Noble Resources Ltd vs Twenty First Century Wire Rods Ltd
2015 Latest Caselaw 48 Bom

    ppn                                  1                                   arbp-225.12 (j).doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                  
                  ARBITRATION PETITION NO.225 OF 2012




                                                        
    Noble Resources Ltd.                          )
    a Company incorporated under the              )
    laws of Hong Kong, having its office at       )




                                                       
    18th Floor, Massmutual Tower,                 )
    38, Gloucestor Road, Hong Kong.               )      ..       Petitioner

                  Versus




                                               
    Twenty First Century Wire Roads Ltd.     )
    a Company incorporated under the
                              ig             )
    Companies Act, 1956 and having its       )
                                        th
    Head Office at 501 Garden View, 5 Floor, )
    Gulmohar Park, Gulmohar Road, J.V.P.D. )
                            
    Juhu, Mumbai 400 049.                    )    ..    Respondent
                   ---
    Mr.Prashant Pratap, Senior Advocate a/w Ms.Ashwini Sinha i/by
    Mr.Manoj Khatri for the petitioner.
          


    Mr.Rahul Narichania, Senior Advocate i/by Ms.Neeta Parikh for the
    respondent.
       



                   ---
                            CORAM              : R.D. DHANUKA, J.

                            RESERVED ON        : 24th July 2015.
                            PRONOUNCED ON : 12th August 2015.





    Judgment :-





    .             By this petition filed under Sections 44 to 49 of the

Arbitration & Conciliation Act, 1996 (for short the said "Arbitration Act"), the petitioner seeks a declaration that the arbitral award dated 21 st November 2011 is enforceable and executable as a decree of this Court and seeks various other reliefs. Some of the relevant facts for the purpose of deciding this petition are as under :-

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2. On or about 9th May 2008, the petitioner and the respondent

entered into a contract by which the petitioner agreed to buy and the respondent agreed to sell 45,000 mt iron-ore fines on the terms and

conditions stated in the contract. Clause 15 of the said contract provided for arbitration in case disputes or differences between the parties arising out of the said contract. The said clause reads as under :-

"Arbitration:- All disputes or differences whatsoever arising between the parties out of or This Contract shall be governed by and construed in accordance with English law and

any dispute arising out of or in connection with this Contract shall be referred to arbitration in London in accordance with the

Arbitration Act 1996 or any statutory modification or re- enactment thereof save to the extent necessary to give effect to the provisions of this Clause.

The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.

The reference shall be made to three arbitrators. A party wishing to refer a dispute to arbitration shall appoints its

arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other

party appoints its own arbitrator and give notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring a dispute to arbitration may, without the requirement of any further prior

notice to the other party, appoint its arbitrator a sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement.

Nothing herein shall prevent the parties agreeing to writing to vary these provisions to provide for the appointment of a Sole Arbitrator."

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3. Dispute arose between the parties in connection with the

alleged poor quality of iron-ore supplied by the respondent to the petitioner. On 25th August 2008, the petitioner invoked arbitration

agreement and notified the respondent of the appointment of Mr.Patrick O'Donovan as the arbitrator. On 9th September 2009, the respondent appointed Mr.Anthony G.Scott as the arbitrator. The two

arbitrators appointed by the parties appointed Mr.Christopher J.W, Moss as the third arbitrator. On 16 th January 2009, the petitioner filed

its Statement of Claim. On 8th April 2009, the respondent filed its defence and counter-claim before the arbitral tribunal. On 7 th January

2011, the parties exchanged the witness statements in respect of their respective witnesses.

4. On 12th May 2011, the solicitors of the petitioner requested the arbitral tribunal for fixing the dates for an oral hearing. On 1 st

June 2011, the solicitors of the petitioner confirmed their agreement

to the dates 11th to 14th October 2011 proposed by the arbitral tribunal. On 6th June 2011, the solicitors of the respondent also confirmed their agreement to the dates 11th to 14th October 2011 fixed by the arbitral

tribunal for an oral hearing.

