Bombay High Court
Aakash Packaging vs Arenel (Private) Limited on 7 April, 2021
Author: B.P.Colabawalla
Bench: B.P.Colabawalla
5.ia.1733.20..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 1733 OF 2020
IN
COMMERCIAL ARBITRATION PETITION NO. 349 OF 2020
Aakash Packaging ..Applicant/Petitioner
Vs.
Arenel (Private) Ltd ..Respondent
Mr. Mustafa Doctor, Senior Advocate a/w Mr. Amitabha
Mukopadhyay, R. Sudhinder, Shahen Pradhan, Aashdin
Chivalwala i/b Argus Partners, for the Petitioner.
Mr. Srinivas Deshmukh a/w Mr. Siddharth Thacker i/b Mulla &
Mulla and Craigie Blunt & Caroe, for the Respondent.
CORAM :- B.P.COLABAWALLA, J.
DATE :- APRIL 7, 2021.
(THROUGH VIDEO CONFERENCING) P. C.:
The above Interim Application is fled seeking an unconditional stay of the impugned Award dated 2 nd December, 2019. Under this Award, certain sums of money have been awarded in favour of the Respondent (the Claimant before the Arbitral Tribunal). The total amount awarded is approximately Aswale 1/5 ::: Uploaded on - 12/04/2021 ::: Downloaded on - 05/09/2021 17:14:42 :::
5.ia.1733.20..doc USD 165,000 and cost of Rs. 6.69 Lakhs, USD 82,392, AUD 16,649 and Euro 4018.
2 Mr. Doctor, the learned Senior Counsel appearing on behalf of the Petitioner assailed the Award on two primary grounds. He brought to my attention paragraph 41 of the Award wherein it is stated that the two reports of SGS India, though marked in evidence, have no evidentiary value since the author of the said two reports had not been examined. Mr. Doctor submitted that these two reports were in fact produced by the Claimant (the Respondent herein) and were fully admitted by the Petitioner. The fndings in these two reports completely exonerate the Petitioner and would clearly establish that the disputed consignments sent by the Petitioner to the Respondent were not defective and sub- standard as held by the Tribunal. He submitted that this is a fundamental faw and the fndings in relation thereto are perverse considering that the aforesaid two reports, as to their existence as well as their contents, were admitted by both parties. 3 Mr. Doctor further submitted that the Tribunal has completely gone wrong as it has completely changed the premise on which the Claimant (the Respondent herein) had approached Aswale 2/5 ::: Uploaded on - 12/04/2021 ::: Downloaded on - 05/09/2021 17:14:42 :::
5.ia.1733.20..doc the Tribunal. He submitted that the Claimant approached the Tribunal with a case that the packaging supplied by the Petitioner to the Respondent contain a particular chemical called "2, 6- Dichloroanisole", and therefore the goods supplied by the Petitioner to the Respondent were defective. However, the Tribunal rejected this contention and held that the goods were defective because the packaging material emitted an odour. Mr. Doctor submitted that this could never have been done as this was not the case of the Claimant when they approached the Tribunal for redressal of its grievances. Lastly Mr. Doctor submitted that even the evidence in relation to the odour of the packaging material is only based on hearsay evidence and there was no direct evidence to prove that there was any odour in the packaging material. For all these reasons, Mr. Doctor submitted that an unconditional stay ought to be granted to the execution/implementation of the impugned Award. 4 On the other hand, the learned counsel appearing on behalf of the Respondent submitted that the Award is a well reasoned Award which requires absolutely no interference. He submitted that at the end of the day it is a money Award and if any Aswale 3/5 ::: Uploaded on - 12/04/2021 ::: Downloaded on - 05/09/2021 17:14:42 :::
5.ia.1733.20..doc stay is granted to the execution of the Award, the same cannot be unconditional but ought to be on a condition that the Petitioner is directed to deposit the amounts mentioned in the Award. 5 I have heard the learned counsel for the parties at some length and have also perused the impugned Award. It is no doubt that the impugned Award is a money Award under which the amounts mentioned earlier are awarded in favour of the Respondent. Considering that I am only hearing the application for stay, I am not in any great detail dealing with the arguments canvassed by Mr. Doctor. Those would be dealt with in great detail as and when the Court hears the Petition challenging the impugned Award 6 Though I fnd some substance in the argument canvassed by Mr. Doctor, considering that it is a money Award, I am not inclined to grant any unconditional stay. I think therefore it would be in the ftness of things if a conditional order is passed. 7 It is accordingly ordered that:-
i. The execution and implementation of the impugned Award is stayed on the condition that the Petitioner deposits in this Aswale 4/5 ::: Uploaded on - 12/04/2021 ::: Downloaded on - 05/09/2021 17:14:42 :::
5.ia.1733.20..doc Court the sum of USD 165,000 (or it's Rupee equivalent) within a period of four weeks from today.
ii. If the deposit is not made within the stipulated period, the stay granted by this Court today shall stand vacated and the Respondent shall be free to continue with the execution proceedings already initiated by it.
8 The Interim Application is disposed of in the aforesaid terms. No order as to costs.
9 List the above Petition for admission on 4th May, 2021. 10 All parties to act on an authenticated copy of this order duly signed by the Personal Assistant/Private Secretary/Associate of this Court.
(B. P. COLABAWALLA, J.) Aswale 5/5 ::: Uploaded on - 12/04/2021 ::: Downloaded on - 05/09/2021 17:14:42 :::