JUDGMENT
S. M. Jhunjhunuwala, J.
1. By this petition, the petitioner seeks directions to 1st respondent to file the Award dated 27th June, 1995, in this court together with depositions and documents taken on record by him.
2. The petitioner is a company incorporated under the provisions of the Companies Act, 1956. The 2nd respondent is a company incorporated in accordance with the laws of Japan. The 1st respondent has acted as Umpire in the disputes between the petitioner and the 2nd respondent which were referred to arbitration.
3. By a contract dated 7th September, 1983 (for short, ‘the Contract’) entered by and between the petitioner and the 2nd respondent, the 2nd respondent (for short, ‘Sumitomo’) agreed to install and commission on a turnkey basis, as Phase II of a Platform Complex at a site of the petitioner known as Bombay High South Offshore site about 100 miles North West of Bombay (for short, the SH Complex’) one Well-cum-Production. Platform Deck, two Falre Tripods and Flare Bridges, one SGN system and some interconnecting sub-marine pipelines (for short, ‘the Work’). The installation and commissioning of the said work was to include and cover detailed design, and engineering, procurement, fabrication, inspection, testing & pre-commissioning, load-out, sea fastening, tow-out, installation at Offshore Site and Commissioning and any other work necessary for the final completion of the work.
Clauses 17.1 and 17.2 of the contract provided as follows :
“17.1 Applicable laws :
All questions disputes or differences arising under, out of or in connection with this contract shall be subject to the law of India.”
“17.2 Arbitration :
If any dispute, difference or question shall at any time hereafter arise between the parties hereto or their respective representatives of assign in respect of the contraction of these presents or concerning anything herein contained or arising out of these presents or as to the rights, liabilities or duties of the said parties hereunder which cannot be mutually resolved by the parties, the same shall be referred to arbitration, the proceedings of which shall be held at London, U.K. Within 30 days of the receipt of the notice of intention of appointing arbitrators each party shall appoint an arbitrator of its own choice and inform the other party. Before entering upon the arbitration, the two arbitrators shall appoint an umpire. In case the parties fail to appoint its arbitrator within 30 days from the receipt of a notice from the other party in this behalf or if any dispute in selection of umpire, the President of International Chamber of Commerce, Paris, shall appoint the arbitrator and/or the umpire as the case may be.
The decision of the arbitrators and failing to an agreed decision by them, the decision of the umpire shall be final and binding on the parties.
The arbitration proceedings shall be held in accordance with the provisions of International Chamber of Commerce and the rules made thereunder as amended from time to time. The arbitration proceedings shall be conducted in English language.
The arbitrators, or the umpire, as the case may be, shall decided, by whom and in what proportion the arbitrators or umpires fees as well as the cost incurred in arbitration shall be normal. The arbitrators or the umpire may, with the consent of the parties, enlarge the time, from time to time, to make and publish their or his award.”
4. Disputes subsequently arose between the parties to the contract whereby Sumitomo claimed certain amounts from the petitioner (for short, ‘ONGC’) for which ONGC denied its liability. On or about 8th March, 1991, Ince & Company, the English Solicitors of Sumitomo, served a notice of arbitration on ONGC and sent a request for arbitration to the International Chamber of Commerce (for short, ‘ICC’). On or about 11th March, 1991. Ince & Company appointed Mr. Robert A. Macrindle as arbitrator on behalf or Sumitomo. On or about 11th May, 1991, M/s. Desai & Diwanji, Indian Solicitors for ONGC, appointed Mr. D. M. Chandrasekhar, Retired Chief Justice of Karnataka High Court, (India), as arbitrator on behalf ONGC. The arbitrators appointed the 1st respondent as umpire pursuant to Clause 17.2 of the contract. On or about 27th January, 1992, the Secretariate of the ICC wrote to the Solicitors of the parties to the effect that, since the ICC Rules did not provide for umpire, and since the parties were unable to agree upon the status of the umpire, in the context of the ICC Rules, the arbitration would not be able to proceed under the auspices of ICC.
