Dr. A.P. Thaker, J.

1. The present petition is filed under Order 21, Rule 10 of Civil Procedure Code for execution of the foreign award dated 19.11.2018 passed by the Arbitrator in Singapore. It is contended that the impugned order was passed by Arbitral Tribunal, Singapore, against the respondent under Chapter 1, part II of the Arbitration and Conciliation Act, 1996. It is contended that the respondent i.e. award debtor is a company incorporated under the Companies Act, 1956 having its registered office at the address indicated in the cause title.

2. It is contended that the Union of India was satisfied that reciprocal provisions have been made by the Republic of Singapore to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Award and has by notification in the official gazette declared the Republic of Singapore to be a territory to which the New York Convention applies. It is contended that in these circumstances, the applicant/award holder can apply for the recognition and enforcement of the foreign award under Chapter 1, Part II, of the Arbitration and Conciliation Act, 1996 (herein after referred to as "the Act").

2.1. According to the applicant, the recognition and enforcement proceedings for the foreign award can be filed simultaneously with execution proceedings for the foreign award and there is no need to take out two separate proceedings pursuant to the judgment of the Honourable Supreme Court of India in the case of Furest Day Lawson Limited v. Jindal Exports Limited, (2001) 6 SCC 356 [LQ/SC/2001/1236] . It is contended that this Court has jurisdiction to receive, entertain and try the present petition. It is also contended that substantial portion of the assets of the respondent/award debtor are in the State of Gujarat and the registered office of it is in the City of Anand, Gujarat.

2.2. It is also submitted that Annexure-A is a certified copy of the said award as envisaged under Section 47(1)(a) of the Act. According to it, the award has been passed pursuant to an arbitration agreement contained in BIMTO "HEAVYCON" Chartered Party dated 8th August 2014, wherein it was provided that "SINGPORE LAW AND ARBITRATION TO APPLY" i.e. the disputes are to be referred to arbitration in Singapore and that Singapore law is to apply. According to it, the Chartered Party has been signed by the applicant and Mr. Mehul Patel, the Managing Director of the respondent.

2.3. It is also contended that as a matter of Singapore Law, the foreign award is final and binding and the enforcement of the same has not been stayed by any Court in Singapore. That it is in principle possible for the respondent to apply to High Court of the Republic of Singapore and seek an order, setting aside the foreign award within three months of the date of the receipt of the foreign award or of the date on which the Singapore Tribunal disposed of any request for the correction of clerical errors in the foreign award.

2.4. It is stated that after due consideration of the documents and evidence before it, the Tribunal has passed reasoned award on the merits of the case on 19.11.2018, and held as follows:-

"(a) The Tribunal is seized of jurisdiction in this matter."

(b) The respondent shall pay to the claimant the sum of USD 2,666,000 for demurrage:

(c) The respondent shall pay a sum of USD 1,900,000 for lose freight services;

(d) The respondent's counter-claim is dismissed;

(e) The respondent shall pay to the claimant the sum of SGD 560,738.89 and USD 4,362.50 being the cost and disbursement in this reference;

(f) The respondent shall pay to the claim, interest earned (b) and (c) above, at the rate of 5.33% per annum from the commencement of this reference i.e. from 21.6.2016 upto and including the date of payment; and

(g) All other claims and requests in this reference are rejected."

2.5. It is contended that upon the pronouncement of the award, the applicant's lawyer made a demand upon the respondent to honour the award and to pay the same.

2.6. That the respondent has till date failed and/or neglected to make payment of its outstanding dues.

2.7. It is also contended by the applicant that in the arbitration proceedings, the respondent on 30th September 2016 served its jurisdictional challenge to the arbitration proceedings, whereupon on 5.1.2017, passed the following order:-

"The Tribunal has carefully examined the parties respective submission on jurisdiction, and having so done, is of the view the issues relating to the jurisdictional challenge are so closely interlinked with the issues relating to the substantive merits of the claimant's claim that it would be more efficient and expeditious for both set of issues to be determined together subsequent to one consolidated oral hearing.

For the avoidance of doubt, the respondents' continued participation in the proceedings will not be taken as any indication that the respondents have ceded any ground on jurisdictional challenge."

2.8. It is submitted that respondent filed its counter memorial, bundle of documents and bundle of authorities. The Managing Director of the respondent, Mr. Mehul Patel, led evidence by filing the attached witness statement but chose not to make himself available for cross-examination during the hearing. It is also contended that the impugned award is binding on the respondent and it has not been set aside or suspended by the High Court of Republic of Singapore, which is the competent authority of the country, where the foreign award has been passed. It is also contended that enforcement of the foreign award would not be contrary to the public policy of India. While narrating the various figures of the financial assets of the defendant and the details of the entire arbitral proceedings, it is stated by the petitioner that due to failure on the part of the respondent to honour the foreign award and make payment thereunder, the applicant has filed an application seeking interim relief of security and disclosure in an aid of execution proceedings before this Court by way of arbitration application IAAP 16 of 2019 under Section 9 of the Act, wherein by way of interim relief, order of injunction against the respondent was passed by this Court on 1.2.2019. It is contended that till date, the respondent has not paid any part of decretal sum and is avoiding to make payment. The applicant has placed the execution petition in tabular form also and has sought for prayer of injunction as well as for issuance of warrant of attachment of movable and immovable property under Order 21, Rule 43 and 54 of the Code of Civil Procedure against the respondents.

3. The respondent has filed affidavit of objections along with number of documents. The affidavit starts from page 646 and ends at 656 and produced numerous documents from page 657 to 1357, which includes original contract along with various memo of petition of Civil Suit and matters filed before this Court and other relevant documents.

3.1. It is contended that the present execution petition is not maintainable. It is contended that the award is made purportedly made under a Charter Party dated 8.8.2014, which according to the petitioner, provides for settlement of disputes to arbitration in Singapore and that Singapore Law to apply. However, according to the respondent, the dispute resolution between the parties is agreed to be covered by a contract titled ""Contract Agreement Relating to Transportation of STS Cranes from Pipavav Port India to Asya Port, Turkey dated 26.11.2013" It is contended by the respondent that as per this Contract, all disputes and differences between the parties are required to be settled by arbitration in India, in accordance with the Commercial Arbitration Rules of the British Commercial Arbitration Association by Arbitrators appointed in accordance with the said Rules.

3.2. According to the respondent, the impugned award is not enforceable as per the Scheme of Chapter 1, Part II of the Act and the award is not a decree and, therefore, the present petition for execution of a decree is not maintainable.

3.3. According to the respondent, it is engaged in the business of manufacturing highly sophisticated cranes, which are used at ports for loading and unloading of cargos as well as other ancillary services. That the petitioner is a company incorporated under the Laws of Singapore and is engaged in the business of transportation of equipment from ports situated across the world. That the respondent was awarded an order of manufacturing and sale of 9 STS Cranes, which were to be transported from Pipavav Port, India to Asya Port, Turkey. That the respondent approached the petitioner in 2013 for rendering its service for the transport of same. That through various communications between the parties, the draft terms of arbitration clause were exchanged between the parties and ultimately, the contract agreement relating to transport, the cranes from Pipavav Port, India to Asya Port, Turkey, was executed on 26.11.2013, which contained Clause 28 providing for arbitration agreement, which provided for arbitration according to British Rules.

3.4. It is contended that, thereafter, there has been certain amendments in the contract between the parties. That dispute arose between the parties, which led to exchange of correspondence but the petitioner sent a notice dated 21.6.2016 thereby invoking clause 27 of the Charter Party Agreement, while making claims on account of demurrage. The respondent disputed the constitution of the arbitration under the Charter Party Agreement.

