NAVALMAR U K LTD Vs. ASHAPURA MINECHEM LTD

JUDGEMENT

(1.) IN this petition filed under Art. 226 of the Constitution of India, the petitioner has made following prayer in Para 18(a):

(2.) AFFIDAVIT -in -Reply is filed opposing me petition mainly stating that as per Clause 31 of the Charterparty, dispute was to be referred to arbitration in London, English law was to be applied to such arbitration, however Clause 31 stood exhausted on conclusion of arbitration proceedings. It is stated that the proceedings initiated under Sec. 34 of the Act in the Court of learned District Judge at Bhuj -Kutch are in relation to effect, operation and scope of me award made and not in relation to the arbitration proceedings. Arbitration proceedings have been terminated upon pronouncement of the award and such award is akin to a judgment and decree which is required to be lodged with the Court of competent jurisdiction for execution and similarly, such award is required to be challenged by way of an appeal before the Court of competent jurisdiction. On the same parity, recourse can be had to the provisions of Sec. 34 of the Act and for such recourse, unless the parties to a contract have provided anything contrary in the contract, ordinary laws of land will apply. It is also stated that the petitioner ought to have resisted or opposed the maintainability of the application filed under Sec. 34 of the Act, being Misc. Civil Application No. 36 of 2011 before the District Court at Bhuj -Kutch.

(3.) LEARNED Senior Advocate Mr. Saurabh Soparkar appearing with learned Advocate Mr. Daxesh Mehta for the petitioner submitted that undisputably, as per the arbitration agreement in Charterparty, dispute arising between the parties was to be settled by arbitration in London in accordance with English law. Mr. Soparkar submitted that the dispute between the parties was accordingly referred to arbitration having seat at London and arbitration proceedings were conducted, concluded and final award came to be passed at London according to English law. Mr. Soparkar submitted that to such foreign award, Chapter -I of the Act, which includes Sec. 34 of the Act, shall have no application. Mr. Soparkar submitted that if Chapter -I of the Act cannot apply to the award made in international arbitration, no proceedings could have been taken under Sec. 34 of the Act before the District Court at Bharuch -Kutch by filing Misc. Civil Application No. 36 of 2011. Mr. Soparkar submitted that since the District Court at Bhuj -Kutch lacks jurisdiction to entertain any application much less the application under Sec. 34 of the Act in respect of arbitration proceedings conducted in foreign country as per foreign law, the learned District Judge was not justified in entertaining the application under Sec. 34 of the Act by issuing notice to the petitioner. Mr. Soparkar submitted that since application under Sec. 34 of the Act in respect of foreign award is not at all maintainable before the learned District Judge, at Bhuj, this Court may issue appropriate writ of prohibition and for quashing the proceedings of the said application under Art. 226 of the Constitution of India and direct the learned District Judge to dispose of the proceedings by declaring the same as not maintainable.