5. On or about 20th October, 1992, a preliminary hearing took place in London before the arbitrators at which ONGC and Sumitomo were represented by their legal advisers. While admitting that the disputes had arisen within the terms of Clause 17.2 of the contract, it was submitted on behalf of ONGC that the arbitrators were not duly appointed and the arbitration could not proceed. The arbitrators rejected the submission made on behalf of ONGC and gave directions to Sumitomo and ONGC to file pleadings before them. On or about 16th December, 1992, ONGC petitioned to this court for an injunction to restrain Sumitomo from taking any further steps in the arbitration. No interim relief was granted in favour of ONGC to restrain Sumitomo. On or about 24th December, 1992, Ince & Company on behalf of Sumitomo applied to the Queen’s Bench Division (Commercial Court), London, for leave to issue and serve ONGC in India an originating summons seeking an order under Section 5 of the English Arbitration Act, to confirm powers on the arbitrators to proceed with the arbitration in default of service of a defence by ONGC. On or about 29th December, 1992, Mr. Justice Laws granted leave to Sumitomo to issue and serve the originating summons. On or about 19th January, 1993, M/s. Desai & Diwanji on behalf of PNGC applied to this court for an order that pending hearing & final disposal of ONGC’s petition the arbitration be stayed & injunction restraining Sumitomo from proceeding with its originating summons in London be granted. By the order dated 22nd January, 1993 passed by Justice Vyas of this court, interim relief was declined to ONGC.
6. On or about 26th January, 1923, the originating summons taken out on behalf of Sumitomo was heard by Mr. Justice Creasswell in the Queen’s Bench Division (Commercial Court), London without ONGC having communicated with the Court or being represented, and Mr. Justice Creasswell passed order defining the powers of the arbitrators pursuant to Section 5 of the English Arbitration Act. On or about 27th January, 1993, M/s Desai & Diwanji served ONGC’s defence in arbitration. On or about 28th January 1993, ONGC gave notice of an appeal from order dated 22nd January, 1993 passed by Mr. Justice Vyas of this Court. The appeal of ONGC was dismissed by the Division Bench of this Court on 11th November, 1993.
7. On or about 8th March, 1993, a summons was issued on behalf of ONGC in the Queen’s Bench Division, (Commercial Court), London to set aside the order passed under Section 5 of the English Arbitration Act and for other reliefs. Pursuant to the said summons, applications of ONGC were heard by Mr. Justice Potter in the Commercial Court. On or about 23rd July, 1993, Mr. Justice Potter dismissed the summons and ONGC’s applications and decided amongst other matters, that the procedural law of arbitration was English Law and that the refusal of the ICC to continue to act in relation to the arbitration did not frustrate the reference.
On or about 8th June, 1993, a second hearing before the arbitrators had taken place whereat ONGC and Sumitomo were represented. Certain directions and orders were passed relating to discovery and evidence. Further hearings before the arbitrators took place. Following the conclusion of the hearing before the arbitrators, on or about 4th July, 1994, the said Mr. Chandrashekar issued a Statement of Reasons rejecting Sumitomo’s claim. On or about 18th July, 1994, the said Mr. Macrindle issued a statement of reasons stating why he would have wished to make an award in favour of Sumitomo. On the following day, the arbitrators issued a joint notice of disagreement. Thereupon, the 1st respondent entered upon the reference as umpire.
