- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. O.O.C.J. NOTICE OF MOTION NO.826 OF 2006 NOTICE OF MOTION NO.826 OF 2006 NOTICE OF MOTION NO.826 OF 2006 IN IN IN ARBITRATION PETITION NO.156 OF 2005 ARBITRATION PETITION NO.156 OF 2005 ARBITRATION PETITION NO.156 OF 2005 AND AND AND ARBITRATION PETITION NO.156 OF 2005 ARBITRATION PETITION NO.156 OF 2005 ARBITRATION PETITION NO.156 OF 2005 ... ... ... Noy Vallesina Engineering SpA ) Noy Vallesina Engineering SpA ) Noy Vallesina Engineering SpA ) A Corporation organized and ) A Corporation organized and ) A Corporation organized and ) existing under the Laws of Italy) existing under the Laws of Italy) existing under the Laws of Italy) having its registered office at ) having its registered office at ) having its registered office at ) Via Sant’ Aberto, 1-24020, ) Via Sant’ Aberto, 1-24020, ) Via Sant’ Aberto, 1-24020, ) Parre (BG), Italy. )...Petitioner. Parre (BG), Italy. )...Petitioner. Parre (BG), Italy. )...Petitioner. v/s. v/s. v/s. Jindal Drugs Limited, a Company ) Jindal Drugs Limited, a Company ) Jindal Drugs Limited, a Company ) - 2 - incorporated under the Companies) incorporated under the Companies) incorporated under the Companies) Act,1956 having its Registered ) Act,1956 having its Registered ) Act,1956 having its Registered ) Office at 145, Maker Chambers VI) Office at 145, Maker Chambers VI) Office at 145, Maker Chambers VI) 220, Nariman Point,Mumbai 400021)...Respondent. 220, Nariman Point,Mumbai 400021)...Respondent. 220, Nariman Point,Mumbai 400021)...Respondent. ... ... ... Mr.F.D’vitre with Mr.Gaura Joshi, Mr.Devesh Juwekar, Mr.F.D’vitre with Mr.Gaura Joshi, Mr.Devesh Juwekar, Mr.F.D’vitre with Mr.Gaura Joshi, Mr.Devesh Juwekar, Mr.Vigul Gabriel i/b Anil Agarwal for the Petitioner. Mr.Vigul Gabriel i/b Anil Agarwal for the Petitioner. Mr.Vigul Gabriel i/b Anil Agarwal for the Petitioner. Dr.V.V.Tulzapurkar with Mr.Anand Desai, Mr.Sajit Dr.V.V.Tulzapurkar with Mr.Anand Desai, Mr.Sajit Dr.V.V.Tulzapurkar with Mr.Anand Desai, Mr.Sajit Suvarna and Mr.Munaf Virjee i/b D.S.K.Legal for the Suvarna and Mr.Munaf Virjee i/b D.S.K.Legal for the Suvarna and Mr.Munaf Virjee i/b D.S.K.Legal for the Respondent. Respondent. Respondent. ... ... ... CORAM: D.K.DESHMUKH, J. DATED: 5th June, 2006 JUDGMENT: 1. This petition has been filed seeking enforcement 1. This petition has been filed seeking enforcement 1. This petition has been filed seeking enforcement of Foreign Award dated 1.2.2000 and 22.10.2001, under of Foreign Award dated 1.2.2000 and 22.10.2001, under of Foreign Award dated 1.2.2000 and 22.10.2001, under Section 47 read with Section 48 of the Arbitration Section 47 read with Section 48 of the Arbitration Section 47 read with Section 48 of the Arbitration and Conciliation Act,1996 hereinafter referred to as and Conciliation Act,1996 hereinafter referred to as and Conciliation Act,1996 hereinafter referred to as - 3 - "the Act". The facts that are material and relevant "the Act". The facts that are material and relevant "the Act". The facts that are material and relevant for deciding this petition are as under:- for deciding this petition are as under:- for deciding this petition are as under:- . The petitioner is a Company incorporated . The petitioner is a Company incorporated . The petitioner is a Company incorporated under the Laws of Italy. It is involved in the under the Laws of Italy. It is involved in the under the Laws of Italy. It is involved in the business of setting-up and construction of plants for business of setting-up and construction of plants for business of setting-up and construction of plants for production of Synthetic fibers, Polymers and ascorbic production of Synthetic fibers, Polymers and ascorbic production of Synthetic fibers, Polymers and ascorbic acid. The respondent is a Public Limited Company acid. The respondent is a Public Limited Company acid. The respondent is a Public Limited Company incorporated under the Companies Act. The respondent incorporated under the Companies Act. The respondent incorporated under the Companies Act. The respondent in the year 1994 entered into negotiations with a in the year 1994 entered into negotiations with a in the year 1994 entered into negotiations with a Company called "Enco Engineering Chur AG of Company called "Enco Engineering Chur AG of Company called "Enco Engineering Chur AG of Sagenstrasse 97, 7001 Chur, Switzerland. On Sagenstrasse 97, 7001 Chur, Switzerland. On Sagenstrasse 97, 7001 Chur, Switzerland. On 30.1.1995 the respondent entered into four related 30.1.1995 the respondent entered into four related 30.1.1995 the respondent entered into four related agreements with Enco for setting up ascorbic acid agreements with Enco for setting up ascorbic acid agreements with Enco for setting up ascorbic acid Acid plant in India. The four agreements are as Acid plant in India. The four agreements are as Acid plant in India. The four agreements are as