Delhi High Court
Glencore Grain Rotterdam B.V. vs Shivnath Rai Harnarain (India) ... on 27 November, 2008
Author: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 541/1998
DATE OF DECISION: November 27 , 2008
GLENCORE GRAIN ROTTERDAM B.V. ..... Plaintiff
Through: Mr. V.P. Singh, Sr. Advocate with
Mrs. Anju Bhattacharaya, Mr. Amit Bansal,
Ms. Manisha Singh, Advocates
versus
SHIVNATH RAI HARNARAIN (INDIA) CO. ..... Defendant
Through: Mr. Rakesh Tiku with Ms. Nisha,
Advocates
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
: REVA KHETRAPAL, J.
1. This is a suit under Section 48 of the Arbitration and Conciliation Act,
1996 (for short "the Act, 1996") for filing and enforcement of the foreign
award No.12031 A dated 29.07.1997.
FACTS
2. The background facts as set out in the plaint are as follows.
3. The plaintiff is a company based in Rotterdam, Netherlands while the
defendant is a partnership firm based in India with its office at A-8, Bhagwan
Dass Nagar, New Delhi - 110 026. Between 30th November, 1994 and 8th
June, 1995, the plaintiff entered into eleven contracts with the defendant, in
terms whereof a total quantity of 300,500 MT of Indian white rice was to be
sold by the defendant and purchased by the plaintiff. All these eleven
contracts were negotiated and concluded through an English broker, Jackson
Son & Co. (London) Ltd. In respect of each contract, immediately after the
business had been concluded, Jackson Son & Co. sent to both parties, by
fascimile transmission, their Contract Confirmation Notes. At the end of each
of these Contract Confirmation Notes, Jackson Son & Co. stated:
"All other terms as per London Rice Brokers' Association
Contract number 3."
Thereafter, in respect of each contract, Jackson Son & Co. prepared
formal contracts written on London Rice Brokers Association Contract No.3
(for short "LRBA Contracts"). These formal LRBA written Contracts were
then sent by Jackson Son & Co. to the plaintiff and the defendant by fascimile
transmission.
4. The case of the plaintiff is that the contractual relationship between the
plaintiff and the defendant was governed by the terms and conditions contained
in the aforesaid eleven LRBA written Contracts, the certified copies of which
have been placed on record. According to the plaintiff, Clause 11 of the said
LRBA Contracts contains an arbitration clause which provides for settlement
of any dispute under the contract by arbitration of the London Rice Brokers
Association. Clause 14 of the said LRBA Contracts provides that the contract
shall be deemed to have been made in England and the construction, validity
and performance thereof shall be governed in all respects by English Law. For
the facility of reference, clauses 11 and 14 of the said LRBA Contracts are
reproduced as under:-
Clause 11
"11. Any dispute arising on this Contract shall be
referred for settlement to the Arbitration by two Members of
this Association's Panel of Arbitrators or their Umpire,
being also a Member of this Panel. Each party to appoint
one Arbitrator and having the right to reject one nominee.
In the event of any party omitting to nominate an Arbitrator
within ten days of receipt of notice of appointment of an
Arbitrator by the other party, or of the Arbitrators failing to
agree on the appointment of an Umpire, the Committee of
the London Rice Brokers Association, in either case, shall
have power to appoint one forthwith, who shall act on
behalf of and as if nominated by the party or parties in
default. Claims for arbitration other than Arbitration on
quality shall be made and the Claimant's Arbitrator shall be
nominated not later than 90 days after the expiry of the
contract period of shipment or not later than 90 days from
the date of final discharge of the ship at port of destination,
whichever period may last expire. The parties to the
Arbitration shall have the right of appealing against any
Award (except on questions of law) within thirty days from
the date of Award to the London Rice Brokers Association,
whose decision shall be final. Any payments arising out of
the Award are to be made within 30 days of the date
hereof."
Clause 14
"14. Domicile - The Contract shall be deemed to have
been made in England and the construction, validity and
performance thereof shall be governed in all respects by
English Law. Any dispute arising out of or in connection
therewith shall be submitted to arbitration in accordance
with the Rules of the London Rice Brokers' Association.
The serving of proceedings upon any party by sending same
to their last known address together with leaving a copy of
such proceedings at the office of the London Rice Brokers'
Association shall be deemed good service, rule of law or
equity to the contrary notwithstanding."
5. The plaintiff asserts that the defendant delivered the full quantity of
grains covered by contracts No.9827, 9840, 9855 and 9867. In regard to the
other seven contracts, however, the defendant failed to perform contracts
No.9844, 9923 and 9924 and nothing was delivered against them, whereas the
remaining four contracts were partly fulfilled. As a result of the defendant's
breach and default, the plaintiff suffered loss and damages. Resultantly,
disputes and differences arose between the parties, and the plaintiff through
communications dated 25th September, 1995 and 3rd October, 1995 invoked the
arbitration clause contained in Clause 11 of the said LRBA Contracts and
referred their claims to the London Rice Brokers Association for arbitration.
Two arbitrators, namely, Mr. A.J. Sear and Mr. J.S. Gainer were appointed as
arbitrators and they entered upon the reference.
6. The plaintiff having filed its claim before the said arbitrators, the
defendant took the objection that the London Rice Brokers Association had no
jurisdiction, as the eleven contracts drawn on the London Rice Brokers
Association Contract No.3 (LRBA Contracts) which contained the arbitration
clause, were not binding upon them. The defendant also took the stand that the
issue of the arbitrators' jurisdiction should be decided as a preliminary issue,
before the arbitrators proceeded to consider the claim of the plaintiff on merits,
and filed its written submissions on the matter of jurisdiction before the
arbitrators.
7. After hearing arguments on the said issue of jurisdiction and
considering the written submissions filed by the parties, the arbitrators
rendered an interim award, being interim award No.12031 dated 20th June,
1997, inter alia, holding that the formal contracts on the London Rice Brokers
Association Contract No.3 (LRBA Contracts), which were sent to the parties
by Jackson Son & Co., were the contracts between the plaintiff and the
defendant and in terms of Clauses 11 and 14 of the said contracts, all disputes
were to be determined by arbitration in accordance with the rules of the LRBA
and the arbitrators had jurisdiction to entertain the reference.
8. Thereafter, the arbitrators after considering the evidence and the
documents gave their award, being Award No.12031 A dated 29th July, 1997
on the merits of the claims of the plaintiff, awarding a total sum of US$
65,25,679.81 under different heads of claim with interest at the rate of 6.5%
per annum from the various dates specified in the award upto the date of the
award. The award having been rendered in favour of the plaintiff, the present
petition has been filed by the plaintiff for the enforcement thereof.
WRITTEN STATEMENT
9. The defendant, apart from raising certain preliminary objections to the
maintainability of the suit in the written statement filed by it, has submitted
that there was no legally executed and subsisting arbitration agreement
between the parties for referring any disputes to the LRBA. According to the
defendant's version, towards the end of 1994 the plaintiff approached the
defendant to supply various quantities of rice, spread over the next few
months. The quantity and rate as well as the other specifications for each of
the contracts was specifically given by the defendant to the plaintiff as per the
prevalent practice. After initial negotiations, the defendant had executed and
signed eleven Confirmation of Contracts, being Contract Nos.1121, 1122,
1123, 1125, 1126 of 1994 and 1128, 1205, 1505, 1510, 1510, 1511 of 1995.
These contract numbers in seriatim were given by the plaintiff to the defendant
as per the running numbers available in its record and were meant for ready
reference. The parties were bound by the terms and conditions of these
Confirmation of Contracts unless these were amended or changed with the
consent in writing of both the parties. In each case, the plaintiff was obliged to
open an appropriate letter of credit so as to ensure the payment of the money to
the defendant if the goods were dispatched. The said letters of credit were
required to be opened immediately after the contract, but the plaintiff in some
cases opened the letter of credit belatedly. In the last two contracts, bearing
Contract No.1510 of 1995 and 1511 of 1995 for the supply of 37500 MT and
12500 MT respectively, the plaintiff did not open letters of credit and thus
clearly committed breach of its obligations. As a result, pecuniary losses were
caused to the defendant. Efforts were made by the defendant to settle the
matter which came to naught. On 25.09.1995, the plaintiff got sent to the
defendant a communication, in terms of which it communicated its decision to
cancel all the contracts and invoke arbitration through the LRBA. The
defendant in reply got sent through its lawyer a communication dated
29.09.1995, thereby informing the plaintiff that there was no question of any
arbitration since it had no privity with the LRBA. Nevertheless, the plaintiff
proceeded with its attempts to seek arbitration through the LRBA and chose to
file a detailed claim petition with the LRBA, a copy of which was sent to the
defendant also and that is how, if the defendant is to be believed, the defendant
came to know of the alleged LRBA Contracts.
10. The defendant's further stand in its written statement is that M/s.
Jackson was never the agent of the defendant nor it had any authority to sign
and execute any contract on its behalf. It is submitted by the defendant that
there was no question of appointing any foreign person by the defendant for
the purpose of sale of its rice to the plaintiff and that at no point of time any
authority was given to M/s. Jackson to enter into any contracts of sale with
either the plaintiff or anyone else. The said unilateral documents as executed
by M/s. Jackson are, therefore, of no legal consequences and do not bind the
defendant. Even otherwise, there are wholesale alterations made in the said
documents. It might be that in some of the correspondence, the defendant
might have quoted the same numbers as there are in the alleged LRBA
Contracts, but the same does not bind the defendant nor it leads to the
existence of an arbitration clause and/or creation of an arbitration agreement
between the parties.
