ON Civil Appeal No 1557 of 1986 From the Judgment and Order dated 341986 of the Bombay High Court in Interim Petition No 11 of 1986
K Parasaran Attorney General B Datta Additional Solicitor General SS Shroff SA Shroff RK Joshi Mrs PS Shroff
Anil K Sharma and Mohan Parasaran for the Appellant
FS Nariman SN Thakkar Ravinder Narain Gulam Vahamwati section Sukumaran DN Mishra Adittiya Narain Mrs AK Verma and Miss Lira Goswami for the Respondent
The Judgment of the Court was delivered by 1031 THAKKAR J
Was the High Court right  in granting the restraint order earlier and wrong  in vacating the said order later  By the order in question the Respondent Western Company of North America Western Company was restrained from pro ceeding further with an action instituted by it in a USA Court against the appellant
Oil and Natural Gas Commission ONGC
The said action was targeted at seeking a judgment from the concerned court in USA on the basis of an arbi tral award rendered by an Umpire in arbitration proceedings held in London but governed by the Indian  1940 which was the law of choice of the parties as per the arbitration clause contained in the drilling contract en tered into between the parties
The Western Company has moved the USA Court for a judgment in terms of the award not withstanding the fact that 1 ONGC had already initiated proceedings in an Indian Court to set aside the award and the said proceeding was as yet pending in the Indian Court
2 The said award was not as yet enforceable in India as a domestic award inasmuch as a Judgment in accordance with the Indian law had yet to be procured in an Indian Court by the Western Company
The events culminating in the order under appeal may be briefly and broadly recounted
The appellant ONGC and the Respondent Western Company had entered into a drilling contract
The contract provided for any differences arising out of the agreement being referred to arbitration
The arbitration proceedings were to be governed by the Indian read with the relevant rules
A dispute had arisen between the parties
It was referred to two Arbitrators and an Umpire was also appointed
The Arbitra tors entered on the reference in London which was the agreed venue for hearing as per the Arbitration Clause contained in the contract
On October 1 1985 the Arbitrators informed the Umpire that they were unable to agree on the matters outstanding in the reference
Consequently the Umpire en tered upon the arbitration and straightaway proceeded to declare his non speaking award styled as interim award on October 17 1985 without affording any hearing to the par ties on the matters outstanding in the reference
The Umpire did not afford a hearing subsequent to his entering upon the arbitration presumably because even when the matter was within the domain of the Arbitrators and not of the 1032 Umpire and the Arbitrators were seized of the matter the Umpire used to remain present at the hearings conducted by the Arbitrators
Having been present throughout the proceed ings whilst the Arbitrators were in charge of the same the Umpire presumably considered it unnecessary to hear the parties or their counsel after he Was seized of the matter and it came within his domain in the wake of the disagree ment between the two Arbitrators
And the Umpire straight away proceeded to declare the interim award on October 17 1985
Thereafter on November 5 1985 the Respondent Western Company requested the Umpire to authorise one Shri DC Singhania to file the award dated October 17 1985 in the appropriate Court in India
The Umpire accordingly authorised the said Shri Singhania in this behalf
And pursuant to the said authority the award rendered by the Umpire was lodged in the Bombay High Court on November 22 1985
Subsequently on November 28 1985 the Umpire rendered a supplementary award relating to costs which has been termed as final  award
About a month after the lodging of the award in the High Court of Bombay by the Umpire at the instance of the Respondent Western Company the latter lodged a plaint in the US District Court inter alia seeking an order 1 confirming the two awards dated October 17 1985 and November 28 1985 rendered by the Umpire 2 a Judgment against the ONGC
Appellant herein in the amount of  25681545 by way of interest until the date of he Judgment and costs etc
On January 20 1986 appellant ONGC on its part insti tuted an Arbitration Petition No 10 of 1986 under Sections 30  33 of the Indian for setting aside the awards rendered by the Umpire
Inter alia the challenge was rooted in the following
reasoning
While as per the Indian which admittedly governed the arbitration proceedings the Umpire would come on the scene only provided and only when the Arbitrators gave him notice in writing that they were unable to agree and the Umpire would enter upon the reference in lieu of the Arbitrators only subsequent thereto in the present case the Umpire had neither held any proceedings nor had afforded any opportuni ty of being heard to the ONGC after entering upon the refer ence
The appellant ONGC also prayed for an interim order restraining the Western Company from proceeding further with the action instituted in the US Court
The learned Single Judge granted an ex parte interim restraint order on January 20 1986 but vacated the same after hearing the parties by his impugned order giving rise to the present appeal by Special Leave
Interim Order No 11 of 1986 passed on April 3 1986 in Arbitration Petition No 10 of 1986
1033 In order to confine the dialogue strictly within the brackets of the scope of the problem four points deserve to be made at the outset before adverting to the impugned order rendered by the High Court
1 We are not concerned with the merits of the main dispute between the parties which was the subject matter of arbitration and which per tains to the charges payable for a jack up drilling unit and related services provided by Western Company to ONGC
The equipment was utilised beyond the period stipulated in the contract
In regard to the employment of the equipment beyond the contractual period West ern Company claimed payment at US  41600 per operating day which was the rate stipulated for the user of the equipment for the stipu lated time frame
The ONGC on the other hand has contended that in the context of the correspondence between the parties pertaining to the employment of the equipment beyond the stipulated period the Western Company is entitled to claim only US  18500 per day
The dispute concerns the claim for pay ment for the user of the equipment for the extended period 136 days and 16 hours
We are however not concerned with the merits of the claim giving rise to the dispute and differences which was referred to the Arbitra tors
2 We are not concerned with the merits of the contentions raised in the petition instituted by ONGC in the High Court of Bombay in order to challenge the arbitral award rendered by the Umpire except to the limited extent of examining whether ONGC has a prima facie case
3 We are not concerned with the question as to how an arbitral award which is not a domes tic award in India can be enforced in a Court in India in the context of the Indian legisla tion enacted in that behalf namely the Foreign Awards Recognition and Enforcement Act 1961
The said Act was enacted in order to give effect to an international convention known as New York Convention to which India has acceded
The provisions of the said Act would be attracted only if a foreign award is sought to be enforced in an Indian Court
We are not concerned with such a situation
The award which is the subject matter of contro versy in the present case is admittedly a domestic award for the purposes of the Indian Courts governed by 1034 the provisions of the Indian of 1940
When the Western Company seeks to enforce the award in question in the US Court they do so on the premise that it is a foreign award in the US Court
In considering the question as regards the proceeding initiated by the Western Company in the US Court there is no occasion to invoke the provisions of the aforesaid Act
The provisions of the said Act can be invoked only when an award which is not a domestic award in India is sought to be enforced in India
