LexNOY VALLESINA ENGINEERING SPA, (NOW KNOWN AS NOY AMBIENTE S.P.A.) versus JINDAL DRUGS LIMITED & ORS.
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A B C D E F G H 1019 NOY VALLESINA ENGINEERING SpA, (NOW KNOWN AS NOY AMBIENTE S.P.A.) v. JINDAL DRUGS LIMITED & ORS. (Civil Appeal No. 8607 of 2010) NOVEMBER 26, 2020 [INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.] Arbitration and Conciliation Act, 1996: s.34 – Petition under – Challenging foreign award – Maintainability of – Held: Seat of arbitration in the present case was in London under the aegis of ICC – Challenge to such award u/s. 34 is not maintainable. s.50 – Appeal against orders passed in arbitration proceedings – Maintainability – Held: Section 50 alone provides for an appeal in all arbitration cases of enforcement of foreign awards – Letters Patent Appeals against such orders is not maintainable. Allowing the appeal, the Court HELD: 1. Having regard to the precedential unanimity, so to say, about the manner of applicability of *BALCO case in respect of agreements entered into and awards rendered earlier, with respect to the law of the seat of arbitration (or the curial law) excluding applicability of Part I of the Arbitration and Conciliation Act, 1996 and the unambiguous intention of the parties in the present case (expressed in Clause 12.4.2 of the Contract) that the seat of arbitration was London, where the ICC arbitration proceedings were in fact held, and the awards rendered, this court is of the opinion that the impugned judgment cannot be sustained. [Para 23][1052-D-F] *Bharat Aluminium Company vs Kaiser Aluminium Technical Services Inc (2012) 9 SCC 552 : [2012] 12 SCR 327; Venture Global Engineering v. Satyam Computer Services Ltd. & Anr. (2008) 4 SCC 190 : [2008] 1 SCR 501 – followed. [2020] 12 S.C.R. 1019 1019 A B C D E F G H 1020 SUPREME COURT REPORTS [2020] 12 S.C.R. Roger Shashoua v. Mukesh Sharma (2017) 14 SCC 722 : [2017] 7 SCR 442; IMAX Corporation v. E-City Entertainment (India) (P.) Ltd. (2017) 5 SCC 331 : [2017] 4 SCR 833; Government of India v. Vedanta Ltd (2020) SCC Online (SC) 749; BGS SOMA JV v. National Hydro Electric Power Corporation (2020) 4 SCC 234 – relied on. Bhatia International v. Bulk Trading S. A. & Anr. (2002) 4 SCC 105 : [2002] 2 SCR 411; Union of India v. Reliance Industries (2015) 10 SCC 213 : [2015] 10 SCR 85; Harmony Innovation Shipping Ltd v. Gupta Goal India Ltd. 2015 (9) SCC 172: [2015] 2 SCR 697 – referred to. 2.1 The decision in **Fuerst Day Lawson unambiguously ruled out the maintainability of any appeal against an order granting enforcement of a foreign arbitration award. In the present case, both the partial and final awards are foreign awards. Therefore, the provisions of Sections 47/48 were correctly invoked by the appellant for enforcement of the awards (through Application No 156/2005). The respondent objected to the enforcement proceedings, in accordance with grounds articulated in Part II of the Act. A single judge substantially upheld the award, and proceeded to its enforcement, by a judgment dated 05.06.2006, at the same time rejecting the challenge to enforcement laid out by the respondent. Both parties appealed to the Division Bench; the respondent on the challenge to the order rejecting its objection to enforcement (Appeal No. 492/2006), and the appellant as to that part of the order of the Single Judge, refusing to enforce a part of the award (Appeal. No. 740/2006). [Para 24][1052-G; 1053- A-B] 2.2. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Therefore, the respondent’s appeal to the Division Bench, (Appeal No. 492/ 2006) is not maintainable. However, the appellant’s appeal (Appeal. No. 740/2006), against the order of the Single Judge (to the extent it refuses enforcement) is maintainable. [Para 25][1055- F-G] A B C D E F G H 1021 2.3 In view of the finding that such an appeal (against an order of enforcement) is untenable by reason of Section 50, the merits of the respondent’s objections to the Single Judge’s order, are open for it to be canvassed in appropriate proceedings. Such proceedings cannot also be a resort to any remedy under the Code of Civil Procedure. In the event the respondent chooses to avail of such remedy, the question of limitation is left open, as this court is conscious of the fact that Fuerst Day Lawson is a decision rendered over 10 years ago; it settled the law decisively and has been followed in later judgments. It cannot be said that the respondent was ignorant of the law. [Para 26][1055-H; 1056- A-B] **Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2011) 8 SCC
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