11. According to the defendant, a perusal of the record also shows that M/s.
Jackson had been acting as an agent/broker for the plaintiff and it had no
authority to bind the defendant. The arbitration was invoked unilaterally by
the plaintiff and the LRBA was bent upon continuing with the matter and,
consequently, by a one page fax letter they indicated that they had decided to
hold that they had the jurisdiction, without giving any reason for the said
finding, which led to the defendant sending a communication dated 14.06.1997
to the LRBA. It was thereafter that an undated communication was received
by the defendant on 25.06.1997 alongwith a copy of the interim award. In the
said letter, the LRBA also called upon the defendant to file its written
submissions within five days in London. This was responded to by the
defendant sending a communication dated 02.07.1997, informing the LRBA of
the pendency of a suit filed by the defendant, being Suit No.1103/1997 for a
decree of declaration to the effect that the alleged eleven LRBA Contracts as
executed by the defendant No.3 bearing Contract Nos.9827, 9934, 9840, 9843,
9844, 9855, 9866, 9867, 9914, 9923 were void/voidable and not binding on the
defendant herein and not enforceable in law and for cancellation thereof, and a
request was also made to defer the proceedings by six weeks. The LRBA,
instead of acceding to the said request, proceeded with the matter ex parte and
passed a final award dated 29.07.1997, the enforcement of which is being
sought by the present suit. The defendant having already challenged the
legality and validity of the eleven LRBA Contracts in Suit No.1103/1997,
which is pending in this Court, according to the defendant, the award rendered
by the LRBA cannot be deemed to have become final.
REPLICATION
12. A replication to the above written statement of the defendant was filed
by the plaintiff, reiterating that the issue whether an arbitration agreement had
come into existence had been determined with finality by the arbitrators
against the defendant, and the defendant not having filed any appeal against the
said award, nor having made any application to the English Courts but having
participated in the arbitration, cannot be allowed to contend that there was no
arbitration agreement between the parties and that no foreign award had come
into existence. The plaintiff further reiterated that formal written contracts
were sent by M/s. Jackson Son & Co. to the plaintiff as well as to the
defendant. It was denied by the plaintiff that the defendant was not given the
opportunity of reasonable hearing or that the award was contrary to Indian
Law, including the Indian Partnership Act as alleged or otherwise.
ISSUES
13. On the above pleadings of the parties, the following issues were framed
on 09.11.2000 for determination:-
"1. Whether the petitioner has complied with the
provisions contained in Section 47 (1)(a) to (c) of Act,
1996, for enforcement of the award dated 29.7.97?
2. If the issue No.1 is decided in affirmative, whether
the respondent has furnished proof as required under
Section 48 of the Act, 1996, showing that the enforcement
of the said award is liable to be refused under Section 48?"
14. It deserves to be noted at this juncture that at the time of the framing of
the issues, i.e., on 09.11.2000, the statement of the learned counsel for the
plaintiff was recorded that Sections 47 and 48 of the Act of 1996 being
procedural provisions, the above issues were to be determined on the basis of
the material already on record, meaning thereby that no evidence was required
to be adduced. Accordingly, this Court proceeded to hear arguments, but on
05.09.2001, the following order was recorded:-
"S.No.541/98.
Although in this case arguments have been heard at
considerable length, it is agreed between the parties that it
would be appropriate if parties are allowed to lead
evidence by way of affidavits. It may be mentioned that in
the order dated 9th November, 2000 it was recorded that
following issues arise for determination:
1. Whether the petitioner has complied with the
provisions contained in Section 47 (a) to (c) of Act,
1996, for enforcement of the award dated 29.7.97?
2. If the issue No.1 is decided in affirmative, whether
the respondent has furnished proof as required
under Section 48 of the Act, 1996, showing that the
enforcement of the said award is liable to be refused
under Section 48?
It may be mentioned that defendant is challenging
the existence of legally valid arbitration agreement between
the parties. This question is covered by the aforesaid issues
and, therefore, would be adverted to while deciding these
issues. Learned counsel for the defendant presses for
framing of one more issue which is framed as under:
3. Whether the present suit is liable to be stayed under
Section 10 of the Code of Civil Procedure in view of
the pendency of Suit No.1103/97?
Affidavit by way of evidence be filed by the plaintiff
in the first instance within three weeks. The defendant shall
file its evidence by way of affidavit within three weeks
thereafter.
List on 30th October, 2001."
15. After the passing of the above order, an application, being IA
No.11722/2001 was filed by the plaintiff stating that, since some of the
documents that were relied upon by the parties in the course of their
submissions were not a part of the record of this case, though the same were a
part of the record of Suit No.1103/1997 between the same parties, it was
deemed proper to file an affidavit in support of the said documents.
Accordingly, the plaintiff filed its evidence by way of affidavit, and thereafter
even the defendant filed its affidavit.
16. The aforesaid application led to the passing of the following order on
26th August, 2002:-
"IA 11722/2001
After submissions were opened, on this application,
learned Sr. counsel for plaintiff submitted that the affidavit,
which has been filed in the matter, are not really in the
nature of evidence and that, in any case, without going into
the controversy regarding the cross examination etc., he is
prepared to withdraw the affidavit itself.
Learned counsel for defendant/applicant submits that
he has also filed one affidavit and the deponent, who is a
partner of the defendant, is present and prepared to stand
in the witness box and be cross-examined today itself on the
averments made in the said affidavit.
Learned Senior counsel for plaintiff submits that in
view of the section 47 & 48 of the Arbitration and
Conciliation Act, 1986 he does not wish to cross-examine
the witness.
Learned counsel for defendant submits that since he
has already filed the affidavit, and even if counsel for the
plaintiff feels there is no need of cross-examination, yet
formal one line statement of deponent, would be required in
law.
Learned counsel for plaintiff thereupon submits that
there is no necessity of any such formal statement to be
made, since he agrees to the affidavit being exhibited as
Ex.D-1, which is exhibited accordingly.
List the matter for hearing and disposal on 28th
October, 2002."
17. The matter proceeded for hearing. Elaborate arguments were addressed
by both the parties. The findings on the issues raised are recorded hereunder.
ISSUE NO.1
18. I have heard Mr. V.P. Singh, the learned senior counsel for the plaintiff
and Mr. Rakesh Tiku, the learned counsel for the defendant. The learned
senior counsel for the plaintiff has taken me through the agreements entered
into between the parties, the interim award of arbitration No.12031 and the
final award of arbitration No.12031A rendered by the LRBA as well as the
correspondence between the parties to contend that in view of the provisions of
Section 47 of the Arbitration and Conciliation Act, 1996 in the case of an
international commercial arbitration held out of India, the party applying for
the enforcement of a foreign award is required to discharge the following
obligations only:-
(a) to produce in Court the original award or a copy thereof, duly
authenticated in the manner required by the law of the country in
which it is made;
(b) to produce the original agreement for arbitration or duly certified
copy thereof; and
(c) such evidence as may be necessary to prove that the award is a
foreign award.
19. Mr. V.P. Singh, the learned senior counsel for the plaintiff contends that
the plaintiff has squarely discharged all the aforesaid three obligations,
inasmuch as a bare glance at the copy of the award shows that it has been duly
authenticated in the manner required by the law of the country in which it was
made; duly certified copies of the agreements for arbitration have been placed
on record, which are certified by the Public Notary, Rotterdam; and such
evidence as is necessary to prove the award is a foreign award is also on
record. My attention was invited, in this context, to the certificate of the
Secretary of the London Rice Brokers' Association Michael John George
French dated 29th December, 1997, which reads as under:-
"THIS IS TO CERTIFY THAT
1. the attached document is a true and correct copy of
the Award of Arbitration No: 12-O31A dated 29th
July 1997 on the official form of the London Rice
Brokers' Association ("LRBA") made by Mr. J. St C
Gainer and Mr. A.J. Sear as the arbitrators duly
appointed in disputes which had arisen between
Glencore Grain Rotterdam B.V. aAnd Shivnath Raj
Harnarain (India) Co. under various contracts which
are referred to in the said Award.
2. the said Award was made in pursuance of
agreements between the said parties for arbitration
in accordance with the Arbitration Rules of LRBA in
force at the date of the contracts, which agreements
are valid under the laws of England by which they
are governed;
3. the said Award was made by the arbitrators provided
for in those agreements and those Rules;
4. the said Award was made in respect of matters which
may lawfully be referred to Arbitration under the
laws of England;
5. the said Award has become final in England in which
country it was made;
6. the said Award is enforceable in England and can be
executed."
20. The aforesaid certificate has been attested and certified to be sworn by
the Notary Public of the City of London, Mr. Richard Graham Rosser, on the
30th day of December, 1997, which certificate reads as follows:-
"I, RICHARD GRAHAM ROSSER, Notary Public of the
City of London, England, by Royal Authority duly admitted
and sworn, practising in the said City,
DO HEREBY CERTIFY AND ATTEST:
THAT the signature set and subscribed at foot of the
hereunto annexed Document is genuine, such signature
having been subscribed thereto by MICHAEL JOHN
GEORGE FRENCH, whose identity I attest, the Secretary
of the LONDON RICE BROKERS' ASSOCIATION, with
offices c/o Gafta House, 6 Chapel Place, Rivington Street,
London EC2A 3DQ, England, and a proper and competent
Officer of the said Association to sign such Document on its
behalf.