Such is not the situation in the present case
We are therefore not at all concerned with the provisions of the said Act
4 We are not directly concerned with the law governing the enforcement of the foreign award in an USA Court
We would be undertaking an inappropriate exercise in being drawn into a discussion in depth as regards the law govern ing enforcement of foreign awards in USA the procedure to be followed or as to the inter pretation of the relevant provisions as made by the US Court
So also it would be inappro priate to speculate on the view that is likely to be taken by the American Court or to antic ipate its interpretation or its verdict in regard to the relevant matters at that end
The order under appeal may now be subjected to scrutiny
The High Court has vacated the interim order granted by it earlier on the following grounds 1 That it was open to the Western Company to enforce the award in the US Court and that accordingly it would not be appropriate to grant the injuction restraining them from enforcing the same at that end
2 That it was open to the ONGC to contend before the US Court that the petition for setting aside the award which was sought to be enforced in the US Court was already pending in the Indian Court
3 That the proceeding in the US Court cannot be said to be vexatious or oppressive
The High Court has examined the question as to whether the 1035 action instituted by the Western Company against ONGC was maintainable in the context of the New York Convention in the light of the relevant Articles of the Convention and has come to the conclusion that an action to enforce the award in question as a foreign award in the US Court was quite in order
The view is expressed that the mere fact that a petition to set aside the award had already been instituted in the Indian Court and was pending in the Indian Court at the time of the institution of the action in the US Court was a matter of no consequence for the purposes of consid eration of the question as to whether or not Western Company should be restrained from proceeding further with the action in the US Court
Now there cannot be any doubt that the Western Company can institute an action in the US Court for the enforcement of the award in question notwithstanding the fact that the application for setting aside the award had already been instituted and was already pending before the Indian Court
So also there would not be any doubt or dis pute about the proposition that the ONGC can approach the US Court for seeking a stay of the proceedings initiated by the Western Company for procuring a judgment in terms of the award in question
But merely on this ground the relief claimed by ONGC cannot be refused
To say that the Court in America has the jurisdiction to entertain the action and to say that the American Court can be approached for staying the action is tantamount to virtually cold shouldering the substantial questions raised by ONGC and  seeking an escap ist over simplification of the matter
The points urged by the ONGC are of considerable importance and deserve to be accorded serious consideration
Prominence deserves to be accorded to the following factors which appear to be of great significance 1 It is not in dispute that the arbitration clause contained in the contract which has given rise to the disputes and differences between the parties in terms provides that The arbitration proceedings shall be held in accordance with the provisions of the Indian and the rules made thereunder as amended from time to time Vide clause 14 of the Contract 2 There is also an agreement between the parties that the validity and interpretation thereof shall be governed by the laws of India vide clause 18 of the contract 1036 3 Under the Indian Law having regard to the scheme of the of 1940 an arbitral award as such is not enforceable or executable
It is only after the award is filed in the Indian Court and is made a rule of the Court by virtue of a judgment and decree in terms of the award that life in the sense of enforceability is infused in the lifeless award
Vide Sections 141 and 172of the  The situation which emerges is somewhat an incongrous one
The arbitral award rendered by the Umpire may itself be set aside and become non existant if the ONGC is able to Successfully assail it in the petition under section 3033 for setting aside the award in question in  India
The High Court does not hold that the petition is prima facie liable to fail
We do not wish to express any opinion on the merits of the petition as in our opinion it would be improper to do so and might occasion prejudice one way or the other
We are however not prepared to assume for the purpose of the present discussion that the petition is liable to fail
The question is wide open
The final decision of the Court cannot and need not be anticipated
In the light of the foregoing discussion the following submissions pressed into service by the appellant ONGC require to be examined
1 The award sought to be enforced in the USA Court may itself be set aside by the Indian Court and in that 1
1412 141 When the arbitrators or umpire have made their award they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbi tration and award
2 The arbitrators or umpire shall at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbi tration and award and of the costs and charges of filing the award cause the award or a signed copy of it together with any depositions and documents which may have been taken and proved before them to be filed in Court and the Court shall thereupon give notice to the parties of the filing of the award
x x x 217
Judgment in terms of award Where the Court sees no causc to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award the Court shall after the time for making an application to set aside the award has expired or such application having been made after refusing it proceeded to pronounce judg ment according to the award and upon the judgment so pro nounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award
 1037 event an anomalous situation would be created
2 Since the validity of the award in ques tion and its enforceability have to be deter mined by an Indian Court which alone has jurisdiction under the Indian of 1940 the American Court would have no jurisdiction in this behalf
3 The enforceability of the award must be determined in the context of the Indian Law as the arbitration proceedings are admittedly subject to the Indian Law and are governed by the Indian of 1940
4 If the award in question is permitted to be enforced in USA without its being affirmed by a Court in India or a USA Court it would not be in conformity with law justice or equity
There is considerable force in the argument advanced in the context of the possibility of the award rendered by the Umpire being set aside by the Indian Court
In that event an extremely anomalous situation would arise inasmuch as the successful party Western Company may well have recovered the amount awarded as per the award from the assets of the losing party in the USA after procuring a judgment in terms of the award from USA Court
It would result in an irrevers ible damage being done to the losing party ONGC for the Court in the USA would have enforced a non existent award under which nothing could have been recovered
It would result in the valuable Court time of the USA Court being invested in a non issue and the said Court would have acted on and enforced an award which did not exist in the eye of law
The USA Court would have done something which it would not have done if the Western Company had waited during the pendency of the proceedings in the Indian Court
The parties would also be obliged to spend large amounts by way of costs incurred for engaging counsel and for incidental matters
The losing party in that event would be obliged to initiate fresh proceedings in the USA Court for restitution of the amount already recovered from it pursuant to the judgment rendered by the USA Court in enforcing the award which is set aside by the Indian Court
Both the sides would have to incur huge expenditure in connection with the at tendent legal proceedings for engaging counsel and for incidental matters once again
