R.F. Nariman, J.

1. This matter comes to this Bench after two previous forays to this Court.

2. The appellant before us, in Civil Appeal No.2562 of 2006, is a U.S. Corporation who had entered into a contract for sale of 15,500 DMT of copper concentrate to be delivered at the Kandla Port in the State of Gujarat, the said goods to be used at the Khetri Plant of the respondent Hindustan Copper Ltd. (hereinafter referred to as “HCL”/ “the respondent”), who is the appellant in the other Civil Appeal No.2564 of Signature Not Verified Digitally signed by 2006. After all consignments were delivered, payments had been made SUSHMA KUMARI BAJAJ Date: 2020.06.02 16:51:14 IST Reason: in accordance with the contract. However, a dispute arose between the 1 parties as regards the quantity of dry weight of copper concentrate delivered. Clause 14 of the agreement contained a two-tier arbitration agreement by which the first tier was to be settled by arbitration in India. If either party disagrees with the result, that party will have the right to appeal to a second arbitration to be held by the ICC in London. The appellant M/s Centrotrade Minerals and Metals Inc. (hereinafter referred to as “Centrotrade”/ “the appellant”) invoked the arbitration clause. By an award dated 15.06.1999 the arbitrator appointed by the Indian Council of Arbitration made a Nil Award. Thereupon, Centrotrade invoked the second part of the arbitration agreement, as a result of which Jeremy Cook QC, appointed by the ICC, delivered an award in London, dated 29.09.2001, in which the following amounts were awarded:

3. Even before Jeremy Cook QC could deliver his award, HCL, during the pendency of the proceedings before the arbitrator in London, filed a suit in the Court at Khetri, in the State of Rajasthan, challenging the arbitration clause. By an Order dated 27.04.2000, in a revision petition filed against the Order of the Khetri Court, the High Court at Rajasthan restrained the appellant from taking further steps in the London arbitration, pending hearing and disposal of the revision petition. This ad interim ex parte stay granted by the High Court was ultimately vacated by the Supreme Court only on 08.02.2001. Meanwhile, we are reliably informed that Mr. Cook, the learned arbitrator, referred the matter of stay of the parties from proceeding with the London arbitration to the ICC Court, which then decided that the arbitrator could continue with the arbitral proceedings.

4. When the said award dated 29.09.2001 was sought to be enforced by Centrotrade in India, a learned Single Judge of the Calcutta High Court, after considering the objections of HCL, dismissed the Section 48 petition filed by HCL, as a result of which the aforesaid foreign award became executable in India. However, a Division Bench of the Calcutta 3 High Court, by its judgment dated 28.07.2004, held that an appeal would be maintainable inasmuch as the London award could not be said to be a foreign award, but that a two-tier arbitration clause would be valid. However, since the Indian award and the London Award, being arbitration awards by arbitrators who had concurrent jurisdiction, were mutually destructive of each other, neither could be enforced, as a result of which the appeal was allowed and the judgment of the learned single Judge was set aside.

5. At this juncture, the matter came to a Division Bench of this Court. Two separate judgments were delivered by S.B. Sinha, J. and Tarun Chatterjee, J. reported in Centrotrade Minerals & Metals Inc. v. Hindustan Copper Ltd. (2006) 11 SCC 245. After setting out the facts of the case, S.B. Sinha,J. held that a two tier clause of the kind contained in clause 14 of this agreement is non est in the eye of law and would be invalid under Section 23 of the Indian Contract Act. In this view of the matter, the foreign award could not enforced in India and Centrotrade’s appeal was therefore dismissed, the appeal filed by HCL being allowed. Tarun Chatterjee, J. set out four questions in paragraph 134 as follows:

Hindustan Copper Ltd. (2017) 2 SCC 228. The reference order was referred to in paragraph 1 of the judgment of Lokur,J., 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 months.” Since the first question was answered in the affirmative, the Court concluded:

He, therefore, attacked Chatterjee J’s judgment, stating that it was factually incorrect when it stated that a fair opportunity had not been given to HCL to present its case. Several other judgments both Indian and foreign were cited by Shri Banerjee in support of his submission. Apart from relying heavily on the judgment in Vijay Karia (supra), he relied upon the approach to a Section 48 proceeding by quoting from Redfern and Hunter on International Arbitration 6th Edn. and Merkin and Flannery on the Arbitration Act, 1996.