IN TESTIMONY WHEREOF I have hereunto set my hand
and affixed my Seal of Office in the City of London
aforesaid, this thirtieth day of December One thousand nine
hundred and ninety-seven."
21. Mr. V.P. Singh, the learned senior counsel for the plaintiff submitted
that though initially the plaintiff had filed an affidavit by way of evidence
which is on the record, subsequently, keeping in view the provisions of
Sections 47 and 48 of the Act, the said affidavit by way of evidence was
withdrawn in order to cut short the proceedings. According to Mr. Singh, no
oral evidence was required to be adduced by the plaintiff and in this context
Mr. Singh has relied upon paragraphs 5 to 8 of a decision rendered by a
learned Single Judge of this Court (Hon'ble Mr. Justice Mukul Mudgal) in
Sial Bioenergie vs. Sbec Systems AIR 2005 DEL 95, which reads as follows:-
"5. In my view the whole purpose of the 1996 Act would
be completely defeated by granting permission to the
applicant/JD to lead oral evidence at the stage of objections
raised against an arbitral award. The 1996 Act requires
expeditious disposal of the objections and the minimal
interference by the Court as is evident from the Statement of
Objects and Reasons of the Act which reads as follows:-
"4. The main objectives of the Bill are as
under:-
(ii) To make provision for an arbitral
procedure which is fair, efficient and capable
of meeting the needs of the specific
arbitration."
xxxxxxx
xxxxxxx
(v) to minimize the supervisory role of courts
in the arbitral process.
6. At the stage of the objections which are any way
limited in scope due to the provisions of the Act to permit
oral evidence would completely defeat the objects
underlying the 1996 Act. The process of oral evidence
would prolong the process of hearing objections and cannot
be countenanced.
7. Furthermore the Supreme Court in FCI v. Indian
Council for Arbitration 2003 (6) SCC 564 had summarized
the ethos underlying the Act as follows:-
"The legislative intent underlying the 1996 Act
is to minimize the supervisory role of the
Courts in the arbitral process and
nominate/appoint the arbitrator without
wasting time leaving all contentious issues to
be urged and agitated before the arbitral
tribunal itself."
8. Accordingly, I see no merit in these applications and
the prayer made therein is rejected."
22. Mr. Singh also forcefully contended that the entire onus, by virtue of the
provisions of the Section 48 of the Act, is on the defendant to prove why the
enforcement of the award in the instant case ought to be refused. Per contra,
Mr. Rakesh Tiku contended that the plaintiff having chosen not to adduce any
evidence in support of its case, an adverse presumption must be drawn against
the plaintiff under Illustration (g) of Section 114 of the Indian Evidence Act,
viz., the presumption that evidence which could be and is not produced would,
if produced, be unfavourable to the person who withholds it.
23. In my view, there is no question and indeed there cannot be that the
plaintiff, who applies for the enforcement of an award has to fulfil the
conditions laid down in Section 47(1) of the Act, in that, it has to file duly
certified copies of the original agreements for arbitration between the parties
and a duly authenticated copy of the award, authenticated in the manner
required by the law of the country in which it is made. This has been done in
the present case, the plaintiff having filed certified copies of the original
agreements for arbitration and a duly authenticated copy of the award along
with the attestation and testimony of the Notary Public and the seal of the First
Secretary (Consular), High Commission of India, London. Indeed, Mr.
Rakesh Tiku, the learned counsel for the defendant did not seriously contest
the position that Section 47 of the Act had been complied with by the plaintiff.
He, however, sought to resist the enforcement of the award by placing reliance
on the provisions of Section 48(1)(a) and (b) as well as Section 48(2)(b) to
which I shall presently refer.
24. Before doing so, however, it is proposed to refer to the dicta laid down
by a three-Judge Bench of the Hon'ble Supreme Court in the case of
Renusagar Power Co. Ltd. vs. General Electric Co. reported in AIR 1994 SC
860. In the said case, the first question formulated by the Supreme Court for
consideration was:
"I) What is the scope of enquiry in proceedings for
enforcement of a foreign award under Section 5 read with
Section 7 of the Foreign Awards Act?"
25. Reference was made by the Supreme Court, in answering the aforesaid
question, to the position at common law in the context of enforcement of a
foreign award and also to certain treatises dealing with the New York
Convention. In paragraph 32 of its judgment, the position in common law was
adverted to by the Supreme Court as follows:-
"32. With regard to enforcement of foreign judgments,
the position at common law is that a foreign judgment
which is final and conclusive cannot be impeached for
any error either of fact or of law and is impeachable on
limited grounds, namely, the court of the foreign country
did not, in the circumstances of case, have jurisdiction to
give that judgment in the view of English law; the judgment
is vitiated by fraud on part of the party in whose favour the
judgment is given or fraud on the part of the court which
pronounced the judgment; the enforcement or recognition
of the judgment would be contrary to public policy; the
proceedings in which the judgment was obtained were
opposed to natural justice. (See: Dicey & Morris, The
Conflict of Laws, 11th Edn., Rules 42 to 46, pp. 464 to 476;
Cheshire & North, Private International Law, 12th Edn., pp.
368 to 392.)."
26. The view of Albert Jan Van Den Berg in his treatise, the New York
Arbitration Convention of 1958 was also referred to, which is as follows:-
"It is a generally accepted interpretation of the Convention
that the court before which the enforcement of the foreign
award is sought may not review the merits of the award.
The main reason is that the exhaustive list of grounds for
refusal of enforcement enumerated in Article V does not
include a mistake in fact or law by the arbitrator.
Furthermore, under the Convention the task of the
enforcement judge is a limited one. The control exercised
by him is limited to verifying whether an objection of a
respondent on the basis of the grounds for refusal of Article
V(1) is justified and whether the enforcement of the award
would violate the public policy of the law of his country.
This limitation must be seen in the light of the principle of
international commercial arbitration that a national court
should not interfere with the substance of the arbitration. (p.
269)"
27. The Supreme Court next referred to Alan Redfern and Martin Hunter,
who opined as follows:-
"The New York Convention does not permit any review on
the merits of an award to which the Convention applies and
in this respect, therefore, differs from the provisions of some
systems of national law governing the challenge of an
award, where an appeal to the courts on points of law may
be permitted. (Redfern & Hunter, Law and Practice of
International Commercial Arbitration, 2nd Edn., p. 46 1.)"
28. After taking the above treatise into account, the Supreme Court in
paragraph 37 of its judgment in the Renusagar's case (supra) laid down the
law as follows:-
"37. In our opinion, therefore, in proceedings for
enforcement of a foreign award under the Foreign Awards
Act, 1961, the scope of enquiry before the court in which
award is sought to be enforced is limited to grounds
mentioned in Section 7 of the Act and does not enable a
party to the said proceedings to impeach the award on
merits."
29. It is not in dispute that the award in question is a foreign award given
after the commencement of the Arbitration and Conciliation Act, 1996 and
would be governed by the said Act, although arbitration proceedings had
commenced prior to the enforcement of the said Act [Thyssen Stahlunion
Gmbh vs. Steel Authority of India Ltd. (1999) 9 SCC 334 and Fuerst Day
Lawson Ltd. vs. Jindal Exports Ltd. (2001) 6 SCC 356]. It is also not in
dispute that a foreign award under the Arbitration and Conciliation Act, 1996
(hereinafter referred to as the "Act") is enforceable under Chapter I of Part-II,
which relates to the enforcement of certain foreign awards, viz., The New York
Convention Awards. The definition of a foreign award for the purposes of
Chapter I, as delineated in Section 44, is as follows:-
"44. Definition.-In this Chapter, unless the context
otherwise requires, "foreign award" means an arbitral
award on differences between persons arising out of legal
relationships, whether contractual or not, considered as
commercial under the law in force in India, made on or
after the 11th day of October, 1960-
(a) in pursuance of an agreement in writing for
arbitration to which the Convention set forth in
the First Schedule applies, and
(b) in one of such territories as the Central
Government, being satisfied that reciprocal
provisions have been made may, by notification
in the Official Gazette, declare to be territories
to which the said Convention applies."
30. Section 45 of the Act deals with the power of a judicial authority to
refer parties to arbitration. Section 46 of the Act, which in effect re-enacts
Section 4(2) of the Foreign Awards (Recognition and Enforcement) Act, 1961
lays down that a foreign award 'enforceable' under this Chapter shall be treated
as 'binding' for all purposes on the persons between whom it is made, and once
a foreign award becomes binding, it may be relied on by any of such persons
by way of defence, set off or otherwise in any legal proceedings in India and
any references in Chapter I of Part II to 'enforcing a foreign award' shall be
construed as including references to relying on an award.
31. Section 47, which is the next section, in effect reincarnates Section 8 of
the Foreign Awards (Recognition and Enforcement) Act, 1961, with the
exception that it adds an explanation which defines the term 'Court' for the
purposes of Chapter I. For better appreciation, Section 47 is reproduced
hereunder:-
"47. Evidence.-(1) The party applying for the
enforcement of a foreign award shall, at the time of the
application, produce before the court-
(a) the original award or a copy thereof, duly
authenticated in the manner required by the
law of the country in which it was made;
(b) the original agreement for arbitration or a duly
certified copy thereof, and
(c) such evidence as may be necessary to prove
that the award is a foreign award.
