Calcutta High Court
Devi Resources Ltd vs Ambo Exports Ltd on 22 August, 2017
Author: Soumen Sen
Bench: Soumen Sen
ORDER
EC No. 233 of 2016
GA No. 1736 of 2016
GA No. 513 of 2015
GA No. 595 of 2016
GA No. 67 of 2016
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
DEVI RESOURCES LTD.
Versus
AMBO EXPORTS LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 22nd August, 2017.
Appearance:
Mr. Rahul Karmakar, Advocate Ms. Debamitra Adhikari, Advocate.
Mr. Ratnanko Banerjee, Sr. Advocate Ms. Urmila Chakraborty, Advocate Ms. Mudrika Khaitan, Advocate.
The award-holder has filed an application for execution of a foreign award. Admittedly, the award-debtor has filed a suit prior to the commencement of the arbitration proceedings. During the pendency of the suit, the award-holder commenced the arbitration proceedings and has filed an application under Section 45 of the Arbitration and Conciliation Act, 1996 for referring the disputes to arbitration. In the said proceedings, the award-
debtor has filed an affidavit contending that the agreement on the basis of which a reference is sought for was worked out and the disputes were mutually settled. The said application is pending. Since the award-holder continued with the arbitration proceedings, 2 in an interlocutory application filed being GA No. 67 of 2017, on 14th January 2016, Justice Arijit Banerjee passed the following order:-
"Having considered the rival contentions of the parties, I am prima facie of the view that the defendant having approached this Court by way of an application under Section 45 of the Arbitration and Conciliation Act, 1996, it should not have initiated arbitration proceeding in London until disposal of the said application. This in my opinion amounts to overreaching this Court. In my view, it will be unconscionable and vexatious on the plaintiff if the arbitration proceeding is allowed to continue on London.
Accordingly, there will be an order of stay of the arbitration proceedings in London till 10th February, 2016 or until further order whichever is earlier. The defendant is restrained from proceeding with the arbitration proceeding in London till 10th February, 2016."
The said interim order was extended from time to time and was subsisting when the award was passed. The said interim order is still in force.
During the pendency of the said application and subsistence of the interim order, the award was published and is now sought to be enforced. There cannot be any doubt that an award passed in violation of an order of injunction which restrains the award- holder from proceeding with the arbitration proceedings in London cannot be enforced in India as it is contrary to the public policy 3 of India as recognized by several decisions of our Court as well as the Hon'ble Supreme Court.
Under such circumstances, the award is not enforceable as against the award-debtor in India. EC No. 233 of 2016 stands dismissed. However, there shall be no order as to costs.
(SOUMEN SEN, J.) S. Kumar