Arbitration and Conciliation Act, 1996: s.48 – Enforceability of the foreign award – Contract of sale of commodity between the parties – The agreement contained two tier arbitration by which the first tier was to be settled in India and if either party disagreed with the result, that party had right to appeal to a second arbitration to be held by the ICC in London – Dispute arose between the parties – Appellant invoked the arbitration clause – Arbitrator held against the appellant – Appellant invoked second part of arbitration agreement – Foreign award held against the respondent – Enforceability of foreign award challenged under s.48 – Respondent objected to the enforceability of the award on the ground that it was unable to present its case before ICC arbitrator – Held: ICC arbitrator had given large number of opportunities to respondent to file documents and legal submissions – Arbitrator was extremely fair to respondent – Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it was only after the arbitrator indicated that he was going to pass an award that the respondent’s attorney woke up and started asking for time to present their response – This too was granted by the 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 arbitrator took this into account and then passed his award – This being the case, on facts there was no fault whatsoever with the conduct of the arbitral proceedings – Foreign award shall be enforced.
Allowing Centrotrade’s appeal and dismissing HCL’s appeal, the Court
HELD: 1. The arbitrator had given a large number of opportunities to respondent to file documents and legal submissions. On 03.05.2001, the 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 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, the respondent did not participate in the arbitral proceedings, even though invited to do so. It was only on 09.08.2001, when the arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the 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 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 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 was only on 13.9.2001, in view of the 11.09.2001 attack in New York, the arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the arbitrator then passed his award. The arbitrator was extremely fair to the respondent. Thus, there was no fault whatsoever with the conduct of the arbitral proceedings. [Para 34][106-H; 107-A-E, G]
Centrotrade Minerals & Metals Inc. v. Hindustan Copper Ltd. (2006) 11 SCC 245 : [2006] 2 Suppl. SCR 146; Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd. (2017) 2 SCC 228 : [2016] 9 SCR 83; Vijay Karia v. Prsymian Cavi E Sistemi SRL 2020 (3) SCALE 494; Kavalappara Kottarathil Kochuni v. States of Madras and Kerala [1960] 3 SCR 887; Ganges Waterproof Works (P) Ltd. v. Union of India (1999) 4 SCC 33; Sohan Lal Gupta v. Asha Devi Gupta (2003)
7 SCC 492 : [2003] 3 Suppl. SCR 249; Hari Om Maheshwari v. Vinitkumar Parikh (2005) 1 SCC 379– referred to.
Minmetals Germany GmbH v. Ferco Steel Ltd. (1999) C.L.C. 647; JorfLasfar Energy Co. v. AMCI Export Corp. 2008 WL 1228930; Monck v. Hilton 46 LJNC 167; Cuckurova Holding A.S. v. Sonera Holding B.V. (2014) UKPC 15; Eastern European Engineering v. Vijay Consulting (2019) 1 LLR 1 (QBD); Consorcio Rive v. Briggs of Cancun 134 F. Supp 2d 789; Four Seasons Hotels v. Consorcio Barr S.A. 613 Supp 2d 1362 (S.D. Fla. 2009); Nanjing Cereals v. Luckmate Commodities XXI Y.B. Com. Arb. 542 (1996); De Maio Giuseppe v. Interskins Y.B. Comm. Arb. XXVII (2002)
492 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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