{"id":161759,"date":"2008-10-15T00:00:00","date_gmt":"2008-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-alagar-exportsthrough-its-vs-ms-islamic-republic-of-iran-on-15-october-2008"},"modified":"2017-02-06T16:08:23","modified_gmt":"2017-02-06T10:38:23","slug":"ms-alagar-exportsthrough-its-vs-ms-islamic-republic-of-iran-on-15-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-alagar-exportsthrough-its-vs-ms-islamic-republic-of-iran-on-15-october-2008","title":{"rendered":"M\/S Alagar Exportsthrough Its … vs M\/S Islamic Republic Of Iran on 15 October, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S Alagar Exportsthrough Its … vs M\/S Islamic Republic Of Iran on 15 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:  15\/10\/2008\n\nCORAM\nTHE HON'BLE MR.JUSTICE P.K.MISRA\nAND\nTHE HON'BLE MR.JUSTICE K.KANNAN\n\nCMA.No. 591 of 2008\nand\nCMA.No.592 of 2008 & M.P.Nos.2 + 2 of 2008\t\t\t\nand\nCRP.(PD).Nos.753 and 754 of 2008 and M.P.Nos.1 + 1 of 2008\n\nCMA.Nos.591 and 592 of 2008:\n\nM\/s Alagar Exportsthrough its Partner\nA.Jeyaraman\t\t\t\t\t        ...Appellant in both CMAs.\n\nVs.\n\n1.M\/s Islamic Republic Of Iran\n\tShipping Lines of Tehran\nthrough its Power Agent.\n2. David Farrington\n  Fair Wind Shipping ltd., \t\t                ...Respondents in\n\t\t\t\t\t\t\t   both CMAs.\n\n   \tCivil Miscellaneous \tAppeals are filed against the order passed in\nArb.O.P.No.222 and 223 of 2007 on the file of Principal District Court,\nThoothukudi dated 5.3.2008.\t\t\t\n\n!For Appellant\t\t...Mr.K.Srinivasan\n^For Respondent No.1\t... Mr.R.Vijayakumar\nFor Respondent No.2\t... No appearance\n\nCRP.NOS.753 and 754 OF 2008:\n\n#M\/s Alagar Exports\nthrough its Partner  A.Jeyaraman\t              ...Petitioner in both\n\t\t\t\t\t\t\t CRPs.\n\nVs.\n\n$M\/s Islamic Republic of Iran\n     Shipping Lines of Tehran\n    through its Power Agent\n    Hemant Prabhakar Kupavadeka\t\t\t     ...Respondent in both CRPs.\n\n\t\tThese Civil Revision  Petitions are filed against the order passed\nin E.P.Nos.22 and 23 of 2007 in Arbitration Award on the file of Principal\nDistrict Court, Thoothukudi dated 5.3.2008.\n\n!For Petitioner... Mr.K.Srinivasan\n^For Respondent... Mr.R.Vijayakumar\n\t\t\t\t-----\n\n:JUDGMENT\n<\/pre>\n
K.KANNAN,J
\nNature of Lis:\n<\/p>\n
\t\t1.The batch of cases arise out of the common order passed by the
\nDistrict Judge, Thuthukudi  allowing the enforcement of a ‘foreign award’
\nthrough execution petitions filed in EP 22 and 23 of 2007 in favour of the
\nrespondent. The appellant had filed OPs 222 & 223\/2007 for setting aside the
\n‘foreign award’ rendered by the arbitrator. Consequent on allowing further
\nproceedings in EPs, the District Judge dismissed them summarily, even before
\nserving the Ops on the respondent. The CRPs are against the order in EPs and
\nCMAs are against the summary dismissals in OPs. The appellant\/revision
\npetitioner will be referred as judgment debtor and the respondent will be
\nreferred as the decree holder.\n<\/p>\n
Nature of Foreign Award\n<\/p>\n
\t\t2. The decree holder is Islamic Republic of Iran Shipping Lines of
\nTehran. The judgment debtor is M\/s Alagar Exports. By a charterparty dated
\n9.4.2001, the Decree holder had undertaken to transport a certain quantity of
\ncargo of bulk salt. The voyage was from Kandla, India to Belawan and Kosichang,
\nThailand. The charterparty stipulated demurrage charges payable in US $ for
\nlaytime at the time of loading and discharging cargo that occasioned for fault
\nof the vessel. The demand made for US $ 67,915.53 was refused to be paid by the
