Bombay High Court
Bg Strategic Advisors, Llc vs Arshiya Limited on 18 June, 2021
Bench: B.P. Colabawalla
6-ia-1077-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO.1077 OF 2021
IN
COMMERCIAL ARBITRATION PETITION (L) 11162 OF 2021
BG Strategic Advisors, LLC .. Applicant/
Org. Petitioner
IN THE MATTER BETWEEN
BG Strategic Advisors, LLC .. Petitioner
Vs.
Arshiya Limited .. Respondent
....
Mr.Rohan Savant a/w. Mr.Aniket Nair & Mr.Shrikant Pillai i/b.
Mr. Mustafa Motiwala, for the Applicant/Petitioner.
Mr. Ashish Agarkar, for the Respondent.
CORAM :- B.P.COLABAWALLA, J.
DATE :- 18th JUNE, 2021.
P. C.:
1. This Interim Application has been filed seeking a
condonation of delay in filing the above Arbitration Petition for
enforcement of a Foreign Arbitral Award.
2. The learned advocate appearing on behalf of Petitioner
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submitted that though in the Petition it is stated that there is a
delay of 2304 days, in reality the delay is of 985 days.
3. The learned advocate appearing on behalf of Petitioner
brought to my attention the decision of the Supreme Court in the
case of Government of India V/s. Vedanta Limited and Others
(2020)10 SCC 1, wherein the Hon'ble Supreme Court has held that
the limitation for filing a Petition for enforcement of a Foreign
Award under Sections 47 and 49 of Arbitration and Conciliation
Act, 1996 would be governed by Article 137 of the Limitation Act,
1963 which prescribes a period of three years from when the right
apply accrues. The learned advocate also brought to my attention
Paragraphs 77 of this decision wherein the Supreme Court has
clearly held that the Court always has the power for condoning the
delay in filing such a Petition provided the case is made out.
4. In the facts of the present case, the learned advocate
appearing on behalf of Petitioner submitted that the Award was
passed on 12th January, 2015 and the said Award was confirmed
by the District Court of Florida on 24 th August, 2015. He submitted
that the aforesaid Award became enforceable only on 24 th August,
2015 after it was confirmed by the District Court of Florida. He
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submitted that three years (Under Article 137) would have
expired on 23rd August, 2018. The present application has been
lodged on 4th May, 2021 and therefore there is a delay of 985 days.
To explain the aforesaid delay, the learned advocate appearing on
behalf of Petitioner took me through the averments in the Interim
Application and more particularly from Paragraphs 18 to 32
thereof. He submitted that the children of the Managing Director
of the Petitioner was highly unwell and therefore there is a delay.
He further submitted that the period of limitation for seeking
enforcement of a Foreign Award in India was unclear and different
Courts have either applied Articles 136 and/or 137 to determine
the limitation period. It is only in the Judgment of the Supreme
Court in the case of Government of India (Supra) that the Apex
Court authoritatively held that Article 137 would be applicable to
a Petition filed for enforcement of a Foreign Award. The learned
Advocate submitted that the delay is not intentional or deliberate
and in any event no prejudice would be caused to the Respondent
if the delay is condoned.
5. On the other hand, the learned Advocate appearing on
behalf of the Respondent vehemently opposed the application for
condonation of delay. The learned advocate submitted that though
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it is averred that the children of the Managing Director of the
Petitioner were unwell, it is undisputed that the Petitioner was
still functioning. There is no explanation as to why the Petition
could not have been filed within time. He submitted that these
excuses have been made out only to seek the sympathy of the
Court so as to somehow justify the delay and which is 985 days. He
therefore submitted that the Petition be dismissed.
6. I have heard the learned Counsels for the parties and I
have perused the papers and proceedings in the above Interim
Application. There is no dispute that there is a delay of 985 days.
There is also no dispute that the Court does have the power to
condone the delay, if it deems fit & appropriate. I do realise that
the delay is quite substantial. I have gone through the averments
of the Petition, especially Paragraphs 18 to 32 thereof. Though I
am not fully convinced with the reasons given therein, I at the
same time do not wish to shut out the Petitioner from advancing
its case on merits.
7. In these circumstances, taking an overall view of the
matter and in the interest of the justice the following Order is
passed:
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(i) The above I. A. is allowed and the delay of 985
days in filing the above Arbitration Petition is condoned.
(ii) The above condonation is subject to the
Petitioner is paying cost of Rs.5 Lakhs (Five Lakhs) to
ACTREC, Tata Memorial Centre within a period of six
weeks from today and file in the Registry of this Court a
receipt evidencing the payment of cost.
(iii) If the cost are not paid within the aforesaid time-
frame, the Interim Application shall stand dismissed
without further reference to the Court.
8. The above Interim Application is disposed of in the
aforesaid terms.
9. All parties to act on an authenticated copy of this order
duly signed by the Personal Assistant/ Private Secretary/
Associate of this Court.
(B. P. COLABAWALLA, J.)
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