3.5. That the respondent filed an application on 30.9.2016 before the Arbitral Tribunal disputing its jurisdiction, wherein on 5.1.2017, Tribunal observed that the issues relating to jurisdiction are interwoven with other issues and, therefore, it decided to decide all the issues together.

3.6. That the respondent filed Special Civil Suit No. 43 of 2017 in the Court of learned Principal Senior Civil Judge, Amreli, against the petitioner for declaration and permanent injunction. That the prayer was declaration as to the effect that the parties are bound by Arbitration Agreement contained in Arbitration Clause 28 of the Contract executed on 26.11.2013 and restraining the defendant from prosecuting the arbitration in Singapore and for the permanent injunction thereof. That the respondent filed application, Exh. 5, for interim injunction in the said suit. That the petitioner appeared in the said suit and filed an application under Order 7, Rule 11(d) of CPC for rejection of the plaint. That the trial Court vide order dated 14.9.2017 allowed the application and rejected the suit of the respondent. That being aggrieved by the said order, the respondent preferred Civil Misc. Appeal No. 26 of 2017 before the first appellate Court, which has set aside the order of the trial Court. That the said order came to be challenged by way of filing Civil Revision Application No. 529 of 2017 by the petitioner, wherein this Court quashed both the orders vide order dated 22.2.2018 and directed the trial Court to decide application of interim injunction along with application filed under Order 7, Rule 11(d) of CPC on merits. It is contended that thereafter, the petitioner filed application at Exh. 35 for rejection of plaint under Order 7, Rule 11(d) of CPC, which came to be allowed vide order dated 9.3.2018 and by separate order, the trial Court rejected the application for interim injunction filed by the respondent. That the respondent filed two appeals bearing Regular Civil Appeal No. 8 of 2018 against the order of rejection of plaint and Civil Misc. Appeal No. 7 of 2018 challenging the refusal of interim injunction. That the first Appellate Court disposed of both the appeals by observing that it does not possess the jurisdiction to entertain the appeals, as the dispute between the parties is a commercial dispute.

3.7. That being aggrieved by aforesaid order, the respondent has preferred two writ petitions being Special Civil Application No. 10359 of 2018 and Special Civil Application No. 10360 of 2018. That by filing caveat, the petitioner appeared in both the petitions and they are pending before this Court.

3.8. It is contended by the respondent that, in the meanwhile, the Arbitral Tribunal made arbitral award on 19.11.2018. The respondent has admitted the fact that the petitioner has filed IAAP No. 16 of 2019 under Section 9 of the Act and this Court has made interim orders in the said petition and same is pending. The respondent has referred to the provisions contained in Sections 44, 46, 47, 48 and 49 of the Act and has submitted that foreign award becomes enforceable only after the Court is satisfied that it is so enforceable and only thereupon the award is deemed to be a decree of the Court. The respondent has contended that it has not been served with the certified copy of the award, though assured in the e-mail communication dated 7.12.2018. It has also contended that it has also addressed e-mail to the office of Arbitral Tribunal for a certified copy of the Arbitral Award but it has still not received the copy. It is contended that there is no decree in the eyes of law which can be executed. It is contended that the petitioner is required to be satisfy this Court that the foreign award is enforceable. It is also contended that Arbitration Agreement, based on which the Arbitral Tribunal came to be constituted was not a valid Agreement. On all these grounds, respondent has submitted that as the award itself is not enforceable and arbitral award is liable to be quashed and set aside, present petition be dismissed.

4. The respondent has also filed additional affidavit raising the contention that petitioner has produced only a notarized copy of the award, which is not authenticated in the mode and manner as prescribed under the provisions of the International Arbitration Act, 1994 [Section 19(c)] and as per Section 3 of the Order made under the Convention. It has also raised the issue that as per Section 47 of the Act 1996, petitioner has not produced evidence and, therefore, the petition is liable to be rejected. Thereafter, once again the defendant has filed detailed affidavit in reply from page 1374 to 1408, reiterating contention raised in earlier affidavit and additional affidavit and praying for dismissal of the petition.

5. The petitioner has filed affidavit in rejoinder against the reply affidavit of the respondent, wherein it has reiterated his stand in the petition and has submitted that the various issues raised by the respondent in its affidavit in reply are not sustainable in the eyes of law. That the impugned award is decree in the eyes of law and is enforceable and, therefore, prayer made in the petition be allowed.

6. Heard learned counsel Mr. Aditya Krishnamurthy appearing with Mr. Harsh N. Parekh for the petitioner and learned Senior Counsel, Mr. Navin Pahwa appearing with Mr. Nilu Vaidankar for the respondent. Perused the written submissions filed by both sides and material placed on record as well as the decisions cited at bar.

7. Learned advocate Mr. Krishnamurthy for the petitioner has reiterated the facts narrated in the tabular form of the petition and the affidavit filed therewith and detailed rejoinder affidavit filed on behalf of the petitioner and the documents produced by both the sides and has vehemently submitted that during the pendency of the petition, the petitioner has already submitted authenticated copy of the award in this matter and has also circulated it to the respondent. He has submitted that as per the order dated 15.1.2020, same is taken on record. He has submitted that in view of the judgment of the Apex Court in PEC Limited v. Austvulk Shipping Sdn. Bhd. (2019) 11 SCC 620, [LQ/SC/2018/1441] which was reiterated by the Apex Court in Vedanta's judgment, it is permissible for the award holder to cure any alleged failure to comply with Section 47 of the Arbitration Act and application for recognition and enforcement of foreign award at a later stage of the proceedings. He has submitted that, therefore, since authenticated copy, which was authenticated by the Registrar of Singapore International Arbitration Center, is already produced in the matter and, therefore, the grievance raised by the respondent in respect of non-compliance of Section 47 of the Act does not survive.

7.1. Learned advocate Mr. Krishnamurthy has also submitted that there is rebuttable presumption that the foreign award is enforceable under Chapter 1, Part II of the Act. He has submitted that pursuant to Sections 101 and 102 of the Indian Evidence Act, 1872, the burden of proof lies upon the respondent to obtain declaration from this Court that the foreign arbitral award is not enforceable in India. Therefore, according to him, there is no requirement for the petitioner to seek a declaration that the foreign award is enforceable in India. He has also submitted that there is no dispute regarding transaction entered into between the parties. He has submitted that the respondent has raised jurisdictional question before the Singapore Arbitral Tribunal and the Tribunal has decided to decide the issue thereof along with other issues. He has submitted that the respondent has accepted these facts and have also filed various documents and produced witness statement, however, the Director of the respondent did not remain present for cross-examination. He has submitted that Singapore Tribunal, after perusing the entire material on record, has held that it has jurisdiction and ultimately allowed the claim of the petitioner and rejected the counter claim of the respondent.

7.2. According to him, the award in question is enforceable in India. He has submitted that the respondent has not challenged the same in the High Court of Singapore and the award in question is not set aside or stayed by High Court of Singapore. He has submitted that the respondent could have approached the High Court in the Singapore challenging the award. He has also submitted that the respondent has rather filed Civil Suit in the Court of Anand, which has been rejected by the trial Court and appeal against it is also dismissed. He has, therefore, submitted that the version of the respondent that clause 28 of the earlier contract is applicable and arbitration proceeding is to be initiated as per British Rule is devoid of merits, as no Court in India has granted any decree in the form of declaration to that effect in favour of the respondent.

