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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 ..... d is enforceable under this Chapter, the award shall be deemed to be a decree of that court and that court has to proceed further to execute the foreign award as a decree of that court. If the argument advanced on behalf of the respondent is accepted, the very purpose of the Act in regard to speedy and effective execution of foreign award will be defeated. Thus, none of the contentions urged on behalf of the respondent merit acceptance so as to uphold the impugned judgment and order. We have no hesitation or impediment in concluding that the impugned judgment and order cannot be sustained. X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in holding that since the arbitration proceedings were commenced prior to 25-1-1996, i.e., before the commencement of the Act, the foreign Award dated 13-8-1996 could not be enforced under the Act in terms of section 85, read with section 21; this Court has ruled in Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. [1999] (9) SCC 334 that a foreign award passed after the commencement of the Act is to be enforced/executed under the said Act alone being stamped as decree; in this ruling the reasoning and conclusions of the Gujarat High Court in Western Ship Breaking Corpn. v. Clarehaven Ltd. [1988] (1) Raj. 367 (404) were affirmed; at no stage before the High Court, either before the learned Single Judge or before the Division Bench, the respondent questioned the date of commencement of the Act on 25-1-1996; in fact the Division Bench proceeded on the admitted position that the new Act commenced from 25-1-1996 and, therefore, it cannot be raised for the first time in these proceedings; even otherwise the question is no longer 'res integra' having been conclusively decided by this Court in Shetty's Constructions Co. P. Ltd. v. Konkan Railway Constructions [1998] (5) SCC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified 22-8-1996 as the date of coming into force of the Act; in Thyssen Stahlunian GMBH's case (supra) it is held that a foreign Award given after the commencement of the new Act can be enforced only under the new Act; in the present case, the Award was passed on 13-8-1996, i.e., 9 days prior to coming into force of the Act. In the instant case, both events are before 22-8-1996. As such the Foreign Awards (Recognition & Enforcement) Act, 1961 ('the Act') will apply in which case enforcement could only be through a suit; the execution petition was rightly rejected. Article 367(2) of the Constitution or section 30 of the General Clauses Act have nothing to do with the question as to the date on which the Act comes into force; they could not alter this date to 25-1-1996 from 22-8-1996; the entire enforcement proceedings would be governed by the 1961 Act; hence, the execution petition could not have been directed to be converted into an application under section 46 or 47 of the Act for various reasons. 5. In the light of the rival contentions and submissions, the principal legal issue that arises for consideration is as to the very date of the commencement of the Act. 6. In substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996; the question that arose for consideration was whether the award was governed by the provisions of the Act for its enforcement or by the Foreign Awards Act, 1961, the learned Single Judge of the Gujarat High Court held that the Act would be applicable. Aggrieved by the same, the above appeal was filed in this Court. 8. In the case of Rani Constructions (P.) Ltd. (CA No. 61 of 1999), disputes were referred to the sole arbitrator on 4-12-1993. The Arbitrator gave his award on 23-2-1996 after the Act had come into force. The Division Bench of the Himachal Pradesh High Court held that clause 25 of the Agreement 'does not admit of interpretation that this case is governed by the Act of 1996'. 9. In para 13 of the judgment, it is noticed that arguments had been addressed in considerable detail for and against the application of the new Act or the old Act in the three appeals mentioned above. We consider it useful to reproduce hereinbelow paras 39 to 42 of the said judgment : "39. The Foreign Awards Act gives the party the right to enforce the foreign award under that Act. But before that right could be exercised, the Foreign Awards Act had been repealed. It cannot, therefore, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile section 49 of the new Act states that where the court is satisfied that the foreign award is enforceable under this Chapter (Chapter I Part II, relating to New York Convention awards) the award is deemed to be a decree of that court. The only difference, therefore, appears to be that while under the Foreign Awards Act a decree follows, under the new Act the foreign award is already stamped as the decree. Thus, if provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign award are juxtaposed, there would appear to be hardly any difference. 41. Again a bare reading of the Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937 would show that these two enactments are concerned only with recognition and enforcement of the foreign awards and do not contain provisions for the conduct of arbitral proceedings which would, of necessity, have taken place in a foreign country. The provisions of section 85(2)(a) insofar these apply to the foreign Awards Act and the 1937 Act, would appear to be quite superfluous. A literal interpretation would render section 85(2)(a) unworkable. Section 85(2)(a) provides for a dividing line dependent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated here again that this Court affirmed the judgment of the Gujarat High Court in the case of Western Shipbreaking Corpn. (supra) and held that the foreign award given after the commencement of the Act would be governed by the Act although arbitration proceedings had commenced in that case prior to the enforcement of Act. In view of the law laid down by this Court as to the enforcement of foreign award passed after the commencement of the Act even in cases where the arbitration proceedings were commenced prior to enforcement of the Act after consideration of various aspects, in particular, question relating to the construction and interpretation of section 85(2)(a) of the Act, we do not think it necessary to consider the same contentions again when we are in respectful agreement with the law laid down in Thyssen Stanlunin GMBH's case (supra) judgment. 