Allowed

Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suisse S. a.

Bombay HC12 Dec 2014APP/701/2014

Case brief

AI extract

What is this about?

The Division Bench set aside the Single Judge's order allowing an execution application for enforcing a foreign award. The court restored the matter to file for proper enforcement proceedings under Section 47 of the Arbitration and Conciliation Act, 1996, noting a consensus between parties.

What did the court decide?

Impugned order set aside; Execution Application restored; Matter to be heard with Section 47 application.

Sakuma Exports Ltd. Vs Louis Dreyfus Commodities… — Execution and Attachment | Bombay HC (2014)

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APP 701-2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 701 OF 2014 IN

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EXECUTION APPLICATION NO. 554 OF 2011

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Sakuma Exports Ltd. .. Appellant V/s Louis Dreyfus Commodities Suisse S.A. .. Respondent

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Mr. Gaurav Joshi, Senior Advocate with Mr. Chirag Mody and Mr. Ashish Pyasi i/b Krishnamurthy & Co. for the appellant. Mr. Hiroo Advani with Mr. Asif Lampwala and Mr. Deepak Lad i/b Advani & Co. for the respondent.

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CORAM: MOHIT S. SHAH, C.J. & B.P. COLABAWALLA, J.

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DATE : 12 DECEMBER 2014

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P.C.:

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This appeal is directed against the order dated 28 November 2014 of the learned Single Judge allowing the execution application taken out by Louis Dreyfus Commodities Suisse SA for enforcement of the foreign award dated 25 March 2011.

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The appellant was granted time to file affidavit in reply, but the affidavit in reply was not filed within the time limit and the Court declined to grant the extension for filing the reply. The learned Judge, therefore, proceeded on the basis that the awarddebtor has not shown any cause why enforcement of the award

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cannot be allowed and on that basis made the Notice No. 1215 of 2011 absolute as prayed. The execution application has thus been allowed for its enforcement in accordance with law.

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The learned counsel for the appellant / award-debtor submits that in absence of an application for enforcement of the Foreign Award under section 47 of the Arbitration and Conciliation Act, 1996 (the Act), the execution application could not have been filed and no orders could have been passed thereon.

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In the alternative, it is submitted that the appellant's affidavit in reply was ready, but it was only to be affirmed and, therefore, the appellant's attorney had prayed for adjournment, but the same was not granted.

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The learned counsel for the respondent – foreign award holder states that in view of provisions of section 47 of the Act, the respondent – foreign award holder is ready to file an application for enforcement of the award.

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In view of the above consensus between the parties, the impugned order dated 28 November 2014 of the learned Single Judge is set aside. Execution Application No. 554 of 2011 is restored to the file and the same shall be taken up along with the application for enforcement under section 47 of the Act, which the respondent herein (foreign award holder) proposes to file within 2 weeks from today. Upon the respondent filing such an application under section

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47 of the Act, the appellant shall file affidavit in reply within 2 weeks from the date of service of the application under section 47 of the Act. Thereafter, the application under section 47 of the Act for enforcement of the Foreign Award and the Execution Application No. 554 of 2011 shall be heard together.

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We may note that the learned Single Judge has recorded in her order that the challenge to the award has failed right upto the Supreme Court. The learned counsel for the appellant, however, points out that the challenge to the award was made under section 34 of the Act and the learned Single Judge as well as the Division Bench of this Court and the Supreme Court all held that such a challenge to the foreign award was not maintainable under section 34 of the Act and on that count the challenge was repelled without going into the merits of the challenge.

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The above statement is not controverted by the learned counsel for the respondent.

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The appeal is accordingly allowed in the aforesaid terms with no order as to costs.

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CHIEF JUSTICE

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(B.P. COLABAWALLA, J.)

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Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suisse S. a.

Case brief

What is this about?

What did the court decide?

Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suisse S. a.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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Sakuma Exports Ltd. Vs Louis Dreyfus Commodities Suisse S.A.