All this would happen if the restraint order as prayed by the losing party is not grant ed
And all this can be avoided if it is granted
1038 Equally forceful is the plea urged in the context of the argument that the concerned Court in India alone would have jurisdiction to determine the question regarding enforce ability or otherwise of the award in question for admit tedly the arbitration proceedings are governed by the Indian of 1940
And that a proceeding under the Indian for affirming the award and making it a rule of the Court or for setting aside can be instituted only in an Indian Court
The expression Court as defined by Section 2e1 of the leaves no room for doubt on this score
Thus the Indian Court alone has the jurisdiction to pronounce on the validity or en forceability of the award in question
But the successful party Western Company has invoked the jurisdiction of the USA Court to seek affirmation of the award
In fact reliefs Nos 1 and 2 claimed by the Western Company in the USA Court are in the following terms
1 An order confirming the interim award dated October 17 1985
2 An order confirming the final award dated November 28 1985
Thus while as per the contract parties are governed by the Indian and the Indian Courts have the exclu sive jurisdiction to affirm or set aside the award under the said Act the Western Company is seeking to violate the very arbitration clause on the basis of which the award have been obtained by seeking confirmation of the award in the New York Court under the American Law
Will it not amount to an improper use of the forum in America in violation of the stipulation to be governed by the Indian law which by neces sary implication means a stipulation to exclude the USA Court to seek an affirmation and to seek it only under the Indian from an Indian Court If the re straint order is not granted serious prejudice would be occasioned and a party violating the very arbitration clause on the basis of which the award has come into existence will have secured an order enforcing the order from a foreign court in violation of that very clause
When this aspect was pointed out to the learned counsel for the Western Company in the context of another facet of this very question namely the possibility of the Indian Court taking one view and the American 1
2e Court means a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of suit but does not except for the purpose of arbitration proceed ings under section 21 include a Small Cause Court
 1039 Court taking a contrary view counsel stated that though the Western Company had made a prayer for confirmation of the award the New York Court had no jurisdiction under the Convention to confirm or set aside the award
It is not appropriate on the part of this Court to anticipate the decision of the New York Court
If the Western Company is aware of the legal position and is sure of the legal posi tion that the New York Court has no jurisdiction to confirm the award pray why has the Western Company prayed for the said relief in the New York Court We cannot proceed on the basis of the assertion made on behalf of the Western Company that the New York Court has no such jurisdiction
For ought we know the prayer made by the Western Company may well be granted and the legal position propounded by the counsel before us may not prevail with the New York Court
Surely the Western Company itself is not going to contend before the New York Court that even though it has sought this relief the Court has no jurisdiction to grant it
In any case the Western Company could have amended the plaint lodged in the New York Court by deleting this prayer which it has not done so far
Be that as it may as the matter presently stands the appellant has invoked the jurisdiction of the New York Court to pronounce on the same question which is required to be pronounced upon by the Indian Court notwithstanding the fact that only an Indian Court has the jurisdiction to pronounce upon this vital question in view of the stipulation contained in the arbitration agreement itself
The appellant has invoked the jurisdiction of the New York Court in a matter which it could not have invited the New York Court to decide
The Western Company has also invoked the jurisdiction of a Court other than the Court which as per the arbitration agreement has the jurisdiction in the matter
And there is a likelihood of conflicting decisions on the very vital issue resulting in legal chaos
The apprehension about legal chaos is more than well found ed
Assuming that the American Court decides that it has jurisdiction to confirm the award and confirms the award whereas the Indian Court forms the opinion that the award is invalid and sets it aside what will happen The Western Company would have recovered the amount as per the award in question by obtaining a judgment in the American Court upon the award being confirmed by the said Court
And the losing party ONGC would be helpless to recover the amount not withstanding the fact that the award has been set aside by the Indian Court for the amount would then not be recover able under the American law in the American Court the latter having held the award to be valid
The questions posed to the counsel for the Western Company in this behalf and his answers relevant to the material extent in his own words along with the questions deserve to be quoted 1040 QUESTIONS ANSWERS It is an award under Indian law Yes this is precisely what regardless of the fact that it the convention contemplates was rendered by the umpire while The NYproceedings is not sitting in London
Since law in a parallel proceeding but India does not make it enforce an independent concurrent able on mere filing of the award one permissible under US but only on it being made a rule Law and under article 1 of the subject to its being corrected NY Convention acceded to varied annulled or modified by the US the NY Court should a parallel proceeding be will take into considerati permitted for its enforcement on the pendency of the pro outside India before it has bec ceedings in India but it ome enforceable in India Parti is for that Court to so c ularly when the Indian Court is exercise its discretion already seized of the matter and under article VI parties are bound by Indian law Western company has prayed for 1
An order confirming the The proceedings in New York Iterim award dated and Bombay do not involve October 171985 the very matters which wi ll have to be death with Now these are the very matters by the Bombay High Court which will have to be dealt with The Bombay Court will not by the Bombay High Court in the have to consider whether to matter arising out of the filing issue an order of enforcem of the award The award may be ent against assets of ONGC confirmed or set aside decree as will the New York Court
may be passed or refused
Can Moreover the New York Co these very matters be permitted urt will not have to deci to be agitated in the parallel de as the Bombay Court proceedings under American Law will whether to set aside when parties have in express terms the award
While the co agreed to be goverend by the law mplaint in the New York in India And what will happen if case does make a prayer the Indian Court and the American to confirm as well as Court take conflicting views  enforce the awards the Which view will prevail Will New York Court is without jurisdiction under the convention to confirm or set aside an award it is only competent 1041 there not be legal chaos to recognised and enforce foreign awards as stated in paragraph 13 of the New York complaint
Thus whatever the prayer for relief the Bombay Court alone will decide the issues of confirmationset asideand there will not be any conflicting jurisdiction
There is no question as to which Court decision would prevail in the event of a conflicting result the Indian Court judgment setting aside the awards
In that event ONGC could take the Indian Court decision to a court in the United States to have it recognized and enforced so as to recover any monies that Western may have obtained pursuant to an American Court order
The possibility of conflicting act comes in parallel pro ceedings such as these does not mean that one court must assert exclusive jurisdiction in order to prevent legal chaos
