Forasol Vs. Oil & Natural Gas Commission [1983] INSC 162 (25 October 1983)

MADON, D.P.

MUKHARJI, SABYASACHI (J)

CITATION: 1984 AIR 241 1984 SCR (1) 526 1983 SCALE (2)1110

CITATOR INFO :

RF 1986 SC 137 (63) RF 1991 SC 351 (3)

ACT:

Code of Civil Procedure, 1908-s. 47-Decree passed according to award in foreign currency without fixing rate of exchange-In execution proceedings court must decide and select proper date for fixing rate of exchange-Criteria for selection of date-Date which puts plaintiff in same position in which he would have been had the defendant discharged his obligation when he ought to have done. Proper date is the date of decree.

Arbitration Act, 1940-s. 17-Judgment according to the award-When it is. Provisions of s. 17 are different from the provisions of s. 26 (1) of the English Arbitration Act.

Precedents-English decisions not binding but have high pursuasive value.

Practice & procedure-General practice & procedure to be followed by plaintiff while claiming sum in foreign currency, arbitrator while making the award and court while passing decree-Laid down.

HEADNOTE:

Forasol, a French Company having its principal office in Paris, France, entered into a contract on February 17, 1964 with Oil and Natural Gas Commission (ONGC), a Government of India undertaking, for carrying out structural drilling in relation to the exploration for oil in India.

Article IX-3 of the contract provided that the amount payable to Forasol on account of operational fee, standby fee, and equipment charges shall be computed in French Francs and ONGC shall pay 80% of that amount in French Francs in Paris, France, and the remaining 20% in Indian rupees using a fixed conversion rate of FF. 1.033=Re. 1.000.

Art IX-3.2 provided that certain other charges, e.g., insurance, freight, etc., incurred by Forasol were to be reimbursed to Forasol by ONGC in Indian rupees if the expenditure was initially incurred by Forasol in Indian rupees, otherwise in French Francs. Article X-2, X-3 and X-4 of the contract set out estimates of the payments to be made to Forasol in French Francs, the invoicing rules and the rate of payment. Under Art. X-3.3, Forasol was to indicate in each of its invoices, the amount payable to it in French Francs and the amount payable to it in Indian rupees under the contract. Art. XI provided for payments to be made to Forasol in Indian rupees. The contract which was initially for a period of one year was extended twice and Addendum Nos. 1, 2 & 3 were added to the Contract. During the extended period of the contract the Indian rupee was devalued in June 1966 and consequently Forasol made a claim for conversion of Indian rupees into French 527 Francs at a rate higher than the rate specified in Art. IX - 3. The disputes and differences which arose between the parties were referred to arbitration. The Umpire who made the award directed certain payments to be made in French Francs, but did not specify the rate of exchange at which the French Francs were to be converted into Indian rupees.

The award further directed that from November 30, 1966, the rupee portion should be converted at the higher rate of FF. 1,000 equal to rupees 1,517.80. The award was filed in the Delhi High Court and the High Court passed a decree in terms of the award simpliciter without fixing any date for conversion of the French Francs into Indian rupees, with interest at the rate of 6% per annum from the date of the decree till the date of payment Neither party raised any objection to the said award or to the form in which the said decree was passed. Forasol filed an application in the High Court for execution of the decree. ONGC contended that the enhanced rate of exchange specified in the award was applicable only with respect to the interest payable to Forasol from November 30, 1966 and that to the rest of the payments to be made under the award either in French Francs or in Indian rupee, the contract rate of exchange was applicable. A single Judge of the High Court held that the contract rate of exchange applied only to the rupee part of the payment in respect of the items specified in Art. IX .3.1 and that in respect of the other payments to be made to Forasol in French Francs the rate of exchange prevailing at the date of the decree would apply. In appeal, a Division Bench of the High Court held that the enhanced rate of exchange specified in the award applied only to the interest payable to Forasol and that with respect to the rupee amount the contract rate of exchange applied. It further held that as the award was in French Francs, by reasons of the provisions of the Foreign Exchange Regulation Act, 1973, before executing the award the French Francs would have to be converted into Indian rupees at the rate of exchange prevailing on the date of the said award. This judgment and order of the Division Bench was challenged in these cross appeals. The questions which arose for consideration were:

(1) Whether the rate of conversion mentioned in the contract applied to all the payments to be made under the contract whether in Indian rupees or in French Francs, or only to 20 per cent of the amount in French Francs, payable by ONGC to Forasol in Indian rupees in respect of Forasol's operational fee, standby fee and equipment charges; (2) whether the enhanced rate of exchange specified in the award was applicable to all the payments in Indian rupees under Art.

IX-3.1 of the contract to be made by ONGC to Forasol or only to the interest on the amount in French Francs payable to Forasol by ONGC; and (3) which was the proper date to be selected for converting into Indian rupees the French Francs part of the award in respect of which no rate of exchange had been fixed either by the contract or by the award ? Two further questions which were inextricably linked with question No. (3) above were: (1) whether an arbitrator or umpire can make an award in a foreign currency; and (2) whether a court can simpliciter pass a decree in terms of such an award without specifying the rate of exchange at which the foreign currency amount will have to be converted into Indian rupees.

Allowing the appeal of Forasol and dismissing that of ONGC, 528

HELD: 1. Under Art. IX-3.1 of the contract Forasol had agreed to accept 20 per cent of its operational fee, standby fee and equipment charges in Indian rupees but wanted that the remaining 80 per cent of these fees and charges as also the other amounts which were payable to it under the contract should be paid to it in French Francs only. If Forasol were to indicate separately in its invoices the payment to be made to it in French Francs and in Indian rupees and if the payment of such Francs was to be made in Paris, France, in French Francs, the question of providing for a rate of exchange in the said contract for converting French Francs into Indian rupees cannot arise. Such conversion rate could only be in respect of the amount payable to Forasol in Indian rupees. It is thus only the 20 per cent of the said fees and charges computed in French in Forasol's invoices but payable in Indian rupees which was to be converted at the rate of exchange specified in the contract. This interpretation receives further support from Art. 2.2 of Addendum No. 2 and Art. 2.5 of Addendum No. 3 under which amounts refundable by Forasol to ONGC were to be refunded in the same currency in which ONGC had paid them earlier. [544 C-F]

2. The Division Bench of the High Court was in error in holding that the enhanced rate of exchange specified in the award applied only to the amount of interest payable to Forasol. The enhanced rate of exchange applied to the payments in Indian rupees under Art. IX-3.1 of the contract to be made by ONGC to Forasol from and after November 30, 1966. [548 D-E]

3. In an action to recover an amount payable in a foreign currency, five dates compete for selection by the Court as the proper date for fixing the rate of exchange at which the foreign currency amount has to be converted into the currency of the country in which the action has been commenced and decided. These dates are:

(1) the date when the amount became due and payable;

(2) the date of commencement of the action;

(3) the date of the decree;

(4) the date when the court orders execution to issue;

and (5) the date when the decretal amount is paid or realized.

