Eig (Mauritius) Limited vs Mcnally Bharat Engineering ...
2021 Latest Caselaw 1408 Cal/2

                     IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE
                             (Commercial Division)


Present:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA


                                 E.C.77 of 2021
                                      with
                              IA No. G.A.1 of 2021

                            EIG (Mauritius) Limited
                                       Vs.
              McNally Bharat Engineering Company Limited



For the Petitioner               :     Mr. Ratnanko Banerji, Sr. Adv.
                                       Mr. Deepan Kumar Sarkar, Adv.
                                       Mr. Arunabha Deb, Adv.
                                       Ms. T. Abraham, Adv.
                                       Ms. Ashika Daga, Adv.
                                       Ms. Shivani Rawat, Adv.
                                       Ms. J. Ray, Adv.



For the Respondent               :     Mr. S.N. Mookherjee, Sr. Adv.
                                       Mr. Shaunak Mitra, Adv.
                                       Mr. Anil Choudhury, Adv.
                                       Mr. Sakate Khaitan, Adv.
                                       Mr. Dhiraj Mhetre, Adv.
                                       Mr. Somit Singh, Adv.
                                       Ms. Smiti Tewari, Adv.
                                       Ms. Nandita Bajpai, Adv.
                                        2


Reserved for Judgment on       :     08.10.2021.



Delivered on                    :    10.11.2021.



Moushumi Bhattacharya, J.

1. The present application is for enforcement of a foreign Arbitral Award

dated 19th June, 2020 and an addendum of 26th October, 2020, passed in

ICC Arbitration case no. 23705/HTG initiated by the petitioner EIG

(Mauritius) against the respondent and its wholly owned subsidiary, McNally

Sayaji Engineering Limited (MSEL). McNally Bharat Engineering Company

Limited (MBECL) is the Award Debtor in the present case.

2. The issue which arises for consideration is the scope of inquiry for

resisting the enforcement of a foreign award under Section 48 (2)(b) in Part II

of The Arbitration and Conciliation Act, 1996. In essence, the respondent

Award debtor opposes the prayer in the execution case on the ground that

the enforcement would be contrary to the public policy of India, specifically

the fundamental policy of Indian law, since enforcing a Put Option available

to the petitioner violates The Foreign Exchange Management Act, 1999 and

the Securities Contracts (Regulation) Act, 1956.

Brief Facts :

The transaction:

3. The transaction which forms the nub of the dispute consists of several

Agreements entered into between the parties including a Shareholder's

Agreement and an Agreement related to EIG's (the petitioner before this

court and the claimant before the Arbitral Tribunal) Put Right, which were

executed on 9th October, 2009. The Shareholder's Agreement provided for

EIG to acquire shares in MSEL from the respondent MBECL. Both the

Agreements contained specific obligations on the respondent and MSEL and

a series of exit mechanisms for the benefit of the petitioner EIG. The

admitted factual position before the Arbitral Tribunal was that the petitioner

EIG acquired 14.91% of the shares in MSEL and that the latter's shares

were never listed on certain stock exchanges in India. The Share Purchase

Agreement and the Letter Agreement dated 9th October, 2009 formed the

primary documents of the transaction for EIG's acquisition of shares in

MSEL. Shareholder's Agreement required the respondents before the

Arbitral Tribunal to list the shares of the second respondent MSEL on the

Bombay Stock Exchange or the National Stock Exchange or to make a

public offer of MSEL's shares on these exchanges by 30th June, 2012. On

the failure to effect such listing, the Shareholder's Agreement also provided

the petitioner EIG the option to exercise a "Put Right" on the event of the

"Put Event" by exercising a "Put Notice" and required the first respondent

MBECL, if legally able or otherwise, to arrange for a third party to purchase,

at the option of EIG, a portion of the shares held by EIG at the "Put Price".