The submission that while the validity of the award is required to be tested in the context of the Indian Law if the Western Company is permitted to pursue the matter in the American Court the matter would be decided under a law other than the Indian Law by the American Court
Admitted ly Western Company has prayed for confirmation of the award
The American Court may still proceed to confirm the award
And in doing so the American Court would take into account the American law and not the Indian law or the Indian of 1940
And the American Court would be doing so at the behest and the instance of Western Compa ny which has in terms agreed that the arbitration proceed ings
will be governed by the Indian of 1940
Not only the matter will be decided by a Court other than the Court agreed upon between the parties but it will 1042 be decided by a Court under a law other than the law agreed upon
Should or should not such an unaesthetic situation be foreclosed The last submission is also quite impressive
If the Western Company is right in the posture assumed by it in this Court at the time of the hearing that the American Court has no jurisdiction to confirm the award in view of the New York Convention is correct the resultant position would be this The award rendered by the Umpire the validi ty of which is not tested either by an American Court or an Indian Court will have been enforced by an American Court
It will be an extremely uphill task to persuade the Court to hold that a foreign award can be enforced on the mere making of it without it being open to challenge in either the country of its origin or the country where it was sought to be enforced
And that its validity may perhaps be tested for academic purposes in the country of origin after the award is enforced and for seeking restitution later on if possible and if there are assets which can be proceeded against in the country where the award has been enforced
It is essen tial to emphasise at this juncture and in this context that under the Indian law an arbitral award is unenforceable until it is made a rule of the Court and a judgment and consequential decree are passed in terms of the award
Till an award is transformed into a judgment and decree under Section 17 of the  it is altogether lifeless from the point of view of its enforceability
Life is in fused into the award in the sense of its becoming enforce able only after it is made a rule of the Court upon the judgment and decree in terms of the award being passed
The American Court would have therefore enforced an award which is a lifeless award in the country of its origin and under the law of the country of its origin which law governs the award by choice and consent
We are of the opinion that the appellant ONGC should not be obliged to face such a situation as would arise in the light of the aforesaid discussion in the facts and circumstances of the present case
To drive the appellant in a tight comer and oblige it to be placed in such an inex tricable situation as would arise if the Western Company is permitted to go ahead with the proceedings in the American Court would be oppressive to the ONGC
It would be neither just nor fair on the part of the Indian Court to deny relief to the ONGC when it is likely to be placed in such an awk ward situation if the relief is refused
It would be diffi cult to conceive of a more appropriate case for granting such relief
The reasons which have been just now articulat ed are good and sufficient for granting the relief and accordingly it appears unnecessary to examine the meaning and content of the relevant arti 1043 cles of the New York Convention for the purposes of the present appeal
All the same we will briefly indicate the questions which were debated in the context of the Conven tion since considerable debate has centred around the inter pretation and scope of some of the articles of the Conven tion
Article V1e provides that recognition and enforce ment of the award will be refused if 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
 It was contended on behalf of Western Company that the legislative history of the New York Convention discloses that under the Geneva Protocol given effect to by the Arbitration Proto col and Convention Act 1937 it was provided that an award would not be enforced if it was not considered as final  and it was not final  if it is proved that any proceedings for the purpose of contesting the validity of the award were pending
This provision aroused a great deal of controversy as it was felt that the requirement of the Geneva Convention that the award has become final in the country in which it has been made was considered to be burdensome and inadequate and that the New York Convention has accordingly changed the format and the word final was replaced by the word bind ing in article V1e In these premises it was argued that for the purposes of the Convention the award should be considered as binding if no further recourse to another arbitral tribunal was open and that the possibility of recourse to a Court of law should not prevent the award from being binding
On the other hand it was contended on behalf of ONGC that an award should be treated as binding only when it has become enforceable in the country of origin
It was argued that the word binding was used in the sense of an award from which the parties could not wriggle out
So far as the present matter is concerned it is unnecessary to examine this aspect at length or in depth for we are not resting our decision on the question as to whether the American Court is likely to refuse enforcement or not
As we indicated at the outset it would be improper for us to anticipate the decision of the American Court on this as pect
We are inclined to rest our decision on the reasoning which we have indicated a short while ago
We would there 1
V1d Recognition and enforcement of the award may be refused at the request of the party against whom it is invoked only if that party furnishes to the competent authority where the recognition and enforcement is sought proof that 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
 1044 fore consider it appropriate to refrain from getting drawn into an academic debate on this issue
We however consider that it is desirable to bring into focus certain aspects of the matter in the context of the debate on this point
The significance of the expression not yet become binding on the parties employed in Article V1e cannot be lost sight of
The expression postulates that the Convention has visualised an award which becomes binding at a point of time later than the making of the award
In other words the provision has in its contemplation the fact that an award in some cases may become binding on the mere making of it and in some cases may become binding only at a later stage
If this was not so there was no point in using the expression not yet become binding
The award which is sought to be enforced as foreign award will have thus to be tested with reference to the key words contained in Article V1e of the Convention and the question will have to be answered whether the award has become binding on the parties or has not yet become binding on the parties
It is evident that the test has to be applied in the context of the law of the country governing the arbitration proceedings or the country under the law of which the award was made
This conclusion is reinforced by the views expressed by Albert Jan Van den Berg in his treatise The New York Arbitration Convention of 1958 Towards a Uniform Judicial Interpretation at page 341 as under Most of the authors are also of the opinion that the moment at which an award becomes binding within the meaning of Article V1e is to be determined under the law governing the award
However they also differ at which moment this should be assumed under that law  He has also referred to a judgment rendered by the Italian Supreme Court which supports this proposition
Says the author Furthermore whilst declaring that the Con vention has eliminated the double Exequatur the Italian Supreme Court held that the Court of Appeal has correctly ascertained that the award in question made in the United States had become binding under the relevant law of the United States Corte di Cassazione Sez 1 April 1 1980 No 2448 Lanificio Waiter Banci SaS vs Bobbie Brooks Inc Italy No 40 affirming Corte di Appello of Florence October 8 1977 Italy No 29
