Bombay High Court

Imax Corporation vs E-City Entertainment (I) Pvt. Limited ... on 13 November, 2019

Equivalent citations: AIRONLINE 2019 BOM 1142, 2020 (1) ABR 82

Author:
G.S. Kulkarni

Bench:
G.S. Kulkarni

1 carbp 414-18

psv

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION

COMMERCIAL ARBITRATION PETITION NO.414 OF 2018

Imax Corporation ..Petitioner
Vs.
E-City Entertainment (I) Pvt. Ltd. & Ors. ..Respondents
-----

Dr.Veerendra Tulzapurkar, Senior Advocate, with Mr.Sandeep Parekh,
Mr.Rahul Mahajan, Mr.Amit Surve, Ms.Meeta Kadhi for Petitioner.
Dr.Birendra Saraf with Mr.Rohan Savant, Mr.Yakshay Chheda,
Ms.Devanshi Sethi i/b. M/s.Parinam Law Associates for Respondent
No.1.
Mr.Gautam Ankhad with Mr.Krishna Shah i/b. M/s.A & P Partners for
Respondent Nos.2 & 3.
Mr.Sharan Jagtiani with Ms.Sanaya Kapadia, Mr.Ankit Ransubhe i/b.
Mr.Ajay Basutkar for Respondent No.4.
-----

CORAM : G.S. KULKARNI, J.

DATE: 13 November 2019

ORAL ORDER :

1. This is a petition for enforcement and execution of the foreign

award filed under
Section 47
,
and
of the Arbitration and

Conciliation Act, 1996 (for short, "the
Arbitration Act
"). The

respondents have raised a preliminary objection contending that the

petition is barred by limitation. By this order this objection of the

respondents is being decided.

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2. The petitioner-original claimant is seeking enforcement of the

international commercial award(s) namely the Liability award dated 9

February 2006, an award dated 24 August 2007 being a quantum and

jurisdiction award and an award dated 27 March 2008 being a Final

Award of the International Chamber of Commerce. The prayers in the

petition are combined prayers seeking enforcement and execution of the

arbitral awards which are required to be noted and read thus:-

"(a) That this Hon'ble Court be pleased to pass an order
and/or declaration that the said Arbitral Awards, i.e. Liability
Award dated February 09, 2016, Quantum Award dated
August 24, 2007 and Final Award dated March 27, 2008
passed by the Hon'ble Arbitral Tribunal in Case Reference
No. 13339/JNK/EBS, in favor of the Petitioner, are
enforceable under the provisions of the
Part II of the
Arbitration Act
and directions to be issued to enforce and
execute the said Arbitral Awards as a decree in favor of the
Petitioner and against all the Respondents;

(b) That all the Respondents be directed to deposit the
decretal amount of a sum of U.S. $ 11,309,496.06 plus
interest at the rate of U.S. $ 2,512.60 per day from October
1, 2007 till payment and realization thereof and the
Petitioner be permitted to withdraw the same;

(c) That pending the enforcement and/or execution of
the said Arbitral Awards, this Hon'ble court be pleased to
pass the order directing all the Respondents to disclose on
oath forthwith or within such time as this Hon'ble Court
deem fit:

i. Immovable Properties owned by all the
Respondents in its possession and in possession of any third
parties;

ii. Movable properties owned by all the
Respondents in its possession and in the possession of any
third parties;

iii. Shares, debentures, bonds, securities etc., held
by all the respondents in any company/entity;

iv. All debts due and payable to all the
Respondents by any third party or parties;
v. Details of bank accounts which all the

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Respondents holds;
vi. Details of the stock in trade and raw material
of all the Respondents;
vii. Details of cash in hand with all the
Respondents.
(d) Upon disclosure as per prayer clause (c) above, this

Hon'ble Court be pleased to order allowing realization of the
total amount as per the Arbitration Awards as and by way of
attachment and sale of items disclosed by all the
Respondents;

(e) For ad-interim reliefs in terms of prayers (c) above;

(f) Cost of the Petition"

3. There is a prior history of litigation also before the Indian Courts.

Respondent No.1 on 27 July 2008, had approached this Court by filing

a petition under
Section 34
of the Arbitration Act, challenging the

awards in question. This petition was filed after 90 days however

within the extended period of 30 days as provided under
Section 34(3)

of the Arbitration Act. However as the said petition was filed beyond

the prescribed period of 90 days, a notice of motion was filed by

respondent No.1 seeking condonation of delay. The petitioner appeared

as the respondent in the said petition, and opposed the said notice of

motion as filed by respondent No.1 as also opposed the
Section 34

petition. The petitioner contended that each of the foreign award(s)

was a separate award and even assuming that
Section 34
was to apply,

the awards were required to be challenged within prescribed limitation

as provided under
Section 34
of the Arbitration Act. The petitioner in

opposing the
Section 34
petition also contended that the respondent's

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Section 34
petition was per se not maintainable as awards in question

were foreign awards.

4. By an order dated 10 June 2013 this Court condoned the delay as

also held that it had jurisdiction to entertain
Section 34
petition filed by

the respondents. The petitioner being aggrieved by these orders

approached the Supreme Court in a Special Leave Petition. By an

interim order dated 19 November 2013, the Supreme Court stayed the

proceedings of the respondents
Section 34
petition pending before this

Court. The proceedings before the Supreme Court were decided finally

by an order dated 10 March 2017 whereby the Supreme Court set aside

the orders passed by this Court, inter-alia holding that this Court had no

jurisdiction to entertain the
Section 34
petition challenging the foreign

awards. It is thereafter that this petition under
Section 47
,
and
of

the Arbitration Act was filed by the petitioner on 2 April 2018 seeking

enforcement and execution of the foreign award(s) in question.

