SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION versus POWER MECH PROJECTS LTD.
[2022] 7 S.C.R. 343, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Facts
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SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
v.
POWER MECH PROJECTS LTD.
(Civil Appeal No. 6789 of 2022)
SEPTEMBER 19, 2022
[INDIRA BANERJEE AND KRISHNA MURARI, JJ.]
Arbitration and Conciliation Act, 1996: ss. 36 and 9 –
Arbitration award – Interference with – On facts, award of Rs 142
cr in favour of the respondent – Challenge to, by the appellant
before the High Court u/s. 34 – Same day the appellant filed interim
application u/s. 36(2) seeking stay of the arbitral award –
Subsequently, the respondent filed an application u/s. 9 seeking
orders on the appellant to furnish security against the amount
awarded – Thereafter, appellant directed to deposit 10% of the
amounts in its bank accounts, at interval of every 15 days –
Respondent filing another application seeking directions to the
appellant to deposit the awarded amount alongwith interest – Single
Judge of the High Court disposed of the application u/s. 9 alongwith
the connected interim applications – Single Judge  passed another
order issuing notice on respondents on the application of the
appellant u/s. 36(2) for stay of the award and issued directions that
on deposit of the award amount, the enforcement of the award would
remain stayed – Interference with – Held: Not called for – No hard
and fast rule that an application made earlier in point of time must
be heard before an application made later in point of time – Both
the applications u/s. 9 filed by the respondent and the application
for stay
u/s. 36(2) filed by the appellant even though independent
applications, relate to the same impugned award – Prima facie, there
is an award for a huge amount of Rs. 142 crores against the
appellant – Respondent has a strong case for interim relief – No
cogent ground made out even prima facie, for interference with the
award – High Court acted within the scope of its powers u/s.9 in
passing the impugned order.
Dismissing the appeals, the Court
HELD: 1.1 There is no hard and fast rule that an application
made earlier in point of time must be heard before an application
[2022] 7 S.C.R. 343
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made later in point of time. Both the applications under Section 9
of the Arbitration and Conciliation Act, 1996 filed by the
respondent and the application for stay u/s. 36(2) filed by the
appellant relate to the same impugned award. Even though, the
applications may be independent applications, there are common
factors required to be considered for both the applications of the
respondent under Section 9 and the application of the Appellant
under Section 36(2). The jurisdiction of this Court under Section
9 is wide. A party may apply to a Court for interim measures
before the commencement of Arbitral proceedings, during Arbitral
proceedings or at any time after the making of the Arbitral Award,
but before it is enforced in accordance with Section 36 of the
Arbitration Act. Section 9 expressly empowers the Court to pass
orders securing the amount in dispute in the arbitration and/or
any interim measure or protection as may appear to the Court to
be just and convenient. For grant of interim relief under Section
9, the Court would have to consider the prima facie case, whether
the balance of convenience is in favour of interim relief as prayed
for being granted and whether the applicant has approached the
court with reasonable expedition. In this case, prima facie there
is an award for a huge amount of Rs. 142 Crores against the
appellant. The respondent has a strong case for interim relief.
[Para 21-25][352-A-F]
1.2
The grounds for interference with an award is restricted.
Even before this Court, the Appellant has not been able to advert
to any cogent and glaring error which goes to the root of the
award. The contention of the award being opposed to the public
policy of India, is devoid of any particulars whatsoever. [Para
26][352-F-G]
1.3 Under Section 36, where the time for making an
application to set aside arbitral award has expired, the award might
be enforced in accordance with the provisions of the CPC in the
same manner as it were a decree of the Court. Section 36(2)
makes it clear that filing an application for setting aside of an
award under Section 34 is not to render the award unenforceable,
unless the Court expressly grants an order of stay of operation
of the arbitral award in accordance with the provisions of sub-
section (3) of Section 36, on a separate application made for that
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purpose. Once an application under sub-section (2) of Section 36
is filed for stay of operation of the arbitral award, the Court might
subject to such conditions as it may deem fit, grant stay of the
operation of such award, for reasons to be recorded in writing.