\nexporter and by invoking the arbitration clause in the charterparty, David
\nFarrington, London was appointed to act as Sole Arbitrator. He purported to
\nenter reference on 5. 6.2002. The decree holder scaled down the demand for US $
\n59,433.98 in his claim statement. Notices of appointment of arbitrator, notice
\nof hearings before the arbitrator were alleged to have been served on the
\njudgment debtors and consequent on the latter’s failure to participate in the
\nproceedings, a final award was passed on 26th August 2004 for US $ 58,933.98,
\nwith costs and interest.\n<\/p>\n
Proceedings for execution in India\n<\/p>\n
\t\t3. Two EPs 22 and 23 of 2007 had been filed by decree holder against
\nthe judgment debtor before the District Court Thuthukudi for Rs.36,43,944.20 and
\nRs.40,09,835.90, with interest and costs respectively. The judgment debtor filed
\nobjections detailing several grounds, including the plea of non-issue of notice,
\nthe maintainability of EPs and the validity of the awards. The judgment debtor
\nfiled petitions under section 47 CPC read with sections 45-48 of the Arbitration
\nand Conciliation Act,1996 stating that the award is not valid and executable and
\nfiled also petitions OP 222 and 223 of 2007 before the same court under section
\n34 of the Act for setting aside the award on various grounds.
\nThe petitions filed in EP by the judgment debtor were unnumbered and the
\npetitions for setting aside the awards had not even been served on the decree
\nholder. The EPs alone had been taken up for consideration and allowed. Whle
\nallowing the petitions, the District Judge observed that having regard to the
\nfact that the foreign award was found to be enforceable, the petitions under
\nsection 47 CPC read with section 45-48 did not require to be re-appraised and
\ndecided the issue against the judgment debtor. Having regard to allowing the
\nEPs, the Ops for setting aside the awards were summarily dismissed.
\nGrounds of challenge\n<\/p>\n
\t\t4. The grounds of challenge were both on procedural as well as
\nsubstantial grounds. According to the judgment debtor, the petitions filed under
\nsection 47 CPC read with section 45-48 of Arbitration and Conciliation Act were
\ndismissed even without numbering the same. The petitions for setting aside the
\naward had similarly been dismissed without serving notice on the decree holder
\nsummarily by advancing the date of hearing by the only fact that further
\nproceedings in the EPS were awarded. Of the substantive grounds, the judgment
\ndebtor would contend that when the petitions for setting aside the award were
\nfiled, the court ought to have put on hold execution petitions as the admission
\nof the petitions under section 34 of the Act operated as automatic stay and the
\norder passed allowing the EPs were contrary to law. The foreign award itself was
\nnot valid, since the judgment did not have any notice of arbitration proceedings
\nat all. The alleged facsimile messaged did not arrive at all and the
\ntransmission reports relied by the decree holder as having been made by the
\narbitrator and the decree holder were concocted. The award was fraudulent and
\nnot enforceable. There were other grounds also relating to the so called wrong
\nassumptions of the award relating to the calculation of lay hours at the port of
\ndischarge amounting misconduct of the arbitrator, the delay in the award
\naffecting the law of limitation and the award as being opposed to public policy.\n<\/p>\n