5. At the outset, an objection is raised on behalf of respondent No.1

to the maintainability of this petition on the ground that the petition is

time barred considering the provisions of
Article 137
under the

Schedule to the Limitation Act
.
Article 137
is a residuary article

prescribing period of limitation to be 3 years. The title of the
Article

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reads as: 'any other application for which no period of limitation is

provided elsewhere in this division ' and time from which period begins

to run is provided from when the right to apply accrues. Also
Article
is relevant as contended to be applicable on behalf of the petitioner.

It would be appropriate to note the said
Articles 136
and
which

reads thus:-

Description of application Period of Time from which
Limitation period begins to
run

136. For the execution Twelve Years When the decree
of any decree (other than a or order becomes
decree granting a enforceable or
mandatory injunction) or where the decree
order of any civil court. or any subsequent
order directs any
payment of money
or the delivery of
any property to be
made at a certain
date or at
recurring periods,
when default in
making the
payment or deliver
in respect of which
execution is
sought, takes
place:

Provided that an
application for the
enforcement or
execution of a
decree granting a
perpetual
injunction shall not
be subject to any
period of
limitation.

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137. Any other application Three years When the right to
for which no period of apply accrues.

limitation is provided
elsewhere in this division.

6. Dr.Saraf, learned Counsel for respondent No.1 would contend

that the delay on the part of the petitioner is apparent to reach to a

conclusion that this petition is barred by limitation, in as much as the

impugned foreign awards are dated 9 February 2006, 24 August 2007

and 27 March 2008 and this petition has been filed on 2 April 2018. It

is submitted that the scheme of provisions of
Sections 46
,
,
and
falling under
Part II of the Act
is quite clear in as much as unless the

awards are held to be enforceable by this Court in the proceedings of

Sections 47
to
of the ACA, the award would not be a decree

available for execution. The contention is that for the purposes of

limitation an application/proceedings filed for seeking enforcement of a

foreign award as per requirement of
Sections 47
to
would be an

application/proceeding falling under
Article 137 (supra)
of the

Limitation Act, 1963
.

7. Dr.Saraf, learned Counsel for respondent No.1 would next

contend that the limitation, for the petitioners to assail the award,

started running against the petitioner to file the present
Section 47
and

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49 proceedings, immediately after the awards were published. It is

submitted that considering the dates of the award, it cannot be held

that a petition which was filed almost after about 10 years from the last

award is within the prescribed period of limitation. Dr. Saraf in

supporting this contention would refer to the provisions of Sub-Section

(3) of
Section 48
which according to him categorically provides that

even if an application is made for setting aside or suspension of a

foreign award before a competent authority as referred to in clause (e)

of sub-section (1) of
Section 48
, the Court may, if it considers proper,

adjourn the decision on the enforcement of the award and may also, on

the application of the party claiming enforcement of the award, order

the other party to give suitable security. It is thus contended that, the

law recognizes that even after proceedings are filed to challenge the

foreign awards, there is no impediment for the decree holder to file

proceedings for enforcement of the award.

8. Dr. Saraf would submit that there is no application as filed on

behalf of the petitioner seeking condonation of delay. It is contended

that even assuming that the petitioner had wrongly approached this

Court by filing
Section 34
proceedings in the year 2008 and ultimately,

the issue came to be decided by the Supreme Court on 10 March 2017

holding that the said proceedings filed by respondent No.1 under

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Section 34
were not maintainable, however, the pendency of these

proceedings can in no manner save the limitation as prescribed under

Article 137
to hold that the proceedings are within the prescribed

limitation. This according to Dr.Saraf, for the reason that, seeking

enforcement of an award is governed by substantive provisions of

Sections 47
to
of the ACA and the party holding a foreign award

cannot sleep over its enforcement/decreetal rights as arisen under the

award and not seek enforcement of the award merely because there are

proceedings filed by the award debtor assailing the awards even before

a Court not competent to entertain such proceedings. In this context,

Dr.Saraf would contend that one important facet which is required to be

considered is the fact that although the
Section 34
petition was filed on

27 July 2008 by respondent No.1 however till such time the delay on

the said petition was condoned as per provisions of Sub-section (3) of

Section 34
of the Arbitration Act on 10 June 2013, it was an obvious

position that there were no proceedings under
Section 34
pending in

the eyes of law. It is contended that unless the delay was condoned it

could not have been presumed that a
Section 34
petition challenging

the award could be of any consequence. In other words, Dr.Saraf's

submission is that the law would recognize the pendency of the
Section
petition filed by the respondents only after this Court condoned the

delay on the said petition, that is, when the Court passed an order on

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respondent No.1's notice of motion on 10 June 2013 condoning the

delay. It is thus, submitted that for the period from 27 July 2008 (date

of filing of the
Section 34
petition) till 10 June 2013 (date when delay

was condoned) the
Section 34
petition cannot be said to be on the file

of the Court, to assume that filing of
Section 34
petition as per the pre-

amended (prior to amending Act No.3 of 2016 with effect from 23

October 2015) was to operate as a stay on the execution of the award.

In supporting all these contentions Dr.Saraf has placed reliance on the

decisions of learned Single Judge in Noy Vallesina Engineering Spa v/s.

Jindal Drugs Limited1, M/s.Louis Dreyfus Commodities Suisse S.A., 29

v/s. Sakuma Exports Limited2, Hameed Joharan (Dead) & Ors. vs.

Abdul Salam (Dead) by LRs.
&
Ors.3, Assam Urban Water Supply and

Sewerage Board Vs. Subash Projects And Marketing Limited4
.

9. Per contra Dr.Tulzapurkar, learned Senior Counsel for the

petitioner would submit that the objection as urged on behalf of

respondent No.1 of the petition being time barred is not well founded.