5. On 23rd August 2011, the solicitors of the respondent

asked the arbitral tribunal whether it was possible to adjourn the hearing on the basis that Mr.Vinod Goel, Chairman of the respondent was unwell and unable to travel on doctor's orders. On 30 th August 2011, the petitioner responded to the said suggestion of the respondent and suggested that Mr.Vinod Goel should give evidence by means of a video link and proposed that any expert evidence be exchanged by 2 nd

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September 2011. On 30th August 2011, the solicitors of the respondent

proposed that evidence of expert should be exchanged on 22nd September 2011 but did not respond to the suggestion of Mr.Vinod Goel giving

evidence by video link.

6. On 1st September 2011, the solicitors of the respondent

made a formal application to the arbitral tribunal for adjourning the hearing. On 4th September 2011, the solicitors of the respondent provided

a 'doctor's certificate' and informed the arbitral tribunal that Mr.Vinod Goel would be shortly undergoing ayurvedic treatment at a hospital in

India. On 5th September 2011, the solicitors of the petitioner pointed out that the doctor's certificate did not state that Mr.Vinod Goel was unable

to travel or he would not be able to give evidence by video link. On 6th September 2011, the solicitors of the respondent produced a further 'doctor's certificate' which stated that Mr.Vinod Goel was unfit for travel

abroad. On 6th September 2011, the solicitors of the petitioner pointed

out that there was no suggestion that Mr.Vinod Goel would be unable to give evidence by video link and also produced copies of news reports

from India for perusal and consideration of the arbitral tribunal referring to the fact that Mr.Vinod Goel was subjected to criminal prosecution in India and had been present at a Court hearing on 6th September 2011.

7. On 9th September 2011, the solicitors of the respondent informed the arbitral tribunal that they had ceased to act for the respondent. On 12th September 2011, the arbitral tribunal informed the respondent that if they intended to instruct alternative solicitors, they should do so without delay and the existing time table would not be

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varied. The arbitral tribunal rejected the application of the respondent

for adjournment of the hearing.

8. On 23rd September 2011, the arbitral tribunal made an order directing expert evidence to be exchanged by 27 th September 2011. On 29th September 2011, the petitioner served their expert

evidence on the respondent. On 29 th September 2011, the arbitral tribunal varied its order and granted liberty to the respondent to serve the expert evidence at any stage upto the commencement of the hearing

with a view that the respondent was not precluded from adducing

expert evidence in the arbitration. On 3 rd October 2011, the respondent requested the arbitral tribunal for some more time to instruct new

solicitors. On 4th October 2011, the arbitral tribunal informed the parties that the hearing would proceed as scheduled between 11th and 14th October 2011 and the respondent must instruct new solicitors if they

intended to do so without delay.

9. On 4th October 2011, the solicitors of the petitioner informed the respondent that video link facilities were available at the

venue of the hearing which was an International Disputes Resolution Centre in London. On 11 th October 2011, none appeared on behalf of the respondent before the arbitral tribunal. The arbitral tribunal proceeded

with the hearing.

10. On 21st November 2011, the arbitral tribunal published its award along with reasons and awarded the petitioner a sum of US$ 4,661,170.65 together with interest and costs. On 29 th November 2011, the petitioner called upon the respondent to make payment of the

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amounts under the Arbitration Award. The respondent neither made any

payment nor responded to the said letter demanding the amount.

11. On 6th January 2012, the petitioner filed the present petition for enforcement of the said award dated 21 st November 2011. On 13th January 2012, the respondent refused to accept the service of

the petition and notice. On 13th January 2012, the respondent filed Arbitration Suit No.5 of 2012 in the Court of the Principal City Civil & Sessions Judge at Bengaluru challenging the foreign arbitration award

dated 21st November 2011 under Section 34 of the Arbitration Act.

12. Prior to the declaration of the award by the arbitral tribunal,

the petitioner had filed Arbitration Petition No.627 of 2008. This Court had granted an ad-interim order on 17 th January 2009 in the said arbitration petition. By an order dated 7th January 2011, this Court had

confirmed the said ad-interim order granting prayer clauses (f) and (g).

By an ad-interim order passed in the present petition on 16 th January 2012, this Court continued the orders dated 17 th January 2009 and 7th January 2011 pending the admission of this petition. It was clarified

that the orders restrain the respondent from creating any further mortgages or charges or encumbrances in respect of the said properties.

