Dipak Misra, C.J.I. - (1.) The present appeal arose from the final judgment and order dated 27th July, 2016 passed by the High Court of Delhi at New Delhi in FAO No. 59 of 2016 whereby the Division Bench of the High Court had dismissed the appeal preferred by the Union of India, the appellant herein, assailing the order dated 9th July, 2015 passed by the learned Single Judge in OMP No. 693 of 2013 and the order dated 20th January, 2016 passed in Review Petition No. 400 of 2015 in OMP No. 693 of 2013. The Division Bench took note of the fact that the appellant had challenged the legal propriety and correctness of the award made by the Arbitrators in favour of the respondents under Section 34 of the Arbitration and Conciliation Act, 1996 (for brevity "the Act"). The said application was contested by the respondent raising many a ground, but the thrust of the objection related to the maintainability of the application under Section 34 of the Act. It was contended before the High Court that the courts in India do not have the jurisdiction to entertain an application under Section 34 of the Act to challenge the legality of the award in question. The learned Single Judge, vide order dated 9th July, 2015, accepted the preliminary objection and came to hold that in view of the terms of the agreement and the precedents holding the field, the Indian courts have no jurisdiction to entertain the application. Being of this view, the learned Single Judge did not advert to the other grounds urged in the petition.
(2.) Being grieved by the aforesaid order, the Union of India preferred an appeal under Section 37(2) of the Act before the Division Bench which concurred with the opinion expressed by the learned Single Judge.
(3.) In appeal by special leave, the two-Judge Bench in Union of India v. Hardy Exploration and Production (India) INC, 2018 7 SCC 374 referred to certain decisions from foreign jurisdictions, namely, Naviera Amazonica Peruana S.A. v. Compania Internacional De Seguros Del Peru, 1988 1 LloydsRep 116, Hiscox v. Outhwaite, 1992 1 AC 562, Union of India v. McDonnell Douglas Corpn., 1993 2 LloydsRep 48, C v. D, 2007 EWCA(Civ) 1282 (CA), C v. D,2008 1 LloydsRep 239, Braes of Doune Wind Farm (Scotland) Limited v. Alfred McAlpine Business Services Limited, 2008 EWHC(TCC) 426 (TCC), Shashoua and Ors. v. Sharma, 2009 EWHC(Comm) 957 (Comm.) , Sulamerica Cia Nacional De Seguros S.A. and Ors. v. Enesa Engenharia SA & Ors., 2012 EWCA(Civ) 638, (1) Enercon GMBH (2) Wobben Properties GMBH v. Enercon (India) Ltd., 2012 EWHC(Comm) 689 and Govt. Of India v. Petrocon India Ltd.,2016 SCCOnlineMYFC 35 Apart from the above, the decisions rendered in Sumitomo Heavy Industries Ltd. v. ONGC Ltd. and Others, 1998 1 SCC 305, Bhatia International v. Bulk Trading S.A. and Another, 2002 4 SCC 105, Venture Global Engineering v. Satyam Computer Services Ltd. & another, 2008 4 SCC 190, Videocon Industries Limited v. Union of India and another, 2011 6 SCC 161 Dozco India Private Ltd. v. Doosan Infracore Co. Limited, 2011 6 SCC 179, Bharat Aluminium Company v. Kaiser Aluminium Technical Services INC, 2012 9 SCC 552, Enercon (India) Ltd. & Others v. Enercon GMBH & Another, 2014 5 SCC 1, Reliance Industries Limited and another v. Union of India, 2014 7 SCC 603, Harmony Innovation Shipping Ltd. v. Gupta Coal India Limited and another, 2015 9 SCC 172 Union of India v. Reliance Industries Limited and Others, 2015 10 SCC 213, Eitzen Bulk A/s & others v. Ashapura Minechem Limited and another, 2016 11 SCC 508, Imax Corporation v. E-City Entertainment (India) Pvt. Lid., 2017 5 SCC 331, and Roger Shashoua and others v. Mukesh Sharma and others, 2017 14 SCC 722, were also referred to.;