is stated that 'it is an admitted position that the said Act has commenced from 26-1-1996'. This point that the date of the commencement of the Act is 22-8-1996 and not 25-1-1996 was neither raised nor contested. It may be added that the High Court of Delhi did not have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to define law relating to conciliation and for matters connected therewith or incidental thereto. In para 4 of the statement of objects and reasons contained in the Act, the main objects of the Bill are stated. To the extent relevant for the immediate purpose, they are : "(i )to comprehensive cover international commercial arbitration and conciliation as also domestic arbitration and conciliation; (iv)to minimize the supervisory role of courts in the arbitral process; **** ** (vi)to provide that every final arbitral award is enforced in the same manner as if it were a decree of the court;" 30. Prior to the enforcement of the Act, the law of Arbitration in this country was substantially contained in three enactments, namely, (1) The Arbitration Act, 1940, (2) The Arbitration (Protocol and Convention) Act, 1937 and (3). The Foreign Awards (Recognition and Enforcement) Act, 1961. A party holding a foreign award was required to take recourse to these enactments. Preamble of the Act makes it abundantly clear that it aims to consolidate and amend Indian laws relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards. The ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectives contained in para 4 of the Statement of Objects and Reasons, sections 47 to 49 and Scheme of the Act that every final arbitral award is to be enforced as if it were a decree of the court. The submission that the execution petition could not be permitted to covert as an application under section 47 is technical and is of no consequence in the view we have taken. In our opinion, for enforcement of foreign award there is no need to take separate proceedings, one for deciding the enforceability of the award to make rule of the court or decree and the other to take up execution thereafter. In one proceeding, as already stated above, the court enforcing a foreign award can deal with the entire matter. Even otherwise, this procedure does not prejudice a party in the light of what is stated in para 40 of the Thyssen judgment. 31. Part II of the Act relates to enforcement of certain foreign awards. Chapter 1 of this Part deals with New York Convention Awards. Section 46 of the Act speaks as to when a foreign award is binding. Section 47 states as to what evidence the party applying for the enforcement of a foreign award should produce before the court. Section 48 states as to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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