Case: M/S. CENTROTRADE MINERALS AND METALS INC Vs. HINDUSTAN COPPER LTD

will follow shortly. This was communicated by fax on 18.09.2001 by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It is only thereafter, on 19.09.2001, that a couriered letter is sent to the learned arbitrator stating that Fox & Mandal would be deeply obliged if documents contained in paper binder no.1 would also be taken into account. It was then added that paper binder no.2, containing judgments of the Courts of law and authorities are being sent separately and it may take 7 to 10 days more time beyond 19.09.2001. 34. At this stage, it is important to point out that the learned arbitrator had given a large number of opportunities to file documents and legal submissions. On 03.05.2001 the learned arbitrator directed that the appellant serve submissions along with supporting documents, following the respondents response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supporting evidence was served by the respondent within the time prescribed, the time was extended, giving the respondent one last opportunity to put in their defence and to seek extension of time for so doing. Until August 2001, it may be stated that respondent did not participate in the arbitral proceedings, even though invited to do so. It is only on 09.08.2001, when the learned arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the learned arbitrator received a fax from Fox & Mandal, Attorneys for HCL, requesting for an extension of one months time to put in their defence. This was acceded to by the learned arbitrator on 16.08.2001, giving time upto 31.08.2001. However, on 27.08.2001, Fox & Mandal sought for a further three weeks extension of time, which was also granted by the learned arbitrator, allowing a final extension of time until 12.09.2001. Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the respondent leaves much to be called for. Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it is only after the arbitrator indicated that he was going to pass an award that the respondents attorneys woke up and started asking for time to present their response. This too was granted by the learned arbitrator, by not only granting extension of time, but by extending this time even further. Finally, when the legal submissions of 75 pages were sent even beyond the time that was granted, the learned Arbitrator took this into account and then passed his award. This being the case, on facts we can find no fault whatsoever with the conduct of the arbitral proceedings. 35. Justice Chatterjee, however, in his judgment, made several errors of fact. First and foremost, in paragraph 166 of Centrotrade [2006] (supra), the learned Judge quoted the penultimate line in paragraph 8 of the award, without even adverting to the line just before the aforesaid line which indicated that the material that was received from HCL was in fact taken into consideration while making the award, even beyond the stipulated time of 12.09.2001. Secondly, in paragraph 167, Chatterjee,J. conjectured that between 13 th and 29 th September, 2001, the Arbitrator did receive further material from HCL which he did not consider while making the award, on the ground that they were received after the time limit granted by him to HCL. Factually, there is no supporting material to show that any such further material was received by the learned arbitrator, except documents that have been presented by Shri Raval for the first time before us. They were clearly not before Chatterjee,J. when this surmise was made by the learned Judge, Further, the arbitrator cannot be faulted on this ground as, given the authorities referred to by us hereinabove, the arbitrator is in control of the arbitral proceedings and procedural orders which give time limits must be strictly adhered to. In paragraph 168, the learned Judge then said that given the attack in New York on 11.09.2001, the learned arbitrator should have excused further delay and should not have acted on frivolous technicalities. This approach of a Court enforcing a foreign award flies in the face of the judgments referred to by us hereinabove. Even otherwise, Chatterjee, J., refers to the judgment in Hari Om Maheshwari (supra) as well as Minmetals (supra), but then does not proceed to apply the ratio of the said judgments. Had he applied the ratio of even these two judgments, it would have been clear that an arbitrators refusal to adjourn the proceedings at the behest of one party cannot be said to be perverse, keeping in mind the object of speedy resolution of disputes of the Arbitration Act. Further, the Minmetals (supra) test was not even adverted to by Chatterjee,J., which is that HCL was never unable to present its case as it was at no time outside its control to furnish documents and legal submissions within the time given by the learned arbitrator. HCL chose not to appear before the arbitrator, and thereafter chose to submit documents and legal submissions outside the timelines granted by the arbitrator. 