(2) If the award or agreement to be produced under
sub-section (1) is in a foreign language, the party seeking
to enforce the award shall produce a translation into
English certified as correct by a diplomatic or consular
agent of the country to which that party belongs or
certified as correct in such other manner as may be
sufficient according to the law in force in India.
Explanation.-In this section and all the following sections
of this Chapter, "Court" means the principal Civil Court
of original jurisdiction in a district, and includes the High
Court in exercise of its ordinary original civil jurisdiction,
having jurisdiction over the subject-matter of the award if
the same had been the subject-matter of a suit, but does
not include any civil Court of a grade inferior to such
principal civil Court, or any Court of Small Causes."
32. The aforesaid Section sets forth the formal requirements necessary for
applying for the enforcement of a foreign award and is obviously based on
Article IV of the New York Convention, 1958, which reads as under:-
"ARTICLE IV
1. To obtain the recognition and enforcement
mentioned in the preceding article, the party applying for
recognition and enforcement shall, at the time of the
application, supply:-
(a) the duly authenticated original award or a duly
certified copy thereof;
(b) the original agreement referred to in article II
or a duly certified copy thereof.
2. If the said award or agreement is not made in an
official language of the country in which the award is
relied upon, the party applying for recognition and
enforcement of the award shall produce a translation of
these documents into such language. The translation shall
be certified by an official or sworn translator or by a
diplomatic or consular agent."
33. Section 47 read with Article IV of the New York Convention make it
amply clear that the burden of proving that the award sought to be enforced is
a genuine 'foreign award' and based on a foreign agreement for arbitration, is
on the party seeking to enforce it by moving an application for enforcement
thereof along with producing the following documentary evidence:-
(i) The original award or a duly authenticated copy thereof;
(ii) The original arbitration agreement or a duly certified copy
thereof;
(iii) Other relevant evidence necessary to prove that the award is a
foreign award; and
(iv) Certified English translation of the arbitral award and the
arbitration agreement.
34. The aforesaid documents shall form prima facie evidence to prove that
the award is a genuine foreign award. The applicant, i.e., party applying for
the enforcement of a foreign award is not required to produce any further
evidence. [See judgment of the Delhi High Court in Sial Bioenergie (supra)
and of the Bombay High Court in CETACO SA vs. Bombay Export
International 2000 (3) Arb. LR 69 (Bom.)].
35. If a party against whom the award is sought to be enforced, contests the
enforcement he must resort to the next following section, that is, Section 48 of
the Act. The said section sets forth seven conditions, required to be proved by
the party resisting the enforcement of the award, for refusal to enforce a
foreign award. The first five conditions are as contained in Section 48(1) and
the remaining two are contained in Section 48(2). In other words, for resisting
the enforcement, such party is required to plead and prove one or more of
these defences. Section 48 is in the same terms as Article V of the New York
Convention as contained in the First Schedule to the Act and reads as follows:-
"48. Conditions for enforcement of foreign awards.-(1)
Enforcement of a foreign award may be refused, at the
request of the party against whom it is invoked, only if that
party furnishes to the court proof that-
(a) the parties to the agreement referred to in
section 44 were, under the law applicable
to them, under some incapacity, or the
said agreement is not valid under the law
to which the parties have subjected it or,
failing any indication thereon, under the
law of the country where the award was
made; or
(b) the party against whom the award is
invoked was not given proper notice of the
appointment of the arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or
(c) the award deals with a difference not
contemplated by or not falling within the
terms of the submission to arbitration, or
it contains decisions on matters beyond
the scope of the submission to arbitration:
Provided that, if the decisions on matters
submitted to arbitration can be separated
from those not so submitted, that part of
the award which contains decisions on
matters submitted to arbitration may be
enforced; or
(d) the composition of the arbitral authority
or the arbitral procedure was not in
accordance with the agreement of the
parties, or, failing such agreement, was
not in accordance with the law of the
country where the arbitration took place;
or
(e) the award has not yet become binding on
the parties, or has been set aside or
suspended by a competent authority of the
country in which, or under the law of
which, that award was made.
(2) Enforcement of an arbitral award may also be
refused if the court finds that-
(a) the subject-matter of the difference is not
capable of settlement by arbitration under
the law of India; or
(b) the enforcement of the award would be
contrary to the public policy of India.
Explanation.-Without prejudice to the generality of clause
(b) of this section, it is hereby declared, for the avoidance
of any doubt, that an award is in conflict with the public
policy of India if the making of the award was induced or
affected by fraud or corruption.
(3) If an application for the setting aside or suspension
of the award has been made to a competent authority
referred to in clause (e) of sub-section (1) the Court may,
if it considers it proper, adjourn the decision on the
enforcement of the award and may also, on the application
of the party claiming enforcement of the award, order the
other party to give suitable security."
36. Section 49, which is encaptioned 'Enforcement of foreign awards' is
apposite and reads as follows:
"49. Enforcement of foreign awards.-Where the Court is
satisfied that the foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of that
Court."
37. The enforcement of a foreign award is thus a three-dimensional process
as evidenced from Sections 47, 48 and 49 of the Act. A party applying for the
enforcement of a foreign award must make an application under Section 47 of
the Act accompanied by the documentary evidence delineated in the said
Section. The burden of proof on him upon production of the aforesaid
documents stands discharged and the onus shifts to the party resisting the
enforcement.
38. Section 48 stipulates that the party against whom the award is invoked
may resist the enforcement on one or more of the grounds enumerated in
Section 48(1) (a) to (e). If the resisting party furnishes before the Court proof
to the satisfaction of the Court that the award suffers from one or more of the
defects set out in Section 48(1), the Court may refuse enforcement of the
award. The enforcement of a foreign award may also be refused in the two
eventualities set out in sub-clauses (a) and (b) of Sub-Section (2) of
Section 48. These grounds, viz., non-arbitrability of the subject matter of the
award and conflict of the enforcement with the public policy of India, need not
be pleaded or proved by the party resisting the enforcement. The Court may
suo moto refuse the enforcement if it finds existence of any of the aforesaid
defects in the award sought to be enforced. If, however, the Court does not
find any of the defects enumerated in Section 48 (1) and Section 48(2) in the
award sought to be enforced, it will enforce the award by virtue of Section 49
of the Act.
39. In other words, the Court may exercise its discretion, to refuse
enforcement of a foreign award, for the first five conditions set forth in this
Section only if the party against whom it is invoked, makes a request and
furnishes proof to it of the existence of any of the conditions set out in sub-
section (1) of Section 48. The Court may also exercise its discretion, to refuse
enforcement of a foreign award on account of the last two conditions, namely,
non-arbitrability of the subject matter of the dispute and conflict of the
enforcement with the public policy of India [sub-section (2) of Section 48].
This the Court may refuse suo moto. It is then for the party seeking
enforcement of the award to satisfy the Court that the subject matter of the
dispute is capable of settlement by arbitration under the law of India or the
enforcement would not be contrary to the public policy of India. The
Explanation to Sub-Section (2) further declares that the Court may also refuse
enforcement of the award and declare the award to be in conflict with the
public policy of India if the making of the award was induced or affected by
fraud or corruption.
40. What emerges quite clearly from a conjoint reading of sub-section (1)
and sub-section (2) of Section 48 of the Act is the following:-
(i) Sections 48(1) and (2) both use the expression 'may' in the
context of refusing enforcement instead of the mandatory 'shall'
or 'must'. In other words, the legislature has left it to the
discretion of the Court to refuse enforcement of a foreign award,
depending upon the facts and circumstances of a particular case.
(ii) The scope of enquiry before the Court before whom the
application for enforcement of the foreign award is pending is
circumscribed by the conditions for refusal set out in Sections
48(1) and (2) of the Act. It is not open to a party seeking to resist
a foreign award to assail the award on merits or because a
mistake of fact or law has been committed by the arbitral
tribunal. Dicey and Morris have even gone as far as to say that
the court under this Section is not concerned even if the arbitral
tribunal applied no law at all, assuming this is permissible under
the law governing the arbitration proceedings (The Conflict of
Laws, Volume I, 13th Edition, 2000, pp.622-23, paragraph 16-
071). In other words, the scope of enquiry before the Court in
which the award is sought to be enforced is limited to the
grounds set out in Sections 48(1) and (2) and it is not open to the
party resisting the award to impeach the award on merits in such
proceedings (Renusagar Power Co. Ltd. vs. General Electric
Co. AIR 1994 SC 860, page 881).
(iii) The legislative intent regarding enforcement of a foreign award
is writ large, in that, the conditions for refusing enforcement are
to be narrowly construed, and, as far as possible the Court may
exercise its discretion in favour of enforcement of the award as is
clear from the use of the words:-
"Enforcement of a foreign award may be refused,
..............., only if that party furnishes to the Court
proof that ............................."
41. Keeping in view the aforesaid, I have no hesitation in holding that the
plaintiff has discharged the burden placed upon him of proving that the award
sought to be enforced is a genuine foreign award based on a foreign agreement
for arbitration and thereby has discharged the obligation placed upon him of
complying with the provisions contained in Section 47(a) to (c) of the Act of
1996.
