WHITE INDUSTRIES AUSTRALIA LIMITED Vs. COAL INDIA LIMITED

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 17th November, 2003 passed by a larned Single Judge on an application filed by the appellant for rejection of the application of Coal India Limited (hereinafter referred to as 'OIL') under Section 34 read with Section 48 of Arbitration and Conciliation Act 1996 (hereinafter referred to as 'ACA 1996') for setting aside an Award made and published on 27th May, 2002 by the International Court of Arbitration (ICC) of the International Chamber of Commerce in Case No. 10558/OL/ESP/MS. The learned Judge rejected the application filed by the appellant and also held that the setting aside application filed by CIL, is maintainable.

(2.) . The brief facts leading on to filing of the application by the appellant are that there was an agreement dated 28th September, 1989 executed in India by and between the CIL and White Industries Australia Limited (WIAL), a company incorporated under the laws of Australia (hereinafter referred to as the 'appellant') for developing an Open Cast Coal Mine at Piparwar in India. The said agreement contains an Arbitration clause for settling the disputes and differences between the parties. In connection with the said agreement, certain disputes arose between the parties in 1999 and various meetings were held to settle the disputes but which could not be settled. As such the appellant filed a request for arbitration with the Secretariat of the ICC on 1st July, 1999 as per the terms of the agreement. Thereupon at its first session on 6th October, 1999, the ICC fixed Paris as the place of arbitration. It was agreed between the parties that the Arbitral Tribunal should consist of three Arbitrators, one each is to be nominated by the parties and the third Arbitrator who would be the Chairman of the Tribunal would be appointed by the ICC. Accordingly, the appellant nominated Mr. Trevor Morling QC as its nominee Arbitrator and the CIL, nominated Mr. Justice B.P. Jeevan Reddy as its nominee Arbitrator. Mr. Max Abrahamson was appointed by the ICC as the third Arbitrator on 3rd November, 1999. Thereafter arbitral sittings were held in London and the Arbitral Tribunal made and published its Award on 27th May, 2002 in France at Paris. That was the majority award. By agreement between the parties and for their convenience, arbitration proceedings were held at London, However, the Award was made and published, as stated above, by the Arbitral Tribunal at Paris.

(3.) The case of the appellant is that as the CIL, failed to make the payment under the Award the appellant filed an enforcement proceeding for execution of the Award in Delhi High Court on 11th September, 2002 and accordingly notices were issued on the CIL, in connection with the enforcement of the award. Further case of the appellant is that after such notices were served on the CIL, the appellant received a notice dated 18th September, 2002 on 4th October, 2002 to the effect that CIL had filed a proceeding for setting aside the Award under Sections 34 and 48 of ACA 1996 read with Sections 47 arid 151 of the Civil Procedure Code.