\t\t5.The decree holder counters the arguments by contending that
\ncounters in the EPs filed were in pari materia to what had been set forth in the
\npetitions under section 47 CPC read with sections 45-48 of the Arbitration and
\nConciliation Act and the court below had, while dealing with the objections to
\nthe EPs had adverted to all the objections in the counter and the grounds set
\nforth in the unnumbered petitions. Consequently, the judgment debtor could not
\nbe said to be prejudiced. The OPs for setting aside the foreign award was not
\nmaintainable in Indian Court, having regard to the express provisions relating
\nto arbitral clause in the charterparty and the other relevant clauses in the
\ndocument. According to the respondent’s counsel, if the respondent did not
\nobject to want of notice in the applications filed by the judgment debtor, the
\nlatter cannot himself complain that notices should have been sent to the decree
\nholder in the applications.\n<\/p>\n
Enforceability of Foreign Award in India\n<\/p>\n
\t    6. The Arbitration and Conciliation Act defines a foreign award under
\nsection 45 thus:\n<\/p>\n
“In this Chapter, unless the context otherwise requires, “foreign award” means
\nan arbitral award on differences between persons arising out of legal
\nrelationships, whether contractual or not, considered as commercial under the
\nlaw in force in India, made on or after the 11th day of October, 1960-\n<\/p>\n
(a) in pursuance of an agreement in writing for arbitration to which the
\nConvention set forth in the First Schedule applies, and\n<\/p>\n
(b) in one of such territories as the Central Government, being satisfied that
\nreciprocal provisions have been made may, by notification in the Official
\nGazette, declare to be territories to which the said Convention applies.”\n<\/p>\n
It is not in dispute before us that we are concerned with the enforcement of a
\nforeign award, having been rendered by agreement between parties providing for
\nresolution of disputes arising out putting the charter partery in operation
\nthrough clause 36 of the Charter that “all disputes from time to time arising
\nshould, unless the parties agreed forthwith on a single Arbitrator, be referred
\nto the final arbitration of two Arbitrators carrying on business in London who
\nshall be engaged in the shipping trade and\/or be LMAA members, one to be
\nappointed by each of the parties. ”  The seat of arbitration as per the Charter
\nis England. The requirements of proof of the award and the agreement having been
\nsatisfied under section 47 by the Executing Court, when the duly authenticated
\ncopies of arbitration award and the charter  party were put in Court,  the Award
\nbeing a decree of Court became enforceable as per section 49 of the Act. The
\nassumption of jurisdiction by the District Court at Thuthukudi was
\nunexceptional, having regard to the fact that the judgment debtor and the
\nproperties that were sought to proceeded against were within the territorial
\njurisdiction of the executing court.\n<\/p>\n
Grounds of post-award challenge under section 48 are the same as the grounds for
\nsetting aside the award under section 34 of the Arbitration Act
\nThe court before which a party puts in execution a foreign award may refuse
\nenforcement if a judgment debtor challenges the award on any of the grounds
\nmentioned under section 48 of the Act. The grounds are exhaustive:
\nSub-section (1) of Section 48 lists five conditions, any one or more of which
\nneeds to be satisfied for refusing enforcement of foreign award.