In a case where a decree had been passed by the court in terms of an award made in a foreign currency a sixth date also enters the competition, namely, the date of the award.

[548G-549B] The question which one out of the dates mentioned above is the proper date to be selected by the Court does not appear to have been decided in this country. The question, however, has formed the subject-matter of decisions in England. The English decisions are of Courts of a country from which we have derived our jurisprudence and a large part of our laws and in which the judgments were delivered by judges held in high repute. Undoubtedly, none 529 of these decisions are binding upon this Court but they are authorities of high pursuasive value to which we may legitimately turn for assistance. Whether the rule laid down in any of these cases can be applied by our Courts must, however, be judged in the context of our own laws and legal procedure and the practical realities of litigation in our country. [549G; 568G] Miliangos v. George Frank (Textiles) Ltd., L.R. [1976] A.C. 443; Tomkinson and Anr. v. First Pennsylvania Banking & Trust Co., L.R [1961] A C. 1007; [1960] 2 All E.R. 332; Sub- nom in re United Railways of Havana and Regla Warehouses Ltd., L.R. [1960] Ch. 52; [1959] 1 All E.R. 214;

Jugoslavenska Oceanska Plovibda v. Castle Investment Co. Inc., [1973] 3 All E.R. 498' Beswick v Beswick, L.R. [1968] A.C 58; [1967] 2 All E.R. 1197; Dr. Mann, The legal Aspect of Money, 3rd Edn. [1971], p. 363; Schorsch Meier G.m.b H. v. Hennin, [1975] 1 All E.R. 152; Miliangos v. George Frank (Textiles) Ltd., [1975] 1 All E.R. 1076; Practice Statement (Judicial Precedent), (1966) 1 W.L.R 1234; Owners of M.V. Eleftherotria v. The owners of M.V. Despina R-The Dispina R and Services Europe Atlantique Sud (Seas) of Paris v. Stockholms. Redriaktiebolag Svea of Stockholm, L.R. [1979] A.C. 685; Practice directions, [1976] 1 W.L.R. 83; [1976] 1 All E.R. 669; The Zafuo, John Carllom & Co. Ltd v. Owners of S.S. Zafiro, L.R. (1960) p. 1 at 14; [1959] 2 All F.R. 537 at 544; E.D. & F. Man v. Socite Annonyme Tripolitiane Das Usines De Raffinage De Sucre, [1970] 2 Lyod's L.Rep. 416 and Russel on Arbitration 20th edn. page 375, referred to.

4. When a foreigner has to receive a sum of money which should justly be payable to him in a foreign currency and because of the default of the paying party, seeks to recover its payment through the court, the first question which arises is whether a court in India would have jurisdiction to pass a decree for a sum expressed in a foreign currency.

Though on principle there is no reason why a court should not be able to do so, no court can pass a decree directing a defendant to do an impossible or an illegal act and in view of the provisions of our Foreign Exchange Regulation Act, 1973, and the restrictions contained therein on making payments in a foreign currency, if a decree were to be passed simpliciter for a sum expressed in a foreign currency, it would be to direct the defendant to do an act which would be in violation of the Foreign Exchange Regulation Act, 1973. Such a decree can, therefore, only be passed by making the payment in foreign currency subject to the permission of the foreign exchange authorities being granted. If, however, the authorities do not grant permission for payment of the judgment debt in foreign currency, it would not be possible for the defendant to make such payment, resulting in the decree becoming infrutuous and the plaintiff getting nothing under it. The court must, therefore, provide for the eventuality of the foreign exchange authorities not granting the requisite permission or even if such permission is given, the defendant not paying the decretal debt, or not wanting to discharge the decree by making payment in foreign currency or in Indian rupees. This can only be done by the decree providing in the alternative for payment of a sum of money in Indian rupees, which will be equivalent to the sum decreed in foreign currency. It is but just that a man, who is in law entitled to receive a sum of money in a foreign currency, should either receive it in such currency or should receive its equivalent in Indian rupees. It is here that the question 530 of the date which the court should select for converting foreign currency into Indian rupees arise. The court must select a date which puts the plaintiff in the same position in which he would have been had the defendant discharged his obligation when he ought to have done, bearing in mind that the rate of exchange is not a constant factor but fluctuates, and very often violently fluctuates, from time to time.

The date when the amount became due and payable, does not have the effect of putting the plaintiff in the same position in which he would have been had the defendant discharged his obligation when he should have done because between that date and the date when the suit is decreed the rate of exchange may have fluctuated to the plaintiff s prejudice, resulting in the amount decreed in rupees representing only a fraction of what he was entitled to receive. Equally, the possibility of the plaintiff getting more than what he had bargained for in case the rate of exchange had fluctuated in his favor cannot be ruled out.

