9911796707
TMI Blog1993 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes arising thereunder would be referred to arbitration in England. The nominee of the second respondent who purchased the said vessel was the first respondent. Orient Middle East Lines Ltd. Saudi Arabia, Jeddah. Disputes having arisen they were referred to arbitration. The Arbitrators appointed by the parties made an award on 25th August, 1983. Holding that: (a) the Claimants succeed in their claim for the balance of the purchase price in the sum of US $ 155000. (b) the Claimants succeed in their claim for damaged for late acceptance of the ship by the buyers in the sum of US $ 24,252, (c) the Claimants succeed in their claim for the cost diesel on board at delivery in the sum of US $ 3280; (d) the Claimants succeed in their claim for expenses paid on behalf of the Buyers in respect of Polish Officers in the sum of US $ 2,976. Pursuant thereto the appellant recovered a part of the amount awarded, leaving unpaid the amount of US $ 56789 47 and interest and costs. The cost of the award was taxed and settled at US $ 1172 and the appellants costs in the reference at U $ 10,000. 5. On or about 15th December, 1983, the appellant learnt that the said vess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 1 and/or 2, their servants and/or agents from sailing or causing to sail the said vessel SAUDI CLOUD' at present lying in the port of Alang in the district of Bhavnagar. Gujarat and/or receiving or reporting/withdrawing any amount of the said sale of the said vessel Saudi Cloud' which sale proceeds are lying with the respondents No.3 and/or 4 unless and until the respondents No.1 and/or 2 pay to the petitioners the sum of ₹ 7,84,884,27 being the balance amount under the award the cost of the award and the cost of reference or deposit the said sum of ₹ 7,84,884,27 in this Hon'ble Court and/or execute the necessary Bank guarantee in favour of the petitioner. (h) for an order and injunction of this Hon'ble Court restraining the respondents No.2 and/or 4 their servants and/or agent from paying and/or remitting and/or crediting any amount of the sale proceeds of the vessel SAUDI CLOUD to respondents No. l and/or 2 unless and until the respondents No.1 and/or 2 pay to the petitioners a sum of ₹ 7,84,884,27 or deposit the said sum in this Hon'ble Court and or execute the necessary bank guarantee in favour of the petitioners. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim reliefs in terms of payable Section 1. k.o and m (o) for cost of this petition and (p) for such other and further reliefs and as the nature and circumstances of the case may require The appellants also applied under the provisions of Order 38, Rule 5 and Order 39 Rules 1 and 2 and Section 151 of the CPC for the attachment of the sale proceeds of the said vessel and for an injunction restraining the third and the fourth respondents from parting with the sale proceeds without first satisfying the claim of the appellant. On 6th January, 1984, the Bhavnagar court passed the following order. Heard the plaintiff's advocate Shri B.J. Bhatt. Read this application affidavit in support thereof and other papers. Issue Notice to defendant No.4 returnable on 21.1.1984 to show cause why they should not be required to furnish security in the sum of ₹ 8,00,000 to secure the decree that may be passed in favour of the plaintiff. The defendant Nos. 3 and 4 are also restrained till 21.1.84 by an ex parte ad-interim injunction from disposing breaking or removing the vessel name SAUDI CLOUD more particular described in this application from port Alang, Yadi to Asst. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal Aid Committee to appoint a senior advocate for the same purpose. We are indebted to the Solicitor General and counsel for their assistance. 11. The said Act has been placed on the statute book to enable effect to be given to the Convention on the Recognition and Enforcement of Arbitral Awards, done at New York on the tenth day of June, 1958, to which India it is a party and for purposes connected therewith. Section 2 of the said Act defines a foreign award to mean an award on differences between persons arising out of legal relationship, whether contractual or not considered as commercial under the law in force in India, made on or after the 11th day of October, 1960 in pursuance of an agreement in writing for arbitration to which the New York Convention applies and in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette declare to be territories to which the New York Convention applies. Section 3 says that, notwithstanding anything contained in the Arbitration Act, 1940 or in the CPC, 1908, if any party to an agreement to which Article II of the New York Convention applies c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e I of Article I states that the New York Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such award is sought, and arising out of differences between persons where physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. Article II requires each contracting State to recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of defined legal relationship. Whether contractual or not, concerning a subject matter capable of settlement by arbitration. The term agreement in writing includes an arbitral clause in a contract. The court of a contracting State, when seizes of an action in a matter in respect of which the parties have made in agreement within the meaning of Article II.? shall upon the request of one of the parties refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets, legal proceedings of some kind are necessary to obtain title to the assets seized or their proceeds of sale. These legal proceedings must be taken in the state or states in which the property or other assets of the losing party are located. xxx xxx xxx In other words, the place or arbitration will have been chosen as a neutral forum. It will be rare for the parties to have assets situated within this neutral country; and the award if it has to be enforced must generally be enforced in a country other than that in which it was made. This is why it is so important that international awards should he recognisable and enforceable international, and not merely in the country in which they are made; moreover, unlike (he place of arbitration, the place of recognition and enforcement will not be chosen by or on behalf of the parties. It will depend upon the circumstances of each particular case. So far as recognition of an international award is concerned the successful party only needs to seek recognition if proceedings are brought against him in respect of a matter which has already been dealt with and made the subject of an award. The party who is sued will then wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts claim in the application to have a maritime lien. But the Bhavnagar court has, admittedly, no jurisdiction to enforce a maritime lien, assuming it to exit. 15. It was then submitted by Dr. Ghosh that the subject-matter of the award was money and the 1st and 2nd respondents had money in the jurisdiction of the Bhavnagar Court in the form of part of the purchase price of the said vessel payable to them by the 3rd and 4th respondents. 16. This being an award for money its subject-matter may be said to be money, just as the subject-matter of a money-decree may be said to be money. 17. The appellant's application to the Bhavnagar court stated, as reproduced above, that the first and second respondents had no assets within the jurisdiction of the Bhavnagar court or elsewhere in India. However, having regard to the object of the said Act, note may be taken of events that have transpired subsequently. The case of the 4th respondent before the Bhavnagar court was that it had paid over the full purchase price of the said vessel to the 3rd respondent. Thereupon the Bhavnagar court injected the 3rd respondent from paying the amount of ₹ 6,40,000 to the 1st and 2nd respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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