10. Shri Harin P. Raval, learned senior counsel appearing on behalf of HCL, has taken a preliminary submission that the only point of difference between S.B. Sinha,J. and Tarun Chatterjee,J. was on whether the two- tier arbitration clause was valid in law. Once that point had been answered, the question of being unable to present one’s case, not 8 having been decided by S.B. Sinha, J., was not referred to the larger bench as there was no difference of opinion between the learned Judges on this aspect and therefore this aspect cannot now be adjudicated upon. Even otherwise, he argued, basing his submissions on a list of dates and a paper book of documents filed before this Court for the first time, to show that as a matter of fact once the arbitrator had extended time, the last extension being till 12.09.2001, he ought to have allowed further time in which, apart from legal submissions furnished, documents could have been furnished in support of HCL’s case. This is particularly in view of the fact that on 11.09.2001, a terrorist attack had taken place in New York as a result of which globally, there was disruption of transport and communication, and therefore it was very difficult for HCL to send documents within the requisite time. He argued that had such documents been seen, there can be no doubt that this one-sided award might well have been in his client’s favour, as a result of which serious prejudice had been caused to his clients. Even otherwise, he argued that the issue of jurisdiction was to be taken as a preliminary question before the learned arbitrator, after which further proceedings were to take place. This was never done by the learned arbitrator. Also, the learned arbitrator in proceeding with the arbitration despite the ex parte ad interim stay being granted by an Indian court 9 resulted in his client being unable to present his case before the arbitrator.

11. Having heard learned senior advocates for both parties, it is first necessary to set out the portions of the award dated 29.09.2001 which deal with the aspect of HCL being unable to present its case before the learned arbitrator. The learned arbitrator, after referring to the Rajasthan High Court proceedings and the Supreme Court’s vacation of the stay, then found:

Indeed no formal application was made for an extension of time to do so. HCL have therefore not attempted to justify their earlier stance nor to give me any reason for considering their submissions on the merits which are made out of time. Centrotrade have objected to these submissions contending that they are inadmissible because of HCL’s persistent breaches of my orders. Nonetheless, though not bound to do so because of their belated nature, I have considered those submissions and taken them fully into account in making this Award. I made plain in my orders that no further material provided thereafter would be taken into account, and I have not done so.

9. In their submissions HCL maintained their arguments as to lack of jurisdiction and the invalidity of this London Arbitration but without prejudice to that, put forward submissions both on the jurisdictional arguments, the nullity of the second paragraph of the Arbitration clause in the contract and on the merits of the dispute. It is clear that this dispute can be determined on the documents 11 turning, as it does essentially on points of construction of the contract and matters of Indian law.” (emphasis supplied) Ultimately, the arbitrator awarded costs for the London proceeding, declining to award costs for the arbitration that had taken place in India.

12. The learned Single Judge of the Calcutta High Court, while dealing with the objections as to breach of natural justice, dismissed the aforesaid objections as follows:

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 HCL.

14. 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 void. Chatterjee,J., after agreeing with Centrotrade’s case on the arbitration clause, then went into issue no. 4 and held as follows: 13

On a special leave petition filed by Centrotrade against the order of the Rajasthan High Court staying the ICC arbitral proceedings, an order was passed by this Court by which the stay order of the Rajasthan High Court was vacated on 8-2-2001 and directions were given for the ICC proceedings to continue in accordance with law.

166. It is true, in his award, Mr Jeremy Lionel Cooke, the ICC arbitrator has noted that he was appointed by ICC on 7-6-2000 and that HCL refused to participate in the arbitral proceedings on the ground that the second arbitration clause in the contract was null and void. He directed Centrotrade and HCL to file submissions and supporting evidence through orders dated 20-12-2000, 19-1-2001 and 3-5-2001. However, HCL did not comply with these orders. On 30-7-2001, he sent a fax to HCL to find out whether they intended to file their defence. He sent a further fax on 9-8-2001 informing them that he was proceeding with the award. (emphasis supplied) Then on 11-8-2001, the ICC arbitrator received a reply seeking extension of time. He granted time till 31-8- 2001. He received another request from HCL's representatives on 27-8-2001 for further extension of time. He granted extension till 12-9-2001. He received the first set of submissions filed by HCL, without supporting evidence, on 13-9-2001. He considered those submissions and took them into account while 14 making the award. He has further recorded in his award that:

167. It must be noted that this Court vacated the stay on the proceedings on 8-2-2001. The first direction of the ICC arbitrator to the parties, after the order of this Court on 8-2-2001, to serve submissions to him was made on 3-5-2001 i.e. after a time gap of nearly 3 months. Cooperation of HCL was next requested only on 30-7-2001 i.e. after a time gap of nearly 2 months. Then the communication on 9-8-2001 stated that the arbitrator was proceeding with the award. This time there was a response from HCL. Upon these requests, a time-limit of nearly one month ending on 12-9-2001 was given to HCL. The arbitrator received the first set of submissions filed by HCL on 13-9-2001. Then he made the award 16 days later on 29-9-2001. It seems that between 13-9-2001 and 29-9-2001, he 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 had lapsed.