7.3. He has submitted that the respondent has not denied and disputed the fact that they are the owners of immovable property at Anand and additionally pursuant to order dated 30.8.2019, passed in IAAP No. 16 of 2019, the respondent has been restrained by this Court from selling, alienating its immovable property and said IAAP is disposed of by this Court. He has submitted to issue warrant of attachment against the respondent for recovery of amount awarded by the foreign arbitral Tribunal. He has relied upon following decisions in support of his submissions:-

(i) Fuerst Day Lawson Limited v. Jindal Exports Limited, reported in (2001) 6 SCC 356, [LQ/SC/2001/1236] wherein it is observed as under:-

"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 enforce-ability 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 49 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 49. In one proceeding there may be different stages. In the first stage the Court may have to decide about the enforce-ability 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 49 and Scheme of the Act that every final arbitral 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 enforce-ability 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. ............................."

(ii) Government of India v. Vedanta Limited and Others reported in (2020) 10 SCC 1, [LQ/SC/2020/666] wherein it is observed as under:-

"72. Foreign awards are not decrees of an Indian civil court. By a legal fiction, Section 49 provides that a foreign award, after it is granted recognition and enforcement under Section 48, would be deemed to be a decree of "that Court" for the limited purpose of enforcement. The phrase "that Court" refers to the Court which has adjudicated upon the petition filed under Sections 47 and 49 for enforcement of the foreign award. In our view, Article 136 of the Limitation Act would not be applicable for the enforcement/execution of a foreign award, since it is not a decree of a civil court in India.

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

74. The exclusion of an application filed under any of the provisions of Order XXI of the CPC from the purview of Section 5 of the Limitation Act, was brought in by the present Limitation Act, 1963. Under the previous Limitation Act, 1908 there were varying periods of limitation prescribed by Articles 182 and 183 of the said Act, as well as Section 48 of the CPC, 1908. Article 182 provided that the period of limitation for execution of a decree or order of any civil court was 3 years, and in case where a certified copy of the decree or order was registered, the period of limitation was 6 years. Article 183 provided that the period of limitation to enforce a decree or order of a High Court was 6 years. Section 48 of the CPC (which has since been repealed by Section 28 of the Limitation Act of 1963) provided that the period of limitation for execution of a decree was 12 years.

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

77. The application under Sections 47 and 49 for enforcement of the foreign award, is a substantive petition filed under the Arbitration Act, 1996. It is a well settled position that the Arbitration Act is a self-contained code.26 The application under Section 47 is not an application filed under any of the provisions of Order XXI of the CPC, 1908. The application is filed before the appropriate High Court for enforcement, which would take recourse to the provisions of Order XXI of the CPC only for the purposes of execution of the foreign award as a deemed decree. The bar contained in Section 5, which excludes an application filed under any of the provisions of Order XXI of the CPC, would not be applicable to a substantive petition filed under the Arbitration Act, 1996. Consequently, a party may file an application under Section 5 for condonation of delay, if required in the facts and circumstances of the case.

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

81. The aforesaid findings are contrary to the scheme of the Act, since a foreign award does not become a "foreign decree" at any stage of the proceedings. The foreign award is enforced as a deemed decree of the Indian Court which has adjudicated upon the petition filed under Section 47, and the objections raised under Section 48 by the party which is resisting enforcement of the award.

82. A foreign award is not a decree by itself, which is executable as such under Section 49 of the Act. The enforcement of the foreign award takes place only after the court is satisfied that the foreign award is enforceable under Chapter 1 in Part II of the 1996 Act. After the stages of Sections 47 and 48 are completed, the award becomes enforceable as a deemed decree, as provided by Section 49. The phrase "that court" refers to the Indian court which has adjudicated on the petition filed under Section 47, and the application under Section 48. In contrast, the procedure for enforcement of a foreign decree is not covered by the 1996 Act, but is governed by the provisions of Section 44A read with Section 13 of the CPC.

83. The scheme of the 1996 Act for enforcement of New York Convention awards is as follows:

83.1 Part II Chapter 1 of the Arbitration and Conciliation Act, 1996 pertains to the enforcement of New York Convention awards. Under the 1996 Act, there is no requirement for the foreign award to be filed before the seat court, and obtain a decree thereon, after which it becomes enforceable as a foreign decree. This was referred to as the "double 39 exequatur," which was a requirement under the Geneva Convention, 1927 and was done away with by the New York Convention, which superseded it.27. There is a paradigm shift under the 1996 Act. Under the 1996 Act, a party may apply for recognition and enforcement of a foreign award, after it is passed by the arbitral tribunal. The applicant is not required to obtain leave from the court of the seat in which, or under the laws of which, the award was made.

83.2 Section 44 of the 1996 Act provides that a New York Convention award would be enforceable, if the award is with respect to a commercial dispute, covered by a written agreement in a State with which the Government of India has a reciprocal relationship, as notified in the Official Gazette.

83.3 Section 46 provides that a foreign award which is enforceable under Chapter 1 of Part II of the 1996 Act, shall be treated as final and binding on the parties, and can be relied upon by way of defence, set of, or otherwise, in any legal proceeding in India.

83.4 Section 47 sets out the procedure for filing the petition for enforcement/execution of a foreign award. This section replicates Article IV (1) of the New York Convention which requires the applicant to file the authenticated copy of the original award, or a certified copy thereof, along with the original agreement referred to in Article II, or a certified copy thereof, at the time of filing the petition.

83.5 Section 47 provides that the application shall be filed along with the following evidence i.e.:

1. the original award, or an authenticated copy, in accordance with the laws of the seat of arbitration;

2. the original arbitration agreement, or certified copy thereof;

3. such evidence, as may be necessary to prove that the award is a foreign award.

83.6 In PEC Limited v. Austbulk Shipping (2019) 11 SCC 620, [LQ/SC/2018/1441] this Court held that even though Section 47 provides that the award holder "shall" produce such evidence along with the application for enforcement of a foreign award, this being a procedural requirement, a pragmatic, flexible and non-formalist approach must be taken. The non-production of documents at the initial stage, should not entail a dismissal of the application for enforcement. The party may be permitted to produce the evidence during the course of the proceedings, to enable the Court to decide the enforcement petition. It was observed that excessive formalism in the matter of enforcement of foreign awards must be deprecated.

83.7 The award holder is entitled to apply for recognition and enforcement of the foreign award by way of a common petition. In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356, [LQ/SC/2001/1236] this Court held that a proceeding seeking recognition and enforcement of a foreign award has different stages : in the first stage, the Court would decide about the enforce-ability of the award having regard to the requirements of Sections 47 and 48 of the 1996 Act. Once the enforce-ability of the foreign award is decided, it would proceed to take further effective steps for the execution of the award. The relevant extract from the judgment reads as:

"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 41 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 enforce-ability 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 49 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 49. In one proceeding there may be different stages. In the first stage the Court may have to decide about the enforce-ability 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 49 and Scheme of the Act that every final arbitral 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 enforce-ability 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.

(emphasis supplied)."

83.8 In a recent judgment rendered in LMJ International Ltd. v. Sleepwell Industries (2019) 5 SCC 302, [LQ/SC/2019/319] this Court held that given the legislative intent of expeditious disposal of arbitration proceedings, and limited interference of the courts, the maintainability of the enforcement petition, and the adjudication of the objections filed, are required to be decided in a common proceeding.