The "Put Price" was the total amount invested by EIG for the Put Shares

plus an amount equal to 22% compounded annual rate of return on the

invested amount. The valuation was to be done for the Put Shares and if the

petitioner's Put Right was not acted upon, the petitioner had the right to

require the respondent to transfer the Put Shares to another party. The

parties represented that performance of the Shareholder's Agreement would

not be in conflict with any applicable law.

The events:

4. The shares of MSEL had not been listed on the BSE or the NSE by 1st

July, 2012 and a public issue was also not made on these Stock Exchanges

for the shares held by the petitioner. These aforesaid events constituted a

"Put Event" under the Shareholder's Agreement. The parties, thereafter, re-

negotiated the terms of the exit mechanisms in the Shareholder's Agreement

in April 2013 and executed an amended Share Purchase Agreement under

which MSEL was to buy back the Put Shares from EIG. After abortive

negotiations, the petitioner informed the respondent and MSEL that it was

exercising its Put Right by a Notice dated 14th July, 2017 and requested the

respondent to engage, a merchant banker for valuation of the Put Shares

within seven days. On 21st July, 2017, the respondent informed EIG that it

would not recognize the Put Notice as it was contrary to Indian law.

5. The dispute before the Arbitral Tribunal was that the Shareholder's

Agreement falls foul of the Indian law and is, therefore, unenforceable.

Findings of the Arbitral Tribunal:

6. By a majority comprising of Dr. Pryles and Dr. Secomb, the Arbitral

Tribunal directed the respondent to make payment of an amount of INR

1,14,01,90,000/-, as damages, which is equivalent to the Put Price and

upon payment, transfer of shares held by the petitioner in favour of the

respondent. A dissenting opinion was given by Justice (Retd.) Ashok

Ganguly holding that the Put Option runs contrary to the FEMA and the

SCRA and is not hence enforceable.

7. The Arbitral Tribunal found that the petitioner's exercise of the Put

Option under Clause 11.2 of the Shareholder's Agreement did not

contravene either FEMA or SCRA. The reasoning in brief for arriving at this

conclusion was that Put Option did not violate FEMA since the Put Option

required the respondent to arrange a non-resident third party to purchase

the shares if it was legally unable to do so itself by reason of which FEMA

did not apply to the said transaction. The Tribunal was also of the view that

SCRA did not apply to the Put Option and hence was not rendered invalid

under the SCRA. The Arbitral Tribunal accordingly held that the respondent

had breached its obligations under the Shareholder's Agreement to give

effect to the Put Notice and also procure a non-resident third party for

purchasing the petitioner's shares. The Tribunal accordingly awarded

damages to the petitioner equivalent to the value of the Put Price.

Contentions of the petitioner Award-holder - EIG (Mauritius):

8. According to Mr. Ratnanko Banerji, learned Senior Counsel and Mr.

Deepan Kumar Sarkar, learned counsel, the Award is enforceable since the

respondent does not meet the narrow threshold of the "Public Policy"

objection under Section 48(2) (b) of the Act for refusing the enforcement of

the Award. The argument urged on behalf of the petitioner is premised on

Section 48(2)(b) which does not permit a review of the merits of the dispute.

According to counsel, the Award does not violate either FEMA or the SCRA

even if the court considers the merits of the Award.

Contentions of the respondent Award-debtor - McNally Bharat (MBECL):

9. According to Mr. S. N. Mookherjee, learned Senior Counsel and Mr.

Shaunak Mitra learned counsel, the enforcement of the Foreign Arbitral

Award would be contrary to the fundamental policy of Indian law and would

hence be unenforceable in terms of Section 48(2)(b) of the Act. It is

submitted that the Award is in contravention of FEMA as it results in

enforcement of a Put Option which provides for assured returns to a non-

resident entity and further that the Put Option is in violation of the SCRA.

Counsel submit that the RBI by a letter dated 10th February, 2012 has

informed that the Put Option is contrary to the FEMA Regulation as it had

the effect of providing assured returns to a non-resident investor. It is also

urged that the RBI had disapproved of the Put Option even before the said

clause had been invoked.