11. It may be noticed that the provisions of the Ordinance as well as the Act are same. Article 367 (2) of the Constitution states that any reference in the Constitution to Acts or laws of, or made by, the Parliament, or to Acts or laws of or made by the Legislature of a State shall be construed as including a reference to an Ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Both these decisions have firmly established that an ordinance is a 'law' and should be approached on that basis. The language of clause (2) of article 123 and of clause (2) of article 213 of the Constitution leaves no room for doubt. An Ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be." 15. Thus, an Ordinance operates in the field it occupies, with same effect and force as an 'Act' as stated in the aforementioned articles of the Constitution. 16. A foreign Award passed on 13-8-1996 could be enforced with the same vigour under the Ordinance as it could be under the Act. May be that is a reason why this point was not raised by the respondent before the High Court. The learned senior counsel for the appellant reminded us that now attempt is made by the respondent to overcome Thyssen judgment. It is not understandable as to how any prejudice is caused to the respondent. Thus, the contention advanced in this regard by the learned senior counsel for the respondent does not help the respondent in any way. 17. The other argument with emphasis was that the Thyssen Stahlu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding authority'. (Young v. Bristol Aeroplane Co. Ltd.)............." 21. The two judgments (1) Punjab Land Development & Reclamation Corpn. Ltd.'s case (supra) and (2) Synthetics & Chemicals Ltd.'s case (supra) were cited in support of the argument. Attention was drawn to paras 40, 41 and 43 in the first judgment and paras 39 and 40 in the second judgment. In these two judgments no view contrary to the views expressed in the aforesaid judgments touching the principle of judgment per incuriam is taken. 22. A prior decision of this Court on identical facts and law binds the Court on the same points of law in a later case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. It is also not shown that some part of the decision based on a reasoning which was demonstrably wrong, hence, the principle of per incuriam cannot be applied. It cannot also be said that while deciding Thyssen, the promulgation of the first Ordinance, which was effective from 25-1-1996, or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he New Act No. 26 of 1996 received the President's assent on 16-8-1996 and was published in the Gazette of India (Extra.) Part II Section I dated 19-8-1996. 26. We have already expressed above that the Ordinance had the same force and effect as the Act. This Court in Thyssen Stahlunion GMBH's case (supra), Shetty's Construction Co. P. Ltd.'s case (supra ) and NALCO's case (supra) appears to have taken the date of commencement of the Act as 25-1-1996 in the background of ordinances and their continuance with same force effective from 25-1-1996. May be the Court was using the word 'Act' interchangeable with the first ordinance which came into force on 25-1-1996 which ultimately culminated into Act. As already noticed above, the judgment of the Gujarat High Court in Western Shipbreaking Corpn.'s case (supra) was in appeal before this Court in Thyssen and in para 8 of the said judgment, there is specific mention that the use of the word 'the Ordinance' shall mean the Act and vice versa. Even in the Thyssen Stahlunion GMBH's case (supra) judgment itself in para 16, reference is made to M.S. Shivananda v. Karnataka SRTC [1980] 1 SCC 149. In paras 12 and 13 of the said judgment, discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996. This makes the position clear that although the Act came into force on 22-8-1996, for all practical and legal purposes it shall be deemed to have been effective from 25-1-1996, particularly when the provisions of the Ordinance and the Act are similar and there is nothing in the Act to the contrary so as to make the Ordinance ineffective as to either about its coming into force on 25-1-1996 or its continuation up to 22-8-1996. Thus, we conclude that the Act was brought into force with effect from 22-8-1996 vide Notification No. G.S.R. 375(E) dated 22-8-1996 published in the Gazette of India and that the Act being a continuation of the Ordnance is deemed to have been effective from 25-1-1996 when the first Ordinance came into force. 29. Alternatively, it was contended that a party holding a foreign award has to file a separate application and produce evidence as contemplated under section 47 and also satisfy the conditions laid down under section 48 and it is only after the Court decides about the enforceability of the award, it should be deemed to be a decree under section 49 as available for execution. In other words, the party must separately apply before filing an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gy. Avoiding such difficulties is one of the objects of the Act as can be gathered from the scheme of the Act and particularly looking to the provisions contained in sections 46 to 49 in relation to enforcement of foreign award. In para 40 of the Thyssen Stahlunion GMBH's case (supra), judgment already extracted above, it is stated that as a matter of fact, there is not much difference between the provisions of the 1961 Act and the Act in the matter of enforcement of foreign award. The only difference as found is that while under the Foreign Award Act a decree follows, under the new Act the foreign award is already stamped as the decree. Thus, in our view, a party holding foreign award can apply for enforcement of it but the court before taking further effective steps for the execution of the award has to proceed in accordance with sections 47 to 49. In one proceeding there may be different stages. In the first stage the Court may have to decide about the enforceability of the award having regard to the requirement of the said provisions. Once the court decides that foreign award is enforceable, it can proceed to take further effective steps for execution of the same. There arises ..... X X X X Extracts X X X X X X X X Extracts X X X X
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