83.9 The enforcement/execution petition is required to be filed before the concerned High Court, as per the amendment to Section 47 by Act 3 of 2016 (which came into force on 23.10.2015). The Explanation to Section 47 has been amended, which now reads as:

"47. Evidence - (1)... (2)... [Explanation.- In this section and in the sections following in this Chapter, "Court" means the High Court having original jurisdiction to decide the questions forming the subject matter of the arbitral award if the same had been the subject-matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court."

(emphasis supplied)

83.10 Section 48 replicates Article V of the New York Convention, and sets out the limited conditions on which the enforcement of a foreign award may be refused. Sub-sections (1) and (2) of Sections 48 contain seven grounds for refusal to enforce a foreign award. Sub-section (1) contains five grounds which may be raised by the losing party for refusal of enforcement of the foreign award, while sub-section (2) contains two grounds which the court may ex officio invoke to refuse enforcement of the award,31 i.e. non-arbitrability of the subject-matter of the dispute under the laws of India; and second, the award is in conflict with the public policy of India.

83.11 The enforcement Court cannot set aside a foreign award, even if the conditions under Section 48 are made out. The power to set aside a foreign award vests only with the court at the seat of arbitration, since the supervisory or primary jurisdiction is exercised by the curial courts at the seat of arbitration. The enforcement court may "refuse" enforcement of a foreign award, if the conditions contained in Section 48 are made out. This would be evident from the language of the Section itself, which provides that enforcement of a foreign 31 Malhotra's Commentary on the Law of Arbitration, 4th Edition, Vol. 2, Pg. 1163-1164, Wolters Kluwer. 43 award may be "refused" only if the applicant furnishes proof of any of the conditions contained in Section 48 of the Act.

83.12 The opening words of Section 48 use permissive, rather than mandatory language, that enforcement "may be" refused. The use of the words "may be" indicate that even if the party against whom the award is passed, proves the existence of one or more grounds for refusal of enforcement, the court would retain a residual discretion to overrule the objections, if it finds that overall justice has been done between the parties, and may direct the enforcement of the award. This is generally done where the ground for refusal concerns a minor violation of the procedural rules applicable to the arbitration, or if the ground for refusal was not raised in the arbitration. A court may also take the view that the violation is not such as to prevent enforcement of the award in international relations.

83.13 The grounds for refusing enforcement of foreign awards contained in Section 48 are exhaustive, which is evident from the language of the Section, which provides that enforcement may be refused "only if" the applicant furnishes proof of any of the conditions contained in that provision.

83.14 The enforcement court is not to correct the errors in the award under Section 48, or undertake a review on the merits of the award, but is conferred with the limited power to "refuse" enforcement, if the grounds are made out.

83.15 If the Court is satisfied that the application under Section 48 is without merit, and the foreign award is found to be enforceable, then under Section 49, the award shall be deemed to be a decree of "that Court". The limited purpose of the legal fiction is for the purpose of the enforcement of the foreign award. The concerned High Court would then enforce the award by taking recourse to the provisions of Order XXI of the CPC."

(iii) Maharishi Dayanand University and Another v. Anant Cooperative L/C. Society Limited and Another reported in (2007) 5 SCC 295 [LQ/SC/2007/553] .

(iv) M/s. OCI Corporation v. Kandla Export Corporation and Others, reported in.

(v) PEC Limited v. Austbulk Shipping SDN BHD reported in (2019) 11 SCC 620 [LQ/SC/2018/1441] .

"18. The object and purpose of the New York Convention as summarized by the Guide to Interpretation of the New York Convention issued by the International Council for Commercial Arbitration is as follows:

"The Convention is based on a pro-enforcement bias. It facilitates and safeguards the enforcement of arbitration agreements and arbitral awards and in doing so it serves international trade and commerce. It provides an additional measure of commercial security for parties entering into cross-border transactions"8.

19. The object and purpose of the New York Convention is to facilitate the recognition of the arbitration agreement within its purview and the enforcement of the foreign arbitral awards. This object and purpose must, in the first place, be seen in the light of enhancing the effectiveness of the legal regime governing international commercial arbitration.

20. According to the ICCA Guide, the approach of the Court for enforcement should be having a strong pro enforcement bias, a pragmatic, flexible and non formalist approach. The Courts in several countries have been liberal in interpreting the formal requirements of Article IV of the New York Convention10. Excessive formalism in the matter of enforcement of foreign awards has also been deprecated.

21. It is relevant to take note of the Preamble of the Act wherein it is mentioned that the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model law on International Commercial Arbitration ("Model Law") in 1985 and that the Act is made taking into account the Model law and Rules. Chapter VIII of the Model Law governs the recognition and enforcement of Awards. Article 35(2) provides that the party applying for enforcement of the award shall supply the original award or a copy thereof. The Model Law does not lay down procedural details of recognition and enforcement, which are left to national procedural laws and practices. However, Article 35(2) was amended in 2006 to liberalize formal requirements. Presentation of a copy of the arbitration agreement is no longer required under Article 35(2).

22. The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, we are of the view that the word "shall" in Section 47 of the Act has to be read as "may". The opposite view that it is obligatory for a party to file the arbitration agreement or the original award or the evidence to prove that the award is a foreign award at the time of filing the application would have the effect of stultifying the enforcement proceedings. The object of the New York Convention will be defeated if the filing of the arbitration agreement at the time of filing the application is made compulsory. At the initial stage of filing of an application for enforcement, non-compliance of the production of the documents mentioned in Section 47 should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect of non-filing of the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings."

(vi) Vijay Karia and Others v. Prysmain CAVIE Systemi SRL and Others reported in (2020) 11 SCC 1 [LQ/SC/2020/229 ;] .

"24. Before referring to the wide ranging arguments on both sides, it is important to emphasise that, unlike Section 37 of the Arbitration Act, which is contained in Part I of the said Act, and which provides an appeal against either setting aside or refusing to set aside a 'domestic' arbitration award, the legislative policy so far as recognition and enforcement of foreign awards is that an appeal is provided against a judgment refusing to recognize and enforce a foreign award but not the other way around (i.e. an order recognizing and enforcing an award). This is because the policy of the legislature is that there ought to be only one bite at the cherry in a case where objections are made to the foreign award on the extremely narrow grounds contained in Section 48 of the Act and which have been rejected. This is in consonance with the fact that India is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter referred to as "New York Convention") and intends - through this legislation - to ensure that a person who belongs to a Convention country, and who, in most cases, has gone through a challenge procedure to the said award in the country of its origin, must then be able to get such award recognized and enforced in India as soon as possible. This is so that such person may enjoy the fruits of an award which has been challenged and which challenge has been turned down in the country of its origin, subject to grounds to resist enforcement being made out under Section 48 of the Arbitration Act. Bearing this in mind, it is important to remember that the Supreme Court's jurisdiction under Article 136 should not be used to circumvent the legislative policy so contained. We are saying this because this matter has been argued for several days before us as if it was a first appeal from a judgment recognising and enforcing a foreign award. Given the restricted parameters of Article 136, it is important to note that in cases like the present - where no appeal is granted against a judgment which recognises and enforces a foreign award - this Court should be very slow in interfering with such judgments, and should entertain an appeal only with a view to settle the law if some new or unique point is raised which has not been answered by the Supreme Court before, so that the Supreme Court judgment may then be used to guide the course of future litigation in this regard. Also, it would only be in a very exceptional case of a blatant disregard of Section 48 of the Arbitration Act that the Supreme Court would interfere with a judgment which recognises and enforces a foreign award however inelegantly drafted the judgment may be. With these prefatory remarks we may now go on to the submissions of counsel.