13. On 19th January 2012, the City Civil Court at Bengaluru passed an ex parte order staying the operation and implementation of the award till 30th March 2012. The petitioner applied for setting aside the said ex parte order before the City Civil Court at Bengaluru. The respondent did not disclose before the City Civil Court at Bengaluru about the earlier petition filed by the petitioner under Part I of the

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Arbitration Act and the fact that the respondent had appeared before this

Court on 16th January 2012. The City Civil Court at Bengaluru did not extend the stay which expired on 30 th March 2012. The petitioner

thereafter applied for dismissal of the Arbitration Suit No.5 of 2012 on 16th April 2012 on the ground of lack of jurisdiction in view of non- applicability of Part I of the Arbitration Act to the award and in view

of Section 42 of the Arbitration Act. On 8 th June 2015, the City Civil Court at Bengaluru dismissed the Arbitration Suit No.5 of 2012 as not

maintainable under Part I of the Arbitration Act. During pendency of this petition, the respondent has filed an Appeal against the order dated

8th June 2015 passed by the City Civil Court at Bengaluru before the Karnataka High Court and the said appeal is stated to be pending.

14. The respondent has filed an affidavit notorised on 7 th July 2012 in the present proceedings raising various objections to the

present petition for enforcement of the foreign award.

15. Mr.Pratap, learned senior counsel for the petitioner invited my attention to a copy of the contract entered into between the parties,

copies of various orders passed by this Court in Arbitration Petition No.627 of 2008, copy of the award dated 21 st November 2011, various correspondence exchanged between the parties and also the

correspondence exchanged with the arbitral tribunal. Learned senior counsel also invited my attention to the objections raised by the respondent in the affidavit-in-reply to the present petition.

16. Learned senior counsel for the petitioner submits that the arbitral tribunal has considered all the pleadings and the evidence and

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also has dealt with the contract entered into between the parties and

had rendered various findings of facts which cannot be interfered with by this Court while hearing of the petition under Section 48 of the

Arbitration Act. He submits that the arbitral tribunal had given sufficient opportunities to the respondent to file their evidence, to remain present at the time of the hearing of the arbitral proceedings. He submits that

Mr.Vinod Goel who was alleged to be a sick, according to the respondent, had appeared in the Court at Bengaluru on 5 th September 2011. My

attention is invited to the roznama of the Court proceedings of 5 th September 2011 in support of this submission.

17. It is submitted that the respondent had confirmed the dates

of hearing fixed by the arbitral tribunal on 11 th to 14th October 2011 as far back as on 6th June 2011. It is submitted that only on 23rd August 2011, the respondent for the first time alleged that Mr.Vinod

Goel, Chairman of the respondent was unwell and unable to travel on

doctor's orders. The petitioner had suggested that Mr.Vinod Goel should give his evidence by video link and had also informed that the

video link facilities were available at the venue of the hearing which was the International Disputes Resolution Centre in London. The respondent, however, did not respond to the suggestion given by the petitioner. He submits that though the solicitors engaged by the

respondent alleged to have ceased to act for the respondent prior to 9 th September 2011 and the arbitral tribunal had rejected the application of the respondent for adjournment of the hearing as far back as on 12 th September 2011, the respondent neither engaged any other solicitor nor remained present before the arbitral tribunal at the time of hearing on 11th October 2011. He submits that hearing was still one month

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away when the application of the respondent for adjournment was

rejected by the arbitral tribunal.

18. It is submitted by the learned senior counsel for the petitioner that the said Mr.Vinod Goel had attended the Court proceedings in India on 6th September 2011 and thus the excuse of the respondent

that he was unable to travel on doctor's orders or was undergoing ayurvedic treatment at a hospital in India was false. He submits that in any event, the said Mr.Vinod Goel could give evidence by video link.

    He submits that      the arbitral tribunal
                              ig                 thus had       given sufficient

opportunities to the respondent to present their case and to remain present before the arbitral tribunal on 11th to 14th October 2011 which

dates were confirmed by the respondent as far back as on 6th June 2011.

