1 N.1764.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NO. 1764 OF 2009 IN EXECUTION APPLICATION NO. 398 OF 2009 IN AWARD DATED 16TH JANUARY 2008 Karsi Tekstil Sanayi Ve Ticaret A.P. ... Claimants. V/s. Globe Cotyarn Private Ltd. ... Respondents. Mr. Sarosh Bharucha with Mr. Charles D’Souza, Ms. Sushma Nagaraaj i/b. Bharucha & Partners for the Claimants/Petitioners. Mr. Atul Rajadhyaksha, Sr. Counsel with Kedar Wagle for the Respondents. CORAM : R.Y. GANOO, J. DATED : 24th SEPTEMBER 2010. P.C. :- An Award came to be passed in favour of the Claimants on 16th January 2008. The said Award was made at London and that is how the proceedings as regards the execution of the said Award shall be governed by part 2 of the Arbitration and Conciliation Act, 1996 (for short said Act). Learned Counsels appearing on both sides agree on this aspect of the matter. 2 N.1764.09.sxw 2. After the Award came to be passed in favour of the Claimants, the Claimants filed Execution Application in this Court under Order 21 Rule 11(2) of C.P.C. and it was numbered as Execution Application No.398 of 2009. Said Execution Application is duly affirmed by the General Manager of the Claimants at Kayseri situate within the nation Turkey on 29th July 2009 before the Notary Public. Alongwith the said Execution Application, affidavit is filed duly affirmed by one Mr. S.C. Jyothy of Kayseri situate within the nation Turkey. The said affidavit is affirmed on 29th July 2009 before a Notary Public as stated earlier. Based on the Execution Application as aforesaid, office processed the Execution Application and issued notice under Order XXI Rule 22 of C.P.C. calling upon the Respondents to appear before the Court in Chamber on 16th December 2009. To this notice, the Respondents viz. Globe Cotyarn Pvt. Ltd. filed two affidavits and rejoinder has been filed. 3. I have heard learned Counsels on both sides. It must be mentioned that the learned Counsel appearing on behalf of the Respondents had advanced his submissions on this notice 3 N.1764.09.sxw by raising two points. Firstly, the Court has not passed an order holding that the Award dated 16th January 2008 can be enforced and therefore, the Execution Application cannot be entertained and Notice issued by the Office should be dismissed. The second point was raised by the learned Counsel for the Respondents by taking recourse to the Rule 803 c(e) of the Rules made by the High Court relating to the said Act where it is specifically provided that an application for enforcement of a Foreign Award is required to be filed and every Petition for enforcement of a Foreign Award shall be accompanied by an affidavit or affidavits showing certain facts as set out in Clause (e). It was sought to be contended by the learned Counsel for the Respondents that the Execution Application affirmed at Turkey as well as the affidavit dated 29th July 2009 affirmed at Turkey cannot be treated as affidavits within the meaning of the term “affidavit” appearing in Rule 803 C (e) of the said Rules as per the provisions of law prevailing in India as regards affidavits. 4. It must be mentioned that certain Judgments were cited across the bar by the learned Counsel for the Respondents as well as the learned Counsel for the Claimant on the question 4 N.1764.09.sxw as to what constitutes an affidavit and whether affidavits filed in the present form are properly affirmed. 5. It is noted that the Award came to be passed on 16th January 2008 and the Claimants could execute this Award as challenge to the said Award at all levels failed. The Claimants have filed Execution Application in this Court on 29th July 2009. It is true that as of today, a certificate issued by this Court certifying that the Award dated 16th January 2008 is enforceable being a Foreign Award is not on record. The said Rules require that a successful Judgment Creditor has to file an application for getting an order that the Award is enforceable. 6. At this juncture, it is not necessary for this Court to go into the questions and arguments which were advanced by the learned Counsel for the Respondents in support of the contention that the Notice should be dismissed, as in my view, the Court will have to first decide whether the office was right in issuing notice under Order XXI Rule 22. If the Court comes to a conclusion that the office ought not issued Notice under Order XXI Rule 22, then, all those arguments need not be 5 N.1764.09.sxw gone into. I have considered the relevant dates. It is certain that the Execution Application came to be lodged within two years from the date of the Award i.e. 16th January 2008. 7. I have perused the record and on the Execution Application there is no specific order passed so as to justify issuance of Notice under Order XXI Rule 22 of C.P.C. particularly, when the present case does not fall within any of the three clauses viz. (a), (b) and (c) mentioned in sub-Rule (1) of Rule 22 of Order XXI of C.P.C. Hence, I am inclined to observe that issuance of this Notice under Order XXI Rule 22 of C.P.C. was unwarranted. In view of the aforesaid observations Notice No. 1764/2009 issued under Order XXI Rule 22 of C.P.C. will have to be revoked. 