Calcutta High Court
Swiss Singapore Overseas Enterprises ... vs Lmj International Ltd on 6 July, 2017
Equivalent citations: AIR 2017 (NOC) 1002 (CAL.)
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2812 of 2013
With
EC No.321 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SWISS SINGAPORE OVERSEAS ENTERPRISES PTE. LTD.
Versus
LMJ INTERNATIONAL LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 6th July, 2017.
Appearance:
Mr. S. Sarkar, Adv.
Ms. Sananda Mukhopadhyay, Adv.
Mr. T. Aich, Adv.
Mr. Anirban Ray, Adv.
Ms. N. Jhunjhunwala, Adv.
The Court : An objection is taken with regard to the enforceability of the award on the ground that there are apparent discrepancies in the certification issued by the Registrar of the Singapore International Arbitration Centre. This appears to be the main objection as the other objections to my mind are without any substance.
However, the other objection seems to be that the arbitration agreement has not been duly authenticated and/or certified in terms of Rule 19C (3) of the Statutes of the Republic of Singapore International Arbitration Act (Chapter 143A). The said Rule reads:
"19C.--(1) For the purposes of the enforcement of an award in any Convention country, the Minister may by order appoint such persons holding office in such arbitral institution or other organisation as the Minister may specify in the order, to authenticate any award or arbitration agreement or to certify copies thereof.
(2) Any person appointed under subsection (1) --
(a) shall comply with any condition imposed by the Minister; and 2
(b) shall not, without the written consent of the parties, directly or indirectly disclose any matter, including the identity of any party to the award or arbitration agreement, to any third party. (3) An award or arbitration agreement or a copy thereof duly authenticated or certified by a person appointed under subsection (1) shall be deemed to have been authenticated or certified by a competent authority in Singapore for the purposes of enforcement in any Convention country.
(4) For the avoidance of doubt, nothing in this section shall -
(a) prevent any person from authenticating any award or arbitration agreement or certifying copies thereof in any other manner or method or by any other person, institution or organisation; or
(b) affect the right of a person to challenge or appeal against any award by any available arbitral process of appeal or review, or in accordance with the provisions of this Act and the Model Law. (5) In this section, "Convention country" has the same meaning as in section 27(1)."
One Minn Naing Oo has, in the capacity as Registrar, Singapore International Arbitration Centre (SIAC), duly certified that the copy attached to the execution application is a true copy of the partial award dated 20th February, 2013 passed in the arbitration proceeding between the parties. The said certification is dated 12th April, 2013. Mr. Minn Naing Oo has signed a declaration on 16th April, 2013 before a notary public to the effect that pursuant to his appointment as the Registrar of the Singapore International Arbitration Centre by the Minister of Law of the Republic of Singapore under Section 19C of the International Arbitration (Amendment) Act 2009 and the International Arbitration (Appointed Persons Under Section 19C) Order 2009, he is duly authorized to certify the award published in Singapore in the said arbitration proceeding by the Arbitral Tribunal comprising Mr. Gordon Smith. It appears that the certifying officer has made a mistake in mentioning the date of the arbitral award as 20th February, 2012 instead of 20th February, 2013. This mistake has not been removed by the award- holder.
3
There is no challenge in this proceeding that Mr. Minn Naing Oo is not the Registrar of the Singapore International Arbitration Centre appointed by the Minister of Law of the Republic of Singapore under Section 19C of the International Arbitration (Amendment) Act 2009. Moreover, the said declaration has been duly signed and sworn before the notary public. The notarial attestation of the document is not under challenge. There is a presumption of regularity of official acts and both Mr. Minn Naing Oo and the notary public have satisfied themselves in the discharge of their respective duties i.e. that Mr. Minn Naing Oo in the capacity as Registrar has duly verified the arbitral award and the notary public had satisfied himself that the person executing the award was the proper person.
The petitioner is unable to produce any document that the Registrar of the Singapore International Arbitration Centre is not authorized to authenticate the award. Moreover, it is admitted that the award sought to be enforced in this proceeding is an award dated 20th February, 2013. The contract between the parties is also admitted. In view of admission on behalf of the judgment-debtor with regard to the existence of the partial award dated 20th February, 2013 and the agreement, the objections with regard to the due certification of the agreement by one Chitlangia and not by the person authorized to certify such agreement is not accepted. Moreover, Rule 19C (3) contains disjunctive clause. Certification of the award by the competent person is good enough to be produced as an evidence of the original award.
It appears that the Court admitting the petition has not noticed the apparent discrepancies between the two documents being pages 22 and 23 of Annexure-B and has proceeded on the basis that the said original award has been duly certified. The record needs to be corrected. In view of the apparent discrepancies between the two documents and the fact that the award-holder in the meantime could have rectified the said defects by producing proper certification of the award, the execution application stands 4 dismissed with liberty to the petitioner to apply afresh in accordance with Section 47 of the Arbitration and Conciliation Act, 1996 after curing the defects.
Since no other points are urged on behalf of the award-debtor with regard to the enforcement of the award save and except the discrepancies in the certification, on curing such defects in the future execution application the award-holder shall be entitled to file an application for execution of the foreign award. It is also clarified that in the future application the award-holder may be entitled to produce the duly certified copy of the contract between the parties that they have produced in this proceeding as the authenticity and existence of the said contract is not in dispute.
The original award may be returned to the award-holder upon furnishing a duly authenticated copy thereof.
GA No.2812 of 2013 succeeds. EC No.321 of 2013 stands dismissed with liberty to file afresh after curing the defects.
(SOUMEN SEN, J.) B.Pal