The Court is empowered to impose such conditions as it might
deem fit and may grant stay of operation of the award subject to
furnishing of security covering entire amount of the award
including interest. The proviso to Section 36(3), makes it clear
that while considering an application for grant of stay in the case
of an arbitral award for payment of money, due regard has to be
given to the provisions for grant of stay of a money decree under
the provisions of the CPC. The proviso to Section 36(3) further
stipulates that where the Court is satisfied that a prima facie case
is made out that (a) the arbitration agreement or contract which
is the basis of the award or, (b) the making of the award was
induced or effected by fraud or corruption, it shall stay the award
unconditionally pending disposal of the challenge u/s. 34 of the
award. [Para 27-30][352-G-H; 353-A-E]
1.4 There is an award of Rs. 142 Crores in favour of the
respondent. No cogent ground has been made out even prima
facie, for interference with the impugned award. Order 41 Rule 5
of the CPC provides for stay of decree upon furnishing of cash
security. The High Court acted within the scope of its powers
under Section 9 in passing the
impugned judgment and order.
Thus, there is no ground at all to interfere. However, the High
Court is requested to dispose of the pending applications of the
appellant u/s. 34 for setting aside the award as expeditiously as
possible. [Para 35-37][355-E-F]
Ajay Singh & Ors. v. Kal Airways Private Limited and
Ors. (2017) SCC Online Del 8934; Jagdish Ahuja &
Anr. v. Cupino Limited (2020) SCC Online Bom 849;
Valentine Maritime Ltd. v. Kreuz Subsea Pte Ltd. & Anr.
(2021) SCC Online Bom 75 – referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6789
of 2022.
From the Judgment and Order dated 11.01.2021 of the High Court
of Delhi, at New Delhi, in FAO (OS) (Comm) 59 of 2020.
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
v. POWER MECH PROJECTS LTD.
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With    
Civil Appeal No. 6792 of 2022.
Ranjit Prakash, Gaurav Lavania, Saurabh Agrawal, Pai Amit, Advs.
for the Appellant.
Dr. Abhishek Manu Singhvi, Sr. Adv., Dharmesh Misra, Prateek
Gupta, Krishna Dev Jagarlamudi, Azeem Samuel, Vishal Singh, Advs.
for the Respondent.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. Leave granted.
2. The Appellant, an entity incorporated in China was awarded
contracts in relation to various coal based power projects in India and
the Respondent, a company incorporated in India was engaged as a
sub-contractor of the Appellant. Disputes and differences between the
Respondent and the Appellant were referred to Arbitration. Suffice it to
mention that the Arbitration culminated in an Award dated  17th  October
2017 of approximately Rs. 1,42,00,00,000/- (Rupees One Hundred and
Forty Two Crores) in favour of the Respondent.
3. On 3rd December 2017, the Appellant filed an application under
Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as the “Arbitration Act”) being O.M.P. (COMM) No. 432 of
2017 challenging the Arbitral Award dated 17th October 2017 in the
Commercial Division of the Delhi High Court, which is pending.
4. On the same day, that is, 3rd December 2017, the Appellant
filed an interim application being I.A. No. 14342 of 2017 in the  said
O.M.P. (COMM) No.432 of 2017 under Section 36(2) of the Arbitration
Act seeking stay of the
arbitral award.
5. After about a week, on 11th December 2017, the Respondent
filed an application under Section 9 of the Arbitration Act being O.M.P.
(I) (COMM) No. 523 of 2017 in the High Court, inter alia, seeking
orders on the Appellant to furnish security against the amount awarded
by the Arbitral Tribunal.
6. On 14th December 2017, the High Court issued notice in the
application filed by the Respondent under Section 9 of the Arbitration
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Act and directed the Appellant to file an affidavit of assets. In compliance
with the order dated 14th December 2017, the Appellant submitted its
affidavit giving details of its assets.
