ARUN DEV UPADHYAYA Vs. INTEGRATED SALES SERVICE LTD
SUPREME COURT OF INDIA
Arun Dev Upadhyaya
Integrated Sales Service Ltd
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DIPAK MISRA, J. -
(1.) Aggrieved by the order dated 23.06.2016 passed by the Division
Bench of the High Court of Judicature at Bombay, Nagpur Bench,
Nagpur in C.A.M. No. 34 of 2016 in Arbitration Appeal No.3 of 2016
rejecting the preliminary objection raised by the appellant and further
being dissatisfied with the order dated 15.07.2016 expressing
disinclination to entertain the Civil Miscellaneous Application (Review),
the present appeals, by special leave, have been preferred for
annulling the same.
(2.) The facts which are relevant to be stated for adjudication of the appeals are that an award was passed in favour of the 1 st respondent
in ICDR Case No. 50-181-T-00327-09 by the International Arbitration
Tribunal (for short, "the tribunal") making the appellant the DMC
Management Consultants Limited and another jointly and severally
liable to pay USD 6,948,100 within ten days from the date of passing
of the award.
(3.) It is the case of the respondent that the international arbitration award had attained finality as the appellant herein had not challenged
it under Delaware Law which is the applicable law. On 29.04.2010,
the 1st respondent filed an application under Sections 47 and 49 of the
Arbitration and Conciliation Act, 1996 (for brevity, "the 1996 Act") for
enforcement of the Award before the District Judge, Nagpur and the
proceeding continued before the concerned District Judge till the
Arbitration and Conciliation (Amendment) Act, 2015 (for short, "2015
Act") came into force with effect from 23 rd October 2015, by which the
High Court was conferred with the original jurisdiction in case of
International Commercial Arbitration. After the 2015 Act came into
force, the 1st respondent filed Misc. Civil Application No. 1319 of 2015
before the High Court for enforcement of the award. The Learned
Single Judge by his final order dated 18.04.2016 came to hold that the
award dated 28.03.2010 was enforceable against the DMC
Management Consultants Limited and passed a decree against it in
terms of the award. However, the learned single judge opined that the
award was not enforceable in India against the other respondent as
the arbitral tribunal could not have passed the award against them.
The opinion expressed by the learned Single Judge reads as follows:-
"(1) The award dated 28.3.2010 passed by the International Arbitration Tribunal in ICDR Case No. 50181T0032709 becomes unenforceable in India to the extent it operates against the non-applicant No. 2-Arun Dev s/o Govindvishnu Upadhyaya and No. 3 Gemini Bay Transcription Pvt. Ltd., and the claim for passing a decree against them in terms of the said award is refused.
(2) The award passed by the International Arbitration Tribunal in ICDR Case No. 50181T0032709 to the extent it operates against the non-applicant No. 1-DMC Management Consultants Ltd. is made enforceable in India and the decree is passed in terms of the said award against the non-applicant No. 1." ;
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