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

50. The U.S. cases show that given the "pro-enforcement bias" of the New York Convention, which has been adopted in Section 48 of the Arbitration Act, 1996 - the burden of proof on parties seeking enforcement has now been placed on parties objecting to enforcement and not the other way around; in the guise of public policy of the country involved, foreign awards cannot be set aside by second guessing the arbitrator's interpretation of the agreement of the parties; the challenge procedure in the primary jurisdiction gives more leeway to Courts to interfere with an award than the narrow restrictive grounds contained in the New York Convention when a foreign award's enforcement is resisted. ........

58. When the grounds for resisting enforcement of a foreign award under Section 48 are seen, they may be classified into three groups - grounds which affect the jurisdiction of the arbitration proceedings; grounds which affect party interest alone; and grounds which go to the public policy of India, as explained by Explanation 1 to Section 48(2). Where a ground to resist enforcement is made out, by which the very jurisdiction of the tribunal is questioned - such as the arbitration agreement itself not being valid under the law to which the parties have subjected it, or where the subject matter of difference is not capable of settlement by arbitration under the law of India, it is obvious that there can be no discretion in these matters. Enforcement of a foreign award made without jurisdiction cannot possibly be weighed in the scales for a discretion to be exercised to enforce such award if the scales are tilted in its favour.

59. On the other hand, where the grounds taken to resist enforcement can be said to be linked to party interest alone, for example, that a party has been unable to present its case before the arbitrator, and which ground is capable of waiver or abandonment, or, the ground being made out, no prejudice has been caused to the party on such ground being made out, a Court may well enforce a foreign award, even if such ground is made out. When it comes to the "public policy of India" ground, again, there would be no discretion in enforcing an award which is induced by fraud or corruption, or which violates the fundamental policy of Indian law, or is in conflict with the most basic notions of morality or justice. It can thus be seen that the expression "may" in Section 48 can, depending upon the context, mean "shall" or as connoting that a residual discretion remains in the Court to enforce a foreign award, despite grounds for its resistance having been made out. What is clear is that the width of this discretion is limited to the circumstances pointed out herein above, in which case a balancing act may be performed by the Court enforcing a foreign award."

(vii) LMJ International Limited v. Sleepwell Industries Company Limited reported in (2019) 5 SCC 302, [LQ/SC/2019/319] wherein it is observed as under:-

"5. On 19th November, 2013, the respondent filed two execution cases, being Execution Case No. 487/2013 (pertaining to contract) and Execution Case No. 488/2013 (pertaining to contract-II), under Part-II of the Arbitration and Conciliation Act, 1996 (for short "the Act"), before the High 5 Court at Calcutta for enforcement of the foreign arbitral awards. The learned Single Judge of the High Court passed a common order in the said execution cases rejecting the objection purportedly regarding the maintainability of the subject foreign awards vide judgment and order dated 4th December, 2014. The learned Single Judge noted that the petitioner did not file any affidavit or formal application to oppose the execution case, but chose to raise objections orally, only through his counsel, before the Court. The Single Judge noted the objections of the petitioner. The Court also noted that the Court ought to be satisfied that the foreign award was enforceable and must record its satisfaction in that regard, consequent to which, in view of Section 48 of the Act, the award shall be deemed to be a decree of the Court. The learned Single Judge then went on to record the five objections taken on behalf of the petitioner through its counsel, which read thus:

"The first objection raised is that no prayer for declaration has been made in the application that the foreign award is enforceable. It is submitted that unless prayer is made seeking a declaration as to the enforcement of the award, the Court cannot assume jurisdiction. In this regard the learned Senior Counsel has referred to a Single Bench decision of the Bombay High Court in the case of Toepfer International Asia Pvt. Ltd. versus Thapar Ispat Ltd., reported in 2000 (1) Arb. LR 230 (Bombay) paragraph 19.

The second objection is that a civil suit is pending between the parties in which there is a categorical observation both by the learned Single Judge as well as the Division Bench that any action taken by the parties to the suit during the pendency of the suit shall be subject to and abide by the result of the suit. It is submitted that a cross appeal was preferred by the decree-holder and this observation of the learned Single Judge was not interfered with and accordingly the execution application is premature and unless the suit is decided, the award does not attain its finality.

The third objection is that the arbitration clause has not been properly invoked. It is submitted that arbitration clause is a two tier clause. Before the arbitration clause could be invoked, the parties are required to first make an attempt to amicably settle their disputes and only upon failure, the parties could refer their disputes to the arbitration as per GAFTA clause for rice and arbitration rules 125. It is submitted that there is no averment in the petition that before invoking the arbitration clause there was any attempt to settle the disputes amicably. Since this stage has not been reached, the invocation of Arbitration Clause is void ab initio. In this regard, the learned Senior Counsel has referred to an unreported decision of a single Bench of this Court in AP 112 of 2008 [Waidhan Engineering & Industries Private Limited vs. The Board Of Trustees For The Port Of Kolkata] decided on 5th May 2010. The fourth objection is that even if it is assumed for the sake of argument that this amicable settlement was not followed, even then Rule 3.1 was not followed with regard to the appointment of the sole Arbitrator. It is submitted that it was incumbent upon the decree-holder to inform the respondent about the appointment of a sole arbitrator and it was only on refusal to accede to such request that other procedures prescribed under the rules shall follow.

The fifth and the last objection appears to be that the nominee arbitrator of the respondent was appointed de hors the provisions of GAFTA Rules and accordingly the 7 procedure adopted is irregular from the very beginning and the award is not enforceable.

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

16. We first proceed to examine the preliminary issue as to whether it was open to the petitioner to raise grounds regarding enforceability of the foreign awards despite the judgment of the High Court dated 4th December, 2014, rejecting the objections in the context of maintainability of the execution petition and which decision had attained finality consequent to rejection of the special leave petitions by this Court and including the review petition by the High Court. The petitioner contends that on the earlier occasion, the objections were limited to the questions of maintainability of the execution case on grounds as were urged at the relevant time and not in reference to the enforceability of the subject foreign awards as such. This argument, to say the least, is an attempt to indulge in hairsplitting and nothing more. It is an argument in desperation only to protract the execution of the foreign award on untenable grounds. Indeed, the petitioner 27 had not filed any formal application to raise the issue of maintainability of the execution case but the Court had permitted the petitioner to orally urge "all available grounds". The learned Judge had then reproduced the five points, which alone were orally urged on behalf of the petitioner through its counsel, as extracted in paragraph 4 above. The High Court examined the said grounds which, obviously, were transcending in the realm of enforceability of the subject foreign awards. In the special leave petitions filed before this Court, the petitioner had articulated questions of law and the grounds also in reference to the scope of Section 48 of the Act which included the enforceability of the subject foreign awards. That can be discerned from the close reading of Questions and Grounds in the previous SLPs, reproduced in paragraph 5 above. Additionally, the learned Single Judge of the High Court vide order date 17th March, 2015 had made it amply clear that the subject foreign awards were deemed to be decrees, which presupposes that the same were enforceable. That order came to be upheld by the Division Bench whilst 28 disposing of the appeals preferred by the petitioner. These orders have become final and have not been challenged by the petitioner. The petitioner thereafter unsuccessfully resorted to the remedy of review before the High Court. Even the order passed in review petition has become final.