8. On 3rd October, 1994, a hearing of the reference before the 1st respondent took place in London where at ONGC and Sumitomo were represented by their legal advisers. On 4th Oct., 1994, the 1st respondent issued an order for directions, the contents of which were in substance agreed by and between ONGC and Sumitomo during the hearing. Further dates of hearings of the reference were fixed and at the hearings of the reference, both ONGC and Sumitomo were represented by their representatives and legal advisers. Submissions on the merits of the claim of Sumitomo were made by the legal advisers of the parties. Written submissions were filed before the 1st respondent on behalf of ONGC as well as Sumitomo. The 1st respondent has made the award on 27th June, 1995. ONGC received a copy of the award from the 1st respondent, on 10th July, 1995. By their letter dated 14th July, 1995 addressed to the 1st respondent. M/s. Desai & Diwanji requested the 1st respondent to file the award or a signed copy thereof in this court. By his letter dated 17th July, 1995 addressed to M/s. Desai & Diwanji and Ince & Company, the 1st respondent informed them that having regard to the judgment of Mr. Justice Potter which is reported in (1994) I Lloyd’s Reports 45, he was not sure as to whether it would be proper on his part to file the award in this court since, as per the said judgment, the award is to be regarded as an English Award and is subject to the jurisdiction of the English Courts, ONGC has lodged this petition in this court on 26th July, 1995 to have the award filed in this court.
9. Mr. Zaiwala, learned counsel appearing for ONGC, has submitted that The Arbitration Act, 1940 (for short, ‘the Act’) is substantive law of arbitration in India and once an award is made, the rights and obligations of the parties thereto are governed by the substantive law of arbitration in India and the applicability of procedural law of arbitration comes to an end. Mr. Zaiwala has further submitted that the proper law of a contract which governed the contract incorporating the arbitration agreement between the parties thereto is the proper law of a contract in force in India and merely because the arbitration took place in London, U.K., the proper law of arbitration in India did not cease to apply to the agreement arbitration. Mr. Zaiwala has also submitted that though by reason of the said Clause 17.2 contained in the contract it was made obligatory to hold the arbitration proceedings at London, U.K. yet the proper law of arbitration in India continued to apply to the said arbitration agreement. In support of his submissions, besides putting reliance on the said Clause 17.1, Mr. Zaiwala has also put reliance on the fact that the contract was ‘tax protected’ and on various references to the laws of India made in the award. In the submission of Mr. Ziawala, even the 1st respondent, while making the award, has applied, the laws of India as the witnesses were called from India and examined before the 1st respondent. Mr. Zaiwala has also submitted that the award is not a ‘Foreign Award’, but is a Domestic Award’. Mr Ziawala lastly submitted that excepting the fact that the arbitration proceedings were conducted in London, U.K., on part of the cause of action arose in London, and as such, the courts at London have no jurisdiction to entertain the award. In the submission of Mr. Zaiwala, it is the substantive right of ONGC to have the award filed in this court since the validity and effect of the award are governed by the proper law of arbitration in India.
10. Mr. Salve, learned counsel appearing for Sumitomo, submitted that in the matter of choice of applicable law there are three separate heads which have to be considered, viz. :
(a) the proper law of the contract, i.e., the law governing the contract between the parties which created the substantive rights of the parties, in respect of which the disputes had arisen;
(b) the proper law of arbitration agreement, i.e., the law governing the obligation of the parties to submit the disputes to arbitration, and to honour an awar;
(c) the curial law i.e., the law governing the conduct of the individual reference.
Mr. Salve further submitted that the tests by which the applicable law to an arbitration agreement is determined are :
(a) express choice of law;
(b) implied choice of law;
(c) law with which the agreement has the closest connection.
Mr. Salve has further submitted that the principle underlying these three tests is that in the field of conflict of laws, the law which the parties intended to apply would be the law governing the arbitration agreement and not the proper law of a contract. Mr. Salve submitted that in the instant case, the proper law applicable to the arbitration agreement was not the proper law of arbitration in India. Mr. Salve also submitted that the curial law applicable was the law of the ‘seat’ of the arbitration i.e., the place at which the arbitration was conducted, namely, the law prevalent at London, U.K. Mr. Salve further submitted that the award made applying the curial law prevalent at London, U.K. under the New York Convention is a ‘Foreign Award’ governed by the provisions of the Foreign Awards (Recognitions & Enforcement) Act 1961 and is not a ‘Domestic Award’ governed by the provisions of the Act. Mr. Salve has also submitted that on the facts of the case, the correct law applicable to the award is English law and as such, the petition filed by ONGC, being misconceived, is liable to be dismissed. Mr. Salve has further submitted that since no part of the work under the contract was executed in India, the SH Complex being not within the India territory, no part of the cause of action has arisen within the territorial jurisdiction of this court and as such, the award cannot be filed in this court.
