Calcutta High Court
Sleepwell Industries Co. Ltd vs Lmj International Ltd on 11 February, 2020
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
EC NO.487 OF 2013
SLEEPWELL INDUSTRIES CO. LTD.
VS.
LMJ INTERNATIONAL LTD.
EC NO.488 OF 2013
SLEEPWELL INDUSTRIES CO. LTD.
VS.
LMJ INTERNATIONAL LTD.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 11th February, 2020 MR.TILAK KR.BOSE, SR.ADVOCATE, MR.ASIT KR.DE MR. S.JAIN, ADVOCATES FOR AWARD HOLDER MR.S.N.MITRA,SR.ADVOCATE, MISS. S.MUKHOPADHYAY, MR.D.N.SHARMA, MS.S.R.SAHA, MR. S.MAITI, ADVOCATES FOR JUDGMENT DEBTOR The Court : Mr. Mitra, learned senior advocate appearing on behalf of award debtor in these two applications, is in reply.
He relies on view expressed by a learned single Judge of Delhi High Court in, inter alia, O.M.P. 223/2006 (Hindustan Petroleum Corporation Limited Vs. Videocon Industries Limited) available at 2012 SCC OnLine Del 3610, paragraphs 46 and 47. He submits, the view is that a proceeding under section 48 of Arbitration and Conciliation Act, 1996, if succeeds only means, enforcement of the foreign award may not take place within Indian territory, through the process of an Indian Court. This is consistent with law declared by Supreme Court in Fuerst Day Lawson Limited [(2001) 6 SCC
356)], paragraph 31. Supreme Court said as follows:-
"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."2
Thus, according to him, law declared earlier by Supreme Court in Forasol Vs. ONGC [1984 (Supp.) SCC 263], on date of reckoning of exchange rate being date of decree, has to be applied to date of the foreign awards. Section 49 does not deem a later date for a foreign award, execution of which is resisted, to have a later deemed date of it as a decree.
He submits, view taken by learned single Judge of Delhi High Court in Fuerst Day Lawson (supra), relied upon by award holder, (available at 2012 SCC OnLine Del 5647) is not correct. He points out, in paragraph 13 the learned Judge accepts that there can be no doubt that under the 1996 Act, the award (foreign) is itself a decree and till such time objections filed by judgment debtor against enforcement of the award are not disposed of, the foreign award does not become enforceable as such. He reiterates, under section 47 foreign awards are stamped decrees, as declared by Supreme Court. The declaration militates against views of learned single Judges of other Courts saying there would be a later date for such awards to become decree, on challenge to enforceability thereof, rejected. There cannot be two dates of decree on foreign awards under the provisions in the Act.
These two applications will be further heard on 18th February, 2020.
(ARINDAM SINHA, J.) sb.