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TMI Blog2004 (6) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhatia International case has clearly held that Part I of the Act applies to all arbitrations including those made in International Commercial Arbitrations taking place outside India. Part I includes section 34 and, therefore, the present petition is clearly maintainable. It is submitted that courts in India can examine the challenge against the impugned award that is governed by the India laws. 10. That this Hon'ble Court has the necessary territorial jurisdiction to entertain the present petition because inter alia, the agreements in question were entered in Bombay. It is submitted that the Arbitration Agreements were also entered in Bombay. Further, the principal officer of the respondent/claimant is also situated in Bombay. It is, therefore, submitted that the jurisdiction is with this Hon'ble Court. 3. This Court admitted this petition on 1st March, 2004. However, while admitting the petition this Court made it clear that though petition is admitted, the issue of maintainability is expressly kept open. This matter comes before me by virtue of two Notices of Motion taken out in the petition. In substance, the Notice of Motion prays that implementation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing in connection with this Agreement shall be settled through mutual negotiations. In case no settlement can be reached the case may be submitted to an Arbitration Institute which works in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce in Paris. The decision rendered by the three (3) arbitrators appointed in accordance with the said Rules shall be final and binding upon both parties, neither party shall seek recourse to a law Court or other authorities for revising the decision. Arbitration shall be held in Geneva, Switzerland and the arbitration fee shall be borne by the losing party. 6. It is stated in the petition that both the agreements are to be interpreted in accordance with laws of Republic of India. Even the terms of reference framed by Arbitral Tribunal with consent of parties expressly provided that:- The Tribunal will take account of the provisions of Chapter 12 of the Swiss Private International Law of 1987 as the seat of the arbitration is in Geneva, Switzerland, and at the time of the conclusion of the arbitration agreement neither party had its domicile or its habitual residence in Switzerland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) retained section 9(a) of Foreign Act (Section 51 in the 1996 Act). The deletion of Section 9(b) of Foreign Act is not without any significance. Shri Chinoy contends that under the 1996 Act an award made in the foreign/notified Countiy would be a foreign award irrespective of substantive law governing the contract or the law governing the arbitration agreement. He submits that the petition is filed on the basis that agreement between parties being governed by law of India, the award is a domestic award. According to Shri Chinoy this submission is fallacious. He submits that there is no question of substantive law deciding the issue of maintainability of petition. He submits that challenge to the award is one thing and resisting its enforceability is another. The Legislature in its wisdom has, qua a foreign award, only provided for mechanism to resist its execution or enforcement. The Legislature has taken care and permits parties to raise same grounds while resisting the enforcement or execution as are permissible to be raised while challenging a domestic award under section 34 of the 1996 Act. In other words, he submits that section 48 and more particularly section 48(1)(e) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958 Conventiondeal with totally different aspect. Section 9(b) treated a class of foreign awards as domestic awards by excluding them from Foreign Act. Latter part of Article 1(1) of 1958 Convention treated class of local/domestic awards as foreign awards by including in from the definition of foreign award. After inviting in attention to the Convention and the provision of Foreign Act, Shri Chinoy contends that now the field is occupied and covered by section 48(1)(e) of the Act which is on par with Article V(1)(e) of the Convention. He submits that bare reading of section 48(1)(e) would demonstrate that a Foreign Award can be challenged in a country in which it was made or the Country under law of which it was made. It provides that if the award has been challenged or suspended or set aside by any of these two statutory recognised forums, then it will provide a defence to the recognition and enforcement of the award. In the present case, the award was made in Geneva, Switzerland which is admittedly a notified country. Therefore, it can be challenged only in Switzerland. Similarly, other forum is the Country under the law of which the award was made, which in the instant case, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of section 9 of the Act to an International Commercial Arbitration and Arbitration proceedings conducted outside India. He submits that even this judgment of the Supreme Court has been referred to by a Single Judge of this Court in the case of (Force Shipping Limited v. Ashapura Minechem Limited .)8, reported in 2003 (6) Bom. C.R (O.O.C.J) 328 : 2003 Mh. L.J 329. This Court (Rebello, J.) held that even after the decision in Bhatia International's case, legal position is the same viz., that a foreign award cannot be challenged in India. By taking recourse to section 34 of the Act. 12. Summing up, Shri Chinoy contends that in similar cases before this Court:- (a) Awards had been made in foreign notified country though substantive law governing the contracts was Indian law. In such cases Court dismissed the petitions as not maintainable and accordingly did not consider the same on merits. (b) Present award has been made in Geneva, Switzerland against petitioner which is a German Company. (c) Petitioner has not challenged the award in Switzerland where it has become final; (d) Award is in force in Germany against petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004. On 4th March, 2004 a motion is filed. Respondent No. 2 was impleaded. Respondent No. 2 refused service on 23rd March, 2004. Thereafter, this Court orders suspension of Award. 