Delhi High Court
M/S Oil Industry Development ... vs Godrej And Boyce Mfg Co Ltd on 23 May, 2023
Neutral Citation No. 2023:DHC:3608
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 23.05.2023
+ C.R.P. 110/2023 & CM APPL. 23110/2023 -Stay.
M/S OIL INDUSTRY DEVELOPMENT BOARD ..... Petitioner
Through: Mr. Tushar Bhardwaj, Adv.
versus
GODREJ AND BOYCE MFG CO LTD ..... Respondent
Through:
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present revision petition preferred by the Judgment Debtor seeks
to assail the order dated 10.03.2023 passed by the learned Executing
Court. Vide the impugned order, the learned Executing Court has
rejected the petitioner's application under Section 47 of the Code of
Civil Procedure (CPC) seeking dismissal of the execution petition
preferred by the respondent seeking enforcement of arbitral award
dated 30.01.2012.
2. Learned counsel for the petitioner submits that vide award dated
30.01.2012, the arbitral tribunal, while allowing the claims of the
respondent, had rejected the counter claims preferred by the
petitioner. The said award was assailed by the petitioner by way of a
petition under Section 34 of the Arbitration and Conciliation Act
being OMP 601/2012. The petition came to be allowed by this Court
on 16.09.2019 by rejecting the petitioner's challenge to the award in
Signature Not Verified
By:GARIMA MADAN
Signing Date:24.05.2023
15:23:33
Neutral Citation No. 2023:DHC:3608
so far as it allowed the claims of the respondent but accepted the
petitioner's challenge to the rejection of its counterclaim.
Consequently, the award was, vide this Court's judgment dated
16.09.2019, modified. By placing reliance on the decision of the Apex
Court in The Project Director, National Highways No. 45E and 220,
NHAI vs M. Hakeem, (2021) 9 SCC 1 , learned counsel for the
petitioner contends that such a course of action was not permissible as
this Court under Section 34 of the Act, does not have the jurisdiction
to modify an arbitral award. He therefore submits that not only is the
judgment dated 16.09.2019 non-est but even the award dated
30.01.2012, having been modified, has become non-enforceable. He
therefore prays that the petition be allowed and the impugned order be
set aside.
3. Having considered the submissions of the learned counsel for the
petitioner and perused the record, I find absolutely no merit in the
petition. The petitioner has on the one hand contended that the award
is not enforceable at this stage as its counterclaims are still being
considered by the arbitral tribunal and on the other hand, has sought
to urge that the judgment dated 16.09.2019 modifying the arbitral
award being contrary to the decision of the Apex Court in M. Hakeem
(supra), the award itself has become non-est. In so far as the
petitioner's first plea is concerned, I am of the considered view that
merely because the petitioner's counter-claims are still pending
consideration before the arbitral tribunal, the same would not be a
ground to deprive the respondent of its right to seek enforcement of
its claims which have not only been allowed by the arbitral tribunal
Signature Not Verified
By:GARIMA MADAN
Signing Date:24.05.2023
15:23:33
Neutral Citation No. 2023:DHC:3608
but also upheld by this Court vide its judgment dated 16.09.2019.
4. Further, even if I were to accept the petitioner's alternative plea that
the judgment dated 16.09.2019 modifying the arbitral award is a
nullity, that in itself would not imply that the award allowing the
claims of the respondent would become non-est. In fact, a
consequence of accepting the petitioner's alternative plea would be
that the modification of the award is required to be ignored;
resultantly the award would be executable as it originally stood on
30.01.2012.
5. In the light of the aforesaid, I am unable to appreciate as to how the
petitioner can avoid the execution of the award dated 30.01.2012
passed by the arbitral tribunal when its challenge to the part of the
award allowing the claims of the respondent already stands rejected
by this Court. In my considered view, only because this Court had
vide its decision dated 16.09.2019 directed the arbitral tribunal to
reconsider the petitioner's counter claims which had been initially
rejected by the tribunal, the petitioner cannot now be permitted to
contend that the award in itself is unenforceable. The learned Trial
Court, in my view was therefore justified in rejecting the petitioner's
objection to the enforcement of the award.
6. For the aforesaid reasons, I find no merit in the petition which is,
accordingly, dismissed.
(REKHA PALLI)
JUDGE
MAY 23, 2023/sr
Signature Not Verified
By:GARIMA MADAN
Signing Date:24.05.2023
15:23:33