168. It is clear from the above layout of facts that there have been delays in the arbitral proceedings right from the beginning when Centrotrade approached ICC on 22-2-2000. Most of the delays were due to HCL's refusal to participate in the proceedings. However, there were some delays which cannot be related to HCL's conduct. For instance, the period from 8-2-2001 when the order of this Court was made to 3-5-2001 when the first direction of the arbitrator was made. The 15 whole arbitral proceeding was conducted in a manner indicative of lack of urgency. Further, I find merit in the submission of HCL that due to the total dislocation of air traffic caused by the terrorist attack of 11-9-2001, the materials sent by HCL to the ICC arbitrator reached late. Under these circumstances, a delay of few days in serving their submissions with supporting evidence, after having accepted to participate in the arbitral proceedings, seems excusable and should have been excused. Considering the overall picture of the circumstances and the delays, refusal of the arbitrator to consider the material received by him after 13-9-2001 and before 29-9-2001, seems to be based on a frivolous technicality. The arbitrator ought to have considered all the material received by him before he made the award on 29-9-2001. Considering the decisions in Hari Om Maheshwari v. Vinitkumar Parikh [(2005) 1 SCC 379] and Minmetal Germany GmbH v. Ferco Steel Ltd. [ (1999) 1 All ER (Comm) 315] it is true that where a party is refused an adjournment and where it is not prevented from presenting its case, it cannot, normally, claim violation of natural justice and denial of a fair hearing. However, in the light of the delays, some of which were not attributable to HCL's conduct, it was only fair to excuse HCL's lapse in filing the relevant material on time. Therefore, it can be said that HCL did not get a fair hearing and could not effectively present its case.

169. For the reasons aforesaid, I am of the view that HCL could not effectively present its case before the ICC arbitrator and therefore enforcement of the ICC award should be refused in view of Section 48(1)(b) of the Act. Accordingly, the judgment of the Division Bench and also the judgment of the learned Single Judge of the Calcutta High Court must be set aside and the matter be remitted back to the ICC arbitrator for fresh disposal of the arbitral proceedings in accordance with law after giving fair and reasonable opportunity to both the parties to present their cases before him. In view of the fact that I have set aside the award of the ICC arbitrator on the ground that HCL was unable to effectively present its case before the ICC arbitrator, in compliance with Section 48(1)(b) of the Act, I direct the 16 ICC arbitrator to pass a fresh award within three months from the date of commencement of the fresh arbitral proceedings.”

15. The law on the subject matter of Section 48(1)(b) of the Arbitration Act has been laid down in a recent judgment of this Court in Vijay Karia (supra). In paragraph 21 of the aforesaid judgment, this Court stated that it was important to note that no challenge was made to the aforesaid award under the English arbitration law, though available, just as in the facts of the present case. This Court then set out the parameters of a Section 48 challenge which reaches this Court as follows:

The tribunal examined the other evidence before it, considered the submissions of the parties and rightfully exercised its fact finding and decision making powers not to draw the adverse inference as it was entitled to do so. It would appear to me that the tribunal was doing nothing more than exercising its normal fact finding powers to determine whether or not an adverse inference ought to be drawn.”” The Court finally summed up its conclusion on this aspect of the case, as follows:

16. Shri Raval took exception to the interpretation of the word “otherwise” occurring in Section 48(1)(b) and cited a Constitution Bench judgment of this Court in Kavalappara Kottarathil Kochuni v. States of Madras and Kerala (1960) 3 SCR 887, for the proposition that the expression “otherwise” cannot be read ejusdem generis with words that precede it.

17. Kochuni’s case (supra) was concerned with the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955. Section 2(b) of the aforesaid Act reads as follows:

18. P. Ramanatha Aiyar’s Advanced Law Lexicon defines the expression “otherwise” as follows:

19. 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 23 is conceptually much wider than a party being unable to present its case before the arbitrator, which is contained in Section 48(1)(b) . Thus, in Ganges Waterproof Works (P) Ltd. v. Union of India (1999) 4 SCC 33, this Court was faced with the legality and validity of the arbitration proceedings, three grounds being raised as follows:

20. In Sohan Lal Gupta v. Asha Devi Gupta (2003) 7 SCC 492, this Court dealt with the arbitrator misconducting the proceedings as follows:

21. In Hari Om Maheshwari v. Vinitkumar Parikh (2005) 1 SCC 379, this Court recorded the arguments of learned counsel appearing on behalf of the appellant on the natural justice aspect of the case as follows:

22. Shri Banerjee then referred to a number of judgments including Cuckurova Holding A.S. v. Sonera Holding B.V. (2014) UKPC 15 of 28 the Privy Council. In this judgment, the Minmetals (supra) test was referred to with approval as follows:

23. In Eastern European Engineering v. Vijay Consulting (2019) 1 LLR 1 (QBD), the Queen’s Bench Division dealt with the “inability to present case” challenge by following Cukorova Holdings (supra) and Minmetals (supra), and then concluding:

adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator.'" Id. "[P]arties that have chosen to remedy their disputes through arbitration rather than litigation should not expect the same procedures they would find in the judicial arena." Id. Essentially, in exchange for the convenience and other benefits obtained through arbitration, parties lose "the right to seek redress from the court for all but the most exceptional errors at arbitration." Dean v. Sullivan, 118 F.3d 1170, 1173 (7th Cir.1997).