under:- under:- under:- (i) Engineering Contract for Ascorbic Acid Plant (i) Engineering Contract for Ascorbic Acid Plant (i) Engineering Contract for Ascorbic Acid Plant (ECAAP); (ECAAP); (ECAAP); (ii) Supply contract for Ascorbic Acid plant (SCAAP); (ii) Supply contract for Ascorbic Acid plant (SCAAP); (ii) Supply contract for Ascorbic Acid plant (SCAAP); (iii) Service agreement for Ascorbic Acid plant (iii) Service agreement for Ascorbic Acid plant (iii) Service agreement for Ascorbic Acid plant (SAAAP); and (SAAAP); and (SAAAP); and (iv) License agreement for Ascorbic acid plant (iv) License agreement for Ascorbic acid plant (iv) License agreement for Ascorbic acid plant (LAAAP). (LAAAP). (LAAAP). - 4 - Under the ECAAP, Enco was obliged to provide the Under the ECAAP, Enco was obliged to provide the Under the ECAAP, Enco was obliged to provide the respondent with the technical information and basic respondent with the technical information and basic respondent with the technical information and basic engineering documentation for the construction, engineering documentation for the construction, engineering documentation for the construction, commission, operation and maintenance of the Ascorbic commission, operation and maintenance of the Ascorbic commission, operation and maintenance of the Ascorbic Acid Plant. In consideration of Enco’s obligation Acid Plant. In consideration of Enco’s obligation Acid Plant. In consideration of Enco’s obligation under the Agreement, the respondent was required to under the Agreement, the respondent was required to under the Agreement, the respondent was required to pay a total fee of Swiss Francs 86,00,000/- in the pay a total fee of Swiss Francs 86,00,000/- in the pay a total fee of Swiss Francs 86,00,000/- in the manner which was provided in the Agreement. ECAAP as manner which was provided in the Agreement. ECAAP as manner which was provided in the Agreement. ECAAP as well as the other three agreements had an arbitration well as the other three agreements had an arbitration well as the other three agreements had an arbitration clause. In March,1995 with the consent of the clause. In March,1995 with the consent of the clause. In March,1995 with the consent of the respondent, Enco. assigned ECAAP to the petitioner. respondent, Enco. assigned ECAAP to the petitioner. respondent, Enco. assigned ECAAP to the petitioner. Because of that agreement all the obligations of Enco Because of that agreement all the obligations of Enco Because of that agreement all the obligations of Enco towards the respondent were taken over by the towards the respondent were taken over by the towards the respondent were taken over by the petitioner. It appears that the disputes arose petitioner. It appears that the disputes arose petitioner. It appears that the disputes arose between the petitioner and the respondent. The between the petitioner and the respondent. The between the petitioner and the respondent. The respondent therefore, terminated the agreement and respondent therefore, terminated the agreement and respondent therefore, terminated the agreement and claimed damages. On 31.10.1996 the respondent filed claimed damages. On 31.10.1996 the respondent filed claimed damages. On 31.10.1996 the respondent filed a request for arbitration under the ECAAP before the a request for arbitration under the ECAAP before the a request for arbitration under the ECAAP before the International Court of Arbitration (ICC) Paris. The International Court of Arbitration (ICC) Paris. The International Court of Arbitration (ICC) Paris. The petitioner submitted their reply to the claim petitioner submitted their reply to the claim petitioner submitted their reply to the claim submitted by the respondent. The petitioner also submitted by the respondent. The petitioner also submitted by the respondent. The petitioner also submitted its counter claim. The respondent submitted its counter claim. The respondent submitted its counter claim. The respondent appointed Mr.Desai as its nominee on Arbitral appointed Mr.Desai as its nominee on Arbitral appointed Mr.Desai as its nominee on Arbitral Tribunal. The petitioner nominated Prof. ACC Tribunal. The petitioner nominated Prof. ACC Tribunal. The petitioner nominated Prof. ACC Alberto Santa Maria as its nominee on the Arbitral Alberto Santa Maria as its nominee on the Arbitral Alberto Santa Maria as its nominee on the Arbitral - 5 - Tribunal. The appointment of Mr.Desai and the Prof. Tribunal. The appointment of Mr.Desai and the Prof. Tribunal. The appointment of Mr.Desai and the Prof. ACC Alberto Santa Maria as Arbitrators was confirmed ACC Alberto Santa Maria as Arbitrators was confirmed ACC Alberto Santa Maria as Arbitrators was confirmed by I.C.C. Mr.Richard Fernyhough Q.C. was appointed by I.C.C. Mr.Richard Fernyhough Q.C. was appointed by I.C.C. Mr.Richard Fernyhough Q.C. was appointed as Chairman of the Arbitral Tribunal. After as Chairman of the Arbitral