At the outset Dr.Tulzapurkar would submit that the respondent's

contention of applicability of
Article 137
of the
Limitation Act
is also not

correct. This principally for the reason that the foreign award itself is

1 2006 SCC ONLINE BOM 545
2 2015 SCC OnLine Bom 5006
3 (2001) 7 Supreme Court Cases 573
4 (2012) 2 Supreme Court Cases 624

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required to be accepted as a decree and these proceedings as filed by

the petitioner under
Sections 47
and
of the Arbitration Act are

required to be considered as proceedings for enforcement and execution

of the foreign award. This according to Dr.Tulzapurkar is also clear

from the prayers (supra) as made in the present petition.

Dr.Tulzapurkar would thus submit that it is not
Article 137
, but
Article
of the
Limitation Act
which would be applicable when it comes to

enforcement and execution of a foreign award under the provisions of

Sections 47
to
of the ACA.
Article 136
provides inter-alia for

execution of any decree or order of any Civil Court, and prescribes a

period of limitation of 12 years from the time when the decree or order

becomes enforceable.

10. Dr.Tulzapurkar would submit that the statutory scheme qua the

enforcement of a foreign award, falls in two stages. The first stage is

recognition of the award for enforcement and post recognition

execution of the award. It is submitted that thus enforcement and

execution in the context of
Sections 47
to
are synonymous.

Referring to the decision of Supreme Court in
Thyssen Stahlunion

GMBH Vs. Steel Authority of India Ltd.5
,
Fuerst Day Lawson Ltd. Vs.

Jindal Exports Ltd.6, Dr.Tulzapurkar
would contend that the Supreme
5 (1999) 9 Supreme Court Cases 334
6 (2001) 6 Supreme Court Cases 356

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Court has categorically held that " the foreign award is already stamped

as a decree." According to Dr.Tulzapurkar, once a foreign award itself is

a decree and when the provisions of
Sections 47
to
lay down a

composite scheme for enforcement and execution of a foreign award,

for the purposes of limitation, the provisions of
Article 136
which

provide a limitation of 12 years from the date of receipt of the award,

to file such proceedings, are clearly attracted. Dr.Tulzapurkar would

submit that there can be no other reading of the statutory scheme of

Sections 47
to
, hence the present petition is within the prescribed

period of limitation.

11. The second limb of Dr.Tulzapurkar's submission is to contend that

even assuming that the provisions of
Article 137
are applicable, the

petition is nevertheless within the prescribed limitation. This according

to Dr.Tulzapurkar is for the reason that once the
Section 34
petition as

filed by respondent No.1 on 27 July 2008 albeit the notice of motion for

condonation of delay, which came to be allowed on 10 June 2013, the

pendency of such a petition, as the law stood prior to the Arbitration

Amendment Act, 2015, itself acted as a stay on the enforcement of the

award. This submission is being supported by contending that the order

passed by this Court condoning the delay would relate back to the date

of filing of
section 34
petition. To make good this submissions,

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Dr.Tulzapurkar has placed reliance on the decision of the Single Judge

of Delhi High Court in
Delhi Development Authority Vs. Amita Nand

Agarwal7
. It is next submitted that the interim order dated 19

November 2013 passed by the Supreme Court in the petitioner's SLP

merely stayed the
Section 34
proceedings pending before this Court.

The effect of this order is not that the
Section 34
proceedings stood

extinguished or were no more on the file of High Court, so as to

consider that there is no stay to the enforcement of the award as

brought about by pendency of
Section 34
petition as per the prevailing

law. According to Dr.Tulzapurkar, this stay on the proceedings of the

Section 34
petition continued till 10 March 2017 when the Supreme

Court set aside the orders passed by the High Court holding that the

Section 34
petition as filed by the respondents was not maintainable.

Thus according to Dr.Tulzapurkar, the awards in question became

available for enforcement only after 10 March 2017 and therefore even

if it is assumed that the provisions of
Article 137
of the
Limitation Act

are to be applied, the present petition being filed on 2 April 2018 is

required to be held as maintainable.

In supporting these contentions,

Dr.Tulzapurkar has placed reliance on various decisions namely in
Fiza

Developers and Inter-Trade Private Limited Vs. AMCI (India) Private

Limited & Anr.8
,
Shree Chamundi Mopeds Ltd. Vs. Church of South

7 2008(1) Arb.

LR 588 (Delhi)
8 (2009) 17 Supreme Court Cases 796

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India Trust Association CSI Cinod Secretariat, Madras 9, Force Shipping

Ltd. Vs. Ashapura Minechem Ltd. 10,
Tropic Shipping Co. Ltd. Vs. Kothari

Global Limited11
, M/s.Bharat Salt Refineries Ltd. Vs. M/s. Compania

Naviera12 and M/s.Compania
Naviera 'SODNOC' Vs. Bharat Salt

Refineries Ltd. & Anr.13
.

12.
In rejoinder Dr.Saraf, learned Counsel for respondent No.1 would

submit that the contentions urged on behalf of the petitioner that the

foreign award has a stamp of a decree is the observation of the Supreme

Court in
Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd.
(supra) in a

different context. It is submitted that these observations of the

Supreme Court are required to be read in the context of erstwhile

Arbitration Act (Arbitration Act
of 1940) under which the Court was

called upon to pass a decree in terms of the award and which is not the

position under the present
Arbitration Act
. It is thus contended that

necessarily an application under
Sections 47
to
for the purpose of

limitation would fall under
Article 137.

Dr.Saraf, learned Counsel for

respondent No.1 in supporting this submission would refer to the

decision in Noy Vallesina Engineering Spa v/s.
Jindal Drugs Limited

(supra) and M/s.Louis Dreyfus Commodities Suisse S.A., 29 v/s.
9 (1992) 3 Supreme Court Cases 1
10 2003 C L C 877
11 2002(2) Bom.C.R. 93

12 O.S.A. No.52 of 2008 dated 01/08/2008

13 AIR 2007 MADRAS 251

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Sakuma Exports Limited (supra). Dr.Saraf would next contend that

Articles 136
and
prescribe the time from which period begins to

run, namely that in case of
Article 136
when a decree and order

becomes enforceable and in case of
Article 137
when the right to apply

accrues. The Court's attention is drawn to
Articles 116
, 126
and
to

point out that these articles provide for the limitation to start running

from the date of the decree or order. It is submitted if
Section 49
of the

Arbitration Act is considered, it clearly prescribes that only when the

Court holds that the foreign award is enforceable under the said

chapter, the award shall be deemed to be decree of the Court and not

before that. It is hence submitted that considering this clear position,

Article 136
of the
Limitation Act
as contended on behalf of the

petitioner even otherwise is not applicable.