7. On or about 10th May 2018, the  Respondent  filed  an  application
being  I.A. No. 6704 of 2018 praying for deposit of the entire amount
due from Talwandi Sabo Power Corporation Limited (TSPL). The said
application was disposed of by an order dated 15th May 2018 with the
observation that the Court did not see sufficient cause to allow the prayers
made by the Respondent.
8. By an order dated 24th July 2018, the High Court directed the
Appellant to disclose better particulars of its assets in India. In the
meanwhile, the Appellant was directed to deposit 10% of the amount in
its bank accounts, which is referred to in its affidavit of assets in the
High Court at intervals of every 15 days.
9. Pursuant to the aforesaid order dated 24th July 2018, the
Appellant filed its supplementary affidavit of assets. Two days later, on
20th August 2018, the Respondent filed an application being I.A. No.
11128 of 2018 for directions on the Respondent to deposit the awarded
amount of Rs. 142,41,14,499/- (Rupees One Hundred Forty-Two Crores,
Forty  One Lakhs, Fourteen Thousand, Four Hundred Ninety-Nine Only)
along with interest @ 12% per annum from the date of the award till
realisation of the awarded amount in the High Court.
10. Diverse interim applications were filed from time to time.
On
20th March 2019, the Respondent filed another application being IA
No.4259 of 2019, seeking orders for deposit of the awarded amount of
Rs. 142,41,14,499/- along with interest.
11. By a judgment and order dated 17th  February  2020, a Single
Judge of the High Court disposed of the application filed by the
Respondent under Section 9 of the Arbitration Act being O.M.P (I)
(COMM) No.523 of 2017 along with connected interim applications.
The operative part of the judgment and order dated 17th February 2020
is set out hereinbelow:-
“32. While it is true that in some of the orders shown by the
learned senior counsel for the petitioner, co-ordinate Benches
of this Court have been directing a deposit of 50%, but going
by the recent judgments of the Supreme Court as well as the
facts of the present case, I am of the opinion that the petitioner
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]
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must deposit 100% of the awarded amount of Rs.142 Crores
(principal amount) to secure the respondent.
33. Since the petitioner has already furnished BG of Rs.30
Crores and has deposited a further amount of Rs.2.74 Crores,
the said amount would be adjusted and the balance amount
from Rs.142 Crores will be deposited by the petitioner with
the Registry of this Court within a period of four weeks from
today. With the aforesaid directions, the present petition is
hereby disposed of along with all the pending applications.”
12. On that same day, that is, 17th February 2020, the Single Bench
passed another order directing notice be issued on respondents on the
application of the Appellant under Section 36(2) of the Arbitration Act
for stay of the award. The Court directed that, on deposit of Rs.142
Crores, as earlier directed in the application of the Respondent under
Section 9 of the Arbitration Act, within four weeks, the enforcement of
the award dated 17th October 2017 would remain stayed.
13. Mr. K. V. Viswanathan, appearing  on  behalf  of  the  Appellant
submitted that the Appellant’s application for stay under Section 36(2)
of the Arbitration Act had been filed before the Respondent filed its
application for interim relief under Section 9 of the said Act. The
application of the Appellant having been filed earlier, orders ought not
to have been passed on the application of the Respondent for interim
relief, without
first considering the Appellant’s application for stay.
14. Mr. Viswanathan pointed out that the High Court had, by
clubbing the order in the Appellant’s application under Section 36(2) of
the Arbitration Act, with the order in the application of the Respondent
under Section 9 of the said Act, deprived the Appellant of its legal remedy
of appeal against any order passed under Section 9, since an order under
Section 36 is not appealable. Had the later application filed under Section
9 not been clubbed with the earlier application filed by the Appellant
under Section 36(2), the Appellant could have filed an intra court appeal
from the order under Section 9 of the Arbitration Act.