28. Consistent with the federal policy of encouraging arbitration and enforcing arbitration awards, the defense that a party was "unable to present its case"

29. In the instant case, the Court finds that Briggs of Cancun was not "unable to present its case," because Briggs of Cancun could have participated by means other than David Briggs's physical presence at the arbitration. For instance, Briggs of Cancun could have sent a company representative to attend; could have sent its attorney to attend; or David Briggs could have attended by telephone.

30. Moreover, the evidence indicates that Briggs of Cancun did participate to the extent that it designated an arbitrator and filed over 80 pages of legal argument and documentation in support of its position. Because Briggs of Cancun has brought forward no additional information or evidence that it would have presented at the arbitration if it had the opportunity to do so, the Court 33 finds that Briggs of Cancun did have an opportunity to meaningfully participate in the arbitration.

xxx xxx xxx

33. For the foregoing reasons, the Court finds that Briggs of Cancun's defense under article V(1) (b) of the Convention must fail. The Court also specifically finds that even if there was a valid arrest warrant pending against David Briggs for some period of time, Briggs of Cancun is not entitled to a defense under article V(1)

(b) of the Convention because Briggs of Cancun could have participated through its Mexican attorney or corporate representative or by telephone. Further, Briggs of Cancun has not demonstrated that it was prejudiced in any way by whatever restrictions the alleged criminal action might have imposed, because it has not pointed to exonerating evidence that it would have presented, but could not, but for the filing of the criminal Statement of Facts.”

26. In Four Seasons Hotels v. Consorcio Barr S.A. 613 Supp 2d 1362 (S.D. Fla. 2009), the U.S District Court, S.D. Florida, dealt with the respondent, having discontinued its participation in the arbitral proceedings just prior to the final evidential hearings, as follows:

27. Shri Banerji then referred to a judgment of the Supreme Court of Hong Kong, reported in Nanjing Cereals v. Luckmate Commodities XXI Y.B. Com. Arb. 542 (1996). In paragraph 5 of the judgment the court held:

[1993] 1 HKLR 173, where I held:-

9. In conclusion, I am not satisfied that the Defendants have made out sufficient grounds for me to refuse leave to enforce the Award under S.44 of the Arbitration Ordinance. Even if they had made out sufficient grounds, in my opinion this is a classic case where a court should exercise its discretion to refuse to set aside an award, due to the failure of the Defendants to prosecute their own case properly by submitting their own evidence to the Tribunal. The fact that the award was lower than that sought by the Claimants is also a powerful factor against exercising discretion not to enforce.” (emphasis supplied)

28. Shri Banerjee then referred to a judgment to the Supreme Court of Italy reported in De Maio Giuseppe v. Interskins Y.B. Comm. Arb. XXVII (2002) 492. The Italian Supreme Court, in considering the ground contained in Article V(1)(b) of the New York Convention held as follows:

29. We now come to the facts of the present case. Shri Raval’s 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 J’s 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 37 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:

30. Shri Raval has argued that the London arbitrator ought to have determined the question of jurisdiction as a preliminary question, as he himself had initially indicated, before going into the substantive issues relating to the contract. 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 38 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 substance.

31. Shri Raval then argued that HCL was unable to present its case as the learned arbitrator did not heed the stay order of the Rajasthan High Court dated 27.04.2000. First 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 respondent’s 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 on.

32. Shri Raval then strenuously argued that considering that the last extension expired on 12.09.2001, the learned arbitrator ought to have 39 taken onboard two other bundles of documents and granted time for the same, given the terrorist attack in New York on 11.09.2001.

33. 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 arbitrator’s 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 19.09.2001.

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 respondent’s response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table 40 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 month’s 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 41 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 respondent’s 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 13th and 29th 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 42 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 arbitrator’s 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 43 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.

37. For all these reasons, it is clear that Chatterjee, J.’s judgment cannot be sustained. As a result, Centrotrade’s appeal, being Civil Appeal No. 2562 of 2006, is allowed. The judgment of Chatterjee,J is set aside. HCL’s appeal, being Civil Appeal No. 2564 of 2006, is dismissed. Resultantly, the foreign award, dated 29.09.2001, shall now be enforced.

….……………………………J. (R.F. Nariman) ….……………………………J. (S. Ravindra Bhat) ….……………………………J. (V. RAMASUBRAMANIAN) New Delhi;

June 02, 2020.