13. Having heard learned Counsel for the parties, the short question

which has arisen for consideration at this stage of the proceeding is as

to whether the present petition is filed within the prescribed limitation

or the petition would be required to be held as time barred.

14. Some admitted facts are required to be noted. The three awards

as sought to be executed by the petitioner are the awards dated 9

February 2006, 24 August 2007 and the final award dated 27 March

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2008 of the ICC London. It is also not in dispute that the respondents

approached this Court on 27 July 2008 by filing a petition under

Section 34
of the Arbitration Act challenging these foreign awards. As

the
Section 34
petition was filed beyond the period of 90 days, however,

within the extended period of 120 days, a delay condonation

application (Notice of Motion) No.2560 of 2008 was filed by the

respondents in the said petition. By an order dated 10 June 2013

passed by this Court on the said application filed by the respondents,

this Court condoned the delay in filing
Section 34
petition as also it was

held that the
Section 34
petition although it assailed a foreign award(s)

was maintainable. The petitioner being aggrieved by the said orders

passed by this Court, approached the Supreme Court in a Special Leave

Petition. The Supreme Court by an order dated 19 November 2013

stayed the proceedings of the
Section 34
petition. The Supreme Court

finally by an order dated 10 March 2017 set aside the orders passed by

this Court holding that this Court had no jurisdiction to entertain the

Section 34
petition. Thereafter on 2 April 2018 the petitioner filed the

present petition seeking enforcement and execution of the Award.

15. The provisions of the
Arbitration Act
would be required to be

given a broader meaning and the Court would not take a narrow

pedantic approach, more particularly considering the situation in hand

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when the petitioner has foreign awards in its favour, recognised by the

foreign court and requiring enforcement and execution. The provisions

of
Sections 47
to
are required to be applied in a meaningful manner

which would not defeat the substantive and concluded arbitral

proceedings between the parties. It is in this perspective, even the

submission as urged on behalf of the respondents that the petitioner

should have filed a delay condonation application, praying for

condonation of delay in filing this petition for enforcement and

execution of the award would be required to be considered. This for

more than one reason. Indisputedly it was the respondents who brought

about a situation by approaching this Court by filing
Section 34

proceedings challenging the awards, although with a delay. This

Section 34
petition was filed on 27 July 2008. The delay was condoned

on 10 June 2013. Although there were already proceedings pending

before this Court from July 2008 till 10 June 2013 when the delay

condonation was granted, in the facts of the case it cannot be said that

the awards were instantly available to the petitioner for enforcement

and execution inasmuch as there was a situation brought about that

there were substantive proceedings challenging the award(s) were

pending before this Court. The fate of the award(s) itself was the

subject matter of consideration before this Court. The order dated 10

June 2013 condoning the delay would surely relate back to the date on

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which the petition was filed. Considering the provisions of the

Arbitration Act
prior to its amendment by the 2015 Amendment Act

(with effect from 23 October 2015), filing of the
Section 34
petition

amounted to stay of the award. The law in this regard is well settled.
In

Fiza Developers and Inter-Trade Private Limited Vs. AMCI (India)

Private Limited & Anr.
(supra) the Supreme Court held that until

disposal of the application under
Section 34
of the Arbitration Act, there

is an implied prohibition on the enforcement of the arbitral award as

the very filing and pending of an application under
Section 34
, in effect

operated as a stay on the enforcement of the award. The Court in

paragraphs 19 and 20 held thus:-

"20.
Section 36
provides that an award shall be enforced in
the same manner as if it were a decree of the court, but only
on the expiry of the time for making an application to set
aside the arbitral award under
Section 34
, or such application
having been made, only after it has been refused.

20. ..........Until the disposal of the application under
Section
of the Act, there is an implied prohibition of enforcement
of the arbitral award. They very filing and pendency of an
application under
Section 34
, in effect, operates as a stay of
the enforcement of the award."

(emphasis supplied)

16. The order dated 10 June 2013 passed by this Court condoning

delay in filing
Section 34
petition would be required to be taken

relating back to the day on which
Section 34
petition was filed that is it

would relate back to 27 July 2008.. In this context learned Senior

Counsel for the petitioner would be correct in relying on the decision of

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the learned Single Judge of the Delhi High Court in
Delhi Development

Authority Vs. Amita Nand Aggarwal
(supra) has observed as under:-

9. ..... ... ... .... .. In the present case, the objections were filed
though beyond 90 days but within the priod of 120 days and the
objections raised by the Registry were also removed within the
period of two weeks. I consider, since the petition / objections
under
Section 34
of the Act was returned for want of court fees
and certain technical reasons and the objections raised by the
Registry were complied with and after rectification, the petition
was re-filed within a reasonable period, the petition must be
considered to have been filed on the original date when it was filed
in the Registry and not on the date when it was re-filed after
removing objections. .. ... ." (emphasis supplied)

17. Hence, the legal position as had arisen was that with effect from

27 June 2008, the
Section 34
petition as filed by the respondents can be

said to be pending. Thus even if the petitioners were to file a petition

within three years after the awards, and before the delay was condoned

i.e. upto 10 June 2013, nonetheless the petitioners were met with a fate

of stay of the award(s), and the awards were thus not available for

enforcement and execution.

