Delhi High Court
Ok Play India Limited vs Bibby Financial Services India ... on 1 June, 2021
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 82/2021
OK PLAY INDIA LIMITED ..... Appellant
Through: Mr. Anirudh Wadhwa, Advocate.
versus
BIBBY FINANCIAL SERVICES INDIA PRIVATE LIMITED
..... Respondent
Through: Ms. Anjali Sharma and Mr. Deepak
Bashta, Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 01.06.2021
[VIA VIDEO CONFERENCING]
C.Ms. No. 17876/2021, 17877/2021 & 17878/2021(all for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The applications are disposed of.
FAO(OS) (COMM) 82/2021 and C.M. No. 17879/2021(for placing on
record additional documents)
3. This appeal, under Section 13(1A) of the Commercial Courts Act,
2015 read with Section 37(1)(b) of the Arbitration and Conciliation Act,
1996, impugns the order dated 18th May, 2021 of the Commercial Division
in O.M.P. (Comm) No.140/2021 preferred by the respondent under Section
34 of the Act with respect to the Arbitral Award dated 14th July, 2017 and
Additional Award dated 28th September, 2017, of issuing notice of I.A. No.
6459/2021 filed by the appellant (the respondent before the Commercial
Division) for directions, for 4th August, 2021.
4. The counsel for the respondent (the applicant before the Commercial
Division) appears on advance notice.
5. The position which emerges is, (a) that on Section 34 application
being filed by the respondent with respect to the Arbitral Award,
whereunder according to the appellant a sum of over Rs. 1.61 crores is due
to the appellant from the respondent as of today, the Commercial Court
before which the said application was filed, vide order dated 26th March,
2018 granted stay of execution subject to deposit by the respondent in the
Commercial Court, of 50% of the entire awarded amount as of then, in the
form of FDR or bank guarantee; (b) the respondent, in compliance of the
aforesaid order is stated to have deposited a sum of Rs.44 lacs odd in the
Commercial Court; (c) the appellant took objection before the
Commercial Court, to the jurisdiction of the Commercial Court to entertain
the Section 34 application; (d) the Commercial Court held that it was
within its jurisdiction to entertain the Section 34 application; (e) aggrieved
therefrom, the appellant preferred a revision petition before this Court; (f)
though the order in the said revision petition has not been filed along with
this appeal but the counsels state that during the hearing of the revision
petition, a consensus was arrived at, that the Section 34 application filed by
the respondent be transferred from the Commercial Court to the Commercial
Division of this Court and pursuant to which, the Section 34 application was
so transferred to this Court and came to be registered as O.M.P. (Comm.)
No.140/2021; (g) the appellant filed I.A. No.6459/2021 in O.M.P. (Comm.)
No.140/2021 before the Commercial Division of this Court, for directions to
the respondent to deposit the balance Award amount in this Court after
deducting the sum of Rs.44 lacs odd deposited before the Commercial Court
and, (h) the Commercial Division, vide the impugned order, issued notice of
the said application for 4th August, 2021.
6. The grievance of the appellant is, that the Commercial Division of this
Court, instead of immediately directing the respondent on the same day on
which I.A. No.6459/2021 had come up before the Commercial Division for
consideration, to deposit the balance Award amount, issued notice of the
application for 4th August, 2021.
7. We have considered this appeal, without going into the question of
maintainability thereof.
8. Having not found on the record anything to show that the Commercial
Division of this Court had stayed the execution of the Award, we have
enquired so from the counsel for the appellant.
9. The counsel for the appellant contends that though the Commercial
Division has not granted any stay of execution of the Arbitral Award but the
Commercial Court before which the Section 34 application was earlier
pending, had granted stay of execution subject to deposit of Rs.44 lacs odd.
10. From the aforesaid narrative it appears that the Commercial Court
which granted the order of stay of execution of the Award subject to deposit
of Rs.44 lacs odd, has ultimately been held to have had no jurisdiction to
entertain the same, and an order of the Court which is ultimately found to
have had no jurisdiction is of no avail, we have enquired from the counsel
for the appellant, whether according to the appellant, there is a stay of
execution of the Award or not.
11. The counsel for the appellant, without wanting to answer the said
question for obvious reasons, contends that he was seeking a direction from
the Commercial Division, by filing a Section 9 application in the Section 34
proceeding.
12. Section 9 of the Act cannot be a substitute for execution of the
Arbitral Award. If there is no stay of execution of the Arbitral Award, the
remedy of the appellant was to seek release of the amount deposited in the
Commercial Court and to execute the Arbitral Award as a decree. On the
contrary, if there is a stay of execution, then we do not find any error in the
impugned order of issuing notice of the application aforesaid, inasmuch as
the application was in effect for modification of an earlier order and such
modification, under the principles of law which would be applicable to
arbitration, also ordinarily cannot be done without hearing the opposite
party. It cannot also be lost sight of that according to the appellant itself, the
Section 34 application is pending since 16th October, 2017. Once interim
order of stay of execution subject to the condition of deposit of Rs. 44 lacs
odd had existed for nearly 3½ years, there was no such urgency for which
the Commercial Division ought to have dealt with the application of the
appellant on the same day, without even giving an opportunity to the
respondent to file a reply.
13. We are also surprised that the appellant, by taking such technical
pleas, has itself caused the 34 application to remain pending for such a long
period of time. We may also state that we are unable to understand as to how
the jurisdiction in the Commercial Division of this Court, to entertain a
Section 34 application could be created by consent, as the counsels have
represented before us. In law, there can be no creation of jurisdiction in a
Court which did not have such jurisdiction.
14. For all the aforesaid reasons, no ground to entertain the appeal or to
interfere with the impugned order is made out.
Dismissed.
RAJIV SAHAI ENDLAW, J
AMIT BANSAL, J
JUNE 1, 2021
A