Tribunal. After as Chairman of the Arbitral Tribunal. After considering the claims made by the respondent and the considering the claims made by the respondent and the considering the claims made by the respondent and the counter claims made by the petitioner, the Arbitral counter claims made by the petitioner, the Arbitral counter claims made by the petitioner, the Arbitral Tribunal made partial Award on 1.2.2000. By that Tribunal made partial Award on 1.2.2000. By that Tribunal made partial Award on 1.2.2000. By that Award all the claims made by the respondent were Award all the claims made by the respondent were Award all the claims made by the respondent were dismissed and the petitioner was awarded an amount of dismissed and the petitioner was awarded an amount of dismissed and the petitioner was awarded an amount of SFr.44,33,416 Swiss Francs towards the Counterclaims SFr.44,33,416 Swiss Francs towards the Counterclaims SFr.44,33,416 Swiss Francs towards the Counterclaims under the ECAAP. The Arbitral Tribunal further under the ECAAP. The Arbitral Tribunal further under the ECAAP. The Arbitral Tribunal further called upon the parties to present written called upon the parties to present written called upon the parties to present written representations on interest and cost in terms of representations on interest and cost in terms of representations on interest and cost in terms of Article 20 of I.C.C. Rules of Arbitration so that Article 20 of I.C.C. Rules of Arbitration so that Article 20 of I.C.C. Rules of Arbitration so that final award can be made. final award can be made. final award can be made. 2. On or about 20.2.2000 the respondent filed 2. On or about 20.2.2000 the respondent filed 2. On or about 20.2.2000 the respondent filed Arbitration Petition no.49 of 2000 before this Court Arbitration Petition no.49 of 2000 before this Court Arbitration Petition no.49 of 2000 before this Court under Section 34 of the Act challenging the partial under Section 34 of the Act challenging the partial under Section 34 of the Act challenging the partial dated 1.2.2000. The petition was admitted for final dated 1.2.2000. The petition was admitted for final dated 1.2.2000. The petition was admitted for final hearing on 1.3.2000. The order dated 1.3.2000 passed hearing on 1.3.2000. The order dated 1.3.2000 passed hearing on 1.3.2000. The order dated 1.3.2000 passed on the Arbitration petition no.49 of 2000 reads as on the Arbitration petition no.49 of 2000 reads as on the Arbitration petition no.49 of 2000 reads as under:- under:- under:- "Called for admission. "Called for admission. "Called for admission. - 6 - P.C. : Admit. R & P called." P.C. : Admit. R & P called." P.C. : Admit. R & P called." 3. On or about 13.3.2000, the Respondent filed an 3. On or about 13.3.2000, the Respondent filed an 3. On or about 13.3.2000, the Respondent filed an application no.98 of 2000 under Section 9 of the application no.98 of 2000 under Section 9 of the application no.98 of 2000 under Section 9 of the Arbitration Act. The relief claimed by prayer (a) of Arbitration Act. The relief claimed by prayer (a) of Arbitration Act. The relief claimed by prayer (a) of that application was the principal relief. Prayer that application was the principal relief. Prayer that application was the principal relief. Prayer clause (a) of that application reads as under:- clause (a) of that application reads as under:- clause (a) of that application reads as under:- "a. that pending the hearing and "a. that pending the hearing and "a. that pending the hearing and final disposal of Arbitration final disposal of Arbitration final disposal of Arbitration Petition no.49 of 2000 this Hon’ble Petition no.49 of 2000 this Hon’ble Petition no.49 of 2000 this Hon’ble Court be pleased to restrain Court be pleased to restrain Court be pleased to restrain Respondent Nos.2 to 4 by an order Respondent Nos.2 to 4 by an order Respondent Nos.2 to 4 by an order and injunction from receiving any and injunction from receiving any and injunction from receiving any further submissions, and/or passing further submissions, and/or passing further submissions, and/or passing any further direction and/or Ruling any further direction and/or Ruling any further direction and/or Ruling and/or Award in the arbitration and/or Award in the arbitration and/or Award in the arbitration proceedings being ICC Case no.9306 proceedings being ICC Case no.9306 proceedings being ICC Case no.9306 of 1996/CK/AER/ACS;" of 1996/CK/AER/ACS;" of 1996/CK/AER/ACS;" The Respondent no.2 to 4 in the petition were The Respondent no.2 to 4 in the petition were The Respondent no.2 to 4 in the petition were members of the I.C.C. Arbitral Tribunal. In the members of the I.C.C. Arbitral Tribunal. In the members of the I.C.C. Arbitral Tribunal. In the said application filed under Section 9 of the Act, an said application filed under Section 9 of the Act, an said application filed under Section 9 