GOLDEREST EXPORTS Vs. SWISSGEN N V

JUDGEMENT

(1.) BY the present petition, the petitioners are seeking to challenge an award passed by FOSFA International dated 13-8-2004. It is an. admitted position that this is a foreign award. The present award is sought to be challenged by invoking provisions of section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act ).

(2.) THE first question which arises for consideration is whether the foreign award can be challenged by invoking the provisions of section 34 of the said Act which fall in Part I of the said Act. In view of the fact that I am only deciding the maintainability of the present arbitration petition, I am neither going through the facts of the present case nor I am dealing with the issues on merits which are raised in the present petition.

(3.) THE learned counsel appearing for the petitioners has contended before me that in view of the judgment of the Apex Court in the case of Bhqtia international vs. Bulk Trading S. A. and anr. reported in (2002) 4 SCC 105, the petition under section 34 to challenge the foreign award is maintainable. He has particularly drawn my attention to paragraphs 21 and 35 of the said judgment and has contended that in absence of the provisions under the said Act prescribing that Part I shall not apply in cases where the arbitration is conducted under Part II of the said Act the petition to challenge a foreign award will lie under section 34 of the said Act. Thus, according to him, the present petition is maintainable under section 34 of the said Act.