18. The orders passed by this Court dated 10 June 2013 condoning

the delay and holding that
Section 34
petition is maintainable came to

be challenged by the petitioner. By an order dated 19 November 2013

the Supreme Court granted stay to the proceedings of the
Section 34

petition and finally on 10 March 2017 the Supreme Court set aside the

orders passed by this Court holding that
Section 34
petition was not

maintainable before this Court, the award(s) being foreign award(s).

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Thus, it is only after 10 March 2017 the award(s) became available to

the petitioner to be enforced. In my opinion, it is at this juncture, even

if
Article 137
of the
Limitation Act
as being pressed into service on

behalf of the respondents, is applied and a period of three years is to be

available to the petitioners to file an enforcement petition, this petition

which was filed on 2 April 2018 would be required to be held to be filed

within the limitation of three years as prescribed under
Article 137
, as

clear from the above facts. It would be required to be held that the

substantive cause of action had arisen to the petitioner to file the

present petition only on 10 March 2017 when the Supreme Court set

asides the order passed by this Court holding the
Section 34
petition to

be not maintainable.

19. The respondents have contended that once a stay was granted by

the Supreme Court to the proceedings of the
Section 34
petition, it

would bring about a situation of the
Section 34
petition not being on

the file of this Court. This may not be a correct proposition for the

respondents to urge.
In this context and considering the facts of the

case, learned Senior Counsel for the petitioner would be correct in

placing reliance on the decision of the Supreme Court in
Shree

Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI

Cinod Secretariat, Madras
(supra) to contend that the stay which was

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granted by the Supreme Court on 19 November 2013 to the

proceedings of
Section 34
petition would not have any effect on the

Section 34
petition to say that the same was not on the file of the Court

or the
Section 34
petition in any manner had come to an end or that

there was no stay on the enforcement of the award. The Supreme Court

in paragraph 10 of
the said decision
has observed thus:-

"... ... ... ... The said stay order of the High Court cannot have the
effect of reviving the proceedings which had been disposed of by
the Appellate Authority by its order dated January 7, 1991. While
considering the effect of an interim order staying the operation of
the order under challenge, a distinction has to be made between
quashing of an order and stay of operation of an order Quashing
of an order results in the restoration of the position as it stood on
the date of the passing of the order which has been quashed. The
stay of operation of an order does not, however, lead to such a
result. It only means that the order which has been stayed would
not be operative from the date of the passing of the stay order and
it does not mean that the said order has been wiped out from
existence."

20. Apart from the above discussion now it is well settled that a

foreign award is stamped as a decree and hence, as a decree it can be

enforced and be executable in one and the same proceeding. In that

event
Article 136
of the
Limitation Act
would surely become applicable

prescribing a limitation of twelve years from the date when award

becomes enforceable and/or the award directing payment of money as

specifically provided, under
Article 136.
This particularly, when the

execution of such award is held to be permissible in the same

proceedings in two parts/stages. One on its enforcement and the

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second part being the execution. The law in this context is required to

be noted.

21.
In
Thyssen Stahlunion GMBH Vs. Steel Authority of India Ltd.

(supra) the issue which fell for consideration of the Supreme Court was

in respect of the arbitral proceedings which commenced before the

Arbitration Act,1996
(brought into force on 25 January 1996), and the

award being delivered after the commencement of the
Arbitration Act

on 24 September 1997. The issue was whether the provisions of the

Arbitration Act,1940
or
Arbitration Act,1996
would become applicable

in regard to enforcement of the foreign award. It is in this context the

Court considered as to what is the nature of a foreign award. The

Supreme Court while observing that there is not much difference

between enforcement of the foreign award under the Old Act and the

New Act, held that the only difference is that while under the regime of

Arbitration Act,1940
read with
Foreign Awards (Recognition and

Enforcement) Act,1961
, a decree follows, whereas under the

Arbitration Act, 1996
the foreign award is already stamped as a decree.

It would be appropriate to note the observations of the Supreme Court

in paragraph 40 of the decision which reads thus:-

As a matter of fact if we examine the provisions of Foreign
Awards Act and the new Act there is not much difference for the
enforcement of the foreign award. Under the Foreign Awards

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Act when the court is satisfied that the foreign award is
enforceable under that Act the court shall order the award to be
filed and shall proceed to pronounce judgment accordingly and
upon the judgment so pronounced a decree shall follow.
Sections 7 and 8 of the Foreign Awards Act respectively
prescribe the conditions for enforcement of a foreign award and
the evidence to be produced by the party applying for its
enforcement. Definition of foreign award is same in both the
enactments.
Sections 48
and
of the new Act correspond to

Sections 7
and
respectively of the Foreign Awards Act. While

Section 49
of the new Act states that where the court is satisfied
that the foreign award is enforceable under this Chapter
(Chapter I, Part II, relating to New York Convention Awards)
the award is deemed to be decree of that court. The only
difference, therefore, appears to be that while under the Foreign
Awards Act a decree follows, under the new Act foreign award
is already stamped as the decree. Thus if provisions of the
Foreign Awards Act and the new Act relating to enforcement of
the foreign award arc juxtaposed there would appear to be
hardly any difference."

(emphasis supplied)

22. The Supreme Court in
Fuerst Day Lawson Ltd. Vs. Jindal Exports

Ltd.
(supra) again commented on the nature of a foreign award prior to

the
Arbitration Act,1996
coming into force namely during the regime of

the erstwhile
Foreign Awards (Recognition and Enforcement) Act,1961
.