of the Act, an order dated 13.3.2000 was passed without notice to order dated 13.3.2000 was passed without notice to order dated 13.3.2000 was passed without notice to the respondents in that petition. That order reads the respondents in that petition. That order reads the respondents in that petition. That order reads - 7 - as under :- as under :- as under :- "Heard learned Counsel for the "Heard learned Counsel for the "Heard learned Counsel for the petitioners. petitioners. petitioners. . Issue notice to the . Issue notice to the . Issue notice to the respondents returnable after 4 respondents returnable after 4 respondents returnable after 4 weeks i.e. on 10.4.2000. weeks i.e. on 10.4.2000. weeks i.e. on 10.4.2000. . Ad-interim relief in terms . Ad-interim relief in terms . Ad-interim relief in terms of prayer clause (a) till 10th of prayer clause (a) till 10th of prayer clause (a) till 10th April,2000." April,2000." April,2000." This order was continued from time to time till the This order was continued from time to time till the This order was continued from time to time till the Arbitration petition no.49 of 2000 was decided. The Arbitration petition no.49 of 2000 was decided. The Arbitration petition no.49 of 2000 was decided. The ICC Tribunal took the view that the interim order ICC Tribunal took the view that the interim order ICC Tribunal took the view that the interim order passed by this Court in application no.98 of 2000 was passed by this Court in application no.98 of 2000 was passed by this Court in application no.98 of 2000 was not binding on the Arbitral Tribunal and therefore, not binding on the Arbitral Tribunal and therefore, not binding on the Arbitral Tribunal and therefore, they decided to proceed further. The petitioner they decided to proceed further. The petitioner they decided to proceed further. The petitioner submitted his written submission on interest and cost submitted his written submission on interest and cost submitted his written submission on interest and cost on 14.3.2001. The respondent however, notified the on 14.3.2001. The respondent however, notified the on 14.3.2001. The respondent however, notified the Tribunal that the respondent does not intend to make Tribunal that the respondent does not intend to make Tribunal that the respondent does not intend to make any submission on the issue of interest and cost. any submission on the issue of interest and cost. any submission on the issue of interest and cost. Mr.Desai the respondent’s nominee on the Arbitral Mr.Desai the respondent’s nominee on the Arbitral Mr.Desai the respondent’s nominee on the Arbitral Tribunal indicated that he is unable to continue on Tribunal indicated that he is unable to continue on Tribunal indicated that he is unable to continue on the Arbitral Tribunal due to the interim order passed the Arbitral Tribunal due to the interim order passed the Arbitral Tribunal due to the interim order passed by this Court. The International Court of by this Court. The International Court of by this Court. The International Court of Arbitration therefore, decided to appoint Mr.Ashok Arbitration therefore, decided to appoint Mr.Ashok Arbitration therefore, decided to appoint Mr.Ashok Sancheti as replacement co-arbitrator in place of Sancheti as replacement co-arbitrator in place of Sancheti as replacement co-arbitrator in place of - 8 - Mr.Desai and the Arbitral Tribunal made its final Mr.Desai and the Arbitral Tribunal made its final Mr.Desai and the Arbitral Tribunal made its final Award on 22.10.2001. When the final Award was made Award on 22.10.2001. When the final Award was made Award on 22.10.2001. When the final Award was made Arbitration petition no.49 of 2000 filed by the Arbitration petition no.49 of 2000 filed by the Arbitration petition no.49 of 2000 filed by the respondents challenging the partial Award and the respondents challenging the partial Award and the respondents challenging the partial Award and the interim application no.98 of 2000 were both pending interim application no.98 of 2000 were both pending interim application no.98 of 2000 were both pending in this Court. Arbitration Petition no.49 of 2000 in this Court. Arbitration Petition no.49 of 2000 in this Court. Arbitration Petition no.49 of 2000 was decided by this Court by order dated 6.2.2002. was decided by this Court by order dated 6.2.2002. was decided by this Court by order dated 6.2.2002. This Court held that the partial award which was This Court held that the partial award which was This Court held that the partial award which was challenged in the petition filed under Section 34 of challenged in the petition filed under Section 34 of challenged in the petition filed under Section 34 of the Act being a foreign Award, petition under Section the Act being a foreign Award, petition under Section the Act being a foreign Award, petition under Section 34 of the Act was not maintainable for challenging 34 of the Act