Delhi High Court
State Trading Corporation Of ... vs Tradigrian S.A. And Anr. on 12 October, 2012
Author: S. Muralidhar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
(Reportable)
+ O.M.P. 486 of 2006 and I.A. Nos. 18520 of 2011 (for direction) and
18521 of 2011 (for rectification)
STATE TRADING CORPORATION OF
INDIA LTD. ..... Petitioner
Through: Mr. D. Roy Chaudhary, Sr. Advocate
with Mr. S.S. Jauhar, Advocate.
Versus
TRADIGRIAN S.A. AND ANR. ..... Respondents
Through: Mr. Navin Kumar, Mr. Alishan
Naqvee and Mr. Rupal Bhatia,
Advocates for R-1.
Mr. Rajesh Roshan and Mr. Rajeev
Kumar, Advocate for R-2.
CORAM: JUSTICE S. MURALIDHAR
ORDER
% 12.10.2012
1. This is a petition filed by the State Trading Corporation of India Ltd.
('STC') which is captioned as a petition "under Sections 48, 49 of the
Arbitration and Conciliation Act, 1996" ('Act'). The prayer in this petition
is "to declare that the foreign Award/s No. 12336 dated 15.04.1999 and
Award No. 4012 dated 19.11.2004 being numbered as 12336A dated
06.11.2000 and the Board of Appeal's Award dated 19.11.2004 and
judgment in Appeal by the London Court being Annexure "I" are illegal,
invalid and without jurisdiction and is not enforceable in India."
2. Learned Senior counsel for the Petitioner was asked by the Court whether
there is any petition pending in this Court by Respondent No.1 in whose
favour the Award dated 15th April 1999 and the Award dated 19th November
2004 were passed. He answered in negative.
3. Section 48 of the Act is titled "Conditions for enforcement of foreign
Awards". Section 48 (1) states "enforcement of a foreign award may be
refused, at the request of the party against whom it is invoked...". The
essential condition for entertaining any of the objections under Section 48 of
the Act is that in the first place there must be a petition seeking enforcement
of the foreign Award. In the present case, there is no such petition seeking
enforcement of the foreign Awards, the invalidity of which is sought in the
present petition. It may be observed that the foreign Awards in the present
case are New York Convention Awards in terms of Section 44(a) of the Act.
Chapter I Part II of the Act incorporates by and large the procedure for
enforcement of a foreign Award as contained in the New York Convention,
which is set out as Schedule 1 to the Act. The sequence of the provisions in
Chapter I, Part II of the Act indicates that the party in whose favour the
foreign Award has been made, will first file an application for enforcement
(Section 47) and the party resisting enforcement can in response seek to
demonstrate, in terms of Sections 48(1) and 48(2) of the Act why such
enforcement should be refused. There is no possibility of a party, against
whom an Award is made, seeking a declaratory relief in relation to the
invalidity of such Award, by filing a petition under Sections 48 and 49 of
the Act. There has to be a petition, by the party in whose favour the Award
has been made, seeking enforcement of the Award. The provision in Section
48 is a 'shield' to defend the enforcement on the limited grounds set out
thereunder. A substantive challenge to the Award has to be in separate
proceedings, which in any event has been unsuccessfully availed of by STC
in the present case.
4. The present petition is, therefore, wholly misconceived and is dismissed
on this short ground. None of the other applications survive and they are
accordingly dismissed.
S. MURALIDHAR, J.
OCTOBER 12, 2012/AK