1045 The author has also adverted to this dimension of the matter at pages 338 to 340 of his treatise in the following pas sage Furthermore the Courts have unanimously held that the party against whom the enforcement is sought has to prove that the award has not become binding
It still happens in some cases that a respondent merely asserts that the award has not become binding
In these cases the courts have invariably held that the respondent should furnish proof to this ef fect
The above interpretation of the term binding is also almost unanimously affirmed by the authors
To this extent there exists a uni formity of interpretation
The uniformity of the interpretation begins to waver however when it comes to the question at which moment an award can be considered to have become binding under Article V1e
Although in no case has it been held hitherto that the award in question was to be consid ered as not having become binding the various reasonings are diverse
If this situation continues it may occur that an award will not be considered as binding by one court whilst the same award would have been considered as binding by another court
In finding the answer to the question at which moment the award can be considered binding the prevailing judicial interpretation seems to be that this question is to be determined under the law applicable to the award
The law applicable to the award is according to Arti cle V1e the law of the country in which or under the law of which that award was made the country of origin
Several courts appear to search under the applicable law for the moment at which the award can be considered to be inchoate for enforcement in the country of origin
Others attempt to find an equivalent of the term binding under the arbitration law of the country of origin
Before the Court of Appeal of Naples the Italian respondent had resisted to request for enforcement of an award made in London alleg ing that the award should have been declared
enforceable in England
The Court rejected the 1046 defence reasoning that the legal effect of the award was not to be determined under Italian law according to which an award becomes binding only upon an enforcement order of the Pretore but should be assessed under English law according to which the leave for enforcement is not necessary in order to confer binding force upon the award
Another example is the Court of First Instance of Strasbourg before which the French respond ent had asserted that the enforcement of an award made in FR Germany could not be grant ed because a leave for enforcement had not been issued by a German Court
Whilst observ ing that the Convention has abolished the double exequatur the Court reasoned that the award had become binding when it had been deposited with the German Court
The latter is indeed a prerequisite for the binding force verbhindliehkeit of an award under German law
The binding force of an award under German law was also considered by the Court of Appeal of Basle
The Court referred to the Report of the Swiss Federal Council Conseil federal accom panying the implementation of the Convention in Switzerland in which it is stated that an award is binding within the meaning of Article V1e when the award complies with the conditions required for being capable for being declared enforceable in the country in which it was made The Court held that the award was binding on the ground that a decla ration of enforceability of the award had been issued by the Court of First Instance of Hamburg
This decision might create the impression that in order to be binding under Article V1e an award made in FR Germany must have been declared enforceable by a German Court
Howev er the Swiss Consell federal merely meant to say that binding should be understood as ready for enforcement and not as enforced
If the Court had followed this interpretation it would probably have reached the same con clusion as the above mentioned Court of First Instance of Strasbourg which considered the award to be binding under German law once it had been deposited with the German Court
Nevertheless both courts have in common that they considered the ques 1047 tion at which moment an award becomes binding within the meaning of Article V1e under the law applicable to the award
Following propositions emerge from the passage quoted hereinabove
1 That the enforceability must be determined as per the law applicable to the award
2 French German and Italian Courts have taken the view that the enforceability as per the law of the country which governs the award is essential pre condition for asserting that it has become binding under Article V1e
The aforesaid passages and the propositions emerging therefrom thus buttress and reinforce the view which has been expressed by us
It was next contended on behalf of Western Company that in the five cases decided under the New York Convention involving parallel proceedings in no case did a Court decide that an injunction such as sought by ONGC was neces sary
In two of these five cases Norsolor vs Pabalk France and Fertilizer Corporation of India vs IDI Manage ment US the Courts concerned about the possibility of conflicting results ordered a stay of their enforcement proceeding in the FCI case the court did so only upon the providing of a guarantee to secure the amount of the award at issue
In the other three cases the court declined to exercise their discretion to stay an enforcement proceeding Gutaverken Sweden Southern Pacific Properties vs Egypt The Netherlands and St Gobain France
The Court in SPP did so only because the respondent refused to provide secu rity thus demonstrating its bad faith
In SPP there was in fact a conflicting result when the Dutch Court entered an enforcement order on the very same day as a French Court annulled the award
Such is the argument
We are afraid that this argument loses sight of the fact that in the present matter we are not concerned with the question as to whether a foreign court should adjourn the decision on the enforce ment of the award under Article VI
1 We are not enforcing any foreign award and the question 1
Article VI If an application for the setting aside or suspension of the award has been made to a competent author ity referred to in Article V1e the authority before which the award is sought to be relied upon 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
 1048 is not whether or not a decision on enforcement should be adjourned
It is the American Court which will have to address itself to that question if an occasion arises
The decisions relied upon by the counsel for the Western Company have relevance from the perspective of the problem faced by a Court enforcing a foreign award before which a prayer for adjournment of the
decision is made
In so far as we are concerned the question is whether the Western Company should be restrained by us from proceeding with the action instituted in the American Court
We are therefore not persuaded by the aforesaid submission urged by learned counsel for the Western Company
In the result we are of the opinion that the facts of this case are eminently suitable for granting a restraint order as prayed by ONGC
It is no doubt true that this Court sparingly exercises the jurisdiction to restrain a party from proceeding further with an action in a foreign court
We have the utmost respect for the American Court
The question however is whether on the facts and circumstances of this case it would not be unjust and unreasonable not to restrain the Western Company from proceeding further with the action in the American Court in the facts and circum stances outlined earlier
We would be extremely slow to grant such a restraint order but in the facts and circum stances of this matter we are convinced that this is one of those rare cases where we would be failing in our duty if we hesitate in granting the restraint order for to oblige the ONGC to face the aforesaid proceedings in the American Court would be opperssive in the facts and circumstances discussed earlier