\nClause (a): Incapacity
\nWhen any of the parties to the agreement or both were under some incapacity as
\nper the law applicable to them, enforcement may be refused. This clause also
\nspeaks of invalidity of agreement under the law to which the parties have
\nsubjected it or failing any reference thereto under the law of the country where
\nthe award was made.\n<\/p>\n
Invalidity of an agreement may arise on account of factors like involuntariness,
\nmisrepresentation, fraud, undue influence, duress, etc., and non-compliance with
\nthe law governing the arbitration agreement.\n<\/p>\n
Clause (b): Absence of hearing
\nThe violation of the principles of natural justice in arbitral proceedings is a
\nground for refusing enforcement. Inability to present the case for want of
\nproper notice of appointment of arbitrator, or proper notice of the arbitral
\nproceedings or for similar valid reason are covered by the provision. Notice of
\nthe arbitral proceedings is not complete without supply of statement of claim
\nand copies of the documentary evidence to the defendant. Accordingly, a foreign
\naward made in violation of this principle cannot be enforced. Where a party
\nrefuses to participate or chooses to remain silent in arbitral proceedings, the
\naward cannot be set aside. Inability referred to must arise on account of
\nfactors which are beyond the control of that party or in disregard to the
\nprinciple of equal treatment to parties.\n<\/p>\n
Clause (c): Award on existing reference
\nThe award should restrict to questions actually submitted to the arbitral
\ntribunal because the jurisdiction of the Tribunal is confined only to the terms
\nof reference.\n<\/p>\n
The proviso to this clause carves out an exception. It is to the effect that if
\nthe decision on matters submitted for reference and the decision on matters not
\nsubmitted, are separable the former part may be enforced. It is for the party
\nseeking enforcement to prove that separation is possible.
\nClause (d): Legality of composition of arbitral tribunal and procedure
\nUnder this clause, enforcement of a foreign award may be refused on the
\nfollowing grounds:\n<\/p>\n
(a) the composition of the arbitral tribunal was not in accordance with the
\nagreement; or\n<\/p>\n
(b) arbitration procedure was not as agreed between the parties; or\n<\/p>\n
(c) failing such agreement if the composition of the arbitral tribunal or the
\nprocedure was not in accordance with the law of the country where the
\narbitration took place.\n<\/p>\n
Clause (e) : Award not yet binding, set aside, or suspended
\nUnder this clause, enforcement of a foreign award may be refused where the award
\nhas not yet become binding on the parties or the award has been either set aside
\nor suspended by a competent authority of the country in which or under the law
\nof which that award was made. The courts of the country in which or under the
\nlaw of which the award was made have the exclusive jurisdiction and competence
\nto set aside or suspend that award.\n<\/p>\n
 Sub section (2) affords two more grounds on which enforcement of an arbitral
\naward may be refused by the court: (i) if the subject matter of difference
\nbetween the parties is not capable of settlement by arbitration under Indian
\nlaw; and (ii) its enforcement is contrary to the public policy of India.
\nSection 34 contains similar provisions as grounds for setting aside the award.
\nAll the grounds under the section 48 are also available under section 34.
\nConsequently, if a foreign award is susceptible to challenge under section 48, a
\nfortiorari, it need not be set aside again under section 34 or put through the
\ntest of challenge under the said section. This obtains relevance in this case
\nfor two reasons:\n<\/p>\n
After the foreign award was filed in court for execution, apart from filing
\nobjections on grounds available under section 48 and also through independent
\napplications under section 47 CPC, the judgment debtor filed OPs 222 and 223 of
\n2008. By such a process, the judgment debtor wanted to contend that the filing
\nof the applications under section 34 operated as automatic stay of execution and
\nthe court could not have proceeded with the execution.  Section 48  itself
\nprovides as one of the grounds under clause (e) such an eventuality. If the
\nforeign award had already been set aside, the enforceability does not arise.
