M/S. CENTROTRADE MINERALS AND METALS INC. versus HINDUSTAN COPPER LTD. on 2 June 2020

1. This matter comes to this Bench after two previous forays tothis Court.

B2. The appellant before us, in Civil Appeal No.2562 of 2006, is aU.S. Corporation who had entered into a contract for sale of 15,500DMT of copper concentrate to be delivered at the Kandla Port in theState of Gujarat, the said goods to be used at the Khetri Plant of therespondent Hindustan Copper Ltd. (hereinafter referred to as “HCL”/“the respondent”), who is the appellant in the other Civil Appeal No.2564Cof 2006. After all consignments were delivered, payments had been madein accordance with the contract. However, a dispute arose between theparties as regards the quantity of dry weight of copper concentratedelivered. Clause 14 of the agreement contained a two-tier arbitrationagreement by which the first tier was to be settled by arbitration inDIndia. If either party disagrees with the result, that party will have theright to appeal to a second arbitration to be held by the ICC in London.The appellant M/s Centrotrade Minerals and Metals Inc. (hereinafterreferred to as “Centrotrade”/ “the appellant”) invoked the arbitrationclause. By an award dated 15.06.1999 the arbitrator appointed by theIndian Council of Arbitration made a Nil Award. Thereupon, CentrotradeEinvoked the second part of the arbitration agreement, as a result of whichJeremy Cook QC, appointed by the ICC, delivered an award in London,dated 29.09.2001, in which the following amounts were awarded:

“27.For the above reasons I THEREFORE AWARD andADJUDGE thatF(1) HCL do pay Centrotrade the sum of $152,112.33,inclusive ofinterest to the date of the Award in respect of the purchase pricefor the firstshipment.

(2) HCL do pay Centrotrade the sum of $15,815.59, inclusive ofinterest to the date of this Award in respect of demurrage due onGthe first shipment.

(3) HCL, do pay Centrotrade the sum of $284,653.53,inclusive ofinterest to the date of this Award in respect of the purchase priceon the second shipment.

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(4) HCL do pay Centrotrade their legal costs in this arbitration inthe sum of $82,733 and in addition the costs of the InternationalCourt of Arbitration, the Arbitrator’s fees and expenses totalling$29,000.

(5) HCL do pay Centrotrade compound interest on the abovesums from the date of this Award at 6% p.a. with quarterly restsuntil the date of actual payment.”

3. Even before Jeremy Cook QC could deliver his award, HCL,during the pendency of the proceedings before the arbitrator in London,filed a suit in the Court at Khetri, in the State of Rajasthan, challengingthe arbitration clause. By an Order dated 27.04.2000, in a revision petitionfiled against the Order of the Khetri Court, the High Court at Rajasthanrestrained the appellant from taking further steps in the London arbitration,pending hearing and disposal of the revision petition. This ad interim exparte stay granted by the High Court was ultimately vacated by theSupreme Court only on 08.02.2001. Meanwhile, we are reliably informedthat Mr. Cook, the learned arbitrator, referred the matter of stay of theparties from proceeding with the London arbitration to the ICC Court,which then decided that the arbitrator could continue with the arbitralproceedings.

4. When the said award dated 29.09.2001 was sought to beenforced by Centrotrade in India, a learned Single Judge of the CalcuttaHigh Court, after considering the objections of HCL, dismissed theSection 48 petition filed by HCL, as a result of which the aforesaidforeign award became executable in India. However, a Division Benchof the Calcutta High Court, by its judgment dated 28.07.2004, held thatan appeal would be maintainable inasmuch as the London award couldnot be said to be a foreign award, but that a two-tier arbitration clausewould be valid. However, since the Indian award and the London Award,being arbitration awards by arbitrators who had concurrent jurisdiction,were mutually destructive of each other, neither could be enforced, as aresult of which the appeal was allowed and the judgment of the learnedsingle Judge was set aside.