The Supreme Court again held that under the
Arbitration Act
1996, the

foreign award is already stamped as a decree and the party holding the

foreign award can apply for enforcement of the award but the Court

before taking further effective step for execution of the award is

required to proceed under
Sections 47
and
. It is held that in one

proceeding there may be different stages, the first stage being that the

Court would be required to decide enforceability of the award, having

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regard to the requirement of the said provisions and thereafter once it is

decided that the foreign award is enforceable, it is to proceed to take

further effective steps for execution of such an award. There did not

arise question of making foreign award a rule of court/decree again. It

is further observed that if the object and purpose of the provisions of

Sections 47
to
of the Arbitration Act can be served in the same

proceedings, there is no need to take two separately proceedings

resulting into multiplicity of litigation. The observations of the Supreme

Court in paragraphs 30, 31 and 32 are required to be noted which read

thus:-

"30. Alternatively it was contended that a party holding a
foreign award has to file a separate application and produce
evidence as contemplated under
Section 47
and also satisfy the
conditions laid down under
Section 48
and it is only after the
Court decides about the enforceability of the award, it should be
deemed to be a decree under
Section 49
as available for
execution. In other words, the party must separately apply
before filing an application for execution of a foreign award. The
Arbitration and Conciliation Ordinance, 1996 was promulgated
with the object to consolidate and amend the law relating to
domestic arbitration, international commercial arbitration and
enforcement of foreign arbitral award and to define law relating
to conciliation and for matters connected therewith or incidental
thereto. In para 4 of the Statement of Objects and Reasons
contained in the Act, the main objects of the Bill are stated. To
the extent relevant for the immediate purpose, they are:

"i) to comprehensive cover international commercial arbitration
and conciliation as also domestic arbitration and conciliation;

(ii) --(iv) * * *

(v) to minimize the supervisory role of courts in the arbitral
process;

(vi) * * *

vii) to provide that every final arbitral award is enforced in the
same manner as if it were a decree of the court;"

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31. Prior to the enforcement of the Act, the Law of
Arbitration in this country was substantially contained in three
enactments namely, (1)
The Arbitration Act, 1940
, (2)
The
Arbitration (Protocol and Convention) Act, 1937
and (3)
The
Foreign Awards (Recognition and Enforcement) Act, 1961
. A
party holding a foreign award was required to take recourse to
these enactments. Preamble of the Act makes it abundantly clear
that it aims at to consolidate and amend Indian laws relating to
domestic arbitration, international commercial arbitration and
enforcement of foreign arbitral awards. The object of the Act is
to minimize supervisory role of court and to give speedy justice.
In this view, the stage of approaching court for making award a
rule of court as required in
Arbitration Act, 1940
is dispensed
with in the present Act. If the argument of the respondent is
accepted, one of the objects of the Act will be frustrated and
defeated. Under the old Act, after making award and prior to
execution, there was a procedure for filing and making an award
a rule of court i.e. a decree. Since the object of the act is to
provide speedy and alternative solution of the dispute, the same
procedure cannot be insisted under the new Act when it is
advisedly eliminated. If separate proceedings are to be taken,
one for deciding the enforceability of a foreign award and the
other thereafter for execution, it would only contribute to
protracting the litigation and adding to the sufferings of a
litigant in terms of money, time and energy. Avoiding such
difficulties is one of the objects of the Act as can be gathered
from the scheme of the Act and particularly looking to the
provisions contained in
Sections 46
to
in relation to
enforcement of foreign award. In para 40 of the Thyssen
judgment already extracted above, it is stated that as a matter of
fact, there is not much difference between the provisions of the
1961 Act and the Act in the matter of enforcement of foreign
award. The only difference as found is that while under the
Foreign Award Act a decree follows, under the new Act the
foreign award is already stamped as the decree. Thus, in our
view, a party holding foreign award can apply for enforcement
of it but the court before taking further effective steps for the
execution of the award has to proceed in accordance with

Sections 47
to
. In one proceeding there may be different
stages. In the first stage the Court may have to decide about the
enforceability of the award having regard to the requirement of
the said provisions. Once the court decides that foreign award is
enforceable, it can proceed to take further effective steps for
execution of the same. There arises no question of making
foreign award as a rule of court/decree again. If the object and
purpose can be served in the same proceedings, in our view,
there is no need to take two separate proceedings resulting in
multiplicity of litigation. It is also clear from objectives
contained in para 4 of the Statement of Objects and Reasons,

Sections 47
to
and Scheme of the Act that every final arbitral

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award is to be enforced as if it were a decree of the court. The
submission that the execution petition could not be permitted to
convert as an application under
Section 47
is technical and is of
no consequence in the view we have taken. 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. Even otherwise, this procedure does not prejudice a
party in the light of what is stated in para 40 of the Thyssen
judgment.

32.
Part II of the Act
relates to enforcement of certain foreign
awards. Chapter 1 of this Part deals with New York Convention
Awards.
Section 46
of the Act speaks as to when a foreign award
is binding.
Section 47
states as to what evidence the party
applying for the enforcement of a foreign award should produce
before the court.
Section 48
states as to the conditions for
enforcement of foreign awards. As per
Section 49
, if the Court is
satisfied that a foreign award is enforceable under this Chapter,
the award shall be deemed to be a decree of that court and that
court has to proceed further to execute the foreign award as a
decree of that court. If the argument advanced on behalf of the
respondent is accepted, the very purpose of the Act in regard to
speedy and effective execution of foreign award will be
defeated. Thus none of the contentions urged on behalf of the
respondent merit acceptance so as to uphold the impugned
judgment and order. We have no hesitation or impediment in
concluding that the impugned judgment and order cannot be
sustained."

(emphasis supplied)

23. Learned Single Judge of this Court in
Force Shipping Ltd. Vs.

Ashapura Minechem Ltd.
(supra) referring to the decision in
Fuerst Day

Lawson Ltd. Vs. Jindal Exports Ltd.
(supra) observed that along with

application for enforcement it would be open to a party seeking

enforcement of a foreign award to apply for execution in the form

prescribed so that once the court proceeds to hold that the Award is

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enforceable, it can thereafter proceed to execute the decree without

further procedural requirements.

24. The learned Senior Counsel for the petitioner has also referred to

the decision of the learned Single Judge of the Madras High Court in

M/s.Compania
Naviera 'SODNOC' Vs. Bharat Refineries Ltd. & Anr.