19. Learned senior counsel placed reliance on the judgment

of the Supreme Court in the case of Shri Lal Mahal Limited Vs.Progetto

Grano Spa, reported in (2014) 2 SCC 433 and in particular paragraphs 29 to 45 thereof and would submit that enforcement of foreign award

would be refused under Section 48(2)(b) of the Arbitration Act only if such enforcement would be contrary to (1) fundamental policy of Indian Law; or (2) the interests of India; or (3) justice or morality. He submits that under Section 48 of the Arbitration Act, the said provision does

not give an opportunity to have a 'second look' at the foreign award at the award enforcement stage. The scope of inquiry under Section 48 is very limited. The said provision does not permit review of the foreign award on merits. Learned senior counsel for the petitioner placed reliance on the judgment of the Supreme Court in the case of Smita Conductors Ltd. Vs. Euro Alloys Ltd., reported in (2001) 7 SCC 728

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and in particular paragraph 11 thereof and would submit that the

respondent cannot be permitted to impeach the award on merits in the proceedings.

20. Learned senior counsel for the petitioner placed reliance on the judgment of the Supreme Court in the case of Harmony Innovation

Shipping Ltd.Vs. Gupta Coal India Ltd. & Anr. delivered on 10th March 2015 in Civil Appeal No.610 of 2015 and would submit that

the parties in this case had agreed that the contract shall be governed by and construed in accordance with English Law and any dispute

arising out of or in connection with that contract shall be referred to arbitration in London in accordance with the Arbitration Act, 1996 or

any statutory modification or re-enactment thereof. He submits that under the said arbitration agreement, it was agreed that the arbitration agreement shall be conducted in accordance with the London Maritime

Arbitrators Association Terms current at the time when the arbitration

proceedings are commenced. The arbitration proceedings were accordingly held in London. The parties had thus agreed that Part I

of the Arbitration Act was impliedly excluded. He submits that merely because the arbitral proceedings under Section 34 of the Arbitration Act filed by the respondent was pending before the City Civil Court at Bengaluru, there was no bar for this Court from hearing the present

proceedings under Section 48 of the Arbitration Act. He submits that in any event, the said proceedings filed under Section 34 of the Arbitration Act were dismissed by the City Civil Court at Bengaluru on the ground of lack of jurisdiction.

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21. Learned senior counsel for the petitioner placed reliance on

the judgment of Delhi High Court in the case of Alcatel India Limited and Anr. Vs. Koshika Telecom Limited and Ors., reported in 2004 (3)

Arb.L.R. 107 (Delhi) and in particular paragraph 16 thereof and would submit that while considering the question of enforcement of a foreign award, the Court would not investigate into the merits of the

case so as to re-assess and decide the question of the adequacy or quality of the evidence adduced by the parties before the arbitral tribunal.

22. Learned senior counsel for the petitioner submits that the

petitioner has already produced before this Court the requisite documents and evidence as contemplated under Section 47 of the Arbitration Act

for the purpose of enforcement of the foreign award.

23. Learned senior counsel for the petitioner submits that the

assets of the respondent-company were already charged as per the

financial details available to the petitioner as on 31 st March 2007. The respondent had already created a charge on its assets in favour of the

IDBI Bank on 15th September 2008 to the extent of Rs.32 crores. He submits that this Court had already granted ad-interim relief in favour of the petitioner in respect of office premises of the respondent situated at Juhu, Mumbai and also various assets. He submits that in spite of

injunction order granted by this Court, the respondent created further charge in favour of the IDBI Bank to the extent of Rs.55 crores by a Deed of Hypothecation dated 16th March 2011. He submits that according to the latest financial information of the respondent as on 31st March 2010 available at the time of filing of this petition, the total

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assets of the respondent as on 31st March 2010 aggregate to Rs.35.54

crores of which, there was an existing charge on the fixed assets excluding vehicles in favour of the IDBI Bank to the extent of

Rs.63.62 lacs only. He submits that since there was no substance in any of the objections raised by the respondent for enforcement of the foreign award, interim relief as prayed in the present petition also be

granted in favour of the petitioner.

24. Mr.Narichania, learned senior counsel for the respondent, on the other hand, submits that since the entire transaction between the

parties had taken place at Bengaluru and the business place of the respondent at Bengaluru, this Court has thus no jurisdiction to

entertain these proceedings filed for enforcement of the foreign award.

25. It is submitted by the learned senior counsel for the

respondent that the respondent has already filed an appeal against the

order passed by the City Civil Court at Bengaluru dismissing the arbitration suit filed by the respondent under Section 34 of the

Arbitration Act on the ground of lack of jurisdiction. He submits that the appeal proceedings are continuation of the suit filed by the respondent and thus till the said appeal is disposed of by the appropriate Court, no order for enforcement of the foreign award can be made by this Court

having no territorial jurisdiction. Learned senior counsel, however, does not dispute that the head office of the respondent is at Mumbai and that the respondent was carrying on business at the addresses shown in the cause title of the petition.

