LMJ INTERNATIONAL LTD. versus SLEEPWELL INDUSTRIES CO. LTD.

Citation: [2019] 4 S.C.R. 617 · Decided: 20-02-2019 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Dismissed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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LMJ INTERNATIONAL LTD.
v.
SLEEPWELL INDUSTRIES CO. LTD.
(Special Leave Petition (Civil) No. 540 of 2018)
FEBRUARY 20, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Arbitration and Conciliation Act, 1996 – s. 48 – Parties entered
into separate contracts for sale of Non-Basmati Parboiled Rice,
Thailand origin– Contract governed by GAFTA 48 and disputes
were to be resolved by Arbitration 125 as per GAFTA 125 in London
– Dispute arose – Arbitral Tribunal passed two separate awards –
Respondent filed two execution cases (pertaining to contract-I and
contract-II) u/Part-II of the 1996 Act before the High Court for
enforcement of the foreign arbitral award – Petitioner’s objection
regarding the maintainability of the subject foreign awards rejected
– Special Leave Petitions (pertaining to contract-I & II) filed by the
petitioner– Dismissed– Single Judge in the execution petition held
that the subject foreign awards were deemed to be decrees and hence
enforceable –Order upheld by the Division Bench – Petitioner then
filed review application in the execution case – Dismissed –
Petitioner filed G.As. in the respective execution cases, objecting
the enforceability of the foreign awards – Rejected – On appeal,
held: 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 – Scheme of s.48 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 – Subject application
filed by the petitioner deserves to be rejected, being barred by
constructive res judicata – After an interim order was passed in favour
of the respondent permitting withdrawal of part of the amount
deposited in the High Court in relation to the execution of the subject
foreign awards, the petitioner lost no time in changing the name of
the company within three days thereafter–Petitioner also changed
its registered office address and had no compunction in moving the
   [2019] 4 S.C.R. 617
  617
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SUPREME COURT REPORTS
[2019] 4 S.C.R.
NCLT, Kolkata to prevent the respondent from enjoying the fruits
of the subject awards, and saying so brazenly in the petition filed
by it u/s.10 of the I & B Code – Conduct of the petitioner is indicative
of an attempt to overreach this Court – High Court considered every
aspect of the grounds urged by the petitioner and the view so
expressed is a possible view – Exemplary costs, quantified at
Rs.20,00,000/- be paid to the respondent – Registrar (OS), Calcutta
High Court to encash the FDs lying deposited in the credit of the
concerned stated execution case and, after obtaining the RBI’s
permission forthwith, remit the entire amount, including the interest
accrued in US Dollars, to the respondent – Principles of res judicata
– Insolvency & Bankruptcy Code, 2016 – s.10.
Dismissing the Special Leave Petitions, the Court
HELD: 1.1 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 hair-splitting and nothing more.
It is an argument in desperation only to protract the execution of
the foreign award on untenable grounds. Indeed, the petitioner
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 Judge
had then reproduced the five points, which alone were orally urged
on behalf of the petitioner through its counsel. 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 Arbitration and Conciliation Act,
1996, which included the enforceability of the subject foreign
awards. Additionally, the 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 sa

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