But before we pass an appropriate order in this behalf we must deal with the plea that the High Court does not have the jurisdiction to grant such a restraint order even if the proceeding in the foreign court is considered to be oppressive
Counsel for the Respondent has placed reli ance on Cotton Corporation of India vs United Industrial Bank  in support of this plea
In Cotton Corporation s case the question before the Court was wheth er in the context of Section 41b of the Specific Relief Act the Court was justified in granting the injunction
The said provision runs thus 41
An injunction cannot be granted  a            b to restrain any person from instituting or prosecuting 1049 any proceeding in a court not subordinate to that from which the injuction is sought           Emphasis added This provision in our opinion will be attracted only in a fact situation where an injuction is sought to restrain a party from instituting or prosecuting any action in a Court in India which is either of ordinate jurisdiction or is higher to the Court from which the injuction is sought in the hierarchy of Courts in India
There is nothing in Cotton Corporation s case which supports the proposition that the High Court has no jurisdiction to grant an injunction or a restraint order in exercise of its inherent powers in a situation like the one in the present case
In fact this Court had granted such a restraint order in VO Tractoroex port Moscow vs Ms Tarapore  Company and Anr  and had restrained a party from proceeding with an arbitration proceedings in a foreign country in Moscow
As we have pointed out earlier it would be unfair to refuse the restraint order in a case like the present
one for the action in the foreign Court would be oppressive in the facts and circumstances of the case
And in such a situation the Courts have undoubted jurisdiction to grant such a restraint order whenever the circumstances of the case make it neces sary or expedient to do so or the ends of justice so re quire
The following passage extracted from paragraph 1039 of Halsbury s Laws of England Vol
24 at page 579 supports this point of view With regard to foreign proceedings the court will restrain a person within its jurisdiction from instituting or prosecuting proceedings in a foreign court whenever the circumstances of the case make such an inter position necessary or expedient
In a proper case the court in this country may restrain person who has actually recovered judgment in a foreign court from proceeding to enforce that judgment
The jurisdiction is discretionary and the court will give credit to foreign courts for doing justice in their own jurisdiction
 It was because this position was fully realized that it was argued on behalf of the Respondent that the action in the USA Court could not be considered as being oppressive to the ONGC
We have already dealt with this aspect and reached a conclusion adverse to Western Company
There is thus no merit in the submission that the High 1050 Court of Bombay has no jurisdiction in this behalf
It was also urged that the ONGC had suppressed the fact that it had appeared in the USA Court and had succeeded in persuading the USA Court to vacate the seizure order obtained by the Western Company and had thereby disentitled itself to seek an equitable order
In our opinion in the first place there was no deliberate suppression and in any case it was not necessary to apprise the Court about the said development
It would therefore not be proper to refuse relief to the ONGC on this account
We are therefore unable to accede to this submission either
Before we conclude we consider it necessary to place on record the fact that it is perhaps on account of some under standing gap that it is observed by the High Court in its judgment It was also not disputed that an award could be enforced in the USA without the Respondents obtaining a decree in terms of the award from this Court
 The learned Additional Solicitor General has solemnly stated before us that no such concession was made by him
The learned counsel for the Western Company with the fairness expected of him has confirmed that the learned Additional Solicitor General had not made any such concession
Whilst nothing turns on it we are adverting to this aspect for the sake of fairness to the learned Additional Solicitor Gener al
And now we come to the conclusion
While we are inclined to grant the restraint order as prayed we are of the opin ion that fairness demands that we do not make it uncondi tional but make it conditional to the extent indicated hereafter
There are good and valid reasons for making the restraint order conditional in the sense that ONGC should be required to pay the charges payable in respect of the user of the rig belonging to the Western Company at the undisput ed rate regardless of the outcome of the petition instituted by the ONGC in the High Court for setting aside the award rendered by the Umpire
India has acceded to the New York Convention
One of the objects of the New York Convention was to evolve consensus amongst the covenanting nations in regard to the execution of foreign arbitral awards in the concerned Nations
The necessity for such a consensus was presumably felt with the end in view to facilitate interna tional trade and commerce by removing technical and legal bottle necks which directly or indi 1051 rectly impede the smooth flow of the river of international commerce
Since India has acceded to this Convention it would be reasonable to assume that India also subscribes to the philosophy and ideology of the New York Convention as regards the necessity for evolving a suitable formula to overcome this problem
The Court dealing with the matters arising out of arbitration agreements of the nature envi sioned by the New York Convention must therefore adopt an approach informed by the spirit underlying the Convention
It is no doubt true that if the arbitral award is set aside by the Indian Court no amount would be recoverable under the said award
That however does not mean that the liabili ty to pay the undisputed amount which has already been incurred by ONGC disappears
It would not be fair on the part of ONGC to withhold the amount which in any case is admittedly due and payable
The Western Company can accept the amount without prejudice to its rights and contentions to claim a larger amount
No prejudice will be occasioned to ONGC by making the payment of the admitted amount regardless of the fact that the Western Company is claiming a larger amount
And in any case ONGC which seeks an equitable relief cannot be heard to say that it is not prepared to act in a just and equitable manner regardless of the niceties and nuances of legal arguments
These are the reasons which make us take the view that the restraint order deserves to be made conditional on the ONGC paying the undisputed dues at an early date subject to final adjustment in the light of final determination of the dispute
We accordingly allow this appeal and direct as under The appeal is allowed
The order passed by the Bomby High Court on April 3 1986 is set aside
The order passed by the Bombay High Court on January 20 1986 is restored subject to the conditions engrafted hereafter
II The appellant ONGC shall pay to the Respondent Western Company in the manner indicated hereinafter the amount payable at the undisputed rate of  18500 per day for the period as computed by the Umpire in his award amounting to  2528339 along with interest at 12 till the date of pay ment
1052 III The said amount will be paid to the Respondent Western Company by wire transfer to their Bank Account No 144 0 33008 at Manufacturers Hanover Trust Company New York USA within four weeks of the Respondent filing an under taking without prejudice to their rights and contentions in this Court in the terms indicated hereinbelow namely a to accept the said amount subject to the final outcome of Arbitration Petition No 10 of 1986 pending in the High Court of Bombay or the appeal if any arising from the order passed by the High Court in the said matter and b further provided the Respondent files an undertaking in this Court to treat the said payment by way of protanto satisfac tion in respect of i the Award in question in case it stands confirmed or ii a fresh award if any that may be passed in future in connection with the original cause of action or iii in respect of the original claim giving rise to the arbitration proceedings in question