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    26.          It   is submitted by the learned senior counsel             for the




                                                                                 

respondent that Mr.Vinod Goel, Chairman of the respondent was unwell and was advised by the doctors not to travel. He submits that the said

Mr.Vinod Goel was advised to undergo aryurvedic treatment at a hospital in India. It is submitted that the respondent had produced doctor's certificate before the arbitral tribunal and had applied for adjournment

on that ground which ought to have been considered by the arbitral tribunal before proceeding with the matter ex parte on 11th October 2011.

He submits that the solicitors engaged by the respondent had ceased to act for the respondent for some time prior to 9th September 2011. The

respondent was thus unable to engage any other solicitor within short span of one month. It is submitted that the respondent was thus under

incapacity and was unable to present its case. It is submitted that the respondent is entitled to oppose enforcement of the foreign award on this ground also under Section 48(1)(a) and (b) of the Arbitration Act.

27. Learned senior counsel for the respondent could not dispute that this Court cannot refuse enforcement of the foreign award by re-

appreciating the fact and evidence led by the parties before the arbitral tribunal. It is submitted by the learned senior counsel that the arbitral tribunal had allowed amendment to the Statement of Claim made by the petitioner behind the back of the respondent and on this ground also,

the impugned award being in violation of the principles of natural justice cannot be allowed to be enforced.

28. Mr.Pratap, learned senior counsel for the petitioner in rejoinder submits that the arbitral tribunal has rightly recorded the fact

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that the respondent through their solicitors had confirmed their

agreement to the proposal that 11th to 14th October 2011 should be fixed for the oral hearing. He submits that the arbitral tribunal had

rejected the application of the respondent for adjournment on 12 th September 2011 which was one month prior to the date of the proposed dates of hearing. The respondent could have led evidence of Mr.Vinod

Goel by means of a video link which was suggested by the petitioner. It was submitted that since the request of the respondent for adjournment

was not a bonafide request, it was rightly rejected by the arbitral tribunal. It was submitted that the respondent has not produced any evidence as

to why the solicitors of the respondent had refused to act for the respondent.

29. It is submitted that in any event, the respondent could have engaged their solicitors when the earlier solicitors had ceased to act for

the respondent inspite of they being given sufficient time to engage a

new solicitor. The arbitral tribunal had advised to instruct another arbitrator or solicitor and made it clear that no adjournment would

granted. He submits that the respondent having terminated the services of their own solicitors and did not participate deliberately, the respondent cannot be allowed to raise an issue that they were unable to remain present or to present their case or were suffering from any other

incapacity. He submits that the said Mr.Vinod Goel had already appeared before the Special Judge at Bengaluru on 6th September 2011. He submits that the so called medical certificate was produced by the respondent on 1st November 2011 though the respondent had alleged the sickness of Mr.Vinod Goel in the month of August 2011 and the hearing was fixed on 11th to 14th October 2011. It is submitted that the respondent had not

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explained even before this Court as to why the evidence of Mr.Vinod

Goel could not be recorded by video link.

30. In so far as the issue of amendment to the Statement of Claim allowed by the arbitral tribunal raised by the respondent is concerned, it is submitted by the learned senior counsel that no such

objection has been raised in the affidavit-in-reply. He submits that in any event, the amended claim was lower than the original claim. He

submits that the arbitral tribunal had granted opportunity to the respondent of three weeks to respond to the said amended claim with

one week grace period. The respondent, however, did not raise any objection to the amended claim and thus cannot be allowed to now raise

this plea. My attention is invited to paragraph 25 of the arbitral award in support of the submission that the amended claim was lower than the original claim.