10. The prayer of the respondent, hence, is that the present proceeding for

enforcement of the foreign Arbitral Award be rejected.

Decision :

11. The determination as to whether enforcement of the Arbitral Award

dated 19th June, 2020 together with the addendum dated 26th October,

2020 should be allowed would involve the following issues:

(i) The extent of inquiry permitted under Section 48(2)(b) of The

Arbitration and Conciliation Act, 1996; and

(ii) Alternatively, if the Award is considered on merits, whether the

Award violates The Securities Contracts (Regulation) Act, 1956 (SCRA) and

The Foreign Exchange Management Act, 1999 (FEMA).

The issues are being dealt with in sequence.

(i) The extent of inquiry permitted under Section 48(2)(b) of The Arbitration

and Conciliation Act, 1996.

12. Section 48 is placed in Part II of the Act which deals with enforcement

of certain foreign awards. The term "Foreign Award" has been defined in

Section 44 to mean an Arbitral Award on differences between persons

arising out of legal or contractual relationships and considered as

commercial under the law in force in India and made on or after 11th

October, 1960 in pursuance of an agreement in writing for arbitration

governed by the First Schedule to the Act and in one of the territories having

reciprocal provisions as notified by the Central Government to which the

Convention in the First Schedule applies. Section 48 - "Conditions for

enforcement for foreign awards" - is the roadblock to the facilitators for

enforcement of such Awards under Part II, where the onus is placed on the

party who would suffer the consequences of the enforcement. The

facilitators are Sections 46 and 47 which mandate that a Foreign Award

shall be treated as binding for all purposes and the requirements for such

application, respectively.

13. Section 48(1) lists the grounds on which enforcement may be refused

subject to the party furnishing proof of the ground urged for refusal. The

grounds are limited to grounds (a) to (e) and the word "only" preceding the

said grounds indicate that the grounds are limited to only those stated in

48(1). Section 48(2)(b) provides for an additional ground where the

enforcement of the award may be refused when such enforcement would be

contrary to the public policy of India. Explanations 1 and 2 to 48(2)(b)

narrows the threshold for refusal of enforcement even further by restricting

the public policy argument to the three disjunctive conditions thereunder

which includes Explanation 1(ii) where the Award is in contravention with

the public policy of Indian law. Explanation 2 further clarifies the restricted

domain of refusal of enforcement of a foreign award by putting the stops on

a review on the merits of the dispute in order to determine whether the

award is in contravention of the fundamental policy of Indian law.

14. Although the grounds available for setting aside an arbitral award

under Section 34(1) and (2) are substantially mirrored in Section 48(1) and

(2), the ground of patent illegality appearing on the face of the Award

[Section 34(2A)] is absent from the bouquet of grounds available in Section

48. The tighter contours of Section 48 in respect of refusal of enforcement of

a foreign award makes it clear that the momentum towards enforcement

and a deemed decree of a court is contemplated without speed-breakers

unless a party furnishes proof of existence of the conditions under 48(1) or

the court finds the enforcement failing the tests under 48(2). It can therefore

be concluded that a party seeking to resist the enforcement of a foreign

award has to trek through a terrain more arduous than the landscape of

Section 34 where the award can trip on multiple pitfalls.

