Madhya Pradesh High Court
Vitol S.A. vs Asian Natural Resources (India) Ltd. ... on 28 February, 2017
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
CIVIL REVISION No. 65 / 2016
VITOL S.A.
Vs.
ASIAN NATURAL RESOURCES (INDIA) LTD.,
*****
ORDER
( 28/02/2017) The petitioner before this Court, a Company incorporated in Switzerland, has filed this present revision being aggrieved by the order dt. 17/2/2016 passed by learned VII Additional District and Sessions Judge, Indore in Arbitration Execution Case No. 5 of 2015.
Facts of the case reveal that the applicant Company has entered into an agreement for purchase and sale of Coal on 14/4/2008 and certain disputes arose under the contract and the same was referred to Arbitration in London. The London Arbitral Tribunal after examining the rival contentions of both the parties passed an award on 17/1/2011. The applicant / award holder thereafter initiated
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Execution proceedings by filing appropriate application in Bombay High Court ie., Application No. 240/2011 against the property of the non applicant which was within the jurisdiction of Bombay High Court. Non applicant / award debtor resisted the enforcement of the Foreign Award on the grounds enumerated u/S. 48 of the Arbitration and Conciliation Act, 1996. The Bombay High Court vide judgment dated 15/9/2014 rejected the non-applicant / award debtor's application to resist enforcement of Foreign Award on the ground enumerated u/S. 48 of the Arbitration and Conciliation Act, 1996 and has held that the Foreign Award can be executed against the assets of the non-applicant / Award debtor.
Contention of the learned counsel for the petitioner is that under these circumstances the Foreign Award is deemed to be a decree of Bombay High Court by virtue of Sec. 49 of the Arbitration and Conciliation Act, 1996. Facts further reveal that the properties of the non applicant / Award debtor are situated within the jurisdiction of Bombay High
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Court were not sufficient to satisfy the decretal amount which is over Rs.500/- crores and in those circumstances the applicant / award holder has transferred the decree passed by the Bombay High Court to the Court of VII Additional District & Sessions Judge, Indore in order to attach the shares held by non applicant / judgment debtor and its sister companies in Indore and the same has been numbered as execution Arbitration No. 5/2015. It has been further stated that the management of the non applicant Company with malicious intention of frustrating and / or delaying enforcement of London Arbitral Award, on previous occasions filed frivolous applications which were not maintainable in law and this Court vide judgment dated 26/4/2013 passed in C.R.No. 213/2012 has held that the non applicant's application u/S. 34 of the Arbitration and Conciliation Act, 1996 to set aside the London Arbitral Award, is not maintainable. It has been further brought to the notice of this Court that this Court vide order dated 20/6/2013 has dismissed the C.R.No. 258/2013 filed by the
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non applicant against the earlier judgment dated 26/4/2013 passed in C.R.No. 213/2012. Not only this, SLP has also been dismissed by the Hon'ble Supreme Court vide judgment dated 7/8/2013. It has been stated that the award debtor again, in order to delay the proceedings, filed an application stating that proper stamp duty has not been paid, which was rejected by the learned 7th Additional District & Sessions Judge, Indore on 31/8/2015. It has been further stated that now the non applicant has filed an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 for impleadment for consortium of 13 Banks as necessary party on the ground that shares held by the non-applicant Company had been purportedly charged / hypothecated / pledged to a consortium of 13 Banks. A notice has been issued on 17/2/2016 to the Banks and against issuance of Notice, the present Revision has been filed. Various grounds have been raised in the present revision petition and catena of judgments have also been relied upon that the Banks are not necessary parties. It has been argued that the creditors
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including the Banks and other financial institutions cannot agitate rights under the execution proceedings by seeking implementation as proper and necessary party. At the best, executing Court can take into consideration the Banks' right as a creditor, for instance, if the Banks has obtained any order under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or an Arbitration Award etc., Learned senior counsel has placed reliance upon the judgment delivered in the case of Indian Oil Corporation Vs. NEPC India Ltd., reported in (2006) 6 SCC 736; Satyawati Vs. Rajinder Singh reported in (2013) 9 SCC 491; Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay reported in (1992) 2 SCC 524; Dhannalal Vs. Kalawatibai reported in (2002) 6 SCC 16; Kasturi Vs. Iyyamperumal reported in (2005) 6 SCC 733; and, Mumbai International Airport Pvt. Ltd., Vs. Regency Convention Centre and Hotels Pvt. Ltd., and others reported in (2010) 7 SCC 417.
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This Court has carefully gone through the aforesaid judgments. However, the fact remains that the learned Additional District & Sessions Judge has only issued notices to the Bank and a final order in respect of the application for impleadment is yet to be passed in the matter.
This Court is of the considered opinion that the present revision petition is certainly a premature petition. The same stands disposed of with a direction to the learned Court below to decide the application preferred under Order 1 R. 10 of the Code of Civil Procedure, 1908 within a period of 30 days from the date of receipt of certified copy of this order.
Mr. Vaibhav Jain, who is present in the Court undertakes to serve a certified copy of this order to the learned 7th Additional District & Sessions Judge, Indore enabling him to pass appropriate order. As the application for impleadment has been filed by the present respondent, it shall be the duty of the present respondent to serve all the Banks by hamdust mode, in case they have not been served
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and the learned Presiding Officer shall decide the same on merits keeping in view the arguments canvassed by the parties within a period of 30 days. The Court below shall not grant any unnecessary adjournments and shall also be free to proceed on day to day basis hearing, as the Award in question is dated 17/1/2011. The Court below is also directed to conclude the execution proceedings within a period of six months from the date of receipt of certified copy of this order.
(S. C. SHARMA) JUDGE KR