Calcutta High Court
Swiss Singapore Overseas Enterprises ... vs Lmj International Limited on 6 July, 2017
Author: Soumen Sen
Bench: Soumen Sen
ORDER
GA No. 2814 of 2013
EC No. 322 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
SWISS SINGAPORE OVERSEAS ENTERPRISES PTE LTD.
Versus
LMJ INTERNATIONAL LIMITED
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 6th July, 2017.
Appearance:
Mr. Anirban Ray, Advocate
Mr. Vivek Jhunjhunwala, Advocate
Ms. Nikita Jhunjhunwala, Advocate
...for the award-debtor/applicant.
Mr. Sankarsan Sarkar, Advocate
Ms. Sananda Mukhopadhyay, Advocate
Led by Mr. S. N. Mitra, Sr. Advocate
Mr. D. N. Sharma, Advocate
...for the decree-holder.
This is an application challenging the maintainability of the
execution application on the ground that requirement of Section 47
of the Arbitration and Conciliation Act, 1996 has not been
followed. There is no challenge either to the existence of the
final award nor with regard to the authenticity and existence of
the agreement. The foreign award is a contested award. The
argument that a duly authenticated copy of the contract which
contains the arbitration clause has not been produced is
unacceptable as authenticity of the said agreement is admitted.
Moreover, the person authenticating the said agreement has
participated in the arbitration proceeding and the same is borne
out from record.
2
A question is raised with regard to the person competent to
authenticate the original award. The existence of the final award
dated 10th April 2013 is not disputed. Although the nature of the
dispute has not been spelt out in the petition, but in course of
the argument, reference has been made to Rule 19C(3) of the
Statutes of the Republic of Singapore International Arbitration
Act (Chapter 143A) and it is submitted that the person
authenticating has not disclosed his authority to certify the said
award. The person certifying the award is the Registrar of the
Singapore International Arbitration Centre, which fact is not
disputed. 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 award dated 10th April, 2013 passed in the arbitration
proceeding between the parties. The said certification is dated
9th May, 2013. Mr. Minn Naing Oo has signed a declaration on 9th
May, 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.
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 proceeding.
The onus is on the applicant/award-debtor to demonstrate that
the person is not authorized to certify the original award. The
preliminary objections are more in despair than on merits. The
intention is to delay the execution proceeding.
A submission is made, relying upon the decision in Fuerst Day
Lawson Ltd. vs. Jindal Exports Ltd. reported at (2001) 6 Supreme
Court Cases 356, paragraphs 30, 31 and 32, that no separate prayer
is made for enforcement of the said award. In paragraph 31 of the
report, this point has been discussed elaborately. The said
paragraph reads:-
"31. Prior to the enforcement of the Act, the law of
arbitration in this country was substantially contained in
three enactments, namely, (1) the Arbitration Act, 1940,
4
(2) the Arbitration (Protocol and Convention) Act, 1937,
and (3) the Foreign Awards (Recognition and Enforcement)
Act, 1961. A party holding a foreign award was required to
take recourse to these enactments. The Preamble of the Act
makes it abundantly clear that it aims at consolidating and
amending Indian laws relating to domestic arbitration,
international commercial arbitration and enforcement of
foreign arbitral awards. The object of the Act is to
minimize supervisory role of the court and to give speedy
justice. In this view, the stage of approaching the court
for making the award a rule of court as required in the
Arbitration Act, 1940 is dispensed with in the present Act.
If the argument of the respondent is accepted, one of the
objects of the Act will be frustrated and defeated. Under the old Act, after making award and prior to execution, there was a procedure for filing and making an award a rule of court i.e. a decree. Since the object of the Act is to provide speedy and alternative solution to the dispute, the same procedure cannot be insisted upon under the new Act when it is advisedly eliminated. If separate proceedings are to be taken, one for deciding the enforceability of a foreign award and the other thereafter for execution, it would only contribute to protracting the litigation and adding to the sufferings of a litigant in terms of money, time and energy. Avoiding such difficulties is one of the objects of the Act as can be gathered from the scheme of the Act and particularly looking to the provisions contained in Sections 46 to 49 in relation to enforcement of a foreign award. The only difference as found is that while under the Foreign Awards Act a decree follows, under the new Act the foreign award is already stamped as the decree. Thus, in our view, a party holding a foreign award can apply for enforcement of it but the court before taking 5 further effective steps for the execution of the award has to proceed in accordance with Sections 47 to 49. In one proceeding there may be different stages. In the first stage the court may have to decide about the enforceability of the award having regard to the requirement of the said provisions. Once the court decides that the foreign award is enforceable, it can proceed to take further effective steps for execution of the same. There arises no question of making foreign award a rule of court / decree again. If the object and purpose can be served in the same proceedings, in our view, there is no need to take two separate proceedings resulting in multiplicity of litigation. It is also clear from the objectives contained in para 4 of the Statement of Objects and Reasons, Sections 47 to 49 and the scheme of the Act that every final arbitral award is to be enforced as if it were a decree of the court. The submission that the execution petition could not be permitted to convert as an application under Section 47 is technical and is of no consequence in the view we have taken. In our opinion, for enforcement of a foreign award there is no need to take separate proceedings, one for deciding the enforceability of the award to make it a rule of the court or decree and the other to take up execution thereafter. In one proceeding, as already stated above, the court enforcing a foreign award can deal with the entire matter. Even otherwise, this procedure does not prejudice a party in the light of what is stated in para 40 of Thyssen judgment."
In no uncertain terms, it was held that for enforcement of a foreign award there is no need to take separate proceedings, one for deciding the enforceability of the award to make it a rule of the court or decree and the other to take up execution thereafter.
6It is also clearly laid down that a party holding a foreign award can apply for enforcement of it but the court before taking further effective steps for the execution of the award has to proceed in accordance with Sections 46 to 49 of the Arbitration and Conciliation Act, 1996. The prayers made, if read in totality, would show that the award-holder in fact is seeking to enforce the foreign award. At this stage, the court certainly has to be satisfied that the requirement of Section 47 of the Arbitration and Conciliation Act has been fulfilled, otherwise the execution application cannot proceed further.
Under such circumstances, this court is unable to accept the submission that the execution application is not for enforcement of the foreign award.
Under such circumstances, this application being GA No. 2184 of 2013 stands dismissed with costs assessed at 300 GMs to be paid to Ram Krishna Mission Seva Pratisthan. The award-holder does not object to payment of such cost to the said institution.
(SOUMEN SEN, J.) S. Kumar