15. Shri Dave submits that the assignment is only with a view to get out of jurisdiction of this Court. A fraud has been perpetrated and the Court should not assist such litigant. In substance, Shri Dave contended that the conduct of respondent No. 1 is such that it is not entitled to raise the issue of maintainability of petition. Consequently, the objection raised on behalf of such a party should not be countenanced and entertained by this Court. 16. Alternatively, it is contended by Sir Dave that the 1996 Act allows filing of such a petition. He submits that the Act is a consolidated Act. He submits that Section 9(b) of the Foreign Act was introduced by way of abundant caution and its deletion does not alter the legal position. He further submits that equivalent provisions continue in Article 1(1) of New York Convention read with section 44 of the 1996 Act. Shri Dave submits that the manner in which Shri Chinoy reads 1996 Act is not proper and would defeat and frustrate the mandate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forcement of certain foreign awards. Chapter I therein deals with New York convention awards. Shri Dave invites my attention to sections 44, 45, 46 and 48 together with the First Schedule Article I and Article III. He invites my attention to Article V and Article VI. He submits that considering the scheme of the Act, it is clear that Part I thereof applies to all arbitrations outside India. Consequently, any award arising out of such proceedings would be an award which is capable of being challenged in Indian Court by invoking section 34 of the 1996 Act. In order words, such award is nothing but a domestic award. 18. He submits that governing law of contract is the test. Substantive law of agreement/underlying contract would govern all matters including challenge to the Arbitral Award, which is part and parcel of the substantive contract, he submits that any other interpretation would mean that even though, the underlying contract is governed by Indian Law, merely because the venue or place of arbitration is outside India, the award becomes a foreign award, incapable of being challenged in India under 1996 Act. He submits that this would cause severe injustice and grave pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o accept the contention of Shri Dave that respondent No. 1 is disentitled from raising the issue of maintainability in view of its conduct. It is well settled that if the Court does not have authority or power to take cognisance of such a petition in law, then that issue is an issue of its jurisdiction. Such issues go to the root of the matter. Such issues are accordingly decided on the touch stone of law and not by considering the conduct of party raising them. No general rule can be laid down and the matter is to be considered on the facts of each case. The conduct may be or may not be blameworthy or reprehensible but ultimately if the Court does not have jurisdiction and proceedings are not maintainable, then it is wholly irrelevant. Suffice it to state that if the action and conduct is such as would amount to perjury or contempt, then even if the main petition is not maintainable, the Court is not powerless to initiate proceedings to punish the guilty. That apart, respondent No. 1 is a party to the petition. It is the successful party in Arbitral proceedings. The deed of assignment dated 25th November, 2003 executed by it in favour of respondent No. 2 is also challenged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be the territory to which convention applies is a foreign award. Thus, foreign award is an Arbitral Award. It is an Arbitral Award on differences between parties arising out of legal relationship which may be contractual or not but it should be considered as commercial under the law in force in India. It is, therefore, clear that, concept of foreign award as defined in section 44 which appears in Part II cannot be ignored while considering the present controversy. Both sides do not dispute before me that the award is foreign award. 25. Section 45 of the 1996 Act opens with a non obstante clause which overrides what is contained in Part I of the 1996 Act or C.P.C The moment Judicial Authority when seized of an action in a matter in respect of which parties have made an agreement referred to in section 44 is approached at the request of one of the referring parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed it should refer the matter to Arbitration under such agreement. In other words, once an agreement referred to in section 44 is made, it becomes clear that the difference between persons arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture has provided only remedy of resistance of enforceability of both under the 1996 Act. It will not be a proper reading of sections 45 and 48 if a challenge is held to be contemplated by section 45 qua a arbitration agreement. The Judicial Authority will refuse to enforce the arbitration agreement. 27. Shri Dave submits that section 48 will have to be read together with sections 44, 45, 46, and 47 as well as other provisions in Part II Chapter I and cannot be read in isolation, Shri Chinoy submits that whichever way one reads it, a foreign award cannot be challenged in India but its enforceability only can be resisted here. In the context of these submission, the matter will have to be examined. 