11. As per above recited Clause 17.1 contained in the contract, all questions, disputes or differences arising under, out of or in connection with the contract were, by mutual agreement between the parties, subjected to the laws of India. Accordingly, the parties to the contract i.e., Sumitomo and ONGC expressly chose that the proper law of the contract in force in India would govern the contract under which substantive rights were created, in respect of which the disputes had arisen.
Clause 17.2 recorded agreement between the parties for reference of any dispute, difference or question arising out of or concerning anything contained in the contract or as to the rights, liabilities or duties of Sumitomo and ONGC to arbitration, the proceedings of which were agreed to be held at London, U.K. The arbitration proceedings were agreed to be held in accordance with the provisions of ICC and the rules made thereunder as amended from time to time. The contract itself contained a procedural Code to govern arbitration proceedings.
12. The award was made in London, U.K. in an arbitration between Sumitomo and ONGC on the contract governed by the proper law of a contract in force in India. The contract was executed outside India, Sumitomo having executed it last at Japan. There was no express stipulation in the contract as regards applicability of proper law of arbitration agreement incorporated therein. The question which arises for consideration is as to whether the arbitration agreement incorporated in the contract was governed by the proper law of arbitration in force in India so as to save the award from the ambit of the Foreign Awards (Recognition and Enforcement) Act, 1961 and attract the provisions of the Act. In other words, in the absence of any stipulation to the contrary, whether the contract was required to be seen as a whole and the parties thereto were deemed to have intended that the law applicable to the arbitration agreement was also the law of the country which governed the contract, although, in respect of procedural matters, the competent courts in England were also agreed to exercise jurisdiction over the conduct of arbitration.
13. Although the contract was expressly governed by the laws in force in India as stated in the said Clause 17.1, there was no express statement as regards the law governing the arbitration agreement. In the circumstances, Mr. Salve submitted that the proper law governing the arbitration agreement was not the proper law of arbitration in force in India but the law which was in force in the country in which the arbitration was conducted, that is, English Law of arbitration and as such the provisions of the Act do not apply and the award cannot be filed in this court. In the submission of Mr. Salve, the ‘seat’ of arbitration is an important factor in deciding the legal system which applied to the arbitration agreement in question.
14. ‘Foreign Award’ as defined in the Foreign Awards (Recognition and Enforcement) Act, 1961 (for short, ‘the Foreign Award Act’) means an award made on or after 11th day of October, 1960 on difference arising between persons out of legal relationship, whether contractual or not, which are considered as commercial under the law in force in India. To qualify as a foreign award under the Foreign Awards Act, the award should have been made in pursuance of an agreement in writing for an arbitration to be governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, and not to be governed by the law of India. Furthermore, such an award should have been made out India in the territory of foreign State notified by the Government of India as having made reciprocal provisions for enforcement of the Convention. An award is ‘foreign’ not merely because it is made in the territory of a foreign State but because it is made in such a territory on an arbitration agreement not governed by the law of India.
15. Clause 17.1 recorded an agreement between Sumitomo and ONGC to the effect that all questions, disputes and differences arising under the contract or out of or in connection therewith were subjected to the laws of India. The words used in the said Clause 17.1 are wide enough to engulf every question arising under the contract including all disputes between the parties thereto and the mode of settlement thereof. The arbitration agreement was contained in the contract, and was not separately entered into by Sumitomo and ONGC. The Supreme Court of India in National Thermal Power Corporation v. Singer Company and others , has held –
“An arbitration agreement may be regarded as a collateral or ancillary contract in the sense that it survives to determine the claim of the parties and the mode of settlement of their disputes been after the breach or repudiation of the main contract. But it is not an independent contract, and it has no meaningful existence except in relation to the rights and liabilities of the parties under the main contract. It is a procedural machinery which is activated when the disputes arise between the parties regarding their rights and liabilities law governing such rights and liabilities. The is the proper law of the contract, and unless otherwise provided, such law governs the whole contract including the arbitration agreement, and particularly so when the later is contained not in a separate agreement, but, in one of the clauses of the main contract.”