36. Even otherwise, remanding the matter to the ICC arbitrator to pass a fresh award in paragraph 169, is clearly outside the jurisdiction of an enforcing court under Section 48 of the 1996 Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. In appeal, the Division Bench, in view of its finding that the award is not a foreign award, declined to apply Section 50 of the Arbitration Act, 1996 (hereinafter referred to as Arbitration Act), and then stated that the London award is declared to be inexecutable so long as the Indian Nil Award stands. In view of this finding, it did not go into the natural justice point argued by HCL14. In the first round in this court, S.B. Sinha,J. did not go into the natural justice point, in view of his finding that the arbitration clause itself was null and voidAs has been held in paragraph 76 of Vijay Karia (supra), the context of Section 48 is recognition and enforcement of foreign awards under the New York Convention of 1958. Given the context of the New York Convention, and the fact that the expression otherwise is susceptible to two meanings, it is clear that the narrower meaning has been preferred, which is in consonance with the pro-enforcement bias spoken about by a large number of judgments referred to in Vijay Karia (supra). Kochunis case (supra) dealing with an entirely different Act with a different object cannot, therefore, possibly apply to construe this word in the setting in which it occurs19. As a matter of fact, three earlier judgments of this Court, all under the Arbitration Act, 1940, are also instructive. The ground on which a domestic award could be set aside under Section 30 of the 1940 Act, inter alia, was if the arbitrator misconducted himself or the proceedings. It will be seen that misconduct as a ground for setting aside an award is conceptually much wider than a party being unable to present its case before the arbitrator, which is contained in Section 48(1)(b)29. We now come to the facts of the present case. Shri Ravals plea that this Court cannot go into the question posed before it as there was no difference of opinion on HCL being unable to present its case, Justice Chatterjee Js being the only judgment on this score, has no legs to stand. The reference order that is extracted by us in paragraph 7 above, and that is contained in paragraph 1 of the decision in Centrotrade [2017] (supra), makes it clear that, in view of difference of opinion, the matter is referred to a larger bench for reconsideration. That the expression the matter was understood as meaning the entire matter and not merely issue 1, is further made clear by paragraph 5 of the said judgment as follows:For the present, we propose to address only the first question and depending upon the answer, the appeals would be set down for hearing on the remaining issue. We have adopted this somewhat unusual course since the roster of business allowed us to hear the appeals only sporadically and therefore the proceedings before us dragged on for about three monthsFinally, the 3 Judge Bench concluded:48. In view of the above, the first question before us is answered in the affirmative. The appeals should be listed again for consideration of the second question which relates to the enforcement of the appellate awardIn this view of the matter, we have proceeded to examine the correctness of Chatterjee Js views. We are afraid that this is an argument that has never been raised earlier, and has been raised by Shri Raval here for the first time. Even otherwise, and even if we were to go by the documents that were submitted to us for the first time by Shri Raval, the fax sent on 20.12.2000 by the arbitrator to the parties is incomplete. Even otherwise, it speaks of issues of jurisdiction and Indian law having to be addressed as a primary question before matters of substance relating to the dispute on the contract. None of this clearly and unequivocally shows that the learned arbitrator sought to take up the plea as to jurisdiction as a preliminary objection which should be decided before other matters. This plea of Shri Raval, being taken here for the first time and for the reasons given by us, is devoid of substanceFirst and foremost, the stay order of the Rajasthan High Court was not and could not be directed against the arbitrator – it was directed only against the parties to the proceeding. Secondly, the learned arbitrator initially began the proceedings, after the green signal given to him by the ICC Court to proceed with the arbitration, by directing that the appellant serve submissions along with supporting evidence, followed by the respondents response and evidence on 19.01.2001. This, however, was reiterated only on 03.05.2001, by which time the Supreme Court had vacated the ad- interim ex parte order on 08.02.2001. This plea taken by Shri Raval, also taken before us for the first time, has no legs to stand on33. The sequence of events, even from the documents presented by Shri Raval for the first time, is that legal submissions were furnished after 11.09.2001 and received by the arbitrators office on 13.09.2001. The arbitrator then stated that these submissions have been fully taken into account in the award and that by 18.09.2001, there would be no scope for any further material being supplied, as the