The threshold for breach of the fundamental policy of Indian law:

15. In Renusagar Power Co. Ltd. vs. General Electric Co.; 1994 Supp (1)

SCC 644, the Supreme Court was of the view that the defence of public

policy which is available under Section 7(1)(b)(ii) of the Foreign Awards

(Recognition and Enforcement) Act, 1961 should be narrowly construed and

that something more than contravention of law is required to attract the bar

of public policy. Although Renusagar was decided in the context of Section

7(1)(b)(ii) of the 1961 Act, which was subsequently repealed, the aforesaid

view of the Supreme Court in Renusagar has been accorded statutory

recognition under 48(2)(b). Renusagar was reiterated in Cruz City 1

Mauritius Holdings vs. Unitech Limited; 2017 SCC Online Del 7810 where a

Single Bench of the Delhi High Court held that any contravention of a

provision of an enactment is not synonymous with contravention of the

fundamental policy of Indian law. Cruz City was approved by the Supreme

Court in Vijay Karia vs. Prysmian Cavi E Sistemi SRL; (2020) 11 SCC 1

holding that violation of public policy of India should amount to breach of

the most basic notion of justice in the country.

16. Therefore, if the conditions for refusal under 48(1) and 48(2) are read

together with the cited decisions, the irrefutable conclusion appears to be

that the threshold for breach of the fundamental policy of Indian law must

be a breach of the most basic principles of Indian law which forms the

substratum of the laws of the country. This construction sits well with the

statutory framework in Section 48 which raises a presumption of

enforceability of a foreign award unless the refusal rests on grounds which

are patent and obvious. The consequential inquiry would then be whether

breach of a statutory provision in SCRA or FEMA would amount to a breach

of the fundamental policy of Indian law, if such inquiry is permissible under

the restricted scope of Section 48(2)(b) of the Act. This issue will be

discussed later in the judgment.

Section 48 does not permit a review on the merits of the dispute :

17. As stated above, Explanation 2 to 48(2)(b) is the final bottleneck to the

flow of the "refusal" sequence by keeping the public policy test on the

periphery of the merits of the dispute. The caution sounded by the Supreme

Court in Renusagar on Section 7 of the 1961 Act not enabling a party to

impeach an award on merits has been carried forward from the erstwhile

arbitration regime to the present Act; reference: Vijay Karia where the

Supreme Court frowned "against a foray into the merits of the matter, and

which is plainly proscribed by Section 48 of the Arbitration Act read with the

New York Convention".

18. The respondent has placed reliance on Soleimany Vs. Soleimany; 1998

3 W.L.R. 811 and National Agricultural Co-operative Marketing Federation of

India (NAFED) vs. Alimenta S.A.; 2020 SCC Online SC 381 to contend that a

court can review the terms of the contract while deciding the enforceability

of the Award if the court finds any reason to doubt the legality of the

underlying contract. Soleimany, however, involved a contract to export crops

from Iran in violation of laws which was upheld by the "Beth Din" Tribunal

as the illegality did not have any effect on the party's rights under the

applicable Jewish law. The English Court of Appeal was unwilling to enforce

the Award as the contract involved infringing the criminal law of Iran. The

decision did not deal with commercial transactions between private parties.

On the other hand, the present case enquires into an illegality under the

Indian law expressed in 48(2)(b) of the 1996 Act. The Supreme Court in

National Agricultural Co-operative Marketing Federation of India embarked on

an inquiry by examining the merits of the dispute and the Foreign Award on

the particular findings in that case. The mandate of Section 48(2)(b) makes

it clear that the statutory intent is to curtail the inquiry on the violation of

the fundamental policy of Indian law within the periphery of the obvious

without delving into the merits of the dispute.

19. The above decisions do not assist the case of the respondent in

engaging with the merits of the dispute.

(ii) If considered on merits, whether the Award violates the Securities

Contracts (Regulation) Act, 1956 (SCRA) and the Foreign Exchange

Management Act, 1999 (FEMA)?

The argument of the respondent award-debtor before the Tribunal on the

SCRA:

20. The award-debtor had argued that the Put Option was not a Spot

Delivery Contract under the SCRA and hence was illegal since there was a

delay between the date the Put Option was exercised, the date of the delivery

of the Shares and payment of the Put Option.

