CETACO SA Vs. BOMBAY EXPORT INTERNATIONAL

JUDGEMENT

(1.) THIS petition has been filed for enforcing a foreign award under the Foreign Awards (Recognition and Enforcement) Act, 1961 (hereinafter referred to as the said Act ). Section 5 of the said Act lays down that any person interested in foreign award can apply to the competent Court for filing of the award. Section 6 of the said Act lays down that if the Court is satisfied that the foreign award is enforceable under the Act, then the Court shall direct to file the award and the Court shall proceed to pronounce the judgment according to the award. The present petition therefore has been filed for filing of the award dated 30th October 1995 and also for an order in terms of that award. By the said award dated 30th October 1995, the arbitrators have awarded a sum of 1,50,000 U. S dollars to the petitioners with interest.

(2.) THE petition has been opposed by the respondents. The first objection that is raised by the respondent is that the petitioners have not complied with the requirements of section 8 of the said Act inasmuch as neither original award nor a duly authenticated copy thereof was filed with the petition. The second objection is that the original agreement for arbitration or certified copy thereof has also not been filed. The third objection raised by the respondents is that the respondents had raised an objection before the arbitrators to the effect that there is no arbitration agreement in existence between the parties inasmuch as the respondents by their fax message dated 24th November 1994 had informed that fosfa terms, which includes the arbitration clause, are not acceptable to them. According to the learned Counsel appearing for the respondents, the arbitrators were therefore under a duty to consider the question of existence of arbitration Clause while making the award. According to the learned Counsel, the arbitrators have not decided the question of existence of arbitration clause and therefore, the award is illegal.

(3.) IT is further urged that in any case, it is clear from the material produced before this Court that the respondents had not agreed to inclusion of fosfa terms in the contract and therefore, there was no arbitration agreement in existence between the parties and therefore, the award is illegal as the arbitrators had no jurisdiction to make the award.