M/S. SHINHAN APEX CORPORATION versus MIS. EURO APEX B.V.

Citation: [2016] 2 S.C.R. 37 · Decided: 22-04-2016 · Supreme Court of India · Bench: F.M. IBRAHIM KALIFULLA

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Judgment (excerpt)

[2016] 2 S.C.R. 37 
MIS. SHINHAN APEX CORPORATION 
A 
v. 
MIS. EURO APEX B.V. 
(Civil Appeal Nos.4359-4360of2016) 
APRIL 22, 2016 
B 
[FAKKIR MOHAMED IBRAHIM KALIFULLA AND 
S. A. BOBDE, JJ.] 
Arbitration - Partial Final Award - Licence agreement between 
the appellant and the respondent - Provision for settlement of 
di,putes by arbitration - Di.lpule between the parties before the 
arbitral tribunal - Subsequently, application for registration of 
Patent in US as well as India by the appellant - Partial Final Award 
by arbitra/ tribunal whereby the re,pondent to transfer all rights 
and interests of Indian Patent to claimant - Thereafter, application 
by the respondent before the High Court for enforcement of the 
PFA -· High Court held that there was a material alteration in the 
draft deed forwarded by the respondent lo the appellant when the 
final deed was executed in the deed and tints, the appellant bound 
to execute transfer deed of assignment as per the draft sent by the 
respondent as was originally forwarded to the appellant - On appeal, 
held: Appellant did 1101 commit any default in complying with the 
direction of the said Award and the direction of the judge was wholly 
unwarranted - If the respondent failed lo act based 011 the final 
transfer deed executed by the appellant, which was in tune with the 
draft fonl'arded by respondent themselves, the appellant cannot be 
blamed for the misfeasance committed by the respondent. 
Allowing the appeals, the Court 
HELD: 1.1 Haviog regard to the developmeot which took 
place after the PFA which discloses that the appellant did not 
commit any default in complying with the direction of the said 
Award and the present direction of the judge in the impugned 
order was wholly unwarranted. If the respondent failed to act 
based on the final transfer deed executed by the appellant on 
4.4.4012, which was in tune with the draft forwarded by the 
respondent themselves, the appellant cannot be in any way blamed 
for the misfeasance committed by the respondent. [Para 14] [43-
F] 
37 
c 
D 
E 
F 
G 
H 
38 
SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
A 
1.2 The judge completely missed to note that based on the 
correspondence exchanged between the respondent and the 
appellant between 19.1.2012 and 3.4.2012 Annexure P6 dated 
4.4.2012 was the ultimate transfer deed which the appellant was 
obliged to execute, that the appellant duly executed the said 
B document by signing the same on 4.4.2012 and forwarded to the 
respondent's lawyers and the due execution of which was also 
confirmed on behalf of the respondent by their lawyers. A further 
confirmation was made by the respondent's counsel to the 
respondent themselves on the same day as to the execution of 
the transfer deed dated 4.4.2012. The original documents were 
C 
also forwarded by the appellant on 12.4.2012. After the referred 
sequence of events as regards Annexure P6 dated 4.4.2012 are 
noted, it must be held that the direction the PFA of the Arbitral 
Tribunal was duly carried out by the appellant based on the first 
request of the respondent themselves as made on 19.1.2012 and 
D as per the modified request dated 3.4.2012. If that was the real 
fact situation in regard to the execution of the transfer deed, which 
was completely omitted to be noted by the Single Judge, it must 
be held that there was no occasion for the respondent to have 
any grievance in regard to the execution of the transfer deed as 
directed in the PFA of the Arbitral Tribunal. The failure on the 
E 
F 
part of the judge in having noted the fact that the transfer deed 
dated 4.4.2012 was as per the re-draft forwarded by the respondent 
themselves which was duly executed and sent back by the 
appellant by 9.4.2012 and the original by 12.4.2012 unfortunately 
resulted in the passing of the impugned order. In the light of the 
said patent illegality in the impugned order, the same is set aside. 
[Para 15] [43-H; 44-A-E] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4359-
4360 of2016 
From the Judgment and Order dated 29.09.2014 passed by the 
G High Court of Judicature at Bombay in Execution Application No. 643 
of2013 in Award dated 23.12.2011 with Chamber Summons No. 832 of 
2014 
K. Vishwanathan, Sr. Adv., Pramod Nair. Raghenth Basant, Ms. 
Aanchal Tikmani, Ms. Liz Mathew, Advs. with them for the Appellant. 
H 
MIS. SHINHAN APEX CORPORATION v. M/S. EURO APEX 
39 
B.V. 
Manoj K. Singh, Nilava Bandyopadhyay, Prem Prakash, Advs. 
A 
for t

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