REASONS AND CONCLUSIONS:-

31. It is not in dispute that the contract entered into between the

parties was governed by and was to be construed in accordance with English Law and that the dispute arising out of the said contract was agreed to be referred to arbitration in accordance with the English Arbitration Act, 1996 or any statutory modification or re-enactment

thereof. It was further agreed that the arbitration agreement shall be conducted in accordance with the London Maritime Arbitrators Association Terms current at the time when the arbitration proceedings were commenced. It is not in dispute that the seat of the arbitration proceedings was at London. The contract was arrived at between the

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parties on 9th May 2008. It is thus clear that the parties had impliedly

agreed to exclude Part I of the Arbitration Act. Even otherwise, since the seat of the arbitration was at London, Part I of the Arbitration Act

would not be attracted. Merely because the respondent had filed the arbitration suit under Section 34 of the Arbitration Act in the City Civil Court at Bengaluru, the proceedings filed under Sections 47 and 48 of

the Arbitration Act can be entertained by this Court having territorial jurisdiction to entertain, try or dispose of the same. It is not in dispute

that the head office of the respondent is situated at Juhu, Mumbai - 400

049. In my view, this Court has thus territorial jurisdiction to entertain,

try or dispose of the present proceedings.

32. In so far as the submission of the learned senior counsel for the respondent that the respondent has already filed an appeal against the order passed by the City Civil Court at Bengaluru rejecting the

arbitration suit filed under Section 34 of the Arbitration Act and the

appeal proceedings are continuation of the suit filed by the respondent and thus no order can be passed by this Court in the present proceedings

is concerned, in my view, there is no substance in this submission of the learned senior counsel for the respondent. In my view, since Part I of the Arbitration Act would not be applicable to the parties to the present proceedings, merely because the respondent has filed an appeal before

the High Court of Karnataka thereby impugning the order passed by the City Civil Court at Bengaluru that would not be a bar for this Court from entertaining this petition under Sections 47 and 48 of the Arbitration Act. In my view, there is no merit in the submission of the learned senior counsel for the respondent.

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33. In so far as the objection of the respondent that the

respondent was under some incapacity and thus the said foreign award could be objected to on that ground is concerned, a perusal of the record

indicates that it was the case of the respondent that the Chairman of the respondent was unwell and was advised not to travel. It was also the case of the respondent that the solicitors of the respondent had ceased to

act and the respondent could not engage any other solicitor to represent their case before the arbitral tribunal. In my view, these grounds would

not fall under the expression 'some incapacity' provided under Section 48(1)(a) of the Arbitration Act.

34. In so far as the objection raised by the respondent that the

respondent was unable to present its case and is entitled to raise such objection under Section 48(1)(b) of the Arbitration Act is concerned, a perusal of the record clearly indicates that on 6 th June 2011, the

respondent had confirmed the dates of hearing on 11th to 14th October

2011. The respondent had applied for adjournment before the arbitral tribunal on 23rd August 2011 on the ground that Mr.Vinod Goel,

Chairman of the respondent was unwell and unable to travel. The respondent had provided doctor's certificate on 4th September 2011 who had alleged to have advised the arbitral tribunal that the said Mr.Vinod Goel would be shortly undergoing ayurvedic treatment at a

hospital in India. Another reason given by the respondent for their alleged inability to present its case was that the solicitors of the respondent had ceased to act for the respondent on 9th September 2011.

35. A perusal of the correspondence on record between the parties and the arbitral tribunal clearly indicates that the arbitral tribunal

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had rejected the application of the respondent for adjournment as far

back as on 12th September 2011. The respondent did not produce any evidence before the arbitral tribunal as to why the solicitors of the

respondent had refused to act for them. The arbitral tribunal had already informed the respondent on 12th September 2011 that if the respondent intended to instruct alternative solicitors, they should do so without

delay and the existing time table would not be varied. The respondent did not produce any evidence on record or did not give any counter

suggestion as to why the said Mr.Vinod Goel who had attended the Court hearing on 6th September 2011 could not have remained present

before the arbitral tribunal on 11th October 2011 or could not have given his evidence on video link though such facilities were available.

36. A perusal of the arbitral award indicates that the arbitral tribunal has dealt with the application for adjournment made by the

respondent and the other evidence produced by the petitioner and the

respondent including doctor's certificate and has rendered a finding of fact that there was no justification on the failure on the part of the respondent to appoint a lawyer to represent them and in any event, it

had been made clear that Mr.Vinod Goel should give evidence by video link. In my view, the arbitral tribunal had given sufficient opportunities to the respondent to represent its case and to remain present before the

arbitral tribunal through their solicitors and to lead oral evidence through video link in case there was any genuine difficulty on the part of the respondent to record the evidence of Mr.Vinod Goel before the arbitral tribunal on the dates of hearing. There is thus no substance in the submission of the learned senior counsel for the respondent that the respondent was unable to present their case.