\nThe
\nrespondent provides a tabulation that proves that grounds under section 48 are
\nthe same under section 34, which we reproduce as under:
\nSECTION 34
\nSECTION 48
\nApplication for setting aside arbitral Award
\nConditions for enforcement of foreign awards
\n(2)  An arbitral award may be set aside by the Court only if-\n<\/p>\n
(a)  the party making the application furnishes proof that-
\n(1)  Enforcement of a foreign award may be refused, at the request of the party
\nagainst whom it is invoked, only if that party furnishes to the Court proof
\nthat-\n<\/p>\n
(i)  a party was under some incapacity; or\n<\/p>\n
(ii)  the arbitration agreement is not valid under the law to which the parties
\nhave subjected it or, failing any indication thereon, under the law for the time
\nbeing in force; or\n<\/p>\n
(a) the parties to the agreement referred to in section 44 were, under the law
\napplicable to them, under some incapacity, or the said agreement is not valid
\nunder the law to which the parties have subjected it or, failing any indication
\nthereon, under the law of the country where the award was made; or\n<\/p>\n
(iii)  the party making the application was not given proper notice or the
\nappointment of an arbitrator or of the arbitral proceedings or was otherwise
\nunable to present this case; or\n<\/p>\n
(b)  the party against whom the award is invoked was not given proper notice of
\nthe appointment of the arbitrator or of the arbitral proceedings or was
\notherwise unable to present his case; or\n<\/p>\n
(iv)  the arbitral award deals with a dispute not contemplated by or not falling
\nwithin the terms of the submission to arbitration, or it contains decisions on
\nmatters beyond the scope of  the submission to arbitration;
\nProvided that, if the decisions on matters submitted to arbitration can be
\nseparated from those not so submitted, only that part of the arbitral award
\nwhich contains decisions on matters not submitted to arbitration may be set
\naside; or\n<\/p>\n
(c)  the award deals with a difference not contemplated by or not falling within
\nthe terms of the submission to arbitration, or it contains decisions on matters
\nbeyond the scope of the submission to arbitration;\n<\/p>\n
Provided that, if the decisions on matters submitted to arbitration can be
\nseparated from those not so submitted, that part of the award which contains
\ndecisions on matters submitted to arbitration may be enforced; or\n<\/p>\n
(v)  the compensation of the arbitral tribunal or the arbitral procedure was not
\nin accordance with the agreement of the parties, unless such agreement was in
\nconflict with a provision of this part from which the parties cannot derogate,
\nor, failing such agreement, was not in accordance with this part; or\n<\/p>\n
(d)  the composition of the arbitral authority or the arbitral procedure was not
\nin accordance with the agreement of the parties, or, failing such agreement, was
\nnot in accordance with the law of the country where the arbitration took place;
\nor<\/p>\n
(e)  the award has not yet become binding on the parties, or has been set aside
\nor suspended by a competent authority of the country in which, or under the law
\nof which, that award was made.\n<\/p>\n
2 (b) the Court finds that-\n<\/p>\n
(2)  Enforcement of an arbitral award may also be refused if the Court finds
\nthat-\n<\/p>\n
(i)  the subject matter of the dispute is not capable of settlement by
\narbitration under the law for the time being in force, or\n<\/p>\n
(a)  the subject matter of the difference is not capable of settlement by
\narbitration under the law of India; or\n<\/p>\n
(ii)  the arbitral award is in conflict with the public policy of India.\n<\/p>\n
(b)  the enforcement of the award would be contrary to the public policy of
\nIndia;\n<\/p>\n
Explanation –  Without prejudice to the generality of sub-clause (ii) of clause\n<\/p>\n
(b), it is hereby declared, for the avoidance of any doubt, that an award is in
\nconflict with the public policy of India if the making of the award was induced
\nor affected by fraud or corruption or was in violation of section 75 or section\n<\/p>\n
81.
\nExplanation –  Without prejudice to the generality of clause (b) of this sub
\nsection, it is hereby declared, for the avoidance of any doubt, that an award is
\nin conflict with the public policy of India if the making of the award was
\ninduced or affected by fraud or corruption.\n<\/p>\n
Maintainability of petitions under section 34 in respect of foreign award, under
\nthe relevant clauses in charter party
\nThe petitions filed by the judgment debtor for setting aside the award under
\nsection 34 was dismissed by the District Court without adverting to the merits
\non the only ground that the award was found executable while disposing of the
\nEPs. The appellant relied on the judgments of the Supreme Court in Bhatia
\nInternational v Bulk Trading S.A. and another (2002) 4 SCC 105 and Venture
\nGlobal Engineering v Satyam Computer Services Ltd and another 2008(1) CTC 348.