The Arbitral Tribunal's findings on the SCRA:

21. The Arbitral Tribunal primarily examined the three questions; the

definition of a "Spot Delivery Contract" under Section 2(i) of the SCRA; the

relevance of the decisions in Edelweiss Financial Services Ltd. vs. Percept

Finserve Pvt. Ltd.; (2019) SCC OnLine Bom 732; and Clause 11.9 of the

Shareholder's Agreement requiring an immediate transfer of the shares by

the petitioner to either the respondent or the third party purchaser upon

payment of the Put Price to the petitioner. The Tribunal noted that there

were strong similarities between the Agreement under consideration and

that under Edelweiss in that both Agreements involved a purchaser of

shares having a right to resell those shares to the original seller in

circumstances where a future event did not occur; second, there was a time

delay after exercising the option in both cases until completion of the

transaction and third, shares and payment were to be simultaneously

exchanged in both cases. The Tribunal further explained that Edelweiss had

considered Section 16 of the SCRA and the Notification dated 1st March,

2020 issued by the Securities and Exchange Board of India which the

respondent award-debtor had relied on to contend the illegality of the Put

Option. The Tribunal relied on the proposition of Edelweiss that the

substance of a Spot Delivery Contract is a near simultaneous exchange of

shares and payment and rejected the distinction made by the respondent

between a "voluntary postponement" in Edelweiss and a "contractual

postponement" in the present case. The Tribunal held that the performance

of the Put Option was on a Spot Delivery Contract basis and was hence not

rendered invalid by the operation of the SCRA read with the Notification.

22. It is clear from the above that the Arbitral Tribunal interpreted the

Shareholder's Agreement in light of the provisions of the SCRA including

construction of Clause 11.9 of the Shareholder's Agreement against the

definition of a Spot Delivery Contract under SCRA. The construction given is

in line with the commercial purpose of the transaction and the intention of

the parties at the time of execution thereof.

The argument of the respondent award-debtor on the FEMA:

23. The respondent had urged that the Put Option provided for the

payment of assured returns to the petitioner by the respondent or a "legally

able" non-resident third party is in violation of FEMA.

The Arbitral Tribunal's findings on the FEMA:

24. The Tribunal interpreted the Put Option and noted that the primary

difference between the interpretations given by the parties to the Put Option

arose from different approaches to the term "legally able" contained in

Clause 11.2 of the Shareholder's Agreement and whether the award-debtors

were obliged to procure a non-resident third party to purchase the shares.

The Arbitral Tribunal found that the term "legally able" referred to a legal

ability to complete the transaction and concluded that the third party

requirement under Clause 11.2 of the Shareholder's Agreement must

include a non-resident third party. The aforesaid finding of the Arbitral

Tribunal was based on the intention of the parties and the centrality of the

exit mechanism given to the petitioner under the Shareholder's Agreement.

The Tribunal also relied on NTT Docomo Inc. vs. Tata Sons Ltd. (2017) SCC

Online Del 8078 for the similarities between Docomo and the case before the

Tribunal. Docomo held that the promoter could have lawfully performed its

obligation to provide an exit to the investor at any price including at a price

above the market value of the Shares through a non-resident buyer. The

Tribunal agreed with the view of the Delhi High Court in Docomo that an

Indian entity would not have been able to complete the transaction due to

FEMA restrictions and concluded that the option available to the respondent

by in procuring a non-resident purchaser to purchase the shares would not

contravene FEMA as FEMA would not apply to a non-resident third party

purchaser.

25. The conclusion of the Arbitral Tribunal is based on a reasonable and

commercial interpretation of the Shareholder's Agreement upon considering

the commercial intentions of the parties and the relevant case-law on the

subject. Giving due weightage to the interdict contained in Explanation 2 to

48(2)(b) of the Act, this court is not inclined to interfere with the

interpretation of the Arbitral Tribunal on the ground of public policy while

deciding on the enforcement of the Award.