28. In the case of Bhatia International (supra), the Supreme Court was considering as to whether it is permissible for a party to an arbitral proceedings held outside India to apply for interim reliefs under section 9 of 1996 Act (falling in Part I) against its counter part, which is an Indian party by applying to an Indian Court. Several High Courts held that it is not permissible to do so. The Supreme Court after analysing scheme of the Act and referring to some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r parts unless the statute expressly states that they are not to apply or where, in respect of a matter, there is a separate provision in a separate chapter or part. Part II deals with enforcement of foreign awards. Thus section 44 (in chapter I) and section 53 (in Chapter II) define foreign awards, as being awards covered by arbitration under the New York Convention and the Geneva Convention respectively. Part II then contains provisions for enforcement of foreign awards which necessarily would be different. For that reason special provisions for enforcement of foreign awards are made in Part II. To the extent that Part II provides a separate definition of an Arbitral Award and separate provisions for enforcement of foreign awards the provisions in Part I dealing with these aspects will not apply to such foreign awards. It must immediately be clarified that the arbitration not having taken place in India, all or some of the provisions of part I may also get excluded by an express or implied agreement of parties. But if not so excluded the provisions of Part I will also apply to foreign awards . The opening words of sections 45 and 54 which are in Part II, read notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted an application under section 9 to be entertained by Indian Court at the instance of a foreign party and that too in an International Commercial Arbitration held outside India. The emphases of Shri Dave is that the decisions of this Court not properly and correctly appreciation as also applying the principles laid down by the Supreme Court, they do not have any binding force and effect. 30. It is not possible for me to accept the contentions of Shri Dave. Firstly, an interpretation and equally a misinterpretation of Supreme Court decision in a judgement of co-ordinate Court is biding upon me. In the instant case, there is not one but three decisions in the field. The last of the decision is after the judgements of Supreme Court in Bhatia International's case. This Court (Rebello, J.) after noticing the judgement of the Supreme Court and referring to a passage therein observed in para 2 thus:- 2. At the hearing of the petition, the learned Counsel for the parties have relied on judgements which will be adverted to, to the extent they are necessary in the course of the judgment. In the first instance, it will be necessary to consider the judgment of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply then in that event, the general provisions would apply; (b) When the statute provides special provisions for enforcement it is the special provisions which would apply and not the general provisions. In the instant case there are special provisions for enforcement of foreign awards. Once therefore, there are special provisions for enforcement of foreign awards then the general provisions including provisions for challenge to the award considering the special provision would be excluded. That would mean application of Part II, once that be so, Part I would not apply. Under Part I a decree can be executed only if the challenge under section 34 fails if made. Under section 48, the foreign awards become enforceable and is to be executed as a decree. (c) On the consideration of the law set out in paragraph 28 in so far as application of section 9 is considered, it holds that section 9 would not apply in so far as foreign awards are concerned after the award is made. From the judgment in Bhatia, therefore, these are three major propositions which can be culled out. Once that be the case, the first contention advance on behalf of the respondent opposing en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interpretation of the arbitration agreement are governed by its proper law. Such law will decide whether the arbitration clause is wide enough to cover the dispute between the parties. Such law will also ordinarily decide whether the arbitration clause binds the parties even when one of them alleges that the contract is mid, or voidable or illegal or that such contract has been discharged by breach or frustration. (See Heyman v. Darwins Ltd.). The proper law of arbitration will also decide whether the arbitration clause would equally apply to a different contract between the same parties or between one of those parties and third party. 26. Whereas, as stated above, the proper law of arbitration (i.e, the substantive law governing arbitration) determines the validity, effect and interpretation of the arbitration agreement, the arbitration proceedings are conducted, in the absence of any agreement to the contrary, in accordance with the law of the country in which the arbitration is held. On the other hand, if the parties have specifically chosen the law governing the conduct and procedure of arbitration, the arbitration proceedings will be conducted in accordance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court after considering the provision of the Arbitration Act, 1940held that, though the award was made at London, it had to be filed in Indian Court, because the proper law was the laws in force in India. Now the Arbitration Act 1940 has been repealed. In the present case also, the proper law is the laws in force in India and the award has been made in London. The present petition has been filed under section 34 of the Act challenging the award. The question, therefore, that falls for consideration is whether, the award, which has been made at London, can be challenged by filing an application under section 34 of the Act. Sub-section (2) of section 2, which is relevant for considering the question, reads as under:- 2(2) This part shall apply where the place of arbitration is in India . 8. As observed above, the present petition has been filed by the petitioner under the provisions of section 34 of the Arbitration Act. Perusal of the Scheme of the Arbitration Act shows that, Part I of the Arbitration Act is divided into 10 chapters. Sections 2 to 6 are to be found in Chapter I; sections 7 to 9 are to be found in Chapter II; sections 10 to 15 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantive law in force in India. Perusal of the provisions of section 48(1)(e) and section 48(3) of the Act, shows that, the Act contemplates the possibility of a foreign award which is sought to be enforced under section 48 of the Act being challenged before a competent authority of the country under the law of which that award was made. It is obvious, that such an award can be challenged under the substantive law in force in India. However, whether, there is a substantive law in force in India which permits or provides for challenge