5. At this juncture, the matter came to a Division Bench of thisCourt. Two separate judgments were delivered by S.B. Sinha, J. andTarun Chatterjee, J. reported in Centrotrade Minerals & Metals Inc.v. Hindustan Copper Ltd. (2006) 11 SCC 245. After setting out thefacts of the case, S.B. Sinha, J. held that a two tier clause of the kind A

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Acontained in clause 14 of this agreement is non est in the eye of law andwould be invalid under Section 23 of the Indian Contract Act. In thisview of the matter, the foreign award could not enforced in India andCentrotrade’s appeal was therefore dismissed, the appeal filed by HCLbeing allowed. Tarun Chatterjee, J. set out four questions in paragraph134 as follows:B

“134. We have heard Mr Sarkar, learned Senior Counsel appearingfor Centrotrade and Mr Debabrata Ray Choudhury, learned SeniorCounsel for HCL. I have also examined the entire material onrecord including the arbitration agreement, the awards andjudgments of the Division Bench as well as the learned SingleCJudge. Before us, the following issues were raised by the learnedcounsel for the parties for decision in the appeals:

(1) Whether the second part of clause 14 of the agreementproviding for a two-tier arbitration was valid and permissible inIndia under the Act?D(2) If it is valid, on the interpretation of clause 14 of the agreement,can it be said that the ICC arbitrator sat in appeal against theaward of the Indian arbitrator?

(3) Whether the ICC award is a foreign award or not?E(4) Whether HCL was given proper opportunity to present itscase before the ICC arbitrator?”

6. These questions were answered by stating that the two-tierarbitration process was valid and permissible in Indian law; that the ICCarbitrator sat in appeal against the award of the Indian arbitrator; thatFthe ICC award was a foreign award; but that since HCL was not givena proper opportunity to present its case before the ICC arbitrator,Centrotrade’s appeal would have to be dismissed and HCL’s appealallowed.

7. The matter then came on a reference before a 3-Judge benchGof this Court and is reported in Centrotrade Minerals & Metal Inc.v. Hindustan Copper Ltd. (2017) 2 SCC 228. The reference orderwas referred to in paragraph 1 of the judgment of Lokur, J., as follows:

“These appeals have been referred [Centrotrade Minerals &Metals Inc. v. Hindustan Copper Ltd., (2006) 11 SCC 245] to aHBench of three Judges in view of a difference of opinion between the two learned Judges of this Court. The controversy is bestunderstood by referring to the proceedings recorded on 9-5-2006:

Hon’ble Mr Justice S.B. Sinha pronounced his Lordship’s judgmentof the Bench comprising his Lordship and Hon’ble Mr JusticeTarun Chatterjee.

Leave granted. For the reasons mentioned in the signed judgment,civil appeal arising out of SLP (C) No. 18611 of 2004 filed byM/s Centrotrade Minerals and Metal Inc., is dismissed and civilappeal arising out of SLP (C) No. 21340 of 2005 (actually 2004)preferred by Hindustan Copper Ltd. is allowed. In the peculiarfacts and circumstances of the case, the parties shall pay andbear their own costs. Hon’ble Mr Justice Tarun Chatterjeepronounced his Lordship’s judgment disposing of the appeals interms of the signed judgment. In view of difference of opinion,the matter is referred to a larger Bench for consideration. TheRegistry of this Court shall place the matter before the Hon’blethe Chief Justice for constitution of a larger Bench.

The decisions rendered by Sinha and Chatterjee, JJ. are reportedas Centrotrade Minerals & Metals Inc. v. Hindustan CopperLtd. [Centrotrade Minerals & Metals Inc. v. Hindustan CopperLtd., (2006) 11 SCC 245]”

Paragraph 5 of the aforesaid judgment set out the two questionsthat arose in this case as follows:

“5. The issues that have arisen for our consideration, as a resultof the difference of opinion between the learned Judges, are asunder:

(1) Whether a settlement of disputes or differences through atwo-tier arbitration procedure as provided for in Clause 14 of thecontract between the parties is permissible under the laws of India?

(2) Assuming that a two-tier arbitration procedure is permissibleunder the laws of India, whether the award rendered in theappellate arbitration being a “foreign award” is liable to be enforcedunder the provisions of Section 48 of the Arbitration andConciliation Act, 1996 at the instance of Centrotrade? If so, whatis the relief that Centrotrade is entitled to?

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AFor the present, we propose to address only the first question anddepending upon the answer, the appeals would be set down forhearing on the remaining issue. We have adopted this somewhatunusual course since the roster of business allowed us to hear theappeals only sporadically and therefore the proceedings beforeus dragged on for about three months.”B

Since the first question was answered in the affirmative, the Courtconcluded:

“Conclusion

48. In view of the above, the first question before us is answeredCin the affirmative. The appeals should be listed again forconsideration of the second question which relates to theenforcement of the appellate award.”

8. This is how the appeals have been listed again for considerationof the second question, which relates to enforcement of the LondonDaward.