(supra) in which the court referring to the decision of the Supreme

Court in
Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd.
(supra) rejected

the contention of the respondent that as the award was passed on 2

March 2000 the petition to enforce the award should have been filed

within three years and as the same being filed in the year 2005, the

relief was barred by limitation. It was held that the foreign award is

already stamped as a decree and the party having the foreign award can

straight away apply for enforcement of the foreign award, the party

would have 12 years time like that of a decreeholder to execute the

foreign award. The Court in paragraphs 41 and 42 has made the

following observations:-

"41. The next objection of the learned Counsel for the 1st
respondent is that as the award was passed on 2.3.2000, the
petition to enforce the award should have been filed within 3 years
and as the same was filed only in 2005, the relief is barred by
limitation.

42. I am unable to accept this submission also.
Under the Act,
, the foreign award is already stamped as a decree and the
party, having a foreign award can straight away apply for
enforcement of it and in such circumstances, the party having a

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foreign award has got 12 years time like that of a decree holder.
Therefore it cannot be said that the present petition is barred by
limitation."

25.
In another decision in M/s.Bharat Salt Refineries Ltd. Vs. M/s.

Compania Naviera
(supra) another learned Single Judge of the Madras

High Court referring to the decision of the Supreme Court in
Fuerst Day

Lawson Ltd. Vs. Jindal Exports Ltd.
(supra) rejected the contention that

the petition for enforcement should have been filed within three years

from the date of the award. In paragraph 20 the Court held as under:-

"20. The contention of the appellant that as the award was made
on 2.3.2000, the petition for enforcement should have been filed
within three years therefrom and the petition for enforcement filed
in the year 2005 is hit by limitation is raised only for rejection.
Under the 1996 Act, the foreign award is stamped as a decree and
the party having a foreign award has got 12 years time like any
other decree for its enforcement or execution. Hence the point of
limitation is also decided against the appellant, in the sense, the
petition filed for enforcement is well within the period of
limitation. Our view is fortified by the ruling of the Apex Court in
the case of
M/S FUERST DAY LAWSON LTD. VS. JINDAL EXPORTS
LTD
(AIR 2001 Supreme Court 2293), .............. .........."

... .. ... ... .

A reading of the above it is clear that once the Court decides that a
foreign award is enforceable, it can proceed to take further
effective steps for execution of the same and also the award shall
be deemed to be a decree of that Court.

26. It is thus beyond a pale of doubt that enforcement and execution

can form part of the same proceedings. If this be so then certainly

Article 136
under the
Limitation Act
becomes relevant. If the argument

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of non applicability of
Article 136
as urged on behalf of the respondent

is accepted, it would be contrary to the principle of law as
laid down by

the Supreme Court in
Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd.

(supra) apart from deeply damaging the decreetal interest of the award

creditors apart from being contrary to the object of
Section 47
to
of

the Arbitration Act.

27.
In fact the above legal position now stands reinforced as seen

from a recent decision of the Supreme Court in
M/S.Shriram EPC Ltd.

Vs. Rioglass Solar SA14
, the Supreme Court taking note of the decisions

in
Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd.
(
supra) and Thyssen

Stahlunion GMBH Vs. Steel Authority of India Ltd.
(supra) has held that

the observations of the Supreme Court in
Fuerst Day Lawson Ltd. Vs.

Jindal Exports Ltd.
(supra) that "the only difference as found is that

while under the Foreign Awards Act a decree follows, under the new

Act the foreign award is already stamped as the decree." to mean that

the expression "stamped" means "regarded" This means that the foreign

award is to be regarded as a decree. The following observations of the

Supreme Court in paragraph 19 read thus:-

"One sentence in
Fuerst Day Lawson
(supra) reads, "[T]he only
difference as found is that while under the Foreign Awards Act a
decree follows, under the new Act the foreign award is already
stamped as the decree."

This sentence does not lead to the

14 2018(6) Bom.C.R. 529

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conclusion, following the judgment in
Thyssen Stahlunion GMBH
Vs. Steel Authority of India Ltd.
, (1999) 9 SCC 334, that under the
1996 Act, a foreign award is considered to be stamped already. All
that this sentence means is that the foreign award is to be regarded
as a decree. The expression "stamped" means "regarded". This
judgment also does not carry us much further."

(emphasis supplied)

28. Now coming to the contention as urged on behalf of the

respondents, the main thrust of the respondents' argument is the

decision of the learned Single Judge of this Court in Noy Vallesina

Engineering Spa v/s.
Jindal Drugs Limited
(supra). In my opinion

considering the facts of the present case and as noted above, that the

Supreme Court on 10 March 2017 set aside the order passed by this

Court holding that the
Section 34
petition filed by the respondents was

not maintainable and the present proceedings being filed on 2 April

2018, even by applicability of the provisions of
Article 137
of the

Limitation Act
, the petition is not barred by limitation.

In any case,

applying the princple of law as
laid down in

Fuerst Day Lawson Ltd. Vs.

Jindal Exports Ltd.
(
supra) and M/S.Shriram EPC Ltd. Vs. Rioglass Solar

SA
(supra), the Court cannot overlook the prayers as made by the

petitioner which are in the nature of a combined petition namely for

enforcement and for execution of the award. As observed above a

broader view is required to be taken to advance the object and intention

of the provisions of the
Arbitration Act
and not a hard technical

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approach as urged by the respondents that the petition be held as time

barred, by applying
Article 137
of the
Limitation Act
in the absence of a

delay condonation applicaton and the delay being condoned.

This

contention of the respondents militates against from what the Supreme

Court has now further clarified in
M/S.Shriram EPC Ltd. Vs. Rioglass

Solar SA
(supra)that when it was observed in
Furest Day Lawson Ltd.

Vs. Jindal Exports Ltd
(supra) that the Foreign award is already

stamped as a decree, it means that "the foreign award is to be regarded

as a decree." In view of this clear position in law there is no manner of

doubt and more particularly as seen the prayers as made in the petition

that this petition cannot be held to be time barred, as contended on

behalf of the respondents.