16. The proper law of arbitration agreement is normally the same is the proper law of the contract. It is only in exceptional cases that it is not so even where the proper law of the contract is expressly chosen by the parties. In the case of National Thermal Power Corporation (supra), the parties to the contract clearly and categorically stipulated that their contract was made in India to be performed in India and was to be governed by the laws in force in India and the courts in Delhi were to have exclusive jurisdiction in all matters arising thereunder. Even in the present case, in Clause 17.1 of the contract it was specifically provided that the applicable laws were the laws of India. Reading the said Clauses 17.1 and 17.2 together, it is obvious that the parties to the contract intended that the proper law of the contract in force in India would govern the whole of the contract including the arbitration agreement incorporated therein.
17. The Supreme Court, in the case of National Thermal Power Corporation (supra), has observed that where the proper law of the contract is expressly chosen by the parties such law must, in the absence of unmistakable intention to contrary, govern the arbitration agreement which, though collateral or ancillary to the main contract, is nevertheless apart of such contract. On the basis of the facts before the Supreme Court, the Supreme Court held that the parties to the contract unmistakable intended that the arbitration agreement would also be governed by the proper law of the contract chosen by the parties though even according to the Supreme Court in the exceptional cases, the proper law of the arbitration may not be the same as the proper law of the contract. In the present case, there was express agreement between Sumitomo and ONGC as to applicability of proper law of the contract and in view of absence of unmistakable intention to contrary, the same governed the arbitration agreement between them which was a part of the contract.
18. The award was made outside India in the territory of a foreign State notified by the Government of India as having made reciprocal provisions for enforcement of the Convention. Section 9 of the Foreign Awards Act excludes the applicability of the Act to any award made on an arbitration agreement governed by the laws of India. Accordingly, when the award was made on an arbitration agreement governed by the laws on India, the award is not a foreign award merely because it was made in a foreign territory.
19. As mentioned in sub-section (2) of Section 1 of the Act, the Act extends to the whole of India except the State of Jammu & Kashmir. Sub-section (1) of Section 31 provides that subject to provisions of the Act an award may be filed in any court having jurisdiction in the matter to which the reference relates. Sub-section (c) of Section 2 defines ‘court’ for the purposes of the Act to mean Civil Court have jurisdiction to decide the question forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for purpose of arbitration proceedings under Section 21 of the Act, include Small Causes Court. Section 2(c) does not mean that a court has jurisdiction to receive an award only if the whole cause of action arose within the jurisdiction of the court. Under Section 2(c) any court which could have jurisdiction to decide the question arising from the subject matter of the reference, could be the proper court in which the award may be filed. To give the court jurisdiction it is not necessary that the whole cause of action should arose there. Section 20 of the Code of Civil Procedure, 1908 except the illustrations thereto, is reproduced hereunder :
“20. Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction –
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the lease of the court is given or the defendants who did not reside, or carry on business, or personally work for gain, as aforesaid, acquiescence in such institution; or
(c) the cause of action, wholly or in part, arises. Explanation – A Corporation shall be deemed to carry on business as its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.”