To select the date when the amount became due or the "breach date", as the English courts have termed it, is thus to expose the parties to the unforeseeable changes in the international monetary market. The selection of the "breach date" cannot, therefore, be said to be just, fair or equitable. [568H 569D] The date of the commencement of the action or suit, is equally subject to the same criticism. The selection of the date of the filing of the suit would, therefore, leave the parties in as uncertain and precarious a position as the selection of the date when the amount became payable or the "breach date". [569 E-H] To select the date of the decree as the conversion date would be to adopt as unrealistic a standard as the "breach date" because a money decree and the payment by the judgment debtor of the judgment debt under it are two vastly different matters widely separated by successive execution applications and objections thereto unless the judgment debtor chooses to pay up the judgment debt of his own accord which is generally not the case. In the vast majority of cases a money decree is required to be enforced by execution. [570 A-E] The selection of the date when the court orders execution to issue is equally beset with difficulties. [570 G] In selecting the date of payment as the proper date of conversion there are three practical and procedural difficulties, namely, payment of court fees, the pecuniary limit of the jurisdiction of courts and execution. [572 B-E] This then leaves the court with only three dates from which to make the selection, namely, the date when the amount became payable, the date of the filing of the suit and the date of the judgment, that is, the date of passing the decree. It would be fairer to both the parties for the court to take the latest of these dates, namely, the date of passing the decree, that is, the date of the judgment. [575 F] 531

5. Under section 17 of the Arbitration Act, 1949 the judgment which the court pronounces is to be "according to the award". Where the award directs a certain sum of money to be paid and the court, in a case where it has not modified or corrected the award under section 15, pronounces judgment for a different sum, the judgment cannot be said to be "according to the award". In the same way, where an award directs payment of a sum of money in foreign currency and the court while pronouncing judgment provides for its rupee equivalent at the rate of exchange prevailing on the date of the award, the court will not be pronouncing judgment "according to the award" if in the meantime the rate of exchange has varied, because at the date of the judgment the foreign currency equivalent of the amount in rupees provided in the judgment would be different from the foreign currency sum directed to be paid by the award. The judgment, therefore, can only be said to be "according to the award" if it directs payment of the rupee equivalent at the rate of exchange prevailing on the date of pronouncing the judgment which date is the same as the date of the passing of the decree. [584G-585B]

6. The Division Bench of the High Court has committed an error in equating s. 26 (1) of the English Arbitration Act with s. 17 of our Arbitration Act. The reason for this error is that the Division Bench has proceeded upon a wrong assumption that the procedural scheme of the English Arbitration Act is the same as that of our Arbitration Act.

The provisions for enforcing an award under the English Act and under our Act are different. Granting leave under s. 26 of the English Act and pronouncing judgment according to the award and passing a decree under s. 17 of our Act mean different things and have different results. A judgment according to the award under s 17 of our Act will speak only from the date of the judgment which will not be the case under s. 26 (1) of the English Act, for while in the first case what will be enforceable by the processes by law, namely execution, will be the decree passed in terms of the award, in the second case it will be the award itself, unless the applicant desires to have judgment entered in terms of the award. [585C, 585E] Satish Kumar and ors. v. Surinder Kumar and ors., [1969] 2 S.C.R. 244, distinguished.

The practice, which ought to be followed in suits in which a sum of money expressed in a foreign currency can legitimately be claimed by the plaintiff and decreed by the court is as follows. In such a suit, the plaintiff, who has not received the amount due to him in a foreign currency and, therefore, desires to seek the assistance of the court to recover that amount, has two courses open to him. He can either claim the amount due to him in Indian currency or in the foreign currency in which it was payable. If he chooses the first alternative, he can only sue for that amount as converted into Indian rupees and his prayer in the plaint can only be for a sum in Indian currency. For this purpose, the plaintiff would have to convert the foreign currency amount due to him into Indian rupees. He can do so either at the rate of exchange prevailing on the date when the amount became payable for he was entitled to receive the amount on that date or, at his option, at the rate of exchange prevailing on the date of the filling of the suit because that is the 532 date on which he is seeking the assistance of the court for recovering the amount due to him. In either event, the valuation of the suit for the purposes of court-fees and the pecuniary limit of the jurisdiction of the court will be the amount in Indian currency claimed in the suit. The plaintiff may, however, choose the second course open to him and claim in foreign currency the amount due to him. In such a suit, the proper prayer for the plaintiff to make in his plaint would be for a decree that the defendant do pay to him the foreign currency sum claimed in the plaint subject to the permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, being granted and that in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the defendant do pay to the plaintiff the rupee equivalent of the foreign currency sum claimed at the rate of exchange prevailing on the date of the judgment.

For the purposes of court-fees and jurisdiction the plaintiff should, however, value his claim in the suit by converting the foreign currency sum claimed by him into Indian rupees at the rate of exchange prevailing on the date of the filing of the suit or the date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the court- fees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of court-fees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, being granted, and in the event of the Foreign Exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final 533 order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money there under received by the plaintiff.

[587D-589C]

8. Just as the courts have power to make a decree for a sum of money expressed in a foreign currency subject to the limitations and conditions set out above, the arbitrators or umpire have the power to make an award for a sum of money expressed in a foreign currency. The arbitrators or umpire should, however, provide in the award for the rate of exchange at which the sum awarded in a foreign currency should be converted in the events mentioned above. This may be done by the arbitrators or umpire taking either the rate of exchange prevailing on the date of the award or the date nearest or most nearly preceding the date of the award or by directing that the rate of exchange at which conversion is to be made would be the date when the court pronounces a judgment according to the award and passes the decree in terms thereof or the date nearest or most nearly preceding the date of the judgment as the court may determine. If the arbitrators or umpire omit to provide for the rate of conversion, this would not by itself be sufficient to invalidate the award. The court may either remit the award under section 16 of the Arbitration Act, 1940, for the purpose of fixing the date of conversion or may do so itself taking the date of conversion as the date of its judgment or the date nearest or most nearly preceding it, following the procedure outlined above for the purpose of proof of the rate of exchange prevailing on such date. If, however, the person liable under such an award desires to make payment of the sum in foreign currency awarded by the arbitrators or umpire without the award being made a rule of the court, he would be at liberty to do so after obtaining the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, 9, In the instant case the party entitled to receive the money-Forasol-was a foreign party. Under the said contract, the currency of account was a foreign currency and so was the currency of payment except for a portion thereof.