29.
In so far as the reliance on behalf of the respondents on the

decision in
Hameed Joharan (Dead) & Ors. vs. Abdul Salam (Dead) by

LRs
.
& Ors.(supra), this decision may not assist the respondents when

the issue is of enforcement of a foreign award. The Supreme Court in

this decision has considered as to what would be the purport of the

word "enforce" as used in
Article 136
of the
Limitation Act
. The

Supreme Court was considering the meaning of the word "enforce" as

used in
Article 136
of the
Limitation Act
.
However, in the present facts

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considering that the award is a foreign award, the reliance on this

decision is not well founded, more particularly in view of the principles

of law in regard to the enforceability of a foreign award as laid down in

Furest Day Lawson Ltd. Vs. Jindal Exports Ltd.
(
supra) and

M/S.Shriram EPC Ltd. Vs. Rioglass Solar SA
(supra).

30. The decision in
Assam Urban Water Supply and Sewerage Board

Vs. Subash Projects And Marketing Limited
(supra) would also not

assist the respondents, as the question which fell for determination of

the Court was as to whether the appellants were entitled to extension of

time under
Section 4
of the Limitation Act,1963 and the context of the

words "prescribed period" as used in the said provision. It was held that

Section 2(j)
of the Limitation Act defines the period of limitation and

when read in the context of
Section 34(3)
of the Arbitration Act,1996,

the prescribed period for making an application for setting aside the

arbitral award was three months. It was held that the period of 30 days

mentioned in the proviso that follows sub-section (3) of
Section 34
of

the Arbitration Act is not the "period of limitation" and therefore, not

the 'prescribed period' for the purpose of making an application for

setting aside the arbitral award. It was held that the period of 30 days

beyond three months which the Court may extend on sufficient cause

being shown under the proviso below sub-section (3) of
Section 34
of

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the
Arbitration Act
being not a period of limitation (prescribed period),

and
Section 4
of the Limitation Act would thus not be applicable. I

wonder as to how this decision would at all is applicable in the present

facts.

31. The decision of the learned Single Judge of this Court in

M/s.Louis Dreyfus Commodities Suisse S.A., 29 v/s. Sakuma Exports

Limited (supra) would also not assist the respondents. This was a case

where initially the execution application simplicitor came to be filed

without filing of an enforcement petition.
Subsequently, the

enforcement petition was filed and the learned Judge referring to the

decision of the learned Single Judge of this Court in Noy Vallesina

Engineering Spa v/s.
Jindal Drugs Limited
(supra) and the decision of

the Supreme Court in
Furest Day Lawson Ltd. Vs. Jindal Exports Ltd.

(supra) the Court held that the petition was not barred by limitation.

Learned Judge in paragraphs 46, 48 and 49 has made the following

observations:-

"46. The Supreme Court in the case of M/s.
Fuerst Day Lawson Ltd.

(supra) has held that there is no need to take two separate
proceedings resulting in multiplicity of proceedings. It is also clear
from objectives contained in the statement of objects and reasons
that in view of
Section 47
to
and the scheme of
Arbitration Act
,
every final arbitral award is to be enforced as if it were a decree of
the court. The Supreme Court held the submission that the
execution petition could not be permitted to convert as an
application under
Section 47
is technical and was of no
consequence in the view the Supreme Court had taken in the said

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judgment. It is held that in one proceedings, the court enforcing a
foreign award can deal with the entire matter and that the
procedure does not prejudice a party. It is not in dispute that the
said execution application filed by the petitioner was pending for
quite some time. No objection was raised by the respondent by
filing reply.

..... ..... ....

48. In
the said judgment
, this Court held that such an application
for enforcement of the foreign award would attract
Article 137
and
according to that Article, the period of limitation is three years and
would commence from the date when right to apply occurs. This
Court has also observed that the least that could be said is that the
question as to whether any period of limitation is prescribed for
making an application for enforcement of the foreign award and if
there is period of limitation prescribed, what would be that period
of limitation, was not a question free from doubt and this Court
accordingly, condoned the delay filed by the petitioner. In my view,
the petitioner has filed the execution application which was within
four months from the date of the said foreign award and was
prosecuting the same in good faith and with due diligence. The
respondent raised an objection about the maintainability of the
said application for the first time before the Division Bench and not
earlier. In my view, the petitioner has thus made out a case for
condonation of delay in filing the petition under
Section 47
of the
Arbitration Act. The judgment of this Court in case of Noy Vallesina
Engineering Spa (supra) assist the case of the petitioner and not
the respondent.

49. I am not inclined to accept the submission made by learned
senior counsel for the respondent that
Section 14
of the Limitation
Act, 1963 would not be attracted to Arbitration Petition (No.47 of
2015) filed by the petitioner. The petitioner filed the said
application based on the interpretation of the judgment of the
arbp47-15g Supreme Court in M/s.Fuerst
Day Lawson Ltd.
(supra)
and the said proceedings were pending. The Division Bench of this
Court did not find the said execution application not maintainable
but on the contrary directed that if any application is filed under

Section 47
by the petitioner, the same shall be heard along with the
said execution application. In my view, there is thus no substance
in the submission of learned senior counsel that
Section 14
would
not be applicable to the facts of this case. I am therefore of the
view that the delay in filing the arbitration petition deserves to be
condoned. I shall now deal with the submissions made by both the
leaned counsel on enforceability of the foreign award."

(emphasis supplied)

32.
In fact the Court has recognized the clear applicability of the well

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settled principle of law as
laid down in

Furest Day Lawson Ltd. Vs.

Jindal Exports Ltd.
(supra)

33. As a sequel to the above discussion, the respondents objection

that the petition is required to be held as time barred, cannot be

accepted. It is held that the present petition is filed within the

prescribed limitation.

[G.S. KULKARNI, J.]

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