9. Shri Gourab Banerjee, learned senior counsel appearing onbehalf of Centrotrade, has taken us through the record and has reliedstrongly on this Court’s recent judgment in Vijay Karia v. PrsymianCavi E Sistemi SRL 2020 (3) SCALE 494. He then referred in detailEto the portions of the award which dealt with the natural justice aspectof the case, as well as the judgment of the Single Judge of the CalcuttaHigh Court which dealt with the same. He then read out to us ChatterjeeJ’s views contained in Centrotrade [2006] (supra) and contended thatample opportunity had been given by the arbitrator to HCL to present itsFcase, but that HCL, having an Indian award in its pocket, wantedsomehow to abort the London arbitration proceedings. It first filed thesuit that has been referred to, and obtained exparte ad interim stayagainst parties from proceeding in the arbitration on 27.04.2000, whichwas vacated by the Supreme Court only on 08.02.2001. Jeremy CookQC afforded as many as six opportunities to HCL to present its caseGand bent over backwards by extending time for filing of submissions anddocuments several times, and even considered documents that werefiled by HCL after the last deadline had been extended, and then passedthe award. He, therefore, attacked Chatterjee J’s judgment, stating thatit was factually incorrect when it stated that a fair opportunity had notbeen given to HCL to present its case. Several other judgments bothH

Indian and foreign were cited by Shri Banerjee in support of hissubmission. Apart from relying heavily on the judgment in Vijay Karia(supra), he relied upon the approach to a Section 48 proceeding by quotingfrom Redfern and Hunter on International Arbitration 6[th]Edn. andMerkin and Flannery on the Arbitration Act, 1996.

10. Shri Harin P. Raval, learned senior counsel appearing on behalfof HCL, has taken a preliminary submission that the only point ofdifference between S.B. Sinha, J. and Tarun Chatterjee, J. was on whetherthe two-tier arbitration clause was valid in law. Once that point had beenanswered, the question of being unable to present one’s case, not havingbeen decided by S.B. Sinha, J., was not referred to the larger bench asthere was no difference of opinion between the learned Judges on thisaspect and therefore this aspect cannot now be adjudicated upon. Evenotherwise, he argued, basing his submissions on a list of dates and apaper book of documents filed before this Court for the first time, toshow that as a matter of fact once the arbitrator had extended time, thelast extension being till 12.09.2001, he ought to have allowed furthertime in which, apart from legal submissions furnished, documents couldhave been furnished in support of HCL’s case. This is particularly inview of the fact that on 11.09.2001, a terrorist attack had taken place inNew York as a result of which globally, there was disruption of transportand communication, and therefore it was very difficult for HCL to senddocuments within the requisite time. He argued that had such documentsbeen seen, there can be no doubt that this one-sided award might wellhave been in his client’s favour, as a result of which serious prejudicehad been caused to his clients. Even otherwise, he argued that the issueof jurisdiction was to be taken as a preliminary question before the learnedarbitrator, after which further proceedings were to take place. This wasnever done by the learned arbitrator. Also, the learned arbitrator inproceeding with the arbitration despite the ex parte ad interim staybeing granted by an Indian court resulted in his client being unable topresent his case before the arbitrator.

11. Having heard learned senior advocates for both parties, it isfirst necessary to set out the portions of the award dated 29.09.2001which deal with the aspect of HCL being unable to present its casebefore the learned arbitrator. The learned arbitrator, after referring tothe Rajasthan High Court proceedings and the Supreme Court’s vacationof the stay, then found:

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A“7. As set out in paragraph 6 above, HCL, by a series of letters tothe International Court of Arbitration and to me, in my capacity asarbitrator, maintained that any arbitration commenced under thesecond paragraph of Clause 14 of the contract is null and voidand until August 2001, refused to participate in it, even thoughthey were invited by me to do so without prejudice to theirBjurisdictional objections. Despite this stance, Fox & Mandal wereat all times consulted about the procedural aspects of thisarbitration, were asked for their submissions in relation to theprocedure, progress and substance of the dispute, received copiesof all correspondence passing between Centrotrade and myselfCand of all submissions made and have been given every opportunityto take any point which they wished to take in their defence. ByOrders made on 20[th] December 2000, 19[th] January 2001 and 3[rd]May 2001, I directed that Centrotrade serve submissions andsupporting evidence, followed by HCL’s Response and evidencein support, with a right in Centrotrade to put in a reply inDaccordance with a clear time table. When no Defence Submissionsor supporting evidence was served by HCLwithin the timeprescribed, I sent them a fax on 30[th] July 2001, giving them onelast opportunity to inform me by return of any intention on theirpart to put in a Defence and to seek an extension of time forEdoing so.