8. The next question is how the Execution Application filed by the Claimants shall be attended to. One thing is sure that as of today, the Court has not recorded its findings as to whether the Award dated 16th January 2008 being a Foreign Award can be enforced or not. The Judgment in the case of M/s. Fuerst Day Lawson Ltd. V/s. Jindal Exports Ltd. 6 N.1764.09.sxw Reported in AIR 2001 SC 2293 clearly indicates that there is no need to take out a separate proceedings in the nature of an application for seeking an order from the Court that a Foreign Award can be enforced. The Supreme Court in the aforesaid case in paragraph 29 has observed as follows :- “ In our opinion, for enforcement of foreign award there is no need to take separate proceedings, one for deciding the enforceability of the award to make rule of the Court or decree and the other to take up execution thereafter. In one proceeding, as already stated above, the Court enforcing a foreign award can deal with the entire matter.” 9. This observation of the Supreme Court was considered in the case of Noy Vallesina Engineering Spa V/s. Jindal Drugs Limited reported in 2006(4) Bom. C.R. 155. In paragraph 9 this Court has observed as follows :- “ From the observations of the Supreme Court quoted above, it is clear that it is not necessary for the person who has foreign Award in his favour to apply for recognition of the Award by the Court separately, he could make application for execution of the Award and in that application a request for 7 N.1764.09.sxw inquiry by the Court as required by the statute to find out whether the Award is enforceable is implicit and the Court in that application can make an inquiry as to the enforceability of the Award and the Court after recording its satisfaction that the Award is enforceable can proceed to execute that Award as if the Award is a decree made by that Court.” 10. In view of the aforesaid observations and looking to the present proceedings, it is noted that the Claimants have filed an Execution Application in the prescribed form. The Claimants have also filed a detailed affidavit dated 29th July 2009 and in the said affidavit certain facts are quoted as to why and how the decree should be executed. The Respondents have filed affidavits and have also advanced their submissions objecting to the execution of the Award. In the affidavit dated 2nd February 2010 filed by the Respondents at paragraph 35 i.e. at the end of the affidavit there is a specific prayer that the application filed by the Claimants be dismissed and the application for enforcement of the Award dated 16th January 2008 be refused. This means that the Respondents have also advanced their submissions and raised points as to why a certificate that the Award can be enforced 8 N.1764.09.sxw should not be granted. Hence, as of today, looking to the provisions of Section 47 and Section 49 of the said Act, it is necessary for this Court to go into the question whether the Award dated 16th January 2008 can be enforced and pass an order accordingly. If the Court come to the conclusion that the Award can be enforced, then, further orders can be passed in the Execution Application. 11. At the time of considering whether the orders can be passed for enforcement of the Award, the arguments advanced by the Respondents before this Court that the proper affidavit is not filed as contemplated under Rule 803 c(e) of the said Rules can be considered. To that extent, that question is left open. So far as this point is concerned, no views are expressed thereon though arguments were advanced. 12. In view of the above, following order is passed in the proceedings which are being disposed of by this order :- (i) It was not necessary for the Office to issue the present Notice i.e. Notice No. 1764 of 2009 as the present case did not fall within the parameter of Order 9 N.1764.09.sxw XXI Rule 22 of C.P.C. Accordingly, the Notice is discharged. (ii) There shall be no order as to costs. 13. The Court now shall consider the Execution Application and affidavit dated 29th July 2009 filed by the Claimants, two affidavits filed by the Respondents and one rejoinder filed by the Claimants for the purposes of deciding whether the Foreign Award dated 16th January 2008 can be enforced. After order in the said proceedings are passed, further steps can be taken in the Execution Application filed by the Claimants. 14. The argument advanced by the Respondents as regards not filing Execution Application/Application for Enforcement of the Award in the proper format as required under the said Rules is left open and will be considered by the Court at the appropriate time. (R.Y. GANOO, J.)