42. Issue No.1 is accordingly decided in favour of the plaintiff.
Issue No.2
43. Adverting to Issue No.2, which deals with the question as to whether the
defendant has furnished proof as required under Section 48 of the Act, showing
that the enforcement of the award is liable to be refused under Section 48, Mr.
Tiku, the learned counsel for the defendant has raised a three-fold contention:-
(i) There was no arbitration agreement between the parties and accordingly
the arbitral tribunal had no jurisdiction to arbitrate upon the matter.
(ii) The defendant was not given proper notice of the arbitral proceedings
and was unable to present its case.
(iii) The enforcement of the award would be contrary to the public policy of
India.
44. Dealing with Mr. Tiku's contention that there was no arbitration
agreement between the parties, Mr. Singh, the learned senior counsel for the
plaintiff strongly contended that the defendant was barred from raising the
aforesaid plea in view of the fact that the aforesaid question, with the consent
of the parties, had been gone into by the arbitral tribunal and the arbitral
tribunal having held in favour of the plaintiff, the defendant could not be
permitted to re-open the same.
45. Reliance was placed by Mr. Singh to buttress the aforesaid submission
on the judgment of the Supreme Court in the case of Alopi Prasad & Sons
Ltd. vs. Union of India AIR 1960 SC 588, wherein it was held that where a
specific question of law is submitted to the arbitrator and the arbitrator answers
the same, in such a case the decision being of an arbitrator selected by the
parties to adjudicate upon their disputes, binds the parties even on a question of
law.
46. In the present case, it is not in dispute that a specific reference was made
on the question of jurisdiction to the arbitrator, the respondent participated in
the aforesaid proceedings before the arbitrator, made its submissions and took
its chance. A look at the interim award rendered by the LRBA shows that
though the claimant's submissions were received by the arbitral tribunal on 3 rd
July, 1996 and the arbitrator set down a time-table providing for 28 days in
which the respondent was to reply, time was extended at the request of the
defendant on several occasions, i.e., on 5th August, 1996, 7th October, 1996,
20th November, 1996, 12th December, 1996, 2nd February, 1997 and 28th May,
1997. Finally, the learned arbitrators after noticing that in the submissions of
the defendant of 22nd April, 1997, the defendant's/respondent's reply was
restricted to matters of jurisdiction, passed the following order:-
"Matters of procedure were discussed immediately prior to
the hearing of 28th May 1997 whereby it was agreed as
recorded in Arbitrators letter of 28th April 1997, issues of
Jurisdiction would be dealt with first. It was subsequently
agreed that in the interest of Justice, the Respondents not
having submitted a reply on the substantive issues,
depending on the determination of Jurisdiction, a further
period would be allowed up to 12th June 1997 in which the
Respondents would reply. The hearing was adjourned until
19th June 1997. Arbitrators would advise them their
determinations in the form of a letter to the parties on 29th
May 1997 reserving their reasoning in the event of a
finding in favour of Claimants, such reasons to be included
in their Award following determination of substantive
issues."
47. Pursuant to the aforesaid agreement, the learned arbitrators first took up
the issue of jurisdiction and after duly discussing the respective contentions of
both the parties and noticing their submissions, rendered an interim award on
20th June, 1997 unequivocally holding that the LRBA Contract Form No.3
contained the arbitration agreement between the parties, and at no time did the
defendant/respondent raised any objections to the terms of the said agreement
nor to the involvement of Jackson as a broker. The relevant portion of the
interim award reads as follows:-
"JURISDICTION:-
On 28th May Arbitrators met to hear submissions from the
parties on the question of Arbitrators Jurisdiction. Sellers
have raised the question of Jurisdiction in their submissions
claiming that the Contract confirmations sent out by the
broker Jackson Son & Co. (London) Ltd. (Jackson), which
included The London Rice Brokers Association (LRBA)
Contract Form No.3 had no legal standing. Sellers submit
that Jackson were never the agent of the Seller, nor did
Jackson have any authority on Sellers behalf to sign or
execute any Contract nor could they have sold the said
quantity of rice on behalf of Sellers. The confirmation of
Contract dated 25th November 1994 sent by Sellers was
signed by both parties and made no mention of any LRBA
contract. Sellers further submitted that at no point of time
was Jackson given any authority to enter into any Contract
of Sale with Buyers or anyone else. The Jackson documents
are of no legal consequence and do not bind Sellers. The
fact that Sellers occasionally referred to Jackson reference
numbers does not lead to the existence of an agreement to
refer disputes to arbitration.
Sellers maintained that in Law, unless there was a specific
agreement to refer the disputes to arbitration by a
particular institution, arbitration cannot be invoked by
unilateral conduct of any of the parties.
Buyers on the other hand submit that Jackson performed
the role of normal brokers and were not the agents of either
party. The terms of the Contracts were negotiated by the
Parties through Jackson as Brokers. Immediately after the
conclusion of each business Jackson sent to both parties
their contract confirmation notes. These contract notes
always included the term "All other terms as per London
Rice Brokers' Association contract number 3".
Subsequently Jackson prepared formal contracts written on
LRBA Contract No.3 which were sent to both parties. Both
clauses 11 and 14 make reference to the fact that any
dispute arising under the Contract is to be referred to
arbitration in accordance with the Rules of the LRBA.
Buyers submit that at no time did Sellers raise any objection
that the Contract Notes and formal contracts contained the
standard LRBA Arbitration clause. In each occasion when
the business was being negotiated both parties knew and
understood that they were negotiating on the basis of LRBA
Contract No.3 terms.
Sellers therefore cannot now in good faith deny that the
Arbitrators have Jurisdiction to hear and determine
disputes arising out of the contracts.
WE FIND THAT it is perfectly normal for parties to
negotiate business through brokers after which the brokers
send contract confirmations and contracts to both Parties.
In the case with which we are dealing, no objections were
raised by Sellers concerning the terms and reference to
LRBA Contract Number 3 at the relevant time which
incorporated an Arbitration Clause. Additionally, Sellers
communicated directly with Jackson on several occasions
concerning the execution of the Contracts and was
therefore recognising Jackson as being the broker
involved. The brokers were not the agents of either party
and were performing the normal duties of a broker who had
put the parties together and finalised the business on their
behalf.
Apart from those occasions when Buyers and Sellers work
directly with each other without brokers, it is fully
understood by the trade that brokers perform the function of
putting the parties together and subsequently when the
business is concluded they need confirmations to both
parties outlining the basic details. This is usually followed
up by contracts being sent to the parties showing the terms
and conditions in full. These were all received by Buyers.
Sellers however maintained that they did not receive any
confirmations. Nevertheless, Sellers were aware of the
details and executed part of the quantity covered by the
contracts. Sellers on several occasions contacted and
corresponded directly with Jackson referring to the
contracts by numbers as shown on the confirmations. A
meeting in Paris on 12th September 1995 was arranged
where Mr. Prem Gary of Shivnath, Mr. Pinto of Glencore
and Mr. Harper of Jackson discussed the shipment
problems. The meeting continued on 14th September where
Shivnath produced a document entitled "Various
outstanding issues with Glencore." The Contracts
mentioned in this document contained inter alia list of
Contracts under the heading "Performance of Glencore
Contracts" and were all numbered with Jacksons Contract
Numbers.
Having carefully considered all the evidence, written
submissions and oral submissions WE FIND THAT on the
balance of probabilities, Sellers must have been fully aware
that the usual LRBA Contract Form No.3 containing an
expressed agreement to refer all disputes to be determined
by arbitration in accordance with the Rules of LRBA
applied, and at no time did they raise any objections to the
terms nor to Jacksons involvement as a broker.
Clause 14 provides that the Contract shall be deemed to
have been made in England and the validity and
performance thereof should be governed by English Law.
WE FIND THEREFORE THAT Arbitrators have
Jurisdiction to deal with the substantive issues.
The costs, fees and expenses of this Interim Award shall be
dealt with in our final Award."
48. Mr. Singh, the learned senior counsel for the plaintiff has also taken me
through the correspondence between the parties to show that there was a valid
and subsisting arbitration agreement as embodied in the contracts entered into
between the parties and the defendant must be held bound by the same.
Reference in this regard was made by him to the following documents:-
(i) Facsimile transmission of letter dated 30th November, 1994 from
Jackson Son & Co. (London) Ltd. to the defendant, M/s. Shivnath
Rai Harnarain (India) Co. with a copy to the plaintiff enclosing the
amended confirmation of business and stating that the same was
being incorporated "into the full LRBA contract which is being sent
to you (the defendant) by express mail", viz., Contract No.9827.
Significantly, the said letter after setting out the terms of the contract
specifically states "All other terms as per London Rice Brokers'
Association contract number 3".
(ii) Facsimile transmission of letter dated 30th November, 1994 from
Jackson Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with reference to Contract No.9834 seting out
the terms of the said contract. The said letter after setting out the
terms of the contract specifically states "All other terms as per
London Rice Brokers' Association contract number 3".
(iii) Facsimile transmission of letter dated 13th December, 1994 from
Jackson Son & Co. (London) Ltd. to the defendant, M/s. Shivnath
Rai Harnarain (India) Co. with a copy to the plaintiff with reference
to Contract No.9840 setting out the terms of the said contract. The
said letter after setting out the terms of the contract specifically states
"All other terms as per London Rice Brokers' Association
contract number 3".