15. Mr. Viswanathan argued that sub-section (3) of Section 36
enables the court to grant stay of operation of the Award. The Court
cannot, however, stay an award for the asking. An award can only be
stayed for reasons to be recorded in writing. Moreover, for grant of
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stay in the case of an arbitral award for payment of money, the Court
is to have due regard to the provisions for grant of stay in a money
decree under the provision of the CPC.
16. The power under sub-section (3) of Section 36 to grant stay
of an award is coupled with the duty to impose conditions which could
include the condition of securing the award by deposit in Court, of the
amount of the Award. It may be true as argued by Mr. Vishwanathan
that the Court may not impose condition for stay, if it deems appropriate
not  to do so. The power of Court to grant unconditional stay of an
Award is not unfettered. The power of unconditional stay is subject to
the condition in the second proviso that is:-
The Court is satisfied that a prima facie is made out that -
(i)
the arbitration agreement or contract which is the basis of
the award; or
(ii) the making of the award, was induced or effected by fraud or
corruption.
17. Mr. Viswanathan submitted that while the grant for stay may
be discretionary but the exercise of such power is mandatory. The
exercise of discretion requires ex facie consideration of the merits of
the challenge and therefore a review of the award which regrettably
has not been done.
18. The Appellant has unsuccessfully made an attempt to evaluate
the impugned award to demonstrate that the award is against the
fundamental policy of India. It is contended that no documents were
produced during the arbitration proceedings. It is not for this
Court to sit
in appeal over the impugned award at this stage while deciding an appeal
under Article 136 of the Constitution of India and examine the adequacy
of the evidence before the Arbitral Tribunal.
19. Section 36 of the Arbitration Act Provides:-
“36. Enforcement.—(1) Where the time for  making  an
application to set aside the arbitral award under Section 34
has expired, then, subject to the provisions of sub-section (2),
such award shall be enforced in accordance with the provisions
of the Code of Civil Procedure, 1908 (5 of 1908), in the same
manner as if it were a decree of the court.
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]
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(2) Where an application to set aside the arbitral award
has been filed in the court under Section 34, the filing of
such an application shall not by itself render that award
unenforceable, unless the court grants an order of stay of
the operation of the said arbitral award in accordance with
the provisions of sub-section (3), on a separate application
made for that purpose.
(3) Upon filing of an application under sub section (2) for
stay of the operation of the arbitral award, the court may,
subject to such conditions as it may deem fit, grant stay of
the operation of such award for reasons to be recorded in
writing:
Provided that the court shall, while considering the application
for grant of stay in the case of an arbitral award for payment
of money, have due regard to the provisions for grant of stay
of  a  money decree under the provisions of the Code of Civil
Procedure, 1908 (5 of 1908).
Provided further that where the Court is satisfied that a  prima
facie case is made out that,—
(a) the arbitration agreement or contract which is the basis
of the award; or
(b) the making of the award,
was induced or effected by fraud or corruption, it shall
stay the award unconditionally pending disposal of
the challenge under Section 34 to the award.
Explanation.—For the removal of doubts, it is hereby clarified
that the above proviso shall apply to all court cases arising
out of or in relation to arbitral proceedings,
irrespective of
whether the arbitral or court proceedings were commenced
prior to or after the commencement of the Arbitration and
Conciliation (Amendment) Act, 2015.”
20. On the other hand, Section 9 of the Act provides the amendment
as follows:-
“9. Interim measures, etc. by Court.— (1) A party may, before
or during arbitral proceedings or at any time after the making
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of the arbitral award but before it is enforced in accordance
with Section 36, apply to a Court:—
(i) for the appointment of a guardian for a minor or a person
of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of
the following matters, namely:—
(a)
the preservation, interim custody or sale of any
goods which are the subject-matter of the arbitration
agreement:
(b)
securing the amount in dispute in the arbitration:
(c)
the detention, preservation or inspection of any
property or thing which is the subject-matter of the
dispute in arbitration, or as to which any question
may arise therein and authorising for any of the
aforesaid purposes any person to enter upon any
land or building in the possession of any party, or
authorising any samples to be taken or any
observation to be made, or experiment to be tried,
which may be necessary or expedient for the purpose
of obtaining full information or evidence;
(d)
interim injunction or the appointment of a receiver;
(e)
such other interim measure of protection as may
appear to the Court to be just and convenient, and
the Court shall have the same power for making
orders as it has for the purpose of,  and in relation
to, any proceedings before it.
