JINDAL DRUGS LIMITED Vs. NOY VALLESINA ENGINEERING SPA

JUDGEMENT

(1.) BY this petition, the petitioner is challenging the Award dated 1st February, 2000. The facts that are material and relevant for considering this petition are that the petitioner is a company incorporated in India. The 1st respondent is a company incorporated under the Laws of Italy. The petitioner on 30th January, 1995 entered into four related agreements with Enco Engineering Chur AG of Sagenstrasse, which is a company incorporated under the Laws of Switzerland. These four agreements are known as the Engineering Contract for Ascorbic Acid Plant (ECAAP), Supply Contract for Ascorbic Acid Plant (SCAAP), Service Agreement for Ascorbic Acid Plant (SAAP), and Licence Agreement for Ascorbic Acid Plant (LAAAP ). By these agreements, Enco agreed to supply to the petitioner their secret knowledge and know-how for the production of ascorbic acid to enable the petitioner to build a new ascorbic acid plant in India. On 1st March, 1995, the petitioner, Enco and the respondent No. 1-Noy Vallesina Engineering Spa entered into a tripartite Transfer Agreement whereby pursuant to Article 12. 1, the ECAAP was assigned to respondent No. 1-Noy and Enco was released from all its obligations under the contract. Each of the four agreements contained the following terms dealing with the proper law of the agreements and provisions for the arbitration for disputes.

(2.) ON 31st October, 1996, the petitioner served a request for arbitration on the International Chamber of Commerce in Paris. The petitioner claimed damages from respondent No. 1-Noy on account of alleged misrepresentations and breaches of the ECAAP. The petitioner further claimed that it had terminated the ECAAP on 10th July, 1996. The Secretariat of the International Court of arbitration appointed a Chairman of the arbitral Tribunal. Thereafter, the arbitration proceedings were taken up by the arbitral Tribunal, and by a majority Award, the petitioners claims were dismissed and it was held that respondent No. 1-Noy is entitled to recover from the claimant a sum of S. Fr 4,433,316 pursuant to the counterclaim filed by respondent No. 1. The arbitral Tribunal decided that the question of Award of interest and costs would be decided after the parties file their further submissions. It is this Award, which is a majority Award made by the arbitral Tribunal, that is challenged in the present petition.

(3.) THE present petition has been filed by the petitioner under section 34 of the Arbitration and Conciliation Act, 1996, though, by a subsequent amendment, the petitioner had claimed that it is filing the present petition also under the provisions of section 48 of the Act. At the outset, Mr. Tulzapurkar, learned Counsel for the petitioner submits that as now the final Award of the arbitrator has come and so far respondent No. 1 has not taken any step to invoke the Awards, he is not pressing this petition as the petition filed under section 48 of the Act. He submits that this petition should be taken as a petition filed under section 34 of the Act for setting aside the first Award alone.