(iv) Facsimile transmission of letter dated 23rd December, 1994 from
Jackson Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with a copy to the plaintiff with reference to
Contract No.9843 setting out the terms of the said contract. The
said letter after setting out the terms of the contract specifically states
"All other terms as per London Rice Brokers' Association
contract number 3".
(v) Facsimile transmission of letter dated 23rd December, 1994 from
Jackson Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with a copy to the plaintiff with reference to
Contract No.9844, setting out the terms of the said contract. The
said letter after setting out the terms of the contract specifically states
"All other terms as per London Rice Brokers' Association
contract number 3". This letter also contains a post-script to the
following effect: "Please note confirmation 9843 should show
shipment in 1995 - not 1994 - sorry for error. The LRBA
Contract will be correct."
(vi) Facsimile transmission of letter dated 12th January, 1995 from
Jackson Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with reference to Contract No.9855 setting
out the terms of the said contract. The said letter after setting out the
terms of the contract specifically states "All other terms as per
London Rice Brokers' Association contract number 3".
(vii) Letter dated 31st January, 1995 from Jackson Son & Co. (London)
Ltd. to the defendant M/s. Shivnath Rai Harnarain (India) Co. with
reference to Contract No.9866 setting out the terms of the said
contract. The said letter after setting out the terms of the contract
specifically states "All other terms as per London Rice Brokers'
Association contract number 3".
(viii) Facsimile transmission of letter dated 31st January, 1995 from
Jackson Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with reference to Contract No.9867 setting
out the terms of the said contract. The said letter after setting out the
terms of the contract specifically states "All other terms as per
London Rice Brokers' Association contract number 3".
(ix) Facsimile transmission of letter dated 26th May, 1995 from Jackson
Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with reference to Contract No.9914 setting
out the terms of the said contract. The said letter after setting out the
terms of the contract specifically states "All other terms as per
London Rice Brokers' Association contract number 3".
(x) Facsimile transmission of letter dated 8th June, 1995 from Jackson
Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with reference to Contract No.9923 setting
out the terms of the said contract. The said letter after setting out the
terms of the contract specifically states "All other terms as per
London Rice Brokers' Association contract number 3".
(xi) Facsimile transmission of letter dated 8th June,1995 from Jackson
Son & Co. (London) Ltd. to the defendant M/s. Shivnath Rai
Harnarain (India) Co. with reference to Contract No.9924 setting
out the terms of the said contract. The said letter after setting out the
terms of the contract specifically states "All other terms as per
London Rice Brokers' Association contract number 3".
(xii) Letter dated 9th February, 1995 sent by the defendant, Shivnath Rai
Harnarain (India) Co. to the plaintiff with a copy to M/s. Jackson Son
& Co. (London) Ltd., setting out the amendments to the Letter of
Credits with particular reference to the Contract Numbers under
which the said Letter of Credits had been opened:-
"1. L/C No.IMP/1342/94 (CONTRACT 9827) FOR
WHITE RICE PANT 4 VARIETY
----------------------------------------------------------------
KINDLY INSERT "PACKING IN P.P. BAGS ALSO
ACCEPTABLE"
2. L/C No.190057 (CONTRACT 9834) FOR WHITE
RICE PANT 4 VARIETY
----------------------------------------------------------------
KINDLY INSERT
(A) PACKING IN P.P. BAGS ALSO
ACCEPTABLE
(B) DELIVERY OF PR-104 VARIETY ALSO
ACCEPTABLE
(C) PARTSHIPMENT ALLOWED.
3. L/C No.190073 (CONTRACT 9840) FOR BROKEN
RICE
----------------------------------------------------------------
KINDLY INSERT "PARTSHIPMENT ALLOWED"
4. L/C No.190005 (CONTRACT 9844) FOR WHITE
RICE
----------------------------------------------------------------
KINDLY INSERT
(A) PACKING IN P.P. BAGS ALSO
ACCEPTABLE
(B) AMEND PANT 106 TO -----------------------
5. L/C No.21036411144505 (CONTRACT 9843) FOR
WHITE RICE PANT 4 VARIETY
----------------------------------------------------------------
KINDLY INSERT
(A) PACKING IN P.P. BAGS ALSO
ACCEPTABLE
(B) DELIVERY OF PR-106 VARIETY ALSO
ACCEPTABLE
CONTRACT NO.9866: KINDLY OPEN NEW L/C FOR
FIRST CONSIGNMENT @ US$225.00 OR SUITABLY
ENHANCE AMOUNT IN L/C NO.IMP/1342/94,
SHIPMENT IN MARCH, DESCRIPTIONS 25%
BROKEN."
(xiii) Letter dated 27th May, 1995 from the defendant Shivnath Rai
Harnarain (India) Co. to M/s. Jackson Son & Co. (London) Ltd. with
reference to Balance Contract No.9844.
(xiv) Letter dated 4th July, 1995 from Shivnath Rai Harnarain (India) Co.
to Jackson Son & Co. (London) Ltd. with reference to Contract
Nos.9855 and 9866.
(xv) Letter dated 21st July, 1995 from the defendant, Shivnath Rai
Harnarain (India) Co. to Jackson Son & Co. (London) Ltd. with
regard to Glencore shipments.
(xvi) Letter dated 27th July, 1995 from the defendant, Shivnath Rai
Harnarain (India) Co. to Jackson Son & Co. (London) Ltd. with
reference to nomination of vessels.
(xvii) Letter dated 11th August, 1995 from the defendant, Shivnath Rai
Harnarain (India) Co. to Jackson Son & Co. (London) Ltd.
requesting for increase in the price of rice.
(xviii) Letter dated 18th September, 1995 from the defendant, Shivnath Rai
Harnarain (India) Co. to Jackson Son & Co. (London) Ltd. with
reference to the outstanding contracts.
(xix) Letter dated 19th September, 1995 from the defendant, Shivnath Rai
Harnarain (India) Co. to Jackson Son & Co. (London) Ltd.
specifically referring to Contract Nos.9843 and 9866.
(xx) Letter dated 26th June, 1995 from Shivnath Rai Harnarain (India) Co.
to the plaintiff setting out the shipment schedule with reference to
Contract Nos.9844, 9866, 9843, 9923, 9924 and 9834.
(xxi) Letter dated 18th July, 1995 from Jackson Son & Co. (London) Ltd.
to Shivnath Rai Harnarain (India) Co. on the question of demurrage
claims from the plaintiff specifically referring to Contract
Nos.9914 and 9923.
(xxii) Letter dated 8th August, 1995 from Jackson Son & Co. (London) Ltd.
to the defendant, Shivnath Rai Harnarain (India) Co. with a copy to
the plaintiff referring to nomination of vessels.
(xxiii) Letter dated 8th August, 1995 from Jackson Son & Co. (London) Ltd.
to the defendant, Shivnath Rai Harnarain (India) Co. regarding
shipping schedule.
(xxiv) Letter dated 14th August, 1995 from Jackson Son & Co. (London)
Ltd. to the defendant, Shivnath Rai Harnarain (India) Co. with
reference to the price increase claimed by the defendant.
(xxv) Letter dated 18th September, 1995 from Jackson Son & Co. (London)
Ltd. to Shivnath Rai Harnarain (India) Co. specifically referring to
Contract Nos.9843 and 9866.
49. Relying upon the aforesaid documents, Mr. Singh contended that the
aforesaid documents leave no manner of doubt that the defendant, who had
been corresponding with the plaintiff and with M/s. Jackson Son & Co.
(London) Ltd. with specific reference to the Contract Numbers, was fully
aware of the 11 LRBA contracts entered into between the parties. In
particular, Mr. Singh strongly relied upon the letter of the defendant addressed
to the plaintiff dated 26th June, 1995 setting out the following shipping
schedule with reference to the Contract Numbers of all the eleven Contracts:-
MONTH VESSEL QTY.(MT) RATE(USD) CONTRACT
AUGUST 1ST 12500 227+3+4 9844
2ND 12500 232+4 9866
3RD 12500 216+4 9843
4TH 12500 200 9923
SEPT. 1ST 12500 227+3+4 9844
2ND 12182.7 232+4 9866
3RD 8507.5 216+4 9843
4TH 12500 237.5 9924
OCT. 1ST 12500 237.5 9924
2ND 12500 237.5 9924
3RD 2649.7 208 9834
50. Mr. Singh contended that since the defendant itself was corresponding
with the plaintiff as well as with M/s. Jackson Son & Co. (London) Ltd. with
reference to the LRBA Contract Numbers and opening Letters of Credit with
respect to the aforesaid contracts, the defendant cannot now turn around to say
that it was unaware of the aforesaid contracts. Reliance in this context is
placed by the learned senior counsel for the plaintiff upon the judgment of the
Supreme Court in Smita Conductors Ltd. vs. Euro Alloys Ltd. reported in
AIR 2001 SC 3730.