(2) Where, before the commencement of the arbitral
proceedings, a court passes an order for any interim
measure of  protection  under  sub- section (1), the arbitral
proceedings shall be  commenced
within  a period of
ninety days from the date  of  such  order  or  within  such
further time as the court may determine.
(3) Once the arbitral tribunal has been constituted, the
court shall not entertain an application under sub-section
(1), unless the court finds that circumstances exist which
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]
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may not render the remedy provided under Section 17
efficacious.”
21. There is no hard and fast rule that an application made earlier
in point of time must be heard before an application made later in point
of time.
22. Both the applications under Section 9 filed by the Respondent
and the application for stay under Section 36(2) filed by the Appellant
relate to the same impugned award.
23. Even though, the applications may be  independent  applications,
there are common factors required to be considered for both the
applications of the Respondent under Section 9 and the application of
the Appellant under Section 36(2). The jurisdiction of this Court under
Section 9 is wide. A party may apply to a Court for interim measures
before the commencement of Arbitral proceedings, during Arbitral
proceedings or at any time after the making of the Arbitral Award, but
before it is enforced in accordance with Section 36 of the Arbitration
Act.
24. Section 9 expressly empowers the Court to pass orders securing
the amount in dispute in the arbitration and/or any interim measure or
protection as may appear to the Court to be just and convenient.
25. For grant of interim relief under Section 9, the Court would
have to consider the prima facie case. In this case, prima facie there is
an award for a huge amount of Rs. 142 Crores against the Appellant.
The Respondent has a strong case for interim relief.
26. It is settled law that
grounds for interference with an award is
restricted. Even before this Court, the Appellant has not been able to
advert to any cogent and glaring error which goes to the root of the
award. The contention of the award being opposed to the public policy
of India, is devoid of any particulars whatsoever.
27. Under Section 36, where the time for making an application to
set aside arbitral award has expired, the award might be enforced in
accordance with the provisions of the CPC in the same manner as it
were a decree of the Court. Section 36(2) makes it clear that filing an
application for setting aside of an award under Section 34 is not to render
the award unenforceable, unless the Court expressly grants an order of
stay of operation of the arbitral award in accordance with the provisions
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of sub- section (3) of Section 36, on a separate application made for that
purpose.
28. Once an application under sub-section (2) of Section 36 is
filed for stay of operation of the arbitral award, the Court might subject
to such conditions as it may deem fit, grant stay of the operation of
such award, for reasons to be recorded in writing. The Court is
empowered to impose such conditions as it might deem fit and may
grant stay of operation of the award subject to furnishing of security
covering entire amount of the award including interest.
29. The proviso to Section 36(3) of the  Arbitration  Act,  makes  it
clear that while considering an application for grant of stay in the case
of  an arbitral award for payment of money, due regard has to be given to
the provisions for grant of stay of a money decree under the provisions
of the CPC.
30. The proviso to Section 36(3) further stipulates that where the
Court is satisfied that a prima facie case is made out that (a) the
arbitration agreement or contract which is the basis of the award or, (b)
the making of the award was induced or effected by fraud or corruption,
it shall stay the award unconditionally pending disposal of the challenge
under Section 34 of the award.
31. In Ajay Singh & Ors. v. Kal Airways Private Limited and
Ors.1 the Delhi High Court correctly held :
“...Section 9 grants wide powers to the courts in fashioning
an appropriate interim order, is apparent from its text.
Nevertheless, what
the authorities stress is that the exercise
of such  power should be principled, premised on some known
guidelines - therefore, the analogy of Orders 38 and 39.