Forasol was, therefore, entitled, on payment not being made to it by ONGC, to receive in French Francs the amounts which became payable to it in that currency. The Umpire was, therefore, justified in providing that the amounts payable under the said award to Forasol in French Francs should be paid in French currency. The Umpire has, however, neither provided that such payment would be subject to the permission of the foreign exchange authorities being obtained nor specified the conversion rate to be applied in the eventualities set out above. That, however, does not make any difference because neither party has objected to the said award on this ground. On the contrary, both parties have accepted the said award as binding and conclusive, As mentioned above, this omission on the part of the Umpire could have been corrected by the High Court when it came to pronounce judgment according to the said award and pass the said decree in terms thereof. The decree passed in terms of the said award, however, does not specify either the rupee equivalent of the amount in French Franch payable to Forasol or the rate of exchange at which the conversion of such amount into Indian rupees should be made. To that extent, the decree passed in terms of the said award by the High Court was not 534 a proper decree. Both the parties have, however, accepted the said decree and have not challenged it on this ground in any proceedings. In any event, the aforesaid mistake in the said decree was one which could have been got corrected by an application for review or by an application under section 152 or, in any event under section 151, of the Code of Civil Procedure , 1908. The decree has now become final and binding upon the parties. Both the parties have accepted the said decree and the said decree cannot, therefore, be said to be invalid on the ground of the above omission to specify either the rupees equivalent of the French Franc portion of the said award or the rate of exchange at which such French Franc portion was to be converted into its rupee equivalent.

For these reasons we hold that the learned Single Judge rightly took the date of the decree as the date of conversion. [590C-591B]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 628 & 629 of 1981.

Appeals by Special Leave from the Judgment and Order dated the 21st December, 1979 of the Delhi High Court in E.F.A.(O.S.) No. 5 of 1977.

Shankar Ghosh, and D.N. Gupta, for the Appellant in CA.

628/81 & for Respondent in CA. No. 629/81.

B. Dutta for the Respondent in CA. 628/81 and for appellants in CA. No. 629/81.

The Judgment of the Court was delivered by MADON, J. These cross appeals by special leave arise out of execution proceedings adopted by Forasol, a French Company, having its principal office in Paris, France, against the Oil and Natural Gas Commission, a statutory body incorporated under the oil and Natural Gas Commission Act, 1959 (Act XLIII of 1959), hereinafter for the sake of brevity referred to as 'ONGC'.

On July 30, 1962 the Government of India invited global tenders for structural drilling for exploration of oil in the Jaisalmer area of the State of Rajasthan. The tender of Forasol was accepted by the Government of India and in pursuance thereof a contract dated February 17, 1964, headed "Structural Drilling Contract", was entered into between ONGC and Forasol. Under the said contract, ONGC engaged Forasol to carry out structural drilling in relation to the exploration for oil in the Jaisalmer area of the State of Rajasthan on the terms and conditions contained in the said contract.

535 The said contract was for a period of one year commencing from the date of the start of the drilling work. The said contract also gave an option to ONGC to extend the period by one more year. Article IX-3 of the said contract dealt with the currency of payment. It provided as follows:

"IX-3.1. The operational fee, standby fee and equipment charges payable to FORASOL have been specified in French Francs in Article IX-1.1.1. to IX- 1.1.1. Above. The amount payable to FORASOL on account of aforesaid fees and charges shall be computed in French Francs ONGC shall pay 80% of the aforesaid amount in French Francs and the remaining 20% in Indian Rupees using a fixed conversion rate of FF. 1.033=Re.

1.000." Under Article IX-3.2 the cost as well as the insurance, packing, forwarding and clearing charges in respect of the materials provided by Forasol and the freight, insurance, packing, forwarding and clearing charges for transportation from a sea port or air port in France to India and back to a sea port in France or outside France if Forasol so chose, in respect of the rig, equipment, machinery, tools and other materials provided by Forasol were to be reimbursed to Forasol by ONGC in Indian rupees, if the expenditure was initially incurred by Forasol in Indian rupees, otherwise in French Francs.

Under a Credit Agreement arrived at between the Government of India and the Government of France, the Government of France had agreed to provide credit facilities to a limited extent to the Government of India for the import of plant, machinery, equipment and materials and for execution of certain projects including oil exploration.

Under the said Credit Agreement, credit was to be given by the French suppliers to the Indian buyers in the form of acceptance of payments on deferred basis upon the conditions laid down in the letters dated February 5, 1962, exchanged between the Governments of India and France. Consequently, in respect of the said contract, Forasol had agreed under Article X-1.1 thereof to accept payment of its fees, costs and charges payable in French Francs on deferred basis under the overall conditions of the said letters exchanged between the two Governments and Forasol and ONGC had agreed upon the estimates of the payments to be made to Forasol in French Francs under the said contract, the invoicing rules and the mode of payment. Articles X-2, X-3 and X-4 of the 536 said contract set out such estimates, invoicing rules and the mode of payment. Under Article X-3.3, Forasol was to indicate in each of it invoices the amount payable to it in French Francs and the amount payable to it in Indian rupees under the said contract. So far as the mode of deferred payment of French Francs was concerned, Article X-4.1.1 provided for remittance by ONGC in French Francs immediately following the signing of the said contract of a sum of FF 73, 437.49, being the 19/800th part (i.e. 1.25 per cent) of the total estimated amount of Forasol's operational and stadby fees and equipment charges, cost of the materials to be provided by Forasol and transportation charges in respect of Forasol's rig, equipment, machinery and tools. Under Article X-4.1.2, subsequent to the above remittance ONGC was to remit to Forasol in French amount 15/800th part (i.e. 1.875 per cent) of the total estimated amount in respect of the said items mentioned above, that is FF 110,156.23 on each 5th day of August and February, the first of such payments to be made on August 5, 1962 and the last on February 5, 1965. Article X-4.2 provided for payment by ONGC to Forasol of the balance of the amount due to Forasol.

Under Article X-4.2.1, on receipt of each of Forasol's invoices in respect of operational fees, standby fees and equipment charges accepted by ONGC, Forasol was to present to ONGC a set of 14 promissory notes payable to CNEP (Paris) of equal value totalling to 87.5% of the French Franc Portion of the amount for which each of the said invoices had been accepted by ONGC and maturing on the 5th day of August and of February, the first such dates being August 5, 1965 and the last being February 5, 1972. Within fifteen days of the date of receipt of the said promissory notes, ONGC was to return the said promissory notes to Forasol (Paris) duly signed and stamped.

