FUERST DAY LAWSON LIMITED Vs. JINDAL EXPORT LIMITED

JUDGEMENT

(1.) Leave granted.

(2.) An agreement was entered into between the appellant and the respondent on 1-8-1994 under which the respondent was to supply certain goods to the appellant during the period January, 1995 to June, 1996. Certain disputes cropped up in the course of the execution of the agreement. The agreement provided for arbitration. The appellant filed a claim petition before the International General Produce Association (IGPA) a body nominated by the appellant as the arbitrators. The arbitrators, after entering into reference, received evidence and thereafter passed an Award on 13-8-1996 allowing the claims of the appellant. The appeal filed by the respondent against the Award before the IGPA Appellate Board was dismissed on 14-11-1998. Further the appeal filed by the respondent before the Queen's Bench Division of the High Court of Justice at London was also dismissed on 29-1-1999. The appellant filed an execution application in August, 1998 before the High Court of Delhi for enforcement of said foreign Award dated 13-8-1996. An order of attachment was issued by the High Court against the respondent. The respondent filed an application under Section 151, CPC (E.A. 347 of 1998) seeking dismissal of the execution petition. The respondent also filed O.M.P. No. 203 of 1998 under Section 48 of the Arbitration and Conciliation Act, 1996 (for short the 'Act'). The High Court varied its order of attachment and ordered the respondent to lodge security. A learned single Judge of the High Court held that the execution application filed by the appellant for enforcement of foreign Award dated 13-8-1996 was not maintainable under the Act as the arbitration proceedings were commenced prior to the coming into force of the Act and dismissed the execution petition, consequently released the security of 1.74 crores furnished by the respondent. The appellant filed Special Leave Petition No. 7674 of 1999 before this Court challenging the order passed by the learned single Judge. This Court disposed of the Special Leave Petition observing that the order of the learned single Judge was appealable under Section 50(1)(b) of the Act. In this view, the appellant filed FAO (OS) No. 284 of 1999 before Division Bench of the High Court. The Division Bench of the High Court by the impugned judgment and order dismissed the appeal saying that there was no fallacy in the reasoning of the learned single Judge. Under these circumstances, the appellant is before this Court in this appeal assailing the impugned judgment and order.

(3.) Mr. Ashwani Kumar, learned senior counsel appearing for the appellant, contended that the learned single Judge as well as the Division Bench of the High Court manifestly erred in holding that since the arbitration proceedings were commenced prior to 25-1-1996, i.e., before the commencement of Act, the foreign Award dated 13-8-1996 could not be enforced under Act in terms of Section 85 read with Section 21 of the Act; this Court has ruled in Thyssen Stahlunion GMBH vs. Steel Authority of India Ltd., (1999) 9 SCC 334 that a foreign award passed after the commencement of Act is to be enforced/executed under the said Act alone being stamped as decree; in this ruling the reasoning and conclusions of Gujarat High Court in Western Ship Breaking Corporation vs. Clarehaven Ltd., U. K. (1997 (3) Guj LR 1984) were affirmed; at no stage before the High Court, either before the learned single Judge or before the Division Bench, the respondent questioned the date of commencement of the Act on 25-1-1996; in fact the Division Bench proceeded on the admitted position that new Act commenced from 25-1-1996 and, therefore, it cannot be raised for the first time in these proceedings; even otherwise the question is no longer 'res integra' having been conclusively decided by this Court in Shetty's Constructions Co. Pvt. Ltd. vs. Konkan Rajlway Constructions, (1998) 5 SCC 599, Thyssen Stahlenion GMBH vs. Steel Authority of India Ltd. (supra) and NALCO vs. Metalimpex, 2000 (3) Arb LR 422, it is firmly established by these judgments that the new Act came into force on 25-1-1996; the principal contention advanced on behalf of the respondent that these judgments are 'per incuriam' on the ground that they hold 25-1-1996 as the date of commencement of the Act ignoring the specific provision and the Gazette notification according to which the Act came into force on 22-8-1996; this Court was using the word 'Act' interchangeable with the first ordinance which came into force on 25-1-1996; Article 367 of the Constitution and Section 30 of the General Clauses Act equate an Act with the Ordinance and vice-versa. Section 86(2) of the new Act itself says that "all actions and orders under the Ordinance as deemed to have been under the Act". Reference is invited to T. K. Venkata Reddy vs. State of Andhra Pradesh, (1985) 3 SCC 198. Thus the learned senior counsel submitted that the contentions advanced by the respondent are untenable and unavailable and they cannot be permitted to re-open settled legal issues in relation to enforcement of a foreign award which has become final.