IV In case the Respondent Western Company files undertak ings in this Court as contemplated in Clause III hereinabove and yet the appellant ONGC fails to make the payment in the manner indicated in Clause II hereinabove within four weeks of the date of filing of the said undertakings the order of stay granted as per Clause I hereinabove shall stand vacat ed
V The learned Single Judge before whom the Arbitration Petition No 10 of 1986 is pending shall refer the matter to a Division Bench having regard to the fact that 1 it raises important and complex questions and 2 that it is desirable that the matter is expeditiously disposed of and a Letters Patent Appeal is avoided and 3 that the matter concerns a commercial transaction of international charac ter
The learned Chief Justice of Bombay High Court may constitute a Division Bench to hear this matter with a request to the Division Bench to dispose of the same expedi tiously
1053 VII The Division Bench constituted by the Chief Justice will afford reasonable opportunity to the parties to file their statements of claims affidavits etc
and shall post the matter for directions within two weeks of the statements affidavits etc
being filed
The Division Bench will direct that the matter is posted for hearing at the earliest and will hear the matter from day to day and dispose it of expeditiously preferably within six months excluding the time granted at the joint request of the parties or at the instance of the Respondent of the commencement of the arguments
VIII There will be no order regarding costs
IX Parties will be at liberty to apply to this Court for further directions from time to time in case of necessity
NPV Appeal Allowed


Summary:
A drilling contract was entered into by the appellant and the respondent which provided that in the case of dif ferences arising out of the aforesaid contract the matter shall be referred to arbitration that the arbitration proceedings shall be held in accordance with the provisions of the Indian  and that the validity and interpretation thereof shall be governed by the laws of India
The agreed venue for hearing was London
A dispute arose between the parties and it was referred to Arbitration
Consequent upon the inability of the two Arbitrators to agree on the matters outstanding in the reference the Umpire entered upon the arbitration and straight away rendered his interim award without affording any hearing to the parties and the same was lodged in the 1025 High Court at the instance of the respondent
Subsequently the Umpire rendered a final award relating to costs
About a mouth after the lodging of the award in the High Court the respondent filed a plaint in the US District Court seeking an order confirming the interim and final awards and a judgment against the appellant for the payment of a sum of  25681545 by way of interest until the date of judgment and costs etc
The appellant however instituted a Petition under Sections 30 and 33 of the for setting aside the aforesaid awards and for an interim order restraining the respondent from proceeding further with the action instituted in the US Court
A Single Judge of the High Court granted exparte interim restraint order but vacated the same after hearing the parties
The High Court held that the action to enforce the award as a foreign award in the US Court was quite in order and that the mere fact that a petition to set aside the award had already been instituted in the Indian Court and was pending at the time of the institution of the action in the US Court was a matter of no consequence for the purposes of consideration of the question as to whether or not the respondent should be restrained from proceeding further with the action in the US Court that it was open to the respondent to enforce the award in the US Court and therefore it would not be appropriate to grant the injunction restraining enforcement and that it was open to the appellant to contend before the US Court that the petition for setting aside the award cannot be said to be vexatious or oppressive
In the appeal to this Court it was submitted on behalf of the appellant that the award sought to be enforced in the US Court may itself be set aside by the Indian Court and in that event an extremely anomalous situation would be created that since the validity of the award in question and its enforceability have to be determined by an Indian Court which alone has jurisdiction under the Indian Arbitra tion Act of 1940 the American Court would have no jurisdic tion in this behalf that the enforceability of the award must be determined in the context of the Indian Law as the Arbitration proceedings are subject to the Indian Law and are governed by the Indian of 1940 and that if the award in question is permitted to be enforced in US Court without its being confirmed by a court in India or US Court it would not be in conformity with law justice or equity
1026 On behalf of the respondent it was contended that the action in the USA Court could not be considered as being oppressive to the appellant and that even if it is so the High Court has no jurisdiction to grant such a restraint order and that the appellant had suppressed the fact that it had appeared in the USA Court and succeed in pursuading the USA Court to vacate the seizure order obtained by the respondent and thereby disentitled itself to seek any equi table order
Allowing the appeal this Court HELD 1 I Under the Indian law an arbitral award is unenforceable until it is made a rule of the Court and a judgment and consequential decree are passed  in terms of the award
Till an award is transformed into a judgment and decree under Section 17 of the Indian  it is altogether lifeless from the point of enforceability
Life is infused into the award in the sense of its becoming enforceable only after it is made a rule of the Court upon the judgment and decree in terms of the award being passed
1042D E 12 In the instant case the arbitration proceedings are governed by the Indian of 1940 and a pro ceeding under the Act for affirming the award and making it a rule of the Court or for setting it aside can be institut ed only in an Indian Court
The expression Court as de fined by Section 2e of the Act leaves no room for doubt on this score and the Indian Court alone has the jurisdiction to pronounce on the validity or enforceability of the award
1038A B 21 Article V1e of the New York Convention provides that recognition and enforcement of the award will be re fused if the award has not yet become binding on the par ties 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 1043A B 22 The significance of the expression not yet become binding on the parties employed in Article V1e cannot be lost sight of
The expression postulates that the Conven tion has visualised a time later than the making of the award
1044A B 23 The award which is sought to be enforced as foreign award will have to be tested with reference to the key words contained in Article V1e of the Convention and the question will have to be answered whether the award has become binding on the parties or has not yet become binding on the parties
The test has to be applied in the 1027 context of the law of the country governing the arbitration proceedings or the country
under the law of which the award has been made
1044C D 24 The enforceability must be determined as per the law applicable to the award
French German and Italian Courts have taken the view that the enforceability as per the law of the country which governs the award is the essential pre condition for asserting that it has become binding under Article V1e
1047B C 25 India has acceded to the New York Convention
One of the Objects of the New York Convention was to evolve consen sus amongst the covenanting nations in regard to the execu tion of foreign arbitral awards in the concerned Nations
The necessity for such a consensus was felt with the end in view to facilitate international trade and commerce by removing technical and legal bottle necks which directly or indirectly impede the smooth flow of the river of interna tional commerce