to such an award is another question. It is clear, that, the petitioner would be able to challenge the award under the substantive law in force in India, provided, the substantive law in force in India provides for such a challenge. The question, whether such a law is in force in India or not or under which law in force in India, the petitioner can challenge the ward is neither raised nor does it fall for consideration before me in the present petition. The only question debated before me is whether such a challenge is possible by filing an application under section 34 of the Act. I have already observed above that considering the scheme of Part I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 48 and section 34 of the Act quoted above shows that the grounds on which a domestic award can be challenged as also the grounds on which a party can resist enforcement of a foreign award are identical. Thus, as and when enforcement of the award is sought against the petitioner, it can resist the enforcement of the award on the same grounds on which it could have challenged the award under section 34 of the Act. Therefore, it cannot be said that the petitioner has no remedy of challenging the award. It is a settled principle of law that in construing statutes one has to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the scheme of the statute itself or leads to any manifest absurdity or repugnancy. It appears from the reading of the Act that in so far as the challenge and enforcibility is concerned, there are different schemes for a domestic award and a foreign award. The Act provides for a direct challenge to a domestic award (section 34). A domestic award is, enforceable as a decree passed by a Civil Court, after the period provided for challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a foreign award, both the remedies are equally efficacious and adequate, it cannot be said that the Act does not provide an effective remedy to a person who is aggrieved by a foreign award. Hence, there is, in my opinion, no need to construe the provision of section 2(2) of the Act in any other manner. 33. With respect, this enunciation is in tune with the legislative mandate and I am in agreement with it. Similar are the observations of Justice Nijjar, to which my attention has been invited by Shri Chinoy. Judicial discipline and principles of certainty require that co-ordinate benches ought not to differ with each other, merely because a different argument or another interpretation of law is placed before. Exception to this could only be if the decisions are per incuriam. The binding effect of a decision of co-ordinate Court is not lost merely because it did not consider or did not notice any aspect or principle of law unless it could be demonstrated that the decision is rendered per incuriam. Per incuriam is ignorance of a statutory provision or a binding decision interpreting the same of a higher Court. 34. It is pertinent to note that submission of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as a general rule the only cases in which decisions should be held to be given as per incuriam are those given in ignorance of some inconsistent statutory provision or binding authorities. In the matter before us, it cannot be said that the Division Bench in Kalavati's case C.A No. 1699 of 1969, dt. 26-4-1973 (Bom.) has given its decision either in ignorance of the provisions of any statute or binding authorities i.e the judgment of the Supreme Court. It was however, contended that the Division Bench in Kalavati's case C.A No. 1699 of 1969, dt. 26-4-1973 (Bom.) had wrongly understood (Sabharwal Brothers v. Guna Amrit Thadani)13, (1973) 3 SCC 750 : A.I.R 1972 S.C 1893 and thereby erroneously came to the conclusion that the decision in (Satpalsingh Arom's case)14, 1971 (73) Bom. L.R 777 which was binding, being a decision of a Division Bench of the Bombay High Court, was no longer good law. But then, it is equally well settled that an interpretation (and equally a misinterpretation) of a binding decision of the Supreme Court will itself be binding subsequently on co-ordinate courts and must be got corrected by a higher Court, and no co-ordinate Court on that ground m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court)17, reported in (1990) 3 SCC 682 reliance on which is placed by Shri Dave, the Supreme Court in para 44 has observed thus: 44. An analysis of judicial precedent, ratio decidendi and the ambit of earlier ad later decisions is to be found in the House of Lords' decision in F.A A.B Ltd. v. Lupton (Inspector of Taxes) Lord Simon concerned with the decisions in Griffiths v. J.P Harison Watford Ltd. and Finsbury Securities Ltd. v. Inland Revenue Commissioner with their interrelationship and with the question whether Lupton case fell within the precedent established by the one or the other case, said (A.C p. 658) .. What constitutes binding precedent is the ratio decidendi of a case, and this is almost always to be ascertained by an analysis of the material facts of the case-that is, generally, those facts which the Tribunal whose decision is in question itself holds, expressly or implicitly, to be material. 37. Similarly in the case of (Fuzlaunbi v. K. Khader Vali)18, reported in (1980) 4 SCC 125, the Supreme Court has held:- We need not labour the point because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and given effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know-how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court. 39. Hence I conclude that the decisions of this Court (Deshmukh, J. Rebello, J.) are binding on me. That apart, for reasons set out above, I respectfully concur with the same. It is also brought to my notice that letters patent appeals are pending against these judgments. However, they are not set aside and hence continue to hold the field. In these decisions, identical objections have been upheld. Therefore, I am bound by them. After holding that I am bound by them, naturally, I have to hold that present petition filed under section 34 of the 1996 Act challenging a foreign award is not maintainable. 40. Considering the conclusion reached by me, it is not necessary to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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