Bombay HC: Arbitral Award can be executed by the court which passed it or by the Court to which it is sent for execution

Conclusion:

26. In the light of aforesaid discussion, we find that after an award attains finality and the stage as contemplated by provisions of Section 34 of the Act of 1996 has been crossed, the final arbitral award under Part-I of the Act of 1996 has to be enforced in accordance with the provisions of the Code in the same manner as if it were a decree of the Court. The legal fiction under Section 36 is only for the limited purpose of enforcement of an award as a decree. At that stage, the provisions of Sections 38 and 39 of the Code would come into operation. These provisions permit a decree to be executed either by the Court which passed it [the Court as defined by Section 2(1)(e)(i) of the Act of 1996] or by the Court to which it is sent for execution. The Court which passed the decree can also transfer it for execution to any subordinate Court of competent jurisdiction. Proceedings for execution of an arbitral award are beyond the purview of Section 42 of the Act of 1996, inasmuch as such proceedings are not in the nature of any application under Part-I of the Act of 1996. The view as taken by the Division Bench in Akola Janta Commercial Co-operative Bank Ltd. [supra] that a decree holder must apply for execution of an award to the Court of District Judge who may thereafter execute the award as a decree himself or send it for execution to another Court including a subordinate Court of competent jurisdiction commends itself and we respectfully concur with the same. The modality prescribed therein that all applications for execution of awards be first placed before the District Judge who may then execute the same himself or send it to subordinate Courts under Section 38 read with Section 39(2) of the Code is found appropriate in these circumstances.

27. We are, therefore, in respectful disagreement with the views expressed in the order of Reference in Gemini Bay Transcription Pvt. Ltd. [supra] that a Court subordinate to the Court of District Judge [here the Court of Principal District Judge] cannot be recognized as a Court of competent jurisdiction for the purposes of enforcement of awards under the Act of 1996. The view taken by learned Single Judge in Arunkumar Deedwania [supra] stands affirmed and the view taken in Sanjay Suryakant Mhaske & others [supra] with respect stands overruled.

30. The Reference accordingly stands answered as follows:-

An Award made under Part-I of the Arbitration and Conciliation Act, 1996 can be executed not only by the Court as defined by Section 2(1)(e)(i) but also by the Court to which it is sent for execution under Sections 38 and 39 of the Code of Civil Procedure, 1908.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 6066 and 4682 of 2012

Decided On: 16.02.2018

Gemini Bay Transcription Private Ltd. and Ors. Vs. Integrated Sales Service Ltd. and Ors.

Hon'ble Judges/Coram:

R.K. Deshpande, A.S. Chandurkar and M.G. Giratkar, JJ.

Author: A.S. Chandurkar, J.

Citation:  MANU/MH/0265/2018, AIR 2018 BOMBAY 89, (2018) 2 MAH LJ 329.

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Enforcement of Foreign Arbitral Awards: The Landmark Judgment in Gemini Bay Transcription Pvt. Ltd. vs. Integrated Sales Service Ltd.

  In a significant ruling on August 10, 2021, the Supreme Court of India addressed the complex issues surrounding the enforcement of foreign arbitral awards against non-signatories in the case of Gemini Bay Transcription Pvt. Ltd. vs. Integrated Sales Service Ltd. This judgment clarifies the legal framework for recognizing and enforcing foreign arbitral awards in India, particularly under the Arbitration and Conciliation Act, 1996.

 Background of the Case

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Supreme Court: Six pre-requisites for an arbitral award to be recognized as a foreign award under Section 44 of the Act

The Supreme Court of India has identified six pre-requisites for a foreign award to be recognized and enforceable under Section 44 of the Arbitration and Conciliation Act, 1996. These prerequisites are:

1. Arbitral Award on Differences: The award must be an arbitral award concerning differences arising out of legal relationships between parties.

   

2.Nature of Differences : The differences can arise from contractual obligations or non-contractual situations, such as torts.

3. Commercial Relationship: The legal relationship involved must be considered "commercial" under Indian law.

4. Date of Award: The award must have been made on or after October 11, 1960.

5.New York Convention Award: The award must qualify as a New York Convention award, meaning it should arise from an agreement in writing that falls under the New York Convention's jurisdiction.

6.Territorial Application: The award must be made in a territory that is a signatory to the New York Convention. 

These criteria establish the framework for recognizing and enforcing foreign arbitral awards in India, providing clarity on the conditions necessary for such enforcement.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8343-8344 of 2018 and 8345-8346 of 2018

Decided On: 10.08.2021

Gemini Bay Transcription Pvt. Ltd. Vs. Integrated Sales Service Ltd. and Ors.

Hon'ble Judges/Coram:

Rohinton Fali Nariman and B.R. Gavai, JJ.

Author: Rohinton Fali Nariman, J.

Citation:  MANU/SC/0517/2021, AIR 2021 SUPREME COURT 3836, AIRONLINE 2021 SC 481

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Whether Arbitration Act will prevail over Delhi High court Act?

It is first to be noted that the Arbitration and Conciliation Act, 1996 is a special statute vis-à-vis the Delhi High Court Act, which would be a general statute dealing with the jurisdiction and procedure of the High Court. It is well established principle of law that a special provision made on a certain matter would exclude the general provision in its application, with the provision of the special Act prevailing over the provision of a general Act. This principle is expressed in the maxims Generalia Specialibus Non Derogant and Specialia Generalibus Derogant. Reference can be drawn to the judgment of the Supreme Court in Jogendra Lal Saha v. State of Bihar and others, MANU/SC/0282/1991 : AIR 1991 SC 1148 and P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and others, MANU/SC/0501/2002 : AIR 2002 SC 2445.

13. The object and intent of the legislature in substituting the Explanation to Section 47 of the Act can be found in the 246th Report of the Law Commission, which has been reproduced hereinabove. The provision therefore, clearly intended to ensure that all challenges to a Foreign Award are made only before the High Court. Such intent cannot be defeated by applying a subsequent general law. In view of the above, the provisions of the Delhi High Court Act cannot be made applicable to the petitions seeking enforcement of the Foreign Awards.

14. In Kandla Export Corporation and Anr. v. M/s. OCI Corporation and Anr., MANU/SC/0112/2018, the Supreme Court relying upon its earlier judgment in Fuerst Day (supra) held that Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 being a general provision vis-a-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to the case of Section 50 of the Act. Applying the above ratio, it would be clear that the Delhi High Court Act would not apply to the petitions seeking enforcement of a Foreign Award under the Arbitration and Conciliation Act, 1996 as amended by the Amendment Act.

IN THE HIGH COURT OF DELHI

Ex. P. 330/2015 and E.A. No. 387/2018

Decided On: 28.11.2018

Precious Sapphires Ltd. Vs. Amira Pure Foods Private Ltd.

Hon'ble Judges/Coram:

Navin Chawla, J.

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