17. Be that as it may, the grounds urged by the petitioner in the earlier round regarding the maintainability of the execution case could not have been considered in isolation and de hors the issue of enforceability of the subject foreign awards. For, the same was intrinsically linked to the question of enforceability of the subject foreign awards. In any case, all contentions available to the petitioner in that regard could and ought to have been raised specifically and, if raised, could have been examined by the Court at that stage itself. We are of the considered opinion that the scheme of Section 48 of the Act does not envisage piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of 29 speedy disposal of arbitration proceedings and limited interference by the courts, the Court is expected to consider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot countenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996, in particular, while dealing with the enforcement of foreign awards. For, the scope of interference has been consciously constricted by the legislature in relation to the execution of foreign awards. Therefore, the subject application filed by the petitioner deserves to be rejected, being barred by constructive res judicata, as has been justly observed by the High Court in the impugned judgment."

(viii) Boeying Company v. R.M. Investment and Trading Company Private Limited reported in.

(ix) P.K. Palanisamy v. N. Arumugham and Another, reported in (2009) 9 SCC 173, [LQ/SC/2009/1515] wherein it is observed as under:-

"27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.

28. In Ram Sunder Ram v. Union of India & Ors. [2007 (9) SCALE 197 [LQ/SC/2007/884] ], it was held:

".... It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act.

9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278] [LQ/SC/2004/367] . Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant."

29. In N. Mani v. Sangeetha Theatres & Ors. [(2004) 12 SCC 278] [LQ/SC/2004/367] , it is stated:

"9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law."

8. Per contra, learned Senior Counsel, MR. Navin Pahwa appearing with learned advocate, Mr. Nilu Vaidankar for the respondent has submitted that the petitioner has filed a petition seeking enforcement of foreign award. He has submitted that in view of Section 47 and 49 of the Act, this Court has to consider the application and needs to consider the condition for enforcement of foreign award as stipulated in Section 48 of the Act. He has submitted that this Court has to adjudicate the rival contentions and either grant recognition to the foreign award or else may refuse the application seeking enforcement of the foreign award. He has submitted that this is substantive procedure and cannot be dispensed with. While referring to the observations of the Apex Court in the case of Government of India v. Vedanta Limited and Another reported in (2020) 10 SCC 1, [LQ/SC/2020/666] especially para 72, 77, 81 and 82, he has submitted that the petition is filed for execution of foreign award in the present form is not maintainable and is liable to be rejected.

8.1. He has submitted that although it is specific case of the respondent that the petitioner has not applied for the enforcement of a foreign award and, therefore, there is no decree available in law, the petition filed by the petitioner is liable to be rejected on the ground that there is non-compliance of the stipulations contained in Section 47 of the Act. He has also submitted that it appears that the petitioner has filed a copy of the award before this Court much later than the date of filing of present petition, however, admittedly the petitioner has not filed original agreement for arbitration or a duly certified copy thereof. He has also submitted that the petitioner has also not filed any evidence necessary to prove that the award in question is a foreign award based on valid arbitration agreement, which can be enforced by this Court. According to him, there is, thus, complete non-compliance with mandatory stipulations contained in Section 47 of the Act.

8.2. He has also submitted that the impugned award passed by Singapore Arbitral Tribunal is ex-facie without jurisdiction and, therefore, respondent begs this Court to refuse enforcement of the impugned award. While referring to Section 48 of the Act, Senior Counsel Mr. Pahwa has submitted that, in the present case, as the very jurisdiction of the arbitration proceedings is questioned by the respondent, the condition precedent for refusing the enforcement of a foreign award as contained in Section 48 (1) (a) and (d) of the Act are clearly satisfied. He has also referred to decision of the Apex Court in the case of Vijay Karia and others v. Pysmian Cavie Sistemi Srl and Others reported in (2020) 11 SCC 1, [LQ/SC/2020/229 ;] especially para 58, and has submitted that when issue of jurisdiction of the Tribunal is raised, the foreign award is not enforceable and, accordingly, the petition is not maintainable.

8.3. Learned Senior Counsel, Mr. Pahwa, while narrating actual matrix of the case regarding signing of the contract between the parties and amended agreement, has submitted that Clause 15 of the original contract dated 26.11.2013 provided for payment of 20% advance payment to the petitioner by the respondent. However, the bank of Tokyo Mitsubishi, demanded Bank Guarantee for releasing 20% advance amount to the petitioner and the petitioner was not able to furnish the Bank Guarantee. According to him, therefore, Mitshubishi (JV Partner of the respondent) wrote an e-mail (page 972 of the compilation) to the petitioner on 29.10.2014, thereby suggesting to execute a side agreement to enable BTMU to release 20% advance payment to the petitioner. He also submitted that the petitioner replied the said e-mail vide 30.10.2014 and suggested to execute a Charter Party so that first 20% could be released by BTMU to the petitioner and RBI would also have no objection to this arrangement and along with that e-mail, the petitioner has attached a one page Charter Party (page no. 974-975 of the compilation). He has also referred to page 976 of the compilation and has submitted that the respondent's representative again insisted for execution of side agreement vide its e-mail dated 30.10.2014.

8.4. While referring to e-mail (page 977 of the compilation), he has submitted that the petitioner kept on pushing for execution of one page Charter Party and has also forwarded the scanned copy of the Charter Party between the petitioner and Dongbang, which is at page 978. He has submitted that the said Charter Party was signed by the parties in back date of 8.8.2014, which was actually signed by the parties on 30.10.2014 at Anand, Gujarat. He has also submitted that there were no annexures to it, when it was executed.

8.5. Learned Senior Counsel, Mr. Pahwa has also referred to page 983 to 986 of the compilation and has submitted that these documents demonstrate that the parties had executed one more contract and side agreement on 10.8.2014 and 31.10.2014. That out of these agreements, Side Agreement was produced before BTMU for release of first 20% amount to the petitioner and aforesaid Charter Party was never acted upon between the parties. He has also submitted that even the other amendments entered into between the parties do not refer to the aforesaid Charter Party. He has submitted that since 20% amount was released by BTMU on the basis of Side Agreement, the Charter Party became infructuous. Mr. Pahwa also submitted that subsequently entire contract dated 23.11.2013 was acted upon by the parties and the respondent made payment of entire contractual amount.

8.6 Learned Senior Counsel, Mr. Pahwa further submitted that, however, the petitioner has raised an additional claim for demurrage etc. and the respondent disputed the same. He has also submitted that the petitioner sent an e-mail dated 3.6.2015, thereby attaching Charter Party along with annexures thereof, which are at page 988 to 1000 of the compilation. He has submitted that same was replied by the respondent by e-mail dated 8.6.2015 and made it clear that the documents sent by the petitioner were not the part of amendment agreement and also clarified that the one page agreement was only for the purpose of advance payment without bank guarantee. He has also submitted that the respondent has from the very beginning raised the dispute that Charter Party was only one page document and it was not a contract binding document. He has submitted that inspite of all these facts, the petitioner invoked arbitration at Singapore on the basis of such redundant Charter Party only because the petitioner is from Singapore and it was convenient for it to attend arbitral proceedings and to get favourable orders. Mr. Pahwa has also submitted that Singapore Arbitral Tribunal completely ignored all these communications between the parties and has passed an ex-parte award against the respondent. He has submitted that the Arbitral Tribunal has forcibly assumed the jurisdiction, which is not vested in it. Mr. Pahwa has referred to the observations of the High Court of Tripura, Agartala, in Writ Petition (C) No. 457, 458, 459, 460 and 461 of 2020 decided on 10.9.2021 and submitted that contention of the petitioner that the dispute is arising out of Charter Party is completely baseless and false. He has submitted that the arbitration clause contained in Contract dated 23.11.2013 is applicable. He has also referred to civil litigation filed by the respondent before Civil Court of Amreli and has submitted that the respondent has also filed Second Appeal before this Court along with an application for condonation of delay, which is pending for adjudication. On all these grounds, Mr. Pahwa has submitted to summarily reject present petition. He has relied upon the following decisions:-