51. In the aforesaid case, a contract bearing No.S-142 for supply of
aluminium rods of 2400 metric tonnes @ 200 MT per shipment was proposed
by the respondent to the appellant on 31st August, 1990 containing an
arbitration clause. In the letter accompanying the contract, it was stated to sign
and return copy for sake of good order. The appellant did not sign nor return
the said contract despite reminders sent in this regard from time to time. On
04.02.1991, a letter from the respondent enclosing the amendments to the
contract was sent to the appellant but without any result. On 25.02.1991,
another contract bearing No.S-336 for the supply of 2,000 MT of aluminum
rods @ 500 MT per shipment was sent. In the first contract, initially there was
no arbitration clause. However, on 18.03.1991, the contract bearing the same
number, i.e., S-142, was sent containing the arbitration clause with certain
amendments for signature and return of the second copy. But the contract was
not signed and sent by the appellant. On the basis of certain irrevocable letters
of credit opened by the appellant, shipments were made in January, February
and March 1991. On the aforesaid facts, it was submitted before the Supreme
Court that the correspondence between the parties and the conduct of the
appellant clearly established that there existed an arbitration clause between
the parties and, therefore, there was full compliance with Article II, paras 1 and
2 of the New York Convention, which forms part of the schedule to the Act.
The Supreme Court after noticing that there was no letter or telegram
confirming the contracts as such, but there was certain correspondence which
indicated a reference to the two contracts in opening the letters of credit
addressed to the bank, bearing Nos.S-142 and S-336, in which there were
arbitration clauses, opined that the two contracts stood affirmed by reason of
the opening of the letters of credit and by the conduct of the appellant as
indicated in the letters exchanged, and accordingly it must be held that there
was an agreement in writing between the parties providing for arbitration.
Paragraph 6 of the judgment of the Supreme Court, which has a direct bearing
on the issue involved in the present case, may be referred to. The said
paragraph reads as follows:-
"6. What needs to be understood in this context is that
the agreement to submit to arbitration must be in writing.
What is an agreement in writing is explained by para 2 of
Art.2. If we break down para 2 into elementary parts, it
consists of four aspects. It includes an arbitral clause, (1)
in a contract containing an arbitration clause signed by the
parties, (2) an arbitration agreement signed by the parties,
(3) an arbitral clause in a contract contained in exchange
of letters or telegrams, and (4) an arbitral agreement
contained in exchange of letters or telegrams. If an
arbitration clause falls in any one of these four categories,
it must be treated as an agreement in writing. In the
present case, we may advert to the fact that there is no
letter or telegram confirming the contract as such but there
is certain correspondence which indicates a reference to
the contract in opening the letters of credit addressed to the
Bank to which we shall presently refer to. There is no
correspondence between the parties either disagreeing with
the terms of the contract or arbitration clause. Apart from
opening the letters of credit pursuant to the two contracts,
the appellant also addressed a telex message on 23.4.1990
in which there is a reference to two contracts bearing
Nos.S-142 and S-336 in which they stated that they want to
invoke force majeure and the arbitration clauses in both the
contracts which are set forth successively and thus it is
clear that the appellant had these contracts in mind while
opening the letters of credit in the bank and in addressing
the letters to the bank in this regard. May be, the appellant
may not have addressed letters to the respondent in this
regard but once they state that they are acting in respect of
the contracts pursuant to which letters of credit had been
opened and they are invoking the force majeure clause in
these two contracts, it obviously means that they had in
mind only these two contracts which stood affirmed by
reason of these letters of credit. If the two contracts stood
affirmed by reason of their conduct as indicated in the
letters exchanged, it must be held that there is an agreement
in writing between the parties in this regard."
52. In Bharat Starch Industries Ltd. & Ors. vs. Prudent International
Shipping and Trading Ltd. reported in 1995 IV AD (DELHI) 343, an
argument was advanced on behalf of the plaintiff that since the
plaintiff/appellant was not a signatory of the Memorandum of Understanding
or Charter Party, therefore, there was no privity of contract between the
plaintiff and the defendant No.1 and, thus, there was no agreement for referring
disputes for arbitration. The question arose whether the plaintiff/appellant
which transported goods from Kakinada Port in Andhra Pradesh on board the
ship of the first defendant could be said to be a party to the Charter Party
containing the arbitration clause so that the question of liability of the
plaintiff/appellant for demurrage could be subject matter of arbitration at
London as per Clause 29 in the Charter Party. It was contended by the learned
counsel appearing on behalf of the plaintiff/appellant that the second defendant
and its employee Mr. Paul Mc. Gowan had no authority to sign the Charter
Party as the agent of the appellant. After referring to the entire evidence on
record, a Division Bench of this Court in paragraph 30 of its decision held as
follows:-
"30. In the light of the above documents, we are clearly of
the opinion that the appellant treated itself as the charterer
of the vessel. The appellant was so informed and it had not
objected to this. The signing of the Charter Party by the 2nd
defendant , through its employee Mr. Paul McGowan, who
negotiated the same can only mean that the said person
signed the Charter Party on behalf of the appellant. The
acceptance of the MOU also leads to the inference that the
appellant admitted that it was the Charterer."
53. In the aforesaid case, the Supreme Court also opined that the appellant
having accepted the Charter Party in its correspondence and, therefore, the
arbitration clause (Clause 29), the learned Single Judge was right in coming to
the conclusion that the dispute was to be settled by the arbitrators at London.
54. Relying upon the aforesaid decision of the Division Bench, the learned
senior counsel for the plaintiff submitted that the contention of the defendant
that it was not a signatory to the LRBA contracts is wholly without merit, as
the defendant was all along aware of the LRBA contracts and the provision
therein made for arbitration in case disputes arose between the parties. I see no
reason to disagree with this submission, more so, in view of the law laid down
by the Supreme Court in Smita's case (supra). The necessary corollary is that
it must be held that there was an arbitration agreement between the parties and
the defendant being fully aware of the same, cannot turn round at this stage to
urge that it was not so.
55. Next, Mr. Rakesh Tiku, the learned counsel for the defendant relying
upon the provisions of Section 48(1)(b) vociferously contended that the
defendant was not given proper notice of the appointment of the arbitrator and
the arbitral proceedings and was, therefore, unable to present its case. This
contention is being noted for the purpose of being rejected for the reason that it
is amply borne out from the contents of the interim award as well as from the
contents of the final award that the defendant was afforded more than ample
opportunity to present their case before the Arbitral Tribunal. A look now at
the relevant portion of the final award No.12031A, which reads as follows:-
"4. SELLERS FAILURE TO RESPOND
4:1 Sellers failed to respond to Buyers' submissions on
the substantive issues dated 3rd July 1996 and 21st
August 1996. The Tribunal issued an Order on 7th
October 1996 giving Sellers an extension to 28th
October 1996 to respond. No reply having been
received a Peremptory order was issued on 20th
November 1996 for Sellers to serve their defence
submissions by 4th December 1996. Sellers' lawyers
in a fax dated 12th December 1996 advised that they
disputed any liability maintaining that there was no
Arbitration agreement between the parties and
indicated that they had sent a legal notice to Buyers
claiming damages for Rs.6.11 Crores. They
submitted that as they disputed the existence of an
Arbitration agreement no further action should be
taken and that they had advised Sellers to take
appropriate legal proceedings.
4:2 Sellers maintain that as the Courts in India were
closed at the time for the winter vacations and would
not be opening again until the first week in January
1997, the lawyers on behalf of Sellers stated that they
had been instructed to pay the appropriate Court fees
for the necessary legal papers to be submitted and
the "Government Treasury and the Court fees etc.
would also be shortly made available." Following
the opening of the Courts the lawyers would furnish
all the necessary legal papers including the notices
of the Court.
4:3 Since no confirmation had been received of Sellers
having proceeded to the Indian Courts in accordance
with their stated intention, on 2nd February 1997,
Sellers were advised by the Tribunal that should no
reply be received by 12th February they would meet
on 14th February to determine the issues. A fax dated
20th February was received by the Tribunal asking
for a further extension of at least four weeks to make
submissions and present documents.
4:4 On 5th March 1997 the Tribunal issued a Peremptory
order that reply submissions should be received not
later than 17th March 1997. Written submissions on
the matter of Jurisdiction only were received by the
Tribunal on 26th March 1997 under cover of a letter
from Sellers dated 13th March 1997. These contained
a formal request that Sellers be heard at an oral
hearing at which they were to be represented by
Sellers' lawyers.
4:5 Accordingly the Tribunal set the hearing down for
28th May 1997 and at the same time issued an Order
to Sellers to reply with their defence submissions on
all issues by 9th May 1997. However, Sellers' reply at
the hearing was restricted only to matters of
jurisdiction. At the hearing a further period was
granted to Sellers up to 12th June 1997 to reply with
their submissions on the substantive issues in the
event that the Arbitrators determined they had
jurisdiction.
It was agreed the parties would be advised by letter
the following day as to whether the arbitrators
determined they had jurisdiction. In the event that
they so found, they would reserve their reasoning to
be issued in their Award and the hearing would be
reconvened on 19th June 1997. If they found that they
did not have jurisdiction that would be at the end of
the matter and the parties would be advised
accordingly.
Arbitrators advised the parties by letter and telex on
29th May 1997 that they had jurisdiction.
Sellers failed to appear at the reconvened hearing
but instead tabled a request to the Tribunal as they
had given no reasons in their letter of 29th May that
the Tribunal should issue an Interim Award relating
to the matter of jurisdiction. The LRBA issued this
Interim Award on 20th June 1997 and a Final Order
was issued giving Sellers until 30th June to put in
defence submissions for a reconvened hearing on 4th
July 1997. However no further submissions or
evidence were received from either party by LRBA or
Arbitrators. Therefore the Arbitrators met to
determine the issues based on the evidence and
documents before them."
