M/S. FUERST DAY LAWSON LTD. versus JINDAL EXPORTS LTD.

Citation: [2001] 3 S.C.R. 479 · Decided: 04-05-2001 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

MIS. FUERST DAY LAWSON LTD. 
A 
v. 
JINDAL EXPORTS LTD. 
MAY 4, 2001 
[S.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.] 
B 
Arbitration and Conciliation Act, 1996 
Section 85(2)(a)-Arbitration-Foreign Award-Enforcement of-Act 
came into force on 25.1.1996-Proceedings commenced prior to the C 
enforcement of Act-Award passed after the commencement of Act-Effect 
of-Held, Award would be governed under the Act. 
Section 1 (3)-Date of commencement of Act-Determination of-
1.>romulgation of Ordinance-Effect of-Arbitration and Conciliation 
Ordinance came into force on 25.1.1996-Act was notified on 22.8.1996- D 
Held, an Ordinance shall '1ave the same force and effect as an Act-Act being 
continuation of the Ordinance it shall be deemed to have come into force 
from 25.1.1996-Constitution of India, 1950-Articles 367(2), 123 and 213--
General Clauses Act, 1897-Sec. 30. 
Sections 46 and 49-Foreign award-Enforcement of-Initiation of 
separate proceedings.....:...Necessity of-Held, the Act was promulgated with the 
object of providing speedy and alternative solution to disputes-Thus, it is 
~ -l 
not necessary for a party holding foreign award to file separate proceedings 
for its enforcement. 
Interpretation of statutes 
Purposive reading-Applicability of 
Precedent 
Judgment "Per incuriam "-Applicability-Arbitration and Conciliation 
Ordinance came into force on 25.1.1996-Act notified on 22.8.1996-ln 
,---'. 
Thyssen case, Supreme Court held that Act came into force on 25.1.1996-
Held, unless there is glaring case of obstrusive commission principle of 
Judgment "per incuriam is not applicable-Thyssen s Judgment has not 
479 
E 
F 
G 
H 
480 
SUPREME COURT REPORTS 
[2001] 3 S.C.R. 
A failed t(l notice either a statutory provision in substance and effect or a 
binding precedent-Thus, Thyssen s case held not "per incuriam ". 
Appellant and respondent entered into an agreement for supply of certain 
goods. During the course of the agreement certain dispute arose between the 
parties which was referred to arbitration before the International General 
B · Produce Association. Arbitrators passed an Award on 13.8.1996 allowing 
the claims of the appellant Respondent's appeals before the Appellate Board 
and Queen's Bench of the High Court of Justice at London were dismissed. 
Thereafter, appellant filed an execution application before the High Court of 
Delhi for enforcement of the said foreign Award. J'he High Court issued an 
C order of attachment against the respondent. Aggrieved, respondent filed an 
application for dismissal of the execution petition under Section 151 of the 
Code of Civil Procedure, 1908, and also a petition under Section 48 of the 
Arbitration and Conciliation Act, 1996. Single Judge of High Court dismissed 
the execution petition of appellant holding that the execution application filed 
for eDrorccment of foreign Award dated 13.8.i996 was not maintainable under 
D Act as the arbitration proceedings had commenced prior to the coming into 
force of the Act Appellant's appeal before Division Bench of High Court was 
also dismissed. Hence the present appeal. 
On behalf of the appellant, it was contended that Single Judge as well 
E as the Division Bench of the High Court erred in holding that since the 
arbitration proceedings were commenced prior to the commencement of the 
Act, the foreign Award dated 13.8.1996 could not be enforced under the Act 
in terms of Section 85 read with Section 21 of the Act in view of the judgment 
of this Court in Thyssen case; that at no stage before the High Court either 
before the Single Judge or before the Division Bench respondent questioned 
F the date of commencement of Act and in fact Division Bench proceeded on 
the admitted position that the new Act commenced from 25.11.1996 and, 
therefore, it cannot be raised for the first time in the instant proceedings. 
On behalf of the respondent it was contended that the date from which 
G the Act came into force was an issue of fact and not an issue of law and this 
Court in the cases relied _upon on behalf of the appellant had wrongly 
mentioned the date of enforcement of the Act as 25.1.1996 instead of 22.8.1996 
and thus the error will have to be corrected as the decision would be 'per 
incuriam'; that in Thyssen case it was held that a foreign award given after 
the commencement of the new Act can be enforced only under the new Act; 
H in the instant case, the Award was passed on 13.8.1996 i.e. 9 days prior to 
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