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37. In so far as the submission of the learned senior counsel for

the respondent that the arbitral tribunal had allowed the petitioner to amend its claim behind the back of the respondent is concerned, a perusal

of the award rendered by the arbitral tribunal clearly indicates that the petitioner had reduced its claim before the arbitral tribunal. The arbitral tribunal had given three weeks' time to the respondent to give response

to the amended submission. The respondent, however, did not give any response to the said direction issued by the arbitral tribunal and did not

file any response to the amended Statement of Claim. The arbitral tribunal recorded this fact in the said arbitral award. In my view, since

the arbitral tribunal had permitted the petitioner to reduce its claim and in any event had given an opportunity to respond to the amended claim

which the respondent failed to avail of, no such ground can be urged by the respondent. A perusal of the record indicates that no such objection has been even raised in the affidavit-in-reply filed by the

respondent. A party can reduce its claim and can apply for smaller

reliefs than what was claimed earlier.

38. Learned senior counsel for the petitioner is right in his

submission that no objection on merits of the impugned award can be raised under Section 48 of the Arbitration Act. The Supreme Court in the case of Shri Lal Mahal Limited (supra) has held that Section 48 of the

Arbitration Act does not give an opportunity to have a 'second look' at the foreign award at the award enforcement stage. It is held that scope of inquiry under Section 48 does not permit review of the foreign award on merits. It is further held that procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration

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do not lead necessarily to excuse an award from enforcement on the

ground of public policy. The Supreme Court has held that enforcement of the foreign award would be refused under Section 48(2)(b) of the

Arbitration Act only if such enforcement is contrary to (1) fundamental policy of Indian Law; or (2) the interests of India; or (3) justice or morality. It is held that the wider meaning given to the expression 'Public

Policy of India' occurring in Section 34(2)(b)(ii) in the case of ONGC Ltd. Vs. Saw Pipes Ltd., reported in (2003) 5 SCC 705 is not applicable

where the objection is raised to the enforcement of the foreign award under Section 48(2)(b).

39. In my view, the none of the grounds raised by the

respondent for objecting to the enforcement of the foreign award would fall under any of the objections provided in Section 48 of the Arbitration Act as interpreted by the Supreme Court in the case of Shri Lal Mahal

Limited (supra). Scope of objections under Section 48 is very limited.

40. A perusal of the arbitration petition indicates that the petitioner has complied with the requirements of Section 47 of the

Arbitration Act. The petitioner has annexed a copy of the contract duly certified as True Copy by the Notary public, a copy of the arbitration award duly certified as True Copy by the Notary Public. Even otherwise,

it is not the case of the respondent that the present petition is not in compliance with the requirements of Section 47 of the Arbitration Act. In my view, there is no merit in any of the of the objections raised by the respondent. The foreign award dated 21st November 2011 rendered by the arbitral tribunal is thus enforceable and executable as a decree of this Court.

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41. In so far as the interim reliefs prayed for in the present

petition by the petitioner are concerned, a perusal of the record produced for consideration of this Court by the petitioner showing the financial

condition of the respondent shows that all the assets of the respondent are already encumbered by the respondent. Inspite of the interim injunction granted by this Court on 7 th January 2011, the respondent

created further charge on its fixed assets in favour of the IDBI Bank on 16th March 2011. Considering this admitted position, this Court granted

ad-interim relief on 16th January 2012 and continued the earlier interim order dated 17th January 2009 and confirmed on 7th January 2011.

This Court clarified that the orders had restrained the respondent from creating any further mortgages or charges or encumbrances in respect

of the said properties. The said interim orders passed by this Court are not challenged by the respondent. In my view, the petitioner has thus made out a case for grant of interim relief as prayed.

42. I therefore pass the following order :-

a) Arbitration petition is made absolute in terms of prayer clauses

(a) to (f). Ad-interim order passed by this Court on 16 th January

2012 is also confirmed;

b) There shall be no order as to costs.

R.D. DHANUKA, J.

At this stage, learned counsel for the respondent seeks stay of the operation of this order by four weeks which is vehemently opposed by Mr. Pratap, learned senior counsel for the petitioner. Application for stay is rejected.

R.D. DHANUKA, J.