(i) Olympus Superstructures Pvt. Ltd. V. Meena Vijay Khetan and Others reported in AIR 1999 SC 2102 [LQ/SC/1999/539] , wherein it is observed as under:-

"34. If there is a situation where there are disputes and differences in connection with the main agreement, and also disputes in regard to "other matters" "connected" with subject matter of the main agreement then in such a situation, in our view, we are governed by the general arbitration clause 39 of the main agreement under which disputes under the main agreement and disputes connected therewith can be referred to the same arbitral tribunal. This clause 39 no doubt does not refer to any named arbitrators. So far as Clause 5 of the Interior Decorator Agreement is concerned, it refers to disputes and differences arising from that agreement which can be referred to named arbitrators and said clause 5, in our opinion, comes into play only in a situation where there are no disputes and differences in relation to the main agreement and the disputes and differences are solely confined to the Interior Design Agreement. That, in our view, is the true intention of parties and that is the only way by which the general arbitration provision in clause 39 of the main agreement and the arbitration provision for named arbitrator contained in clause 5 of the Interior Design Agreement can be harmonised or reconciled. Therefore, in a case like the present where the disputes and differences cover the main agreement as well as the Interior Design Agreement, - (that there are disputes arising under the main agreement and the Interior Design Agreement is not in dispute) - it is the general arbitration clause 39 in the main agreement that governs because the questions arise also in regard to disputes relating to the overlapping items in the Schedule to the main agreement and the Interior Design Agreement, as detailed earlier. There cannot be conflicting awards in regard to items which, overlap in the two agreements. Such a situation was never contemplated by the parties. The intention of the parties when they incorporated clause 39 in the main agreement and clause 5 in the Interior Design agreement was that the former clause was to apply to situations when there were disputes arising under both agreements and the latter was to apply to a situation where there were no disputes or differences arising under the main contract but the disputes and differences were confined only to the Interior Design Agreement. A case containing two agreements with arbitration clauses arose before this Court in Aggarwal Engineering Co. vs. T.H. Machine Industries [AIR 1977 S.C. 2122]. There were arbitration clauses in two contracts one for sale of two machines to the appellant and the other appointing the appellant as sales-representative. On the facts of the case, it was held that both the clauses operated separately and this conclusion was based on the specific clause in the sale contract that it was the "sole repository" of the sale transaction of the two machines. Krishna Iyer, J. held that if that were so, then there was no jurisdiction for travelling beyond the sale contract. The language of the other agreement appointing the appellant as sales representative was prospective and related to a sales agency and 'later purchases', other than the purchases of these two machines. There was therefore no overlapping. The case before us and the above case exemplify contrary situations. In one case the disputes are connected and in the other they are distinct and not connected. Thus, in the present case, clause 39 of the main agreement applies. Points 1 and 2 are decided accordingly in favour of the respondents."

(ii) Order of High Court Tripura at Agartala dated 10.9.2021 passed in Writ Petition (C) No. 457, 458, 459, 460 and 461 of 2020 in the case of Glenmark Pharmaceuticals Limited v. State of Tripura and Others.

"7. It is a settled proposition of law that issue of jurisdiction, even if raised at a later state touches upon the validity of the order passed by any Court or Tribunal. It leaves me with the facet of the argument touching upon the validity of the order made by the Labour Court.

8. Courts or Tribunals having no jurisdiction cannot try or adjudicate any application or suit filed before it. Where a Court making an order/judgment/award, etc. lacks inherent jurisdiction, such order/judgment/award would be without jurisdiction, non est, and null and void ab initio as defect of jurisdiction of such Court/Tribunal goes to the root of the matter and strikes of its very authority to pass any judgment/order/award. Added to it, such defect cannot be cured in any manner whatsoever."

9. In rejoinder, learned counsel Mr. Krishnamurthy for the petitioner has submitted that there is no need of two separate prayers made in the present petition as the recognition and enforcement of the award is in two stages. He has submitted that in view of the decision of the Apex Court single application is maintainable. He has submitted that the petitioner has explained everything in the rejoinder affidavit and the points raised by the respondent regarding one page Charter Party is not tenable. He has submitted that when the arbitral tribunal has already passed award, it is for the respondent to get it stayed or set aside from the competent Court of the Singapore. He has prayed to allow the petition and pass attachment warrant against the respondent.

10. In sur-rejoinder, learned advocate Ms. Vaidankar for the respondent has submitted that Charter Party was executed only for the purpose of release of 20% of amount and, the entire contractual amount has already been paid to the petitioner. He has submitted that only for the purpose of demurrage charges, the arbitration was initiated. He has submitted that claim of demurrage is not part of the Charter Party. He has prayed to dismiss the petition.

11. Considering the submissions made by learned counsel appearing for the parties as well as the material placed on record and the decisions cited at bar, it emerges that there is no dispute between the parties regarding execution of the contract. It also emerges from record that even there is no dispute regarding entire payment of the contract. The dispute is regarding demurrage. It also emerges from record that present petitioner has filed a petition before Singapore Arbitral Tribunal against the defendant on the basis of the subsequent Charter Party Agreement. It appears from record that the respondent herein has objected to the jurisdiction of the said Arbitral Tribunal. It also emerges from record that the Arbitral Tribunal has decided that considering the issue involved and the facts, it is desirable to decide the said issue of jurisdiction at the time of decision on the arbitral proceedings. However, the Arbitral Tribunal has prima facie come to the conclusion that it has the jurisdiction to continue with the proceedings and participation by the respondent herein would not be deemed to be waiver of point of jurisdiction of Arbitral Tribunal.

12. It further emerges from record that the respondent herein has filed all documentary evidence along with affidavit of its Managing Director for evidence. It emerges from the copy of the award that the respondent herein did not participate in the Arbitral proceedings and did not remain present for cross-examination. Thereafter, on the basis of the material placed on record, ultimately, the Arbitral Tribunal has passed the impugned award in favour of the petitioner and against the respondent. Now, by filing this petition, the petitioner has sought for recognition and enforcement of the award. The same has been objected by the respondent on the ground that no jurisdiction was with the Singapore Arbitral Tribunal and as per the main contract, wherein there was Arbitral Clause, arbitration was to be conducted in India, as per British Rule. It is also the defence of the respondent that it has filed civil suit in Amreli Civil Court for declaration and injunction, wherein it has sought for declaration that arbitration clause contained in the main contract of 2013 is applicable and arbitration has to be initiated in India and also sought for injunction restraining the petitioner herein from initiating any arbitration in a foreign country.

13. At this juncture, the relevant provisions of the Arbitration and Conciliation Act, 1996 needs to be referred to. Part-II of the said Act provides for enforcement of certain foreign award. Chapter 1 deals with New York Convention awards. In the present case, the impugned award is based on New York Convention and, therefore, the provisions contained in Chapter-1 needs to be referred to. Section 44 deals with definition of "Foreign Award". In this case, it is an admitted fact that the impugned award is passed by Singapore Arbitral Tribunal and, therefore, it is a foreign award as per Section 44 of the Act. Sections 47, 48 and 49 are relevant for the purpose of deciding present petition, which are reproduced hereunder:-

"47. Evidence.--(1) The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court--

(a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made;

(b) the original agreement for arbitration or a duly certified copy thereof; and

(c) such evidence as may be necessary to prove that the award is a foreign award.