Equally, the court should not find itself unduly bound by the
text of those provisions rather it is to follow the underlying
principles...”
32. In Jagdish Ahuja & Anr. v. Cupino Limited2, the Bombay
High Court correctly summarised the law in Paragraph 6 extracted
hereinbelow:-
1 2017 SCC Online Del 8934
2 2020 SCC Online Bom 849
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
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“ 6 . As far as Section 9 of the Act is concerned, it cannot be
said that this court, while considering a relief thereunder, is
strictly bound by the provisions of Order 38 Rule 5. As held
by our Courts, the scope of Section 9 of the Act is very broad;
the court has a discretion to grant thereunder a wide range
of interim measures of protection “as may appear to the court
to be just and convenient”, though such discretion has to be
exercised judiciously and not arbitrarily. The court is, no
doubt, guided by the principles which civil courts ordinarily
employ for considering interim relief, particularly, Order 39
Rules 1 and 2 and Order 38 Rule  5;  the court, however, is
not unduly bound by their texts.  As this court held in Nimbus
Communications Limited v. Board of Control for Cricket in
India (Per D.Y. Chandrachud J, as  the  learned  Judge then
was), the court, whilst exercising power under  Section  9,
“must have due regard to the underlying purpose of the
conferment of the power under the court which is to promote
the efficacy of arbitration as a form of dispute resolution.”
The learned Judge further observed as follows:
“Just as  on the  one  hand the  exercise of the  power under
Section 9 cannot be carried out in an uncharted territory
ignoring the basic principles of procedural law contained
in the Code of Civil Procedure 1908, the rigors of every
procedural provision in the Code of Civil Procedure 1908
cannot be put into place to defeat the grant of  relief which
would subserve the paramount interests of justice. A
balance has to be drawn between the two considerations
in the facts of each case.”
33. In Valentine Maritime Ltd. v. Kreuz Subsea Pte Ltd. &
Anr.3, the Bombay High Court held :-
“96. This court held that just as on the one hand the exercise
of the power under Section 9 cannot be carried out in an
uncharted territory ignoring the basic principles of procedural
law contained in the Code of Civil Procedure, 1908, the rigors
of every procedural provision in the Code of Civil Procedure,
1908 cannot be put into place to defeat the grant of relief
3 2021 SCC Online Bom 75
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which would sub-serve the paramount interests of justice. A
balance has to be drawn between the two considerations in
the facts of each case. The principles laid down in the Code
of Civil Procedure, 1908 for the grant of interlocutory remedies
must furnish a guide to the Court when it determines an
application under Section 9 of the Arbitration and Conciliation
Act, 1996. The underlying basis of Order 38 Rule 5 therefore
has to be borne in mind while deciding an  application under
Section 9(ii)(b) of the Arbitration Act.”
34. Section 9 of the Arbitration Act confers wide power on the
Court to pass orders securing the amount in dispute in arbitration,  whether
before the commencement of the Arbitral proceedings, during the Arbitral
proceedings or at any time after making of the arbitral award, but before
its enforcement in accordance with Section 36  of  the  Arbitration  Act.
All that the Court is required to see is, whether the applicant  for  interim
measure has a good prima facie case, whether the balance of
convenience is in favour of interim relief as prayed for being granted
and whether the applicant has approached the court with reasonable
expedition.
35. It is not in dispute that  there is an award of Rs. 142 Crores in
favour of the Respondent. No cogent ground has been made out even
prima facie, for interference with the impugned award.
36. Order 41 Rule 5 of the CPC provides for stay of decree upon
furnishing of cash security. The High Court
acted within the scope of its
powers under Section 9 in passing the impugned judgment and order.
37. We find no ground at all to interfere. The Appeals are
dismissed. We, however, request the High Court to dispose of the pending
applications of the Appellant under Section 34 for setting aside the award
as expeditiously as possible, preferably within 3 months from the date of
communication of this judgment and order.
Nidhi Jain
Appeals dismissed.
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]