was not maintainable for challenging 34 of the Act was not maintainable for challenging that Award. Arbitration Petition No.98 of 2000 was that Award. Arbitration Petition No.98 of 2000 was that Award. Arbitration Petition No.98 of 2000 was also disposed of. The respondent preferred an appeal also disposed of. The respondent preferred an appeal also disposed of. The respondent preferred an appeal against that order before the Division Bench. The against that order before the Division Bench. The against that order before the Division Bench. The Division Bench admitted the appeal on 5.7.2002. That Division Bench admitted the appeal on 5.7.2002. That Division Bench admitted the appeal on 5.7.2002. That appeal is still pending. In this background, the appeal is still pending. In this background, the appeal is still pending. In this background, the petitioner filed this petition on 10.2.2005 for petitioner filed this petition on 10.2.2005 for petitioner filed this petition on 10.2.2005 for enforcement of the partial Award and the final Award. enforcement of the partial Award and the final Award. enforcement of the partial Award and the final Award. When the petition was filed, it is the contention of When the petition was filed, it is the contention of When the petition was filed, it is the contention of the petitioner that there is no period of limitation the petitioner that there is no period of limitation the petitioner that there is no period of limitation provided by the Arbitration Act for filing petition provided by the Arbitration Act for filing petition provided by the Arbitration Act for filing petition for enforcement of Foreign Award and therefore, for enforcement of Foreign Award and therefore, for enforcement of Foreign Award and therefore, filing of petition by them is not barred by the Law filing of petition by them is not barred by the Law filing of petition by them is not barred by the Law of Limitation. of Limitation. of Limitation. - 9 - . A preliminary objection to the maintainability of . A preliminary objection to the maintainability of . A preliminary objection to the maintainability of the petition was raised on the ground that the the petition was raised on the ground that the the petition was raised on the ground that the petition is barred by the Law of Limitation. On that petition is barred by the Law of Limitation. On that petition is barred by the Law of Limitation. On that objection being raised without prejudice to the objection being raised without prejudice to the objection being raised without prejudice to the contention that there is no period of limitation contention that there is no period of limitation contention that there is no period of limitation provided by Law for filing petition for enforcement provided by Law for filing petition for enforcement provided by Law for filing petition for enforcement of foreign award, an application for condonation of of foreign award, an application for condonation of of foreign award, an application for condonation of delay has been filed by the petitioner. Obviously delay has been filed by the petitioner. Obviously delay has been filed by the petitioner. Obviously therefore, the first question to be considered is therefore, the first question to be considered is therefore, the first question to be considered is whether Law provides any period of limitation for whether Law provides any period of limitation for whether Law provides any period of limitation for filing petition under Section 47 of the Act and if filing petition under Section 47 of the Act and if filing petition under Section 47 of the Act and if Law does provide the period of Limitation what is Law does provide the period of Limitation what is Law does provide the period of Limitation what is that period of limitation ? that period of limitation ? that period of limitation ? 4. It is submitted that the Arbitration Act does not 4. It is submitted that the Arbitration Act does not 4. It is submitted that the Arbitration Act does not make provisions of the Limitation Act applicable to make provisions of the Limitation Act applicable to make provisions of the Limitation Act applicable to the proceedings filed under the Arbitration Act the proceedings filed under the Arbitration Act the proceedings filed under the Arbitration Act before the Court. It is submitted that the before the Court. It is submitted that the before the Court. It is submitted that the Arbitration Act is a special Law and whenever the Arbitration Act is a special Law and whenever the Arbitration Act is a special Law and whenever the Legislature intended to fix period of limitation it Legislature intended to fix period of limitation it Legislature intended to fix period of limitation it has specifically provided for the period in the Act has specifically provided for the period in the Act has specifically provided for the period in the Act itself. For example in Sections 11, 13, 16, 31 33 itself.