20. The words ‘at such place’ occurring at the end of the Explanation to Section 20 of the C.P.C. and the word ‘or’ which is disjunctive clearly suggest that if the case falls within the later part of the Explanation, that is, where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at any other place, it is not the court within whose jurisdiction the principal office of the defendant is situate but the Court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction ‘in respect of any cause of action arising at any placed where it has also a subordinate office’. As held by the Supreme Court in the case of M/s. Patel Roadways Ltd. Bombay v. Prasad Trading Co. (AIR 1985 SC 1514), the Explanation is really an explanation to Clause (a) of Section 20 of the C.P.C. It is in the nature of a clarification on the scope of Clause (a) viz., as to where the Corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the Corporation is not located there) so long as there is a subordinate office of the Corporation situated at such place.
21. In the instant case, ONGC is a company incorporated under the provisions of the Companies Act, 1956 and it has registered office situated at Tel Bhavan, Dehra Dun (India), ONGC is also carrying on business at Bombay (India) having its office within the territorial jurisdiction of this court. Hence, if Sumitomo was to institute a suit against ONGC in respect of claims being subject matter of arbitration reference, this court could have entertained such a suit even though the contract was lastly signed by Sumitomo at Japan and the SH Complex is situated outside the territorial jurisdiction of this court. Under sub-section (1) of Section 31 read with Section 2(c) of the Act, this court has the jurisdiction to take on file the award. Even otherwise, in view of sub-section (4) of Section 31 of the Act, this court has the jurisdiction to take the award on its file since ONGC had earlier filed Arbitration Petition No. 8 of 1993 against Sumitomo in this court for determination of scope, validity and effect of the arbitration agreement incorporated in the contract.
22. Recent years had seen a large growth in private arbitration with a foreign element, or international commercial arbitration as it is frequently called. Certain types of contracts use in international trade customarily provide for arbitration either by a trade association or by an independent Tribunal. It is for the parties to choose not only the law which is to govern their agreement to arbitrate but also the law which is to govern the arbitration proceedings. Normally, the parties exercise this power by determining the country in which the arbitration is as take place, which is often referred to as ‘seat’ of arbitration. To enable effect to be given to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on the 10th day of June, 1958 to which India was a party and for the purposes connected therewith, the Foreign Awards Act was enacted. In Renusagar Power Company Ltd. v. General Elect. Co. , the Supreme Court has considered the schemes of the Foreign Awards Act as also the Act. The Supreme Court has observed that closely following the language of Article II of the Convention, Section 2 of the Foreign Awards Act defines the expression ‘Foreign Award’. It is further observed that since the Foreign Awards Act is calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for expeditious settlement of disputes arising in such trade through arbitration, any expression occurring therein should receive, consistent with its literal and grammatical sense, a liberal construction. There has been no departure from New York Convention. Even in the third Renusagar case viz., Renusagar Power Company Ltd. v. General Elect. Co. (1994 (1) Suppl. (1) SCC 644), the Supreme Court has taken the view consistent with the view taken in National Thermal Power Corporation (supra) and observed that arbitration is a well recognised mode for resolving disputes arising out of commercial transactions which is equally true for international commercial transactions. The Supreme Court has further observed that with the growth of international commerce three was increase in disputes arising out of such transactions being adjudicated through arbitration. (One of the problems faced in such arbitrations related to recognition and enforcement of an arbitral award made in one country by the Courts of another countries. This difficulty has been sought to be removed through various International Conventions. The New York Contention gives wider effect to the validity of arbitration agreements than the Geneva Protocol of 1923.
23. Mr. Salve has submitted that Bombay High is not a territory of India and as such, performance of a part of the contract at Bombay High court constitute as performance thereof within the territory of India. In support of his submission, Mr. Salve has put reliance of sub-clause (2) of Article 1 of the Constitution of India as also on the provisions contained in the Territorial Waters, Continental Shelf. Exclusive Economic Zone and other Maritime Zones Act, 1976, Sub-section (1) of Article 1 of the Constitution of India states India, that is, Bharat, shall be a Union of States. Sub-clause (2) records that the States and the territories thereof shall be as specified in the First Schedule to the Constitution of India. Sub-Clause (3) records that the territory of India shall comprise :
(a) the territorial of the States;
(b) the Union Territories specified in the First Schedule; and
(c) such other territories as may be acquired.