(2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

[Explanation.--In this section and in the sections following in this Chapter, "Court" means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit on its original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.]

48. Conditions for enforcement of foreign awards.--(1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that--

(a) the parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

(2) Enforcement of an arbitral award may also be refused if the Court finds that--

(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or

(b) the enforcement of the award would be contrary to the public policy of India.

[Explanation 1.--For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]

(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the Court may, if it considers it 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.

49. Enforcement of foreign awards.--Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court."

14. Thus, it is the party applying for enforcement of the award, who has to satisfy the conditions enumerated in Section 47. It has to file original award or a copy thereof duly authenticated and original agreement for arbitration or duly certified copy thereof. It is contended by the respondent that at the time of filing of the petition, the petitioner has not filed copy of the award duly authenticated and, therefore, there is non-compliance of the provisions of Section 47 and, therefore, on this ground along, petition deserves to be dismissed. However, this objection of the respondent is not tenable. The procedure laid down in Section 47 regarding filing of the original award or duly authenticated copy is a technical issue. The concerned party can always produce original award or authenticated certified copy during the pendency of the petition for recognition and enforcement of the foreign award. In this case, admittedly, during the pendency of the petition, the petitioner has already filed requisite document as per Section 47. Therefore, the technical objection raised by the respondent is without merits.

15. Now, considering the provisions contained in Section 48, the party, who objects to enforcement of a foreign award has to satisfy any condition enumerated in Section 48 thereof. At this juncture, it is pertinent to note that for enforcement of the foreign award, there is no need to take separate proceedings such as one for deciding enforceability of the award to make rule of law or decree and for other to take up execution thereafter. The Apex Court has observed this legal position in the case of Furest Day Lawson Limited (supra).

16. In view of the provisions of Section 48, a foreign award will not be enforced if it is proved by the party against whom it is sought to be enforced that the parties to the agreements were, under the law applicable to them, under some incapacity, or the agreement was not valid under the law to which the parties have subject it or, in absence of any indication thereon, under the law of the place of arbitration; or there was no due compliance with rules of fair hearing; or the award exceeded the scope of the submission to arbitration; or it contains decision on matter beyond the scope of the arbitral authority or its procedure was not in accordance with the agreement of the parties, or failing such agreement, was not in accordance with law of the place of arbitration or the award has not yet become binding on the parties or has been set aside or suspended by a competent authority, or the country in which, or under the law of which, that order was made. Further, the award will not be enforced by a Court in India if it is satisfied that the subject matter of the award is not capable of settlement by arbitration under the Indian Law or enforcement of the award is contrary to the public.

17. Now, in the present case, as emerges from the material placed on record, it is not disputed that during the existence of the contract, there was some charter party agreement entered into between the parties, wherein there is arbitral clause, which provides that arbitration will be according to the Singapore law. Now, according to the respondent, this Charter Party Agreement was made only for the purpose of payment of 20% amount of contract to the petitioner without bank guarantee and, therefore, this Charter Party Agreement has nothing to do with the main contract. It emerges from record that the respondent itself has accepted the fact that during the conduct of arbitral proceedings at Singapore, he has filed appropriate application and the documents before such Tribunal and has objected to the jurisdiction of the Arbitral Tribunal. The respondent has also admitted that the Arbitral Tribunal has decided his application and prima facie held that it has jurisdiction and main issue of jurisdiction will be considered along with arbitral proceedings. It also appears from record that Managing Director of the respondent has filed his affidavit in evidence and, thereafter, he did not remain present for cross-examination. Thus, the Arbitral Tribunal has afforded opportunity of being heard to the respondent and the respondent itself did not avail it and instead filed Civil Suit in the Court at Amreli. It emerges from record that the concerned Civil Court has initially not granted any interim injunction and on the basis of the application moved by present petitioner rejected the suit under Order 7, Rule 11(D) of the Civil Procedure Code, against which the respondent has preferred appeal before the concerned District Court and the District Court has rejected the same. Thereafter, the parties have moved this Court and this Court has set aside both the orders and has directed the trial Court to decide the application of ad-interim injunction as well as application filed by the petitioner herein for rejection of plaint under Order 7, Rule 11(D) of CPC. Thereafter, the concerned trial Court has allowed the application filed under Order 7, Rule 11(D) and has rejected the suit. This order of the trial Court came to be challenged by the respondent herein before the District Court, which has held that being a commercial dispute, it has no jurisdiction. Now, as per the averments of the respondent, it has challenged the same before this Court by filing Special Civil Application and, ultimately, he has filed Second Appeal with delay condonation application. Now, admittedly, there is no stay granted by any Court against the petitioner in relation to the impugned foreign award. At present, the suit filed by the respondent herein for declaration that under main contract of 2013 arbitration is to be conducted in India, has been rejected by the trial Court and, said order is in force.

18. Thus, necessary conditions, which are enumerated in Section 48, for resistance of enforcement of foreign award are not fulfilled by the respondent herein. It is not the case of the respondent that it had any incapacity nor his defence that no opportunity of fair hearing was given to it. It is also not the case of the respondent that subject matter of the difference was not capable of settlement by arbitration under the law in India. Rather by filing Civil Suit the respondent itself has suggested that subject matter of difference is capable of settlement by arbitration under the law of India. No facts are put up by the respondent to show that enforcement of the award would be contrary to public policy of India.

19. Now, considering the material placed on record, it clearly appears that Singapore Arbitral Tribunal, after considering all the materials placed before it and even considering the objection of the respondent herein regarding Tribunal's jurisdiction, has ultimately passed the impugned award. Now, as per the legal provision, the remedy is available with the respondent to challenge it before the competent High Court of Singapore. Admittedly, the respondent has not taken such recourse of law. Further, there is no stay granted by any Court of Singapore or any Court of this country against the impugned award, nor the said award has been set aside by the competent authority or legal forum i.e. by Singapore Court or by this Court.

20. Further, it emerges from the record that prior to filing of this petition, the petitioner has also moved Arbitration Application No. 16 of 2019, wherein prohibitory order has been passed against the respondent and the coordinate Bench has also referred to the impugned foreign award and considering the award has passed the order against the respondent herein. That order has not been challenged by the respondent. Thus, considering all these facts and the material placed on record, it clearly transpires that the impugned foreign award is enforceable. Therefore, it is a decree within the provisions of the Act and Code of Civil Procedure. Further, since the respondent-award debtor has not satisfied the award and award being enforceable, as a decree, the same is executable under the provisions of the Code of Civil Procedure. In view of the fact that the award is yet not satisfied by the respondent, necessary warrant for attachment of its property, mentioned in the Schedule, needs to be issued under the provisions of Order 21, Rule 54, against the respondent, on payment of prescribed process fees, returnable on 24.1.2023.

21. Therefore, at this stage, following order is passed:-

22. It is held that the impugned foreign award is enforceable as decree. Necessary attachment warrant be issued under Order 21, Rule 54 of the Code of Civil Procedure, on payment of requisite fee, returnable on 24.1.2023.

FURTHER ORDER

At this stage, learned advocate for the respondent requests to stay this order for a period of three weeks from today. The same is objected by learned advocate for the petitioner. Considering the dispute involved in the matter, request made by the respondent is acceded to. The order of issuance of warrant is hereby stayed for a period of three weeks from today.