In any event, FEMA does not constitute the fundamental policy of

Indian law:

26. The Supreme Court in Vijay Karia held that transactions which violate

FEMA cannot be held to be void and an Award upholding such a transaction

could simply not be invalidated on that basis. The Supreme Court approved

the Bombay High Court decision in Cruz City with regard to the limited

scope of the fundamental policy of Indian law and strongly opined that a

rectifiable breach under FEMA could not be held to be a violation of the

fundamental policy of Indian law and proceeded to hold that even if the

Reserve Bank of India took action for violation of FEMA, the question of non-

enforcement of a foreign award on the ground of violation of FEMA would

not arise as the award does not become void on that count.

27. In Banyan Tree Growth Capital LLC vs. Axiom Cordages Limited.;

(2020) SCC Online Bom 781, the Bombay High Court refused to interfere

with the enforcement of a Foreign Award on the ground of violation of a

FEMA Regulation and noted the decision of the Supreme Court in Vijay

Karia and Cruz City. It should also noted in this context that the Supreme

Court in Vijay Karia distinguished the decision of Dropti Devi vs. Union of

India (2012) 7 SCC 476 to disagree with the contention that any violation of

a FEMA Rule would not amount to an illegal activity.

28. It can hence be said that FEMA does not form part of the fundamental

policy of Indian law and a violation of FEMA, even if assumed to be correct,

would not render the Award unenforceable. It must also be said that the

findings of the Arbitral Tribunal with regard to the legality of the Put Option

against the SCRA was based on Edelweiss which has recently been affirmed

in Banyan Tree. Second, the Tribunal's conclusion that the Put Option did

not violate FEMA is also in consonance with Docomo and finds accord with

the view taken in Cruz City and Vijay Karia. The view also stands reinforced

by the decision of the Bombay High Court in Banyan Tree. Notably, the

appeal from Banyan Tree was dismissed by the Supreme Court with

exemplary costs. The Arbitral Tribunal's findings are therefore consistent

with the law as it stands today.

29. Although, learned counsel appearing for the respondent has

attempted to differentiate between the present transaction and those in the

cases which are construed against the respondent by the Tribunal and in

Banyan Tree, this court is unable to agree that the difference would render

the enforcement of the present Award vulnerable on the public policy

ground. The interdict contained in Explanation 2 to Section 48(2)(b) against

a review on the merits of the dispute is revitalized in light of the arguments

proffered on behalf of the respondent before this court. The Award contains

a detailed recording of the submissions made on behalf of the parties

followed by the analysis of the Tribunal on each of the points of submission.

The Arbitral Tribunal has not only construed the Clauses in the

Shareholder's Agreement in the context of the submissions made by the

respondents but has also considered the relevant decisions on each of the

issues raised by the parties. On a reading of the Award, it is found that the

points raised by counsel for the respondent were argued threadbare before

the Tribunal. The decisions cited in support of such submissions were also

extensively relied on and considered and distinguished by the Tribunal. This

court was unable to find any issue which was raised on behalf of the

respondent before the Tribunal but was not considered or analyzed by the

Tribunal.

30. For an Arbitral Award as complete and comprehensive as the one

under consideration, any further inquiry into the transaction documents or

the construction of the relevant clauses therein or the events culminating in

the dispute or even the provisions of the SCRA or the FEMA would amount

to an exercise which has precisely been taken out of the present statutory

framework. To repeat, the contravention of the law must be such that no

further discussion would be warranted to dislodge the finding of

contravention. In other words, the enforcement of the Award should be

clearly and manifestly contrary to Indian law. The subtle distinction between

the 'enforcement' of an award being put to the test in Section 48 as opposed

to the 'Award' itself having to pass muster under Section 34 further reins in

all possible enquiries on the relevant factual matters on the aspect of

contravention of fundamental policy of Indian law.

