Eitzen Bulk A/S vs Ashapura Minechem Limited & Anr

3. Disputes having arisen between the parties, the matter was referred to Arbitration by a sole Arbitrator. The Arbitration was held in London according to English Law. Ashapura Minechem was held liable and directed to pay a sum of 36,306,104 US$ together with compound interest at the rate of 3.75 % per annum. In addition they were directed to pay 74,135 US$ together with compound interest at the rate of 3.75% per annum and another sum of 90,233.66 Pounds together with compound interest at the rate of 2.5% per annum vide Award of the Sole Arbitrator dated 26.5.2009. Proceedings in Gujarat

4. Before Arbitration had commenced, Ashapura filed a suit alongwith an application for injunction before the Civil Judge at Jam- khambalia, Gujarat praying inter-alia that the Contract and the Arbitration Clause contained therein was illegal, null and void, ab-initio. Though initially an interim injunction was granted, the learned Civil Judge dismissed the suit for want of jurisdiction vide order dated 12.1.2009. The appeal filed by Ashapura before the Gujarat High Court was dismissed as withdrawn on 2.7.2009.

8. On 14th July, 2009, the appellant filed proceedings in Netherlands Court seeking a declaration that the award dated 26th May, 2009 is enforceable as a judgment of the Court. The respondent appeared in the said proceedings and filed their objections. The Netherlands Court, however, declared that the award is enforceable as a judgment of the Court on 17th March, 2010.

9. On 24th July, 2009, the United States District Court for Southern State of New York declared the award dated 26th May, 2009 enforceable as a judgment of that court. The proceedings filed by the appellant were contested by the respondent.

10. On 27th July, 2009, the appellant filed present proceedings under Sections 47 to 49 of Part II of the Arbitration Act for enforcing the award dated 26th May, 2009 on the ground that the respondent was carrying on business within the jurisdiction of this Court and has its registered office and corporate office and assets within the territorial jurisdiction of this Court.

11. On 29th July, 2009, the Antwerp Court declared the award dated 26th May, 2009 enforceable as a judgment of the Court. The said proceedings were contested by the respondent. On 3rd August, 2009, the English High Court declared the award dated 26th May, 2009 enforceable as a judgment of the Court.

30. Mr. Divan attempted to persuade us to accept the possibility that Part I is not excluded and in any case not wholly excluded in such a case, but the law is too well settled and with good reasons, for us to take any other view. We do not wish to endorse “a recipe for litigation and (what is worse) confusion”[7].

34. In this view of the matter, the judgment of the Gujarat High Court holding that Ashapura’s objections under Section 34 of the Arbitration Act are tenable before a Court in India that is the Court at Jam-Khambalia, Gujarat is contrary to law. The proceedings under Section 34, which occurs in Part I, are liable to be dismissed as untenable. The Civil Appeals of Eitzen are liable to succeed and are, therefore, allowed. The judgment of the Bombay High Court dated 03.12.2015 enforcing the Foreign Award under Part II of the Arbitration Act is correct and liable to be upheld.

35. In view of the above findings, appeals filed by Eitzen Bulk A/S, arising out of SLP (C) Nos. 2210-2212 of 2011 are allowed; appeals filed by Ashapura Minechem Ltd., arising out of SLP (C) Nos. 7562-7563 of 2016 are dismissed; appeal arising out of SLP (C) No. 3959 of 2012 (filed by Ashapura Minechem Ltd.) is dismissed.

36. Permission to file SLP (C) No.…of 2016 [CC No. 3266 of 2013 - filed by Ashapura Minechem Ltd.] and SLP (C) No....of 2016 [CC No. 3382 of 2013 - filed by Ashapura Minechem Ltd.] is rejected. No costs.

[1] Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.