\nIn Bhatia International  the Supreme Court dealt with the issue of when the
\narbitral agreement provided for a foreign country as a forum of arbitration,
\nwhether it was possible for an Indian court to grant interim protection under
\nsection 9. It said, it could on the ground that section 9 which was in Part I of
\nthe Act would apply to all arbitrations and to all proceedings and that included
\na foreign award also, unless the parties had contracted out of such a right.
\nVenture Global  has greater relevance because, there the foreign award had been
\nput in execution in the foreign country where the award had been passed and a
\npetition under section 34 had been filed in India. The Court while considering
\nthe contention that a foreign award could be set aside only before a competent
\nauthority of the country in which or under the law of which the award was made,
\nsaid,
\n\t“On close scrutiny of the materials and the dictum laid down in Three-
\nJudge Bench decision in Bhatia International (supra), we agree with the
\ncontention of Mr.K.K.Venugopal and hold that paragraphs 32 and 35 of the Bhatia
\nInternational (supra) make it clear that the provisions of part I of the Act
\nwould apply to all arbitrations including international commercial arbitrations
\nand to all proceedings relating thereto. We further hold that where such
\narbitration is held in India, the provisions of Part I would compulsorily apply
\nand parties are free to deviate to the extent permitted by the provisions of
\nPart I.  It is also clear that even in the case of international commercial
\narbitrations held out of India provisions of Part I would apply unless the
\nparties by agreement, express or implied, exclude all or any of its provisions.
\nWe are also of the view that such an interpretation does not lead to any
\nconflict between any of the provisions of the Act and there is no lacuna as
\nsuch.  The matter, therefore, is concluded by the three-Judge Bench decision in
\nBhatia International (supra).”\n<\/p>\n
Therefore, the maintainability of section 34 petitions  before the Indian court
\nfor setting aside the foreign award could not be in doubt.  But having regard to
\nthe congruence of the grounds available under sections 34 and 48, the disposal
\nunder one section will conclude the issue under the other. The ideal procedure
\nwould have been to dispose of the petitions under the respective sections by a
\ncommon order after a common trial by a common order instead of a summary
\nrejection of petitions under section 34 after disposal of executability of the
\nforeign award. If the petitions under section 48 had been numbered and a
\ndisposal on merits adverting to all the grounds therein, we would have let the
\nmatter to reside there. But the court below did not even number the petitions
\nunder section 48, but proceeded to dispose of the execution petitions on the
\nmere consideration of the aspect whether a foreign award was enforceable in
\nIndian Courts and proceeded to deal with the objections under section 48 in the
\nsame order in a laconic fashion.\n<\/p>\n
We agree with the learned counsel for the respondent that even the execution
\npetitions filed by the decree holder and objections filed by the judgment debtor
\nadverting to the grounds under section 48 as substantial compliance, even if
\nsection 48 applications were not numbered.  The Supreme Court has held in Fuerst
\nDay Lawson Ltd v Jindal Exports Ltd (2001) 6 SCC 356 as follows:
\n” Thus, in our view, a party holding a foreign award can apply for enforcement
\nof it but the court before taking further effective steps for the execution of
\nthe award has to proceed in accordance with Sections 47 to 49. In one proceeding
\nthere may be different stages. In the first stage, the court may have to decide
\nabout the enforceability of the award having regard to the requirement of the
\nsaid provisions. Once the court decides that the foreign award is enforceable,
\nit can proceed to take further effective steps for execution of the same. There
\narises no question of making foreign award a rule of court\/decree again. If the
\nobject and purpose can be served in the same proceedings, in our view, there is
\nno need to take two separate proceedings resulting in multiplicity of
\nlitigation. It is also clear from the objectives contained in para 4 of the
\nStatement of Objects and Reasons, Sections 47 to 49 and the scheme of the Act
\nthat every final arbitral award is to be enforced as if it were a decree of the
\nCourt. The submission that the execution petition could not be permitted to
\nconvert as an application under Section 47 is technical is of no consequence in
\nthe view we have taken. In our opinion, for enforcement of a foreign award there
\nis no need to take separate proceedings, one for deciding the enforceability of
\nthe award to make it a rule of the court or decree and the other to take up
\nexecution thereafter. In one proceeding, as already stated above, the court
\nenforcing a foreign award can deal with the entire matter.”
