BALASORE ALLOYS LIMITED Vs. MEDIMA LLC

JUDGEMENT

(1.) The appellant is consistently raising an issue at the different stages of the proceedings which was raised at the time of granting a leave under Clause 12 of the Letters Patent whether the Clause relating to governing law contained in the agreement shall ipso facto exclude the powers of the Court to pass interim reliefs under Sec. 9 of the Arbitration and Conciliation Act as it is required to be construed as 'an agreement to contrary' appearing in proviso to Sec. 2 (2) of the Arbitration and Conciliation Act, 1996.

(2.) There is no dispute to the fact that the appellant has suffered an award dtd. 29/3/2021 for an amount of USD 30,35,249.87 (equivalent to INR 22,08,75,133) passed by the ICC in a proceeding governed by the British Law having a seat/place of arbitration in London, UK. Such being an undisputed fact, a plea was taken when a leave under Clause 12 of the Letters Patent was sought by the respondent that Sec. 9 of the Arbitration and Conciliation Act contained in Part I has its applicability to a domestic award and not the foreign awards which is governed by Part II thereof. The Single Bench while granting a leave of Clause 12 of the Letters Patent held that an application for interim protection under Sec. 9 of the Act in respect of London Seated Arbitration is maintainable. The said order was assailed before the Division Bench in AP 267 of 2021 which was disposed of with the categorical finding that the nature of the order does not come within the ambit of Sec. 37 of the Act and therefore, the aforesaid question cannot be gone into at this stage when the Single Bench decided to hear out the application on the issue relating to grant of interim measures. However, the liberty was given to the appellant if ultimately aggrieved by a subsequent order passed by the Court while granting the interim reliefs to take all grounds including the ground relating to maintainability of the said proceedings.

(3.) Pursuant to the aforesaid leave having granted, the point which was decided at the time of granting leave under Clause 12 of the Letters Patent had further been taken with suitable adjustment which suits the appellant in upholding its contention on the maintainability of a proceeding under Sec. 9 of the said Act.