The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 defines ‘limit’ in relation to territorial waters, continental shelf exclusive economic zone and other maritime zones of India and Section 3 thereof records that the sovereignty of India extends and has always extended to the territorial waters of India and to the scabed and sub-soil underlying and the air space over such waters. The limit of the territorial waters as per sub-clause (2) of Section 3 of the Act is the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline. Section 7 of that Act declares the exclusive economical zone of India being the area beyond and adjacent to the territorial waters, and the limit of such zone is 200 natural miles from the baseline, referred to in sub-clause (2) of Section 3 of that Act. Sub-section (7) of Section 7 of that Act empowers the Central Governments to extent, with such restrictions and modifications as it deems fit, any enactment for the time being in force in India or any part thereof in the exclusive economic zone or any part thereof; and make such provision as it may consider necessary for facilitating the enforcement of such enactment. This can be done by notification in the Official Gazette and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India. The Bombay High being admittedly 100 nautical miles North-West of Bombay, on the basis of Article 1 of the Constitution of India and the aforesaid provisions contained in that Act, Mr. Salve has submitted that it is not the territory of India. Merely because Union Act is required to be extended by Section 7 of that Act, it cannot be concluded that Bombay High is not a part of India. However, for the purpose of deciding whether the award is a ‘Foreign Award’ or a ‘Domestic Award’ and also whether the award can be filed in this court, it is neither necessary not germane to decide whether Bombay High is a territory of India. Suffice it to say that it is nobody’s case that this court has territorial jurisdiction over Bombay High even if Bombay High is considered as part of territory of India.
24. With effect from 25th January, 1996 an Ordinance was promulgated on the law of arbitration and Conciliation of India and The Arbitration Conciliation Act, 1996 has now been enacted which has come into force with effect from 22nd August, 1996. The Protocol Act. The Arbitration Act, 1940 and the Foreign Awards Act stand repealed. However, the applicability of these Acts has been saved in respect of arbitration where the proceedings commenced prior to 25th January, 1996. Mr. Salve has submitted that what is saved by Section 85 of the said Ordinance (and now Section 85 of The Arbitration and Conciliation Act, 1996) is the substantive right vested in a party and not the munisterial work and since in his submission, the filing of an award in a court of law is ministerial work, it is not saved by the provisions of Section 85 and as such, the petitioners are not entitled to any relief in the petition since Section 14 of the Act stands repealed. In support of his submission that filing of an award in a court of law is ministerial work and not an exercise of substantive right vested in a party to the reference. Mr. Salve has put reliance on the judgment of Dhansukhalal C. Mehta v. Navnitlal Chunilal (AIR 1934 Bombay 398), wherein the court has taken the view that the filing of an award is nothing but a ministerial work to be done by the arbitrators. As justifiably submitted by Mr. Zaiwala, sub-section (2) of Section 85 uses the terminology ‘commenced’ and not ‘terminated’, in respect of all arbitration proceedings which have commenced prior to 25th January, 1996, the provisions of the Act will continue to apply. Since ONGC intends to exercise rights vested in it under or in respect of the Award after it is filed in the Court, it cannot even be said that to have the award filed in court is not exercise of a substantive right vested in a party not saved by sub-section (2) of Section 85. In the facts of the case, the judgment of this court reported in AIR 1934 Bombay 398 has no applicability. Moreover, if the intention of the legislature would have been not to have such a right, the legislature would have used the terminology of terminated’ instead ‘commenced’ in sub-section (2) of Section 85. Any other interpretation would make the later portion of Clause (a) of sub-section (2) of Section 85 nugatory.
25. In the result, the petition is allowed and made absolute in terms of prayer (a). The 1st respondent is ordered and directed to file the Award with all depositions in this court within eight weeks of service of certified copy of the order upon him.
No order as to costs of the petition, C.C. expedited.
26. Petition allowed.