FERMENTA BIOTECH LIMITED Vs. K R PATEL

JUDGEMENT

(1.) This arbitration petition challenges an arbitral award on a jurisdictional issue considered by the learned Arbitrator whilst hearing an application under Section 16 of the Arbitration and Conciliation Act, 1996 ( Act ) as also the final adjudication in the reference after repelling the challenge to his jurisdiction under Section 16.

(2.) The brief facts of the case may be noted as follows :

(3.) Mr. Ashish Kamat, learned Counsel appearing for the Petitioner, submits that both aspects of the challenge, namely, the bar of limitation and the post-service negative covenant contained in the non-compete agreement, are matters of public policy and in as much as the award is in breach of the law of limitation as well as Section 27 of the Contract Act, which prohibits post-service negative covenants, the award is in conflict with the public policy of India and is liable to be set aside under clause (b) (ii) of Sub-section (2) of Section 34 of the Act. Learned Counsel submits that the award is also vitiated by a patent illegality appearing on the face of the award within the meaning of Sub-section (2A) of Section 34 and deserves to be set aside on that ground also. Learned Counsel relies on several judgments including, in particular, the judgments of the Supreme Court in Associate Builders Vs. Delhi Development Authority, 2015 3 SCC 49 , HRD Corporation Vs. Gail (India) Limited, 2018 12 SCC 471, and Shriram EPC Limited Vs. Rioglass Solar SA,2018 SCCOnLine(SC) 1471, in support of his case on contravention of public policy and patent illegality in the award. Learned Counsel also relies on several other judgments of the Supreme Court, particularly the cases of Niranjan Shankar Golikari Vs. Century Spinning And Manufacturing Co. Ltd., 1967 2 SCR 378, Gujarat Bottling Co. Ltd Vs. Coca Cola Co., 1995 5 SCC 545, B.T. Purushothama Rai Vs. K.G. Uthaya, 2011 14 SCC 86, Percept D Mark (India) (P) Ltd. Vs. Zaheer Khan, 2006 4 SCC 227, and N. Balakrishnan Vs. M. Krishnamurthy, 1998 7 SCC 123, in support of his case that both these statutes, namely, the Limitation Act and Section 27 of the Contract Act, are matters of public policy, to buttress his submissions on contravention of public policy.