\nProof of notices in arbitration proceedings go to root of the matter:\n<\/p>\n
    \t\t\t8. We have seen above that absence of hearing is one of the
\npotent grounds of attack for the non-enforceability of a foreign award. The
\nlearned district judge has gloated over the issue by a reference to what is
\ncontained in the award itself about the notices and the copies of documents
\nreferring to the fax transmissions of notices by the decree holder before and at
\nthe arbitral proceedings and the notices of the arbitrator. When the award
\nitself is under challenge, it would be question begging to allow the recitals in
\nthe award about service of notice to decide the issue of whether notices had
\nbeen properly served. The counsel for the respondent referred us to the decision
\nof the Supreme Court in SIL Import, USA v Exim Aides Silk Exporters (1999) 4 SCC
\n567, which has laid down in the context of notice requirements of section 138 of
\nNegotiable Instruments Act as follows:\n<\/p>\n
“15.Facsimile (or fax) is a way of sending handwritten or printed or typed
\nmaterial as well as pictures by wire or radio. In the West such mode of
\ntransmission came to wide use even way back in the late 1930s. By 1954, the
\nInternational News Service began to use facsimile quite extensively.
\nTechnological advancement like facsimile, internet, e-mail etc. were in swift
\nprogress even before the Bill for the Amendment Act was discussed by Parliament.
\nSo when Parliament contemplated notice in writing to be given we cannot overlook
\nthe fact that Parliament was aware of modern devices and equipment: already in
\nvogue.”\n<\/p>\n
The fax transmissions  are all denied as having been received by the judgment
\ndebtor. The counsel for the respondent stated that all the copies of the
\ndocuments filed in court have been filed in the paper book filed by the
\nappellant\/revision petitioner himself and he cannot deny them. This attempts to
\ntrivialize the ground of attack of want of notice taken by the judgment debtor.
\nThe court below has not marked any exhibits. If even without marking the
\ndocuments, the court could have taken note of the documents in its file, it
\ncould be on matters of admitted documents. The facsimile messages could be
\ncopies because the fax transmission report must be of originals, when the truth
\nis denied by the judgment debtor. The primary evidence is not before court nor
\nare any explanations given for production of only the secondary evidence, even
\nthough the documents of proof of service had been specifically denied. The vital
\nmatter of service of notices and proof of opportunity for participation at the
\nhearing could not have been matters of inference on conjectures. We are aware
\nof the fact tht mere marking of documents themselves will not render the
\ndocuments admissible. The proof of the same will have to confirm to the
\nrequirements of the Indian Evidence Act. The learned Judge has made references
\nto the dates of communication of the Fax massages as found placed in the
\nArbitration awards and as stated by the decree holder in the execution
\npetitions. We are afraid that it would be impermissible to accept the
\ndocumentary evidence without adequate proof of the same in the manner known ot
\nlaw viz. by requiring the decree holder to prove the mode of service with right
\nof cross-examination given to the respondent. If the decree holder chooses not
\nto let in any evidence at all, it would always be possible to make such judicial
\ninference, as the law permits. The Judgment Debtor will also have adequate
\nopportunity to explain the reference to tele-fax numbers found in the
\ntransmission reports and also give evidence regarding the alleged suspicious
\nentries in the report, as contended by the Judgment debtor.