publication of the award will follow shortly. This was communicated by fax on 18.09.2001 by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It is only thereafter, on 19.09.2001, that a couriered letter is sent to the learned arbitrator stating that Fox & Mandal would be deeply obliged if documents contained in paper binder no.1 would also be taken into account. It was then added that paper binder no.2, containing judgments of the Courts of law and authorities are being sent separately and it may take 7 to 10 days more time beyond 19.09.200134. At this stage, it is important to point out that the learned arbitrator had given a large number of opportunities to file documents and legal submissions. On 03.05.2001 the learned arbitrator directed that the appellant serve submissions along with supporting documents, following the respondents response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supporting evidence was served by the respondent within the time prescribed, the time was extended, giving the respondent one last opportunity to put in their defence and to seek extension of time for so doing. Until August 2001, it may be stated that respondent did not participate in the arbitral proceedings, even though invited to do so. It is only on 09.08.2001, when the learned arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the learned arbitrator received a fax from Fox & Mandal, Attorneys for HCL, requesting for an extension of one months time to put in their defence. This was acceded to by the learned arbitrator on 16.08.2001, giving time upto 31.08.2001. However, on 27.08.2001, Fox & Mandal sought for a further three weeks extension of time, which was also granted by the learned arbitrator, allowing a final extension of time until 12.09.2001. Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the respondent leaves much to be called for. Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it is only after the arbitrator indicated that he was going to pass an award that the respondents attorneys woke up and started asking for time to present their response. This too was granted by the learned arbitrator, by not only granting extension of time, but by extending this time even further. Finally, when the legal submissions of 75 pages were sent even beyond the time that was granted, the learned Arbitrator took this into account and then passed his award. This being the case, on facts we can find no fault whatsoever with the conduct of the arbitral proceedings35. Justice Chatterjee, however, in his judgment, made several errors of fact. First and foremost, in paragraph 166 of Centrotrade [2006] (supra), the learned Judge quoted the penultimate line in paragraph 8 of the award, without even adverting to the line just before the aforesaid line which indicated that the material that was received from HCL was in fact taken into consideration while making the award, even beyond the stipulated time of 12.09.2001. Secondly, in paragraph 167, Chatterjee,J. conjectured that between 13 th and 29 th September, 2001, the Arbitrator did receive further material from HCL which he did not consider while making the award, on the ground that they were received after the time limit granted by him to HCL. Factually, there is no supporting material to show that any such further material was received by the learned arbitrator, except documents that have been presented by Shri Raval for the first time before us. They were clearly not before Chatterjee,J. when this surmise was made by the learned Judge, Further, the arbitrator cannot be faulted on this ground as, given the authorities referred to by us hereinabove, the arbitrator is in control of the arbitral proceedings and procedural orders which give time limits must be strictly adhered to. In paragraph 168, the learned Judge then said that given the attack in New York on 11.09.2001, the learned arbitrator should have excused further delay and should not have acted on frivolous technicalities. This approach of a Court enforcing a foreign award flies in the face of the judgments referred to by us hereinabove. Even otherwise, Chatterjee, J., refers to the judgment in Hari Om Maheshwari (supra) as well as Minmetals (supra), but then does not proceed to apply the ratio of the said judgments. Had he applied the ratio of even these two judgments, it would have been clear that an arbitrators refusal to adjourn the proceedings at the behest of one party cannot be said to be perverse, keeping in mind the object of speedy resolution of disputes of the Arbitration Act. Further, the Minmetals (supra) test was not even adverted to by Chatterjee,J., which is that HCL was never unable to present its case as it was at no time outside its control to furnish documents and legal submissions within the time given by the learned arbitrator. HCL chose not to appear before the arbitrator, and thereafter chose to submit documents and legal submissions outside the timelines granted by the arbitrator36. Even otherwise, remanding the matter to the ICC arbitrator to pass a fresh award in paragraph 169, is clearly outside the jurisdiction of an enforcing court under Section 48 of the 1996 Act.