56. It is clear from the above that the defendant's contention that the
defendant was not able to present its case before the arbitral tribunal is wholly
untenable. The plaintiff's submissions were received by the Arbitral Tribunal
on 3rd July, 1996. The award was rendered a year later on 29 th July, 1997.
During this period, a long rope was given to the defendant to present its case.
If the defendant after receipt of the interim award on 20th June, 1997 failed to
contest the matter, the blame cannot be laid at the door of the arbitrators for no
fault of theirs, more so as the Arbitral Tribunal on the insistance of the
defendant agreed to consider the question of its jurisdiction in the first instance
and to hear the submissions on the substantive issues in the event that they
determined they had jurisdiction to do so.
57. Finally, dealing with the contention of Mr. Tiku that the award cannot
be enforced, being opposed to public policy. As already noticed, sub-section
(2) of Section 48 declares that the Court may refuse enforcement of the award
and declare the award in conflict with the pubic policy of India if it finds that
the enforcement thereof "would be contrary to the public policy of India". The
Explanation to sub-section (2) further declares that an award is in conflict with
the public policy of India if the making of the award was induced or affected
by fraud or corruption.
58. In the instant case, it is not even the contention of the defendant that the
making of the award was induced or affected by fraud or corruption. Apart
from this, the defendant has failed to clarify as to how the enforcement of the
award would be contrary to the public policy of India.
59. In Renusagar Power Co. Ltd. (supra), the Hon'ble Supreme Court
while considering the scope and ambit of the expression "public policy" in
Section 7(a)(b)(ii) of the Foreign Awards Act held that since the Foreign
Awards Act is concerned with recognition and enforcement of foreign awards
which are governed by the principles of private international law, the
expression "public law" in Section 7(1)(b)(ii) of the Act must necessarily be
construed in the sense the doctrine of "public policy" is applied in the field of
private international law. Applying the said criteria, the Supreme Court held
that enforcement of a foreign award would be refused on the ground that it is
contrary to public policy if such enforcement would be contrary to:-
(i) fundamental policy of Indian law; or
(ii) the interest of India; or
(iii) justice or morality.
60. Mr. Tiku, the learned counsel for the defendant in the context of public
policy merely contended that the impugned award was opposed to public
policy for the reason that under Indian law, the partner of a firm cannot bind
the partnership firm for referring the disputes to arbitration and, as a matter of
fact, there is no such implied authority with the partner of a firm. Therefore,
on that score also, assuming that the LRBA contracts in question have any
authority, yet the reference to the arbitration would be legally impermissible.
61. I am constrained to hold that the aforesaid contention of Mr. Tiku is on
the face of it untenable for the reason that the Supreme Court in Renusagar's
case (supra) has categorically held that the defence of public policy should be
construed narrowly and that "the expression "public policy" covers the field
not covered by the words "and the law of India" which follow the said
expression, contravention of law alone will not attract the bar of public
policy and something more than contravention of law is required". [See
paragraph 65 of the judgment in Renusagar (supra)].
62. Apparently with a view to place matters beyond the pale of controversy,
the legislature while enacting the Arbitration and Conciliation Act, 1996
deemed it expedient to add an Explanation in order to explain the scope and
ambit of the expression "contrary to the public policy of India". Hence the
declaration contained in the Explanation to sub-section (2) of Section 48 of the
Act "for the avoidance of any doubt, that an award is in conflict with the
public policy of India if the making of the award was induced or affected by
fraud or corruption". Thus, even assuming that the enforcement of the award
would involve any contravention of the law of partnership in India, it cannot be
said that the enforcement of the award would be contrary to the public policy
of India. The scope and ambit of the expression "public policy of India" must
necessarily be construed narrowly to mean the fundamental policy of India
and, as clarified by the Explanation to Section 48(2), conflict with the public
policy must involve the element of fraud or corruption.
ISSUE NO.3
63. The learned counsel for the defendant though he had pressed for the
framing of this issue on 5th September, 2001, did not press the same at the time
of hearing. In fact, no reference was made to this issue by the counsel for the
parties at the time of hearing. Accordingly, no finding is being returned on this
issue as it was not pressed.
CONCLUSION
64. Before parting with the case, one other aspect of the matter deserves to
be noticed. The learned counsel for the defendant Mr. Tiku vehemently
contended that the plaintiff having filed an application under Section 66 of the
English Arbitration Act in the United Kingdom and having subsequently
withdrawn the same by order dated 11th June, 2004 on payment of £ 23,332.50
as costs, the question to be considered is:-
"Does the withdrawal of the Section 66 proceedings not
amount to the abandonment of the claim for enforcement of
the award by the plaintiff?"
65. Mr. Singh, on the other hand, relying upon the judgment in the case of
Brace Transport Corporation of Monrovia, Bermuda vs. Orient Middle East
Lines Ltd., Saudi Arabia and Ors. reported in 1995 Supp (2) SCC 280,
submitted that the position of law is now well settled that a party seeking to
enforce an award in an international commercial arbitration may have a choice
of country in which it is to do so and may be able to go forum shopping. Mr.
Singh submitted that this depends upon the location of the assets of the losing
party and enforcement of the award may well be sought in a country where the
unsuccessful party has assets. If a party has assets in a number of jurisdictions,
then enforcement may be sought in a number of countries. A choice exists for
the interested party and the interested party is well within its rights to go forum
shopping after comparing and weighing the advantages and disadvantages of
each jurisdiction.
66. For the aforesaid, apart from relying on the decision of the Supreme
Court in Brace Transport Corporation (supra), the learned senior counsel for
the plaintiff also relied upon the observations made in the Law and Practice of
International Commercial Arbitration by Redfern and Hunter (1991 Edition),
where at page-450 it is observed as under:-
"Enforcement of an award is usually directed at the
defaulting party's assets. If these assets are situated in
more than one country, the party seeking enforcement of the
award may have a choice of country in which to proceed; as
it is sometimes expressed, the party may be able to go
"forum shopping".
Legal proceedings of some kind are necessary to
obtain title to a defaulting party's assets or their proceeds of
sale. Such legal proceedings must usually be taken in the
state or states in which the property or other assets of the
losing party are located. It would not be useful, for
example, to obtain an order in the English courts for seizure
and sale of the defaulting party's goods and chattels in
England if no such property exists. Nor would it be useful
to secure an order for the attachment of the defaulting
party's bank accounts in England, if these accounts turn out
to be overdrawn.
The need to locate the place or places in which a
defaulting party has assets (or in which he is likely to have
them) is not peculiar to international commercial
arbitration. In purely domestic proceedings it may also be
necessary to locate the defaulting party's assets in order to
enforce a court's judgment or an arbitral tribunal's award."
67. The observations made in the Arbitration of Commercial Disputes,
International and English Law and Practice by Tweeddale and Tweeddale, at
page 409, in paragraph 13.05, were also relied upon, which are as follows:-
"Enforcement of the award will be sought in a country
where the unsuccessful party has assets. If a party has
assets in a number of different jurisdictions then
enforcement may be sought in a number of countries. The
successful party will also want to ascertain which
jurisdictions will permit recognition and enforcement of the
award. It follows that where the unsuccessful party has
assets in two jurisdictions, but only one will recognize or
enforce the award, the successful party will be forced to
proceed in that jurisdiction."
68. Relying upon the aforesaid principle of law as enunciated by the various
legal authorities and as laid down in the case of Brace Transport Corporation
(supra), in my view, there is no difficulty in holding that the plaintiff, who
holds a foreign arbitral award which is executable as a decree, cannot be
refused enforcement of the said award by this Court, the withdrawal of similar
proceedings in the English Courts notwithstanding I am buttressed in coming
to the aforesaid conclusion by a judgment of a learned Single Judge of this
Court rendered in Motorola Inc. vs. Modi Wellvest Private Limited reported in
2004 (3) Arb. LR 650 (Delhi), to the same effect.
69. To conclude, it must be held that the plaintiff is entitled to the relief
claimed by him of enforcement of Award No.12031A dated 29th July, 1997 and
by virtue of the provisions of Section 49 of the Act, the award shall be deemed
to be a decree of this Court. The plaintiff is accordingly held entitled to the
award amount with interest till the date of the award as awarded by the arbitral
tribunal along with future interest at the same rate from the date of the award
till the date of realisation.
70. CS(OS) 541/1998 and IA Nos.5306/1998, 7003/1998, 10962/1998,
10022/2001, 11722/2001 and 10464/2003 stand disposed of in the above
terms.
REVA KHETRAPAL, J
NOVEMBER 27, 2008
km
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1103/97 & IAs Nos.4762/97, 6197/97, 5828/98
DATE OF DECISION: November 27, 2008
SHIVNATH RAI HARNARAIN (INDIA) CO. ..... Plaintiff
Through: Mr. Rakesh Tiku with Ms. Nisha,
Advocates
Vs.
GLENCORE GRAIN ROTTERDAM B.V. ..... Defendant
Through: Mr. V.P. Singh, Sr. Advocate with
Mrs. Anju Bhattacharaya, Mr. Amit Bansal,
Ms. Manisha Singh, Advocates
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
: REVA KHETRAPAL, J.
In view of the findings recorded in connected Suit No.541/98, this suit
does not survive and is accordingly dismissed. IAs. Nos.4762/97, 6197/97
and 5828/98 are also dismissed.
REVA KHETRAPAL, J.
NOVEMBER 27, 2008
km
