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The Division Bench directed that the application under section 47 of the Act for enforcement of the foreign award and Execution Application No.554 of 2011 shall be heard together.

18. The petitioner accordingly lodged Arbitration Petition (47 of 2015) on 23rd December, 2014 under sections 47 and 48 of the Arbitration Act in this court inter alia praying for an order that the foreign award dated 25th March, 2011 be deemed to be a decree of this court and for a direction to enforce and execute the said award as decree in favour of the petitioner and as against the respondent. The petitioner has also prayed for various interim reliefs in this petition.

22. It is submitted by the learned senior counsel that the petitioner could not have filed the execution application simplicitor to execute a foreign award. The petitioner ought to have filed a petition under sections 47 and 48 of the Arbitration and Conciliation Act, 1996 for seeking the enforcement of the foreign award. It is submitted that the execution application could not be made absolute without the award being enforced and thus the Division Bench had rightly set aside the order dated 12th December, 2014 passed by the learned Single Judge. He submits that mere filing of the execution application was not sufficient and filing of execution application alone did not amount to and could not be concluded as sufficient compliance of the mandatory requirements under section 47 of the Act.

24. Learned senior counsel for the respondent distinguishes the judgment of the Supreme Court in case of M/s.Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd. (2001) 3 SCR 479 and judgment in case of Thyssen Stahlunion GMBH vs. Steel Authority of India Ltd. AIR 1999 SC 3923 and would submit that both these judgments of the Supreme Court have been duly considered by the learned Single Judge of this court in case of Noy Vallesina Engineering Spa vs. Jindal Drugs Limited 2006(5) Bom.C.R.155. It is submitted that this court has already taken a view that if the person in whose favour a foreign award is made desires to make an application for execution of the award when the court is yet to record is satisfaction that award is enforceable, the period for limitation for making such an application would be governed by Article 137 of the Schedule of the Limitation Act i.e. three years from the date when the right to apply accrues. He submits that the petitioner had filed an execution application within time, the petitioner however did not file any petition for enforcement of the said foreign award within three years from the date of the cause of action i.e. the date of the foreign award under Article 137 of the schedule of the Limitation Act.

REASONS AND CONCLUSIONS :

44. Insofar as the prayer in the Notice of Motion No.1318 of 2015, filed by the petitioner for condonation of delay in filing Arbitration Petition No.47 of 2015 is concerned, it is not in dispute that the petitioner had filed Execution Application (No.554 of 2011) on 6 th July, 2011, seeking execution of the said foreign award dated 25 th March, 2011. The respondent did not file any reply to the execution application. The said execution application was made absolute by the learned single Judge of this Court on 28th November, 2014. The said order was impugned by the respondent before the Division Bench of this Court. Before the Division Bench, the respondent contended that arbp47-15g in absence of the application for enforcement of the foreign award under section 47 of the Arbitration Act, the execution application could not have been filed and no orders could have been passed therein.