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8. Following a further fax on 9[th] August 2001, in which I informedthe parties that I was proceeding with the Award, on 11[th] AugustI received a fax from Fox & Mandal requesting anextension oftime of one month to put in a defence. On 16[th]August I orderedFthat any submissions in support of an application for anextensionof time for a defence and any submissions on the substantivemerits of the dispute, together with any evidence relied on inrelation to the application and any submissions should be receivedby me by 31[st] August 2001, in the absence of which I would notgive them any consideration. On 27[th]August Fox & Mandal soughtGa further 3 weeks’ extension of time for making their submissionsand serving supporting evidence. I allowed a final extensionforthese submissions and evidence until 12[th] September 2001.Seventy - five pages of submissions were received by me on13[th]September 2001, without any supporting evidence or anyHjustification for not complying with my earlier orders. No grounds H

were put forward for any application for an extensionof time forputting in Defence submissions. Indeed no formal application wasmade for an extension of time to do so. HCL have therefore notattempted to justify their earlier stance nor to give me any reasonfor considering their submissions on the merits which are madeout of time. Centrotrade have objected to these submissionscontending that they are inadmissible because of HCL’s persistentbreaches of my orders. Nonetheless, though not bound to do sobecause of their belated nature, I have considered thosesubmissions and taken them fully into account in making thisAward. I made plain in my orders that no further material providedthereafter would be taken into account, and I have not done so.

9. In their submissions HCL maintained their arguments as tolack of jurisdiction and the invalidity of this London Arbitration butwithout prejudice to that, put forward submissions both on thejurisdictional arguments, the nullity of the second paragraph ofthe Arbitration clause in the contract and on the merits of thedispute. It is clear that this dispute can be determined on thedocuments turning, as it does essentially on points of constructionof the contract and matters of Indian law.”

Ultimately, the arbitrator awarded costs for the London proceeding,declining to award costs for the arbitration that had taken place in India.

12. The learned Single Judge of the Calcutta High Court, whiledealing with the objections as to breach of natural justice, dismissed theaforesaid objections as follows:

“Mr. Roy Choudhury then submits that in view of Section 48(1)(b)of the Act, the award is not enforceable, as neither notice ofappointment of arbitrator was given to the respondent, nor was itgiven opportunity to present its case. The arbitrator followed theICC Arbitration and Conciliation Rules, though they were notmentioned by the parties in the arbitration agreement, hence inview of Section 48(1)(b) of the Act the award was not enforceable.

Mr. Sarkar replies that the respondent was given all opportunitiesto present its case, but it showed total non-cooperation with thearbitrator. The arbitral procedure followed by the arbitrator doesnot militate against the arbitration agreement.

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AI find that the petitioner approached the ICC International Courtof Arbitration on February 22[nd], 2000. The respondent filed a suitin the Court of Civil Judge, Junior Division, Khetry on March 28[th]2000; it wanted to stop the second arbitration in terms of thearbitration agreement. The arbitrator was appointed on June 7[th],2000. Till August 2001 the respondent maintained that the secondBpart of the arbitration agreement being against the public policy ofIndia, the arbitration through the ICC International Court ofArbitration was not permissible. On this ground the respondentrefused to participate in the arbitral proceeding. It took the matterupto the Apex Court. Ultimately when it failed to obtain any orderCto stop the arbitration, it filed its submissions running into seventy-five pages. Though the papers reached the arbitrator beyond thestipulated date, he has considered such submissions. He, however,did not find any merit in the case made out by the respondent.The arbitrator has recorded that at every stage he consulted theprocedural aspects with the solicitors representing the respondent.DThere is no proof that the respondent ever objected to the rulesand procedure followed by the arbitrator orthat the arbitratorfollowed a procedure not contemplated in the agreement. It isapparent from the award that all opportunities were given to therespondent to present its case. I find no merit in the contentionsEthat notice regarding appointment of the arbitrator was not givento the respondent or that the terms of reference were settledbehind its back. The respondent had full knowledge of everything;it was informed about everything. Hence I find no substance inthe grievance that the respondent was unable to present its caseor that procedure not contemplated by the agreement of the partiesFwas followed by the arbitrator.”

13. In appeal, the Division Bench, in view of its finding that theaward is not a foreign award, declined to apply Section 50 of theArbitration Act, 1996 (hereinafter referred to as “Arbitration Act”), andthen stated that the London award is declared