The alternative view:

31. Shorn of any statutory framework the crux of the matter is that the

parties had intended, through the agreed terms of the transaction

documents, to provide multiple modes of exit to the petitioner in the form of

a cascading set of alternatives and to secure the exit by commensurate

monetary returns. The exit options were central to the agreement as

intended and understood by the parties at the time of execution of the

Shareholder's Agreement and the investment made by the petitioner in the

wholly-owned subsidiary of the respondent. The respondent however sought

to plug the exit routes when the conditions precedent for the petitioner to

exercise its option fructified. The respondent took recourse to SCRA and

FEMA to obstruct the petitioner and repeats such objections even now

before this court. This is the basic premise of the dispute.

32. Contrary to the grounds for resisting enforcement of the Foreign

Award, this court is of the considered view that the Award in essence is an

Award for breach of the obligations of the respondent and its wholly-owned

subsidiary. The Arbitral Tribunal found that the failure on the part of the

respondent and MSEL to procure a third party purchaser constituted a

breach of such obligations with clear consequences as to damages. The

Tribunal, accordingly, held that loss of the bargain and the measurement of

damages was readily apparent by reference to the value of the Agreements

themselves. Seen in this light, the Award does not enforce the Put Option

but simply awards damages to the petitioner for the breach on the part of

the award-debtor. The Tribunal relied on Docomo in this context wherein the

investor had been awarded damages for the promoter's breach of the

obligation to provide an exit to the investor. The Award can therefore also be

seen as a money Award simpliciter without having any bearing on the public

policy of India in the context of either SCRA or FEMA.

The consequential question which must also be answered: whether there

should be simultaneous enforcement and execution of a Foreign Award:

33. Section 49 of the Act makes it clear that once a foreign Award is held

to be enforceable under Part II of the Act, the Award shall be treated as a

decree of the court and nothing further is required for execution of the

Award. In Fuerst Day Lawson Ltd. vs. Jindal Exports Ltd.; (2001) 6 SCC 356,

the Supreme Court held against the need for separate proceedings for

deciding the enforceability of the Award to make it a rule for the court and to

take up the execution thereafter. This view was reiterated by the Supreme

Court in LMJ International Limited. vs. Sleepwell Industries Company

Limited.; (2019) 5 SCC 302 wherein it was held that the enforcing court is

expected to simultaneously consider the aspect of enforceability and

execution at the threshold.

34. The above decisions point to a definitive direction for the enforcement

and execution of a Foreign Award to be considered in one and the same

proceeding as reflected in Section 49 of the Act. The request of the

respondent for being permitted to oppose the reliefs sought in the execution

of the Award in a separate hearing is hence found to be unacceptable and is

accordingly rejected.

35. In view of the above discussion and reasons, this court is unable to

accept the contention of the respondent that the enforcement of the Award

should be refused on the grounds urged. In successfully surmounting the

grounds for refusing enforcement, the Award is held to be a binding Award

and the court is satisfied that the Foreign Award is enforceable under

Sections 46, 47 and 49 of the Act. The Award should hence be enforced in

accordance with the enabling provisions under Part II of the Act. The

petitioner is accordingly entitled to the reliefs claimed in Column 10 of the

Tabular Statement; specifically prayers (a), (d) and (e) thereof. The Award

passed in ICC Case No.23705/HIG shall be enforced as a decree of the

court.

36. The respondent is restrained form dealing with or alienating any of its

assets mentioned in Annexure K of the Affidavit in support of the Tabular

Statement till disposal of the execution application. The Directors of the

respondent are directed to file an affidavit in Form 16-A, Appendix E to The

Code of Civil Procedure, 1908 for disclosing all assets of the respondent

within a period of ten weeks from the date of service of this judgment on the

respondent.

37. The petitioner shall be at liberty of mentioning E.C. No.77 of 2021 for

listing before the appropriate Court.

38. G.A.1 of 2021 is disposed in terms of this judgment.

Urgent Photostat certified copy of this Judgment, if applied for, be

supplied to the parties upon compliance of all requisite formalities.

(MOUSHUMI BHATTACHARYA, J.)