EAGLE FASHIONS Vs. DUE ESSE DI SALVATORE SUPPA

JUDGEMENT

(1.) THE arbitration suit was registered on receipt in this court of letter dated 12th August, 1999 of the Indian Council of Arbitration enclosing therewith the original arbitral award dated 9th March, 1994 alongwith the arbitral record. Vide order dated 1st September, 1999 the notice of the filing of the award was ordered to be issued to the respondent, the counsel for the petitioner having appeared before the court on that date and having accepted notice on behalf of the petitioner. The arbitral award is in the sum of USD 66,293. 92 (Rs. 19,22,528. 92) with pendente lite interest at 15% per annum on the principal amount and costs of arbitration, in favour of the petitioner and against the respondent. The petitioner did not challenge the award. The respondent has filed IA. No. 5394/2006 under Sections 30 and 33 of the Arbitration Act 1940 challenging the award.

(2.) THE respondent in its objections has, inter alia, pleaded that the proceedings are barred by limitation. The petitioner filed a reply to the said objections and in which it is stated that the petitioner had filed a petition under Sections 14, 17 and 29 of the Arbitration Act, 1940 for filing of the arbitral award in the court and for making the same rule of the court. A copy of the said petition stated to have been filed by the petitioner is filed as annexure "a" to the said reply. The said petition is dated 10th July, 1998. It is further the stand of the petitioner in the said reply that the petitioner after making of the said award had attempted to enforce the same in the courts at Italy, to which country the respondent belongs, but the respondent objected to the jurisdiction of the Italian Court and thus the petitioner was left with no option but to approach this court under Sections 14 and 17 of the arbitration Act, 1940 for making the award rule of the court.

(3.) ON the pleadings of the parties the usual issues were framed on 20th March, 2007 and the parties directed to file evidence in the form of affidavits. The respondent has filed affidavit by way of evidence. No affidavit was filed by the petitioner. On 26th September, 2008 the counsel for the petitioner stated that she had not received any instruction from the petitioner inspite of registered notices; in the circumstances the suit was adjourned to 25th november, 2008. On 25th November, 2008 none appeared on behalf of the petitioner. However, finding that the suit had been registered on the filing of the arbitral award in the court by the arbitral tribunal itself and not on a petition under Sections 14 and 17 of the Act, inspite of failure of the petitioner to appear, the suit was held to be maintainable. The counsel for the respondent had on that date also urged that the proceedings were barred by limitation. However, since the order sheet of the suit showed that the same had been registered on receipt of arbitral award and not on a petition, notwithstanding the petitioner in its reply to the objections of the respondent having stated so, it was felt that the proceedings were maintainable even in the absence of the petitioner. On the request of the counsel for the respondent the registry was directed to report whether the petition under Sections 14 and 17 of the Act as claimed by the petitioner had been registered separately and/or had been filed. The suit was listed thereafter on 16th March, 2009 and 13th July, 2009 on which dates also none appeared for the petitioner. The registry has reported that no petition under sections 14 and 17 of the Act as claimed by the petitioner to have been filed, had in fact been filed.