FUERST DAY LAWSON Vs. JINDAL EXPORT LIMITED

JUDGEMENT

(1.) This order shall govern the disposal of EA No. 251/2001 under Section 151 Code of Civil Procedure filed by the Decree Holder seeking revival/restoration of execution petition.

(2.) The Decree Holder M/s. Fuerst Day Lawson has launched these execution proceedings for enforcement of foreign award dated 13/08/1996. This Court had vide order dated 4/08/1998 issued warrant of attachment in respect of the properties described in the schedule annexed to the petition as Annexure-F. Later on, vide order dated 9/09/1998 at the request of counsel for the Judgment Debtor, order for issuance of warrant of attachment was withdrawn because respondent agreed to deposit some bonds/certificates in the Court as security for due satisfaction of the decree/award as and when it is enforced. Thereafter this Court passed a detailed order dated 19/02/1999 on EA No. 347/1998 filed by the judgment debtor/respondent and held that since the arbitration proceedings had commenced before coming into force of Arbitration & Conciliation Act, 1996 (hereinafter referred to as "Act) foreign award dated 13/08/1996 could be enforced only in accordance with the provisions of Foreign Awards (Recognition & Enforcement) Act, 1961 (FARE Act, 1961 for short). It was further held that petitioner could not directly launch execution proceedings without first filing the suit and obtaining an order for filing of the award and making it a rule of the Court. Accordingly vide order dated 19/02/1999 Dr. M.K. Sharma, J. dismissed the execution proceedings being not maintainable and also released the bonds/certificates which were retained as security. The petitioner preferred an appeal against the order dated 19/02/1999. The appeal was dismissed by the Division Bench vide order dated 27/09/1999. Petitioner then preferred SLP to the Supreme Court and vide judgment dated 4/05/2001 passed in Civil Appeal No. 3594/2001 (arising out of SLP No. 6841/2000). Supreme Court held that foreign award rendered after commencing of Arbitration & Conciliation Act, 1996 i.e. 25/01/1996 shall be enforced only in accordance with provisions of the New Act. Supreme Court further held that for enforcement/execution of the award, there is no need to file a separate application under Section 49 of the Act for the Court to hold that the award is enforceable. The observations of the Supreme Court appearing at page 26 of the Judgement read as under :-

(3.) Part II of the Act relates to enforcement of certain foreign awards. Chapter 1 of this part deals with New York Convention Awards. Section 46 of the Act speaks as to when a foreign award is binding. Section 47 states as to what evidence the party applying for the enforcement of a foreign award should produce before the court. Section 48 states as to the conditions for enforcement of foreign awards. As per Section 49, if the Court is satisfied that a foreign award is enforceable under this chapter, the award shall be deemed to be a decree of that court and that court has to proceed further to execute the foreign award as a decree of that Court. If the argument advanced on behalf of the respondent is accepted, the very purpose of the Act in regard to speedy and effective execution of foreign award will be defeated. Thus none of the contentions urged on behalf of the respondent merit acceptance so as to uphold,the impugned Judgement and order. We have no hesitation or impediment in concluding that the impugned Judgement and order cannot be sustained.