\nFailure to consider all objections by way of grounds of challenge under section
\n48 of the Arbitration Act vitiates order
\nThe order of the learned District Judge raises three issues for consideration
\nviz.\n<\/p>\n
\t\tThe court has dealt with under issue No.1. The aspect of the service
\nof notices of the arbitral proceedings. The issue whether foreign award can be
\nexecuted and challenged by eityher side in India under the Arbitration Act,
\ncannot have any doubt any longer for the reasons given by us in the aforesaid
\nparagraphs. The Court below has come to the correct conclusion that the foreign
\naward can be enforceable, as if it were the decree under Section 48 of the
\nArbitration and Conciliation Act. It has not however adverted to several grounds
\nurged by the Judgment debtor in the execution petition and replicated in the
\nunnumbered petitions under Section 47 CPC read with 48 of the Arbitration and
\nConciliation Act as well as int he ground of challenge made in O.P.Nos.222 and
\n223 of 2008. The second issue regarding the fact whether the foreign award can
\nbe set aside on an re-appraisal in the ground set down under Section 48 as
\nobtained, no more attention from learned District Judge, except to state that in
\nview of his finding that the foreign award can be executed in a Court in India
\nand for the reasons given by him under Issue No.1. Issue No.2 was not required
\nto be dealt with in detail. This line of reasoning is clearly, in our view, not
\ntenable. While we may observe that the merits of the award of the line of
\nreasoning of the arbitrator could not be examined, in the proceedings under
\nSection 48 or Section 34 of the Arbitration Act, as if it were an appealable
\norder, the Couert will have to examine the enforcibility of the award under the
\ngrounds specifically adumberated in the sections. We have therefore to hold that
\nthe failure of the court below to examine all the objections by way of grounds
\nof challenge under Sections 34 and 48 of the Arbitration and Conciliation Act
\nvitiates to order of the learned District Judge.\n<\/p>\n
Conclusion and ultimate disposition :\n<\/p>\n
\t\t10. In the circumstances, we set aside the common order passed in
\nExecution Petition Nos.22 and 23 of 2007 on the file of the Principal District
\nJudge, Toothukudi. Consequently, the order of dismissal passed in O.P.NOS. 222
\nAND 223 of 2008 are also set aside. The unnumbered petitions under Section 47
\nCPC read with Section 48 of the Arbitration and Conciliation Act shall be
\nnumbered and taken up along with the matters that stand remitted to the Court
\nbelow. It will be open to the decree holder to treat his own averments in the
\nexecution petitions and the objection filed for both the petitions in
\nO.P.Nos.222 and 223 of 2008 as well as for the unnumbered petitions which have
\nbeen directed to be numbered as referred to above. The decree holder if he so
\nchooses, may also file his independent petitions to the aforesaid petitions. The
\npleadings shall be completed within fifteen days from the date of receipt of the
\nrecords before the Court below and thereafter the learned District Judge is
\nrequested to fix the date of hearing after affording opportunity to both the
\nparties to adduce such documentary and oral evidence on the issues touching upon
\nthe respective petitions and conclude the matter within the period of two months
\nfrom the date of commencement of enquiry and proceed to pass final orders, as
\nexpeditiously as possible.\n<\/p>\n
\t\tThe CMAs, and CRPs. are disposed of on the above terms.  No costs.
\nConsequently, connected M.Ps. are closed.\n<\/p>\n
VJY<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S Alagar Exportsthrough Its … vs M\/S Islamic Republic Of Iran on 15 October, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15\/10\/2008 CORAM THE HON’BLE MR.JUSTICE P.K.MISRA AND THE HON’BLE MR.JUSTICE K.KANNAN CMA.No. 591 of 2008 and CMA.No.592 of 2008 & M.P.Nos.2 + 2 of 2008 and CRP.(PD).Nos.753 and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-161759","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S Alagar Exportsthrough Its ... vs M\/S Islamic Republic Of Iran on 15 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-alagar-exportsthrough-its-vs-ms-islamic-republic-of-iran-on-15-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Alagar Exportsthrough Its ... vs M\/S Islamic Republic Of Iran on 15 October, 2008 - 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