Since India has acceded to this Convention it would be reasonable to assume that India also subscribes to the philosophy and ideology of the New York Convention as regards the necessity for evolving a suitable formula to overcome this problem
The Court dealing with the matters arising out of arbitration agreements of the nature envi sioned by the New York Convention must therefore adopt an approach informed by the spirit underlying the Convention
1050G H 1051A B 3
Section 41 b of the Specific Relief Act will be attracted only in a fact situation where an injunction is sought to restrain a party from instituting or prosecuting any action in a Court in India which is either of co ordi nate jurisdiction or is higher to the Court from which the injunction is sought in the hierarchy of Courts in India
1049B C 41 There cannot be any doubt that the respondent can institute an action in the US Court for the enforcement of the award in question notwithstanding the fact that the application for setting aside the award had already been instituted and was already pending before the Indian Court and that the appellant can approach the US Court for seeking a stay of the proceedings initiated by the respond ent for procuring a judgment in terms of the award in ques tion
Merely on this ground the relief claimed by the appel lant cannot be refused
1035B D 42 As per the contract while the parties are governed by the Indian and the Indian Courts have the exclusive jurisdiction to affirm or set aside the award under the said act the respondent is seeking to violate the very arbitration clause on the basis of 1028 which the award has been obtained by seeking confirmation of the award in the New York Court under the American Law
This amounts to an improper use of the forum in American in violation of the stipulation to be governed by the Indian law which by necessary implication means a stipulation to exclude the USA Court to seek an affirmation and to seek it only under the Indian from an Indian Court
If the restraint order is not granted serious prejudice would be occasioned and a party violating the very arbitra tion clause on the basis of which the award has come into existence will have secured an order enforcing the order from a foreign court in violation of the very clause
1038D G 51 The respondent has prayed for confirmation of award
The American Court may still proceed to confirm the award and in doing so it would take into account the American law and not the Indian law or the Indian of 1940
The American Court will be doing so at the behest and at the instance of the respondent which has in terms agreed that the arbitration proceedings will be governed by the Indian of 1940
Not only the matter will be decided by a court other than the court agreed upon between the parties but it will be decided by a court under a law other than the law agreed upon
Such an unesthetic situation should not be allowed
Even though it was conceded by the respondent that the American Court has no jurisdiction to confirm the award in view of the New York Convention in the event of the award rendered by the Umpire the validity of which is not tested either by an American Court or an Indian Court being enforced by an American Court it will be an extremely uphill task to pursuade the Court to hold that a foreign award can be enforced on the mere making of it without it being open to challenge in either the country of its origin or the country where it was sought to be enforced
1041H 1042A B C 52 In the event of the award rendered by the Umpire being set aside by the Indian Court an extremely anomolous situation would arise inasmuch as the successful party may well have recovered the amount awarded as per the award from the assets of the losing party in the USA after procuring a judgment in terms of the award from the USA Court which would result in an irreversible the damage being done to the losing party for the Court in USA would have enforced a non existing award under which nothing could have been recovered
It would also result in the valuable court time in the USA being invested in a nonissue and the said Court would have acted on and enforced an award which did not exist in the eye of law
The USA Court would have done something which could not have been done if the respondent company 1029 had waited during the pendency of the proceedings in the Indian Court
The losing party in that event would be obliged to initiate fresh proceedings in the USA Court for the amount already recovered from it pursuant to the judg ment rendered by the USA Court in enforcing the award which is set aside by the Indian Court
All this would happen if the restraint order as prayed by the losing party is not granted and this can be avoided if it is granted
1037D H 53 The American Court would have enforced an award which is a lifeless award in the country of its origin and under the law of the country of its origin which law governs the award by choice and consent
1042E F 6
I It would neither be just nor fair on the part of the Indian Court to deny relief to the appellant when it is likely to be placed in such an awkward situation if the relief is refused
It would be difficult to conceive of a more appropriate case for granting such relief
1042G H 62 The facts of this case are eminently suitable for granting a restraint order
No doubt this Court sparingly exercises the jurisdiction to restrain a party from proceed ing further with an action in a foreign court
However the question is whether on the facts and circumstances of this case it would not be unjust and unreasonable not to restrain the respondent from proceeding further with the action in the American Court
This is one of those rare cases where the Court would be failing in its duty if it hesitated in granting the restraint order for to oblige the appellant to face the aforesaid proceedings in the American Court would be oppressive in the facts and circumstances of the case
1048C F 63 It would be unfair to refuse the restraint order in a case like the present one for the action in the foreign court would be oppressive in the facts and circumstances of the case and in such a situation the courts have undoubted jurisdiction to grant such a restraint order whenever the circumstances of the case make it necessary or expedient to do so or the ends of justice so require
1049D E 64 There was no deliberate suppression by the appel lant and it would therefore not be proper to refuse relief to the appellant on this account
1050B C 65 While this Court is inclined to grant the restraint order fairness demands that it should not be unconditional
There are good and valid reasons for making the restraint order conditional in the sense 1030 that the appellant should be required to pay the charges payable in respect of the user of rig belonging to the respondent Company at the undisputed rate regardless of the outcome of the petition instituted by it the High Court for setting aside the award rendered by the Umpire
1050E G
66 It is no doubt true that if the arbitral award is set aside by the Indian Court no amount would be recoverable under the said award
That however does not mean that the liability to pay the undisputed amount which has already been incurred by the appellant disappears
It would not be fair on the part of the appellant to withhold the amount which in any case is admittedly due and payable
The re spondent can accept the amount without prejudice to its rights and contentious to claim a larger amount
No preju dice will he occasioned to the appellant by making the payment of the admitted amount regardless of the fact that the respondent is claiming a larger amount
In any case the appellant which seeks an equitable relief cannot be heard to say that it is not prepared to act in a manner just and equitable regardless of the niceties and nuances Of legal arguments
1051B E The order passed by the High Court on April 3 1986 set aside and the earlier order passed by it on January 20 1986 restored subject to certain conditions imposed by the Court Cotton Corporation of India vs United Industrial Bank  VO Tractoroexport Moscow vs Ms Tarapore England Vol
24 page 579 para 1039 referred to