Article X-4.2.2 provided for payment of the said promissory notes. The said Article was as follows:

"X-4.2.2. ONGC binds itself, irrevocably, to pay in French Francs the promissory notes given by it to Forasol. Forasol shall present the promissory notes to CNEP (Paris) for collecting payment on the dates of maturity ONGC shall place with CNEP (Paris), at least one day before each date of maturity, adequate funds to cover the total value of the promissory notes maturing on that date." 537 Under Article X-4.3 ONGC undertook to pay to Forasol in French Francs simple interest at the rate of 5 per cent per annum and also a credit insurance charge at the rate of 1.08 per cent per annum. The other sub-articles of Article X-4.3 provided for calculation of interest and insurance charges and for submission by Forasol every six months of invoices in respect thereof. Article X-4.3.2, inter alia, provided that- "ONGC shall accept each invoice for the interest and insurance charge and shall remit the invoiced amount to Forasol in French Francs as early as possible but not later than two months after receipt of the invoice." Provision was also made by the said Article X-4.3.2 for drawing of promissory notes payable at CNEP (Paris) maturing on each 5th day of August and of February, the first of such dates being August 5, 1965 and the last being August 5, 1971. Under Article X-4.3.3 ONGC bound itself, "irrevocably, to pay in French Francs the promissory notes for interest and insurance charge given by it to Forasol." Article XI provided for payments to be made to Forasol in Indian rupees. Under Article XI.1.1. the rupee payment part of the operational and standby fees, equipment charges and transportation charges payable to Forasol under the said contract was estimated to be FF 1,495,216 and ONGC was to pay to Forasol as an advance 10 per cent of the said amount, namely, FF 149,522, in Indian rupees using a conversion rate of FF 1.033 equal to Rupee 1.000. The balance amount in respect of the aforesaid item was to be paid by ONGC to Forasol in Indian rupees using a conversion rate of FF 1.033 equal to Rupee 1.000 in the manner set out in the other sub- articles of Article XI.

On account of the hostilities between Pakistan and India which broke out in September 1965 the work under the said contract could not be completed and the operations to be carried out there under had to be suspended. The period of the said contract was thereupon extended by a supplementary agreement being Addendum No. 1 dated December 6, 1965, by a period of six months with effect from the date on which the drilling operations in the Jaisalmer area were resumed at the expiry of the period of suspension. By another supplementary agreement being Addendum No. 2 dated July 30, 1966, the period of the said contract was further extended by a period of five months from the moment at which all the equipment of 538 Forasol then under repair at Jodhpur arrived, after completion of the repairs at the new drill-site, where ONGC might like to have drilling operations to be started under the said Addendum No. 2. Article 2.7 of the said Addendum No.2 provided as follows:

"2.7. In case Forasol has to refund to ONGC an amount which cannot be adjusted or has not been adjusted against Forasol's invoices for the last two months of the five months period of this Addendum, Forasol shall refund the amount in cash in the same currency in which ONGC had paid it earlier." By another supplementary agreement being Addendum No. 3 dated February 23, 1967, the period of the contract was further extended till the completion of the drilling of Manhere Tibba Well No. 1 and in case ONGC should decide to test the said well till the completion of such test or till April 18.1967. Whichever was earlier? Article 2.5 of the said Addendum No. 3 Provided as follows:

"2.5, In case Forasol has to refund to ONGC an amount which cannot be adjusted or has not been adjusted against Forasol's invoices for the period of extension stipulated in Article 1.2 above, Forasol shall refund the amount in cash in the same currency in which ONGC had paid it earlier." It may be mentioned that each of the said supplementary agreements provided that all the terms and conditions of the original contract which were not repugnant to the terms and conditions agreed to for such supplementary agreements were to continue to apply until the termination of the said contract.

The extended period of the said contract expired on April 13, 1967.

In June 1966, during the extended period of the said contract, the Indian rupee was devalued, and consequently in the course of correspondence which took place between the parties Forasol made a claim for conversion of Indian rupees into French Francs at a rate higher than the rate specified in Article IX. 3 of the said contract.

539 It may also be mentioned that ONGC paid to the income- tax authorities towards the income-tax liabilities of Forasol three sums aggregating to Rs. 11,95,304 as specified below:

(1) Rs. 1,25,304 on September 14, 1967, (2) Rs. 4,70,000 on February 14, 1968, and (3) Rs. 6,00,000 on March 23, 1968.

During the period of extension covered by the said Addendum No. 3 and after the expiry of that period disputes and differences arose between the parties. These were referred to arbitration as provided in the said contract.

The parties appointed their respective arbitrators. The time for making the award was extended from time to time with the consent of the parties but as Forasol did not consent to any further extension, the disputes were referred for arbitration to Mr. N. Rajagopala Iyyangar, a retired judge of this Court, being the Umpire appointed by the arbitrators. In the arbitration proceedings Forasol made claims against ONGC and ONGC made counter-claims against Forasol. On March 8, 1972, the Umpire entered upon the Reference and on December 21, 1974, the Umpire made his award. To the said award an erratum was annexed by which a particular portion to the said award was deleted and substituted by a fresh portion to which we will revert later. For the present, suffice it to say that by the said Erratum the Umpire awarded that from November 30, 1966 the rupee portion should be converted at the rate of FF 1, 000 equal to Rs. 1,517. 80 instead of the rate of exchange of FF 1,033 equal to Re. 1,000 provided in Article IX. 3.1 of the said contract and that this enhanced rate of exchange would apply to both Forsal and ONGC.

The said award was filed in the Delhi High Court and on May 7,1975, a decree in terms thereof was passed by that High Court with interest at the rate of 6 per cent per annum from the date of the decree till the date of payment of the net decretal amount. It is pertinent to note that neither party raised any objection to the said award or to the form in which the said decree was passed.

After the said decree was drawn up, Forasol filed in March 1976 an application for execution of the said decree being Execution No. 77 of 1976. Under the said award certain amounts were directed by the Umpire to be paid to Forasol by ONGC in French 540 Francs and certain amounts in Indian rupees, and the amounts payable by Forasol to ONGC were to be adjusted and set off against the amounts payable by ONGC to Forasol. In the said execution application the rupee credit in favour of Forasol was converted into French Francs at the rate of Rupee 1.

5178 equal to FF 1.000 being the enhanced rate of exchange specified in the said award. After deducting the amounts payable to ONGC the balance payable to Forasol was shown as FF 5, 89, 727.51 being the equivalent of Rs. 11, 79, 455 with interest on the principal sum upto the date of payment and the costs of execution. The mode of execution specified in the said execution application was attachment and sale of the movable properties belonging to ONGC and specified in an annexure to the said execution application. In its objections to the said execution application ONGC contended that the enhanced rate of exchange specified in the said award was only with respect to the interest payable to Forasol from November 30, 1966, and that to the rest of the payments to be made under the said award the rate of exchange mentioned in Article IX-3.1, namely, FF 1.033 equal to Rupee 1.000, was applicable and that this contract rate of exchange applied both to the French Franc part as also the Indian rupee part of the said contract. ONGC also raised certain other contentions. On the basis of these contentions, it was submitted by ONGC that instead of any amount being due to Forasol a sum of Rs. 6, 43,831.44 was due by Forasol to ONGC. The learned Single Judge of the Delhi High Court who heard the said execution application rejected all the contentions of ONGC. He held that the contract rate of exchange applied only to the rupee part of the payment in respect of the items specified in Article IX-3. 1 of the said contract and that in respect of such payments from November 30, 1966, the enhanced rate of exchange provided in the said award was to apply but in respect of the other payments to be made to Forasol in French Francs the rate of exchange prevailing at the date of the decree, namely, FF 1.000 equal to Rs. 1.938 would apply. The learned Single Judge directed that ONGC could satisfy the judgment debt by making payment in French Francs or, if it so preferred, by paying the equivalent of it in Indian rupees at the rate of exchange prevailing at the date of the decree and further ordered that if the decretal amount was not paid within two weeks, attachment as prayed for should issue. Against the said judgment and order of the learned Single Judge ONGC filed an intra-court appeal being E.F. A. (OS) 5 of 1977.

The Division Bench of the Delhi High Court, which heard the said appeal, upheld the contention of ONGC that the 541 enhanced rate of exchange specified in the said award applied only to the interest payable to Forasol and that with respect to the rupee amount due to ONGC and which was to be adjusted against French Francs payable to Forasol, the contract rate of exchange applied. It further held that as the said award was in French Francs, by reason of the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973), before executing the said award the French Francs would have to be converted into Indian rupees at the rate of exchange prevailing on the date of the said award, namely, FF 1.000 equal to Rupee 1.831. The Division Bench negatived the other contentions raised by ONGC. It is against this judgment and order of the Division Bench of the Delhi High Court that the present cross appeals have been filed.

So far as Forasol's appeal is concerned, four points were urged on its behalf before us.

These points were:

1. The rate of exchange specified in Article IX-3. 1 of the said contract, namely, FF 1.033 equal to Rs. 1.000, was applicable only to 20 per cent of the payment to be made in Indian rupees by ONGC to Forasol.

2. The Umpire by the said award fixed the rate of exchange at FF 1.000 equal to Rs. 1.5178 as from November 30, 1966, in respect of such rupee payments only.

3. The sum of Rs. 10,19,380.39, being the balance amount of the sum of Rs. 11,95,304 which remained payable to ONGC by Forasol in respect of the income-tax paid by ONGC on behalf of Forasol after making adjustments against the claim of Forasol, was to be adjusted, as directed by the said award, against Forasol's claim in French Francs on the respective dates of each payment of tax, namely, on September 14, 1967, February 14, 1968, and March 23, 1968, and as all these payments were made after November 30, 1966, and as under the said award the enhanced rate of exchange was directed to apply to 542 both parties, the said sum of Rs. 10,19,383.39 was to be adjusted against the French Franc claim of Forasol at the enhanced rate of FF 1.000 equal to Rs. 1.5178.

4. So far as the payment to Forasol in French Francs was concerned, neither the said contract nor the said award provided for conversion of French Francs into Indian rupees and the said decree having been passed in foreign currency, in case ONGC did not or could not make payment in French Francs, the rate of conversion of French Francs, into Indian rupees could only be at the rate of exchange prevailing at the date of the said decree, that is, on May 7, 1975, which was FF 1.000 equal to Rs. 1.938.

ONGC, on the other hand, submitted that the said contract provided a fixed rate of exchange of FF 1.033 equal to Re. 1.000 for all amounts payable under the said contract, whether in rupees or in French Francs, and, therefore, that rate alone should be taken as the correct conversion ratio except with respect to interest on the amount in Franch Francs payable to Forasol in respect of which the Umpire had enhanced the rate of exchange to FF 1.000 equal to Rs. 1.5178. In the alternative, it was submitted that the conversion rate should be the one prevailing at the date of the said award, that is, on December 21, 1974, namely, FF 1.000 equal to Rs. 1.831.

Thus, there are four different rates of exchange which feature in this case, namely,- Rate provided in the FF 1.033 = Rs. 1.000 said contract Rate fixed by the FF 1.000 = Rs. 1.5178 Umpire Rate at the date of the FF 1.000 = Rs. 1.831 said award namely on December 21, 1974 Rate at the date of FF 1.000 = Rs. 1.938 the decree, namely, on May 7, 1975 543 We shall first examine the said contract to determine whether the rate of conversion mentioned in the said Article IX-3.1 applied only to 20 per cent of the amounts in French Francs payable by ONGC to Forasol in Indian rupees in respect of Forasol's operational fee, standby fee and equipment charges as contended by Forasol or whether it applied to all payments to be made under the said contract, whether in rupees or in French Francs, as contended by ONGC.

In doing so, a cardinal fact must be borne in mind, namely, that it was a contract entered into between a foreign party and a Government of India undertaking and that under the said contract the foreign party had agreed to carry out structural drilling in relation to the exploration for oil, discovery of oil being of vital importance to the national interests of India. From the nature of things, the foreign party would not desire payment for the services to be rendered and the equipment to be supplied by it in a currency with which it had no connection and of the continuous stability of which it could not be certain. The foreign party would, therefore, naturally desire and bargain for payment in the currency of its own country, namely, in French currency. The more so, as under the Credit Agreement entered into between the Government of France and the Government of India the Government of France had agreed that credit should be given by French suppliers to Indian buyers by accepting payment on deferred basis for the import of plant, machinery, equipment and materials and execution of certain projects including oil exploration, and, accordingly, under Article X-1.1. of the said contract the French party, Forasol, had agreed to accept on deferred basis payment of the amounts due to it in French Francs. We have earlier referred to the relevant Articles of the said contract as also extracted some of them in order to emphasize that though under the said Article IX-3.1 Forasol had agreed to accept 20 per cent of its operational fee, standby fee and equipment charges in Indian Rupees, it wanted that the remaining 80 per cent of these fees and charges as also the other amounts which were payable to it under the said contract should be paid to it in French Francs only and should not be made dependent upon the stability of the Indian rupee in the international monetary market. To recapitulate, the invoicing rules provided that in each of its invoices Forasol should indicate separately the amount payable to it in French Francs and the amount payable to it in Indian rupees and that so far as the French Franc part was concerned, an initial payment was to be made immediately upon the signing of the said contract and the balance was to be paid by remittances in French Francs. Such remittances were to be made by Forasol presenting 544 to ONGC a set of promissory notes payable in Paris and under Article X-4 2.2 of the said contract ONGC irrevocably bound itself to pay in French Francs the promissory notes given by it to Forasol, Similar provisions were made in the said contract for payment of interest and insurance charges to Forasol. If Forasol were to indicate separately in its invoices the payment to be made to it in French Francs and in Indian rupees and if the payment of such French Francs was to be made in Paris in French Francs, the question of providing for a rate of exchange in the said contract for converting French Francs into Indian rupee cannot arise.

Such conversion rate could only be in respect of the amounts payable to Forasol in Indian rupees. It is pertinent to note that under Article IX-3.1 the amount of fees and charges payable to Forasol were to be computed in French Francs and thereafter 80 per cent thereof was to be paid in French Francs and the remaining in Indian rupees. Even with respect to such twenty per cent Forasol did not want to be dependent upon a possible fluctuation in the exchange rate of rupee and, therefore, the 20 per cent part of the amount computed in French Francs was covenanted to be converted at a fixed rate provided in the said Article IX-3.1. This is made abundantly clear by the express terms of the said Article IX-3.1 when it states that "ONGC shall pay 80% of the aforesaid amount in French Francs and the remaining 20% in Indian Rupees using a fixed conversion rate of FF 1.033=Re.

1.000." It is thus only the 20 per cent of the said fees and charges computed in French Francs in Forasol's invoices but payable in Indian rupees which was to be converted at the aforesaid rate of exchange specified in the said contract.

This interpretation receives further support from Article

2.2 of Addendum No. 2 and Article 2.5 of Addendum No. 3 extracted above under which amounts refundable by Forasol to ONGC were to be refunded in the same currency in which ONGC had paid them earlier. The contention of ONGC that the fixed rate of conversion provided in Article IX-3.1 applied to all payments to be made under the said contract to Forasol must, therefore, be rejected.

What next falls to be considered is whether the enhanced rate of exchange specified by the Umpire in the said award applied only to the amount payable by way of interest to Forasol as contended by ONGC. This contention was rejected by the learned Single judge but found favour with the Division Bench of the Delhi High Court. It is necessary to set out some further facts in order to decide this point During the course of the hearing before the Umpire, ONGC had 545 filed a statement showing the adjustment of the amount of French Francs due to Forasol against the amount of income- tax paid by ONGC on behalf of Forasol. It was, however, erroneously assumed by the Umpire that the said statement was an agreed one. After the Umpire had drafted his award he handed over a copy of it to the parties in order that they might point out to him any incorrect statements or mistakes of a clerical or similar nature so that he could correct the same before the award was made and published. Accordingly, both the parties appeared before the Umpire and agreed that there were certain errors in the draft award and requested the Umpire to correct these errors before he made and Published his award. The Umpire thereupon corrected the errors jointly pointed out to him by appending an Erratum to the said award. In the said Erratum the Umpire pointed out that the aforesaid statement was not an agreed one and he directed that certain portions of the award should be deleted and substituted by fresh paragraphs set out in the said Erratum. In the said Erratum the Umpire first pointed out certain errors of calculation and in the mentioning of figures which had been occurred. He then proceeded to state:

"Incidentally it was pointed out that the statement on pages 145-6 and in the penultimate and last two paragraphs on page 149 regarding the document filed before me, as regards the adjustment of FF claims due to Forasol against the income-tax paid by ONGC was not an agreed statement, but a statement prepared by O.N, G.C. on their own to which Forasl had not consented, As a result of this, the question of adjustment of the income-tax paid against FF claims, as set out in the last para on page 149 and in the first two paragraphs on page 150 would be deleted and in their place the Award would state that 'the amounts of income-tax paid by ONGC shall be adjusted against the FF claims due to Forasol on the date when each amount was paid in the manner set out earlier in the Award.' "To achieve this purpose the paragraphs on pages 149 and 150 beginning with the words 'In the calculation of the interest on the several invoices' and ending with 'I have already dealt with the conversion rate and there is no need to go into it again' on page 150 shall be deleted and a new paragraph inserted, which will read as follows:

546 X X X X X '...as a result the aggregate figure of interest payable to Forasol by O.N.G.C. upto 30-6-1974 would be FF 12,91,290,06. From this a small adjustment has to be made...when these are adjusted the amount due for interest by O.N.G.C. to Forasol would be FF 12.88.185.35.' 'This figure of FF 12,91,290,06 has been calculated on the basis of conversion rate of FF 1.033 to a rupee (or FF 1033 for every Rs. 1,000/-) which was the rate of exchange agreed to between thee parties under Article XI. 1.1.1 of the Agreement. Messrs Forasol have put forward before me a claim for enhanced rate of interest and their claim is that this should be Rs. 1,5178 for every FF or Rs. 1517,80 for every FF 1,000, I find that there is considerable correspondence in the course of which they have made a claim that after devaluation of the rupee there should be a change in the rate of exchange, Though there is no specific letter in the file agreeing to the enhancement I find that in the later invoices demand has been made subject to the claim for enhanced rate of exchange. In view of this I consider that from 30,11,1966 Rupee portion should be Converted at FF 1 = Rs. 1.5178 or FF 100= Rs. 1.517.80. Of course this rate of exchange would apply to both the parties, Farasol and the O.N.G.C.' 'As stated earlier this has been worked out only upto 30.6.1974 and in accordance with the directions contained in this award interest shall be calculated on the principal amount right upto 21.12.1974 on the entire amount of principal and the entire sum of principal and interest would thereafter carry interest at 6% per annum, as stated in the other portion of the award." (The emphasis has been supplied by us.) Article XI-1.1 of the said contract referred to in the said Erratum provided as follow:- "XI-1.1.1 On the basis of the figures arrived at in Articles IX-2.1 and IX-2.2 above and in accordance with the condition laid down in Article IX-3.1 above, the total 547 of FORASOL's operational and standby fees, equipment charges and transportation charges payable in Indian Rupees under this contract, is estimated to be FF 1,495, 216, Following signature of this contract, ONGC shall pay to FORASOL, as an advance, 10a/c of this amount i.e. FF 149,522 in Indian Rupees using a conversion rate of FF 1.033 = Rs. 1.000." In order to reach the conclusion which it did, the Division Bench of the Delhi High Court relied upon that portion of the said Erratum where the Umpire has stated that Forasol has put forward before him a claim for "enhanced rate of interest", overlooking the other portions of the said Erratum, particularly the portion emphasized by us in the above extract as also the fact that by the said Erratum certain portions of the said award were deleted and substituted by fresh paragraphs. On a perusal of the above extract from the said Erratum, it is obvious that the claim made by Forasol was not for an enhanced rate of interest but for an enhanced rate of exchange by reason of the devaluation of the rupee. This is made clear by the rest of the very same sentence in the said Erratum in which this claim made by Forasol was referred to, namely, "and their claim is that this should be Rs. 1.5178 for every FF or Rs. 1.5178 for every FF 1,000," If the claim of Forasol was for an enhanced rate of interest, the claim would have been that interest should be payable to it not at the contract rate of five per cent per annum but at a higher rate and not that a higher rate of exchange should be provided. The very next sentence which also we have emphasized clarifies that in the correspondence which took place between the parties, Forasol had made a claim that after devaluation of the rupee there should be a change in the rate of exchange. Obviously, this change would be with respect to the rupee payment to be made to Forasol. The very direction of the Umpire in this behalf makes it clear that he was not dealing only with the rate of interest for by the said direction, which too we have emphasized in the above extract, the Umpire awarded that from November 30, 1966, "Rupee portion should be converted at FF 1 = Rs. 1.5178 or FF 1,000 = Rs. 1,5178" and he further awarded that "this rate of exchange would apply to both the parties, Forasol and the O.N.G.C." The question of the enhanced rate of exchange applying to both the parties would not arise if the enhanced rate of exchange was with respect only to the interest payable to Forasol.

548 We are fortified in the conclusion we have reached by the fact that so far as the adjustment of claim of ONGC with respect to income-tax paid by it was concerned, the Umpire by the said Erratum expressly deleted from the said award the portion in which such adjustment was made at the contract rate of FF 1.033 equal to Re. 1,000 and substituted it by fresh paragraphs. Under the said Erratum these amounts were directed to be adjusted from November 30, 1966 at the enhanced rate of exchange provided in the said Erratum as all these amounts were paid by ONGC after the said date.

Another fact which fortifies this conclusion is that by the last paragraph of the portion of the said Erratum extracted above, in addition to an enhanced rate of exchange, the Umpire has also awarded a higher rate of interest, namely, six per cent, on the entire sum of principal and interest from December 22, 1974.

The Division Bench of the Delhi High Court was, the in error in holding that the enhanced rate of exchange specified in the said award applied only to the amount of interest payable to Forasol. For the reasons stated above we find that this enhanced rate of exchange applied to the payments in Indian rupees under Article IX-3.1 of the said contract to be made by ONGC to Forasol from and after November 30,1966.

The question which now remains to be considered in Forasol's appeal is the date to be selected by the Court for converting into Indian rupees the French Franc part of the said award in respect of which no rate of exchange has been fixed either by the said contract or the said award.

In an action to recover an amount payable in a foreign currency, five dates compete for selection by the Court as the proper date for fixing the rate of exchange at which the foreign currency amount has to be converted into the currency of the country in which the action has been commenced and decided.

These dates are:

(1) the date when the amount become due and payable;

(2) the date of the commencement of the action;

549 (3) the date of the decree;

(4) the date when the court orders execution to issue;

and (5) the date when the decretal amount is paid or realized.

In a case where a decree has been passed by the court in terms of an award made in a foreign currency a sixth date also enters the competition, namely, the date of the award.

The case before us is one in which a decree in terms of such an award has been passed by the court.

The said award directed certain payments to be made in a foreign currency, namely, French Francs, and did not specify the rate of exchange at which the French Francs were to be converted into Indian rupees and the decree which was passed by the Delhi High Court was in terms of the said award simpliciter without fixing any date for conversion of the French Francs into Indian rupees. As mentioned earlier, neither party filed any objection to the said award or to the passing of the said decree in the terms in which it was passed. The question whether an arbitrator or umpire can make an award in a foreign currency is, therefore, not directly in issue before us nor the question whether a court can simpliciter pass a decree in terms of such an award without specifying the rate of exchange at which the foreign currency amount will have to be converted into Indian rupees. Though at the first blush these questions do not appear to arise for our determination, they are inextricably linked with the question which we have to decide and we will, therefore, have to address ourselves to them in due course.

The question which one out of the dates mentioned above is the proper date to be selected by the court does not appear to have been decided in this country, and no authority of any Indian court on this point has been brought to our notice. The question, however, has formed the subject-matter of decisions in England and both the learned Single Judge as also the Division Bench of the Delhi High Court have referred to the decision of the House of Lords in Miliangos v. George Frank (Textiles) Ltd.(1) and other English cases. They have however, reached differing conclusions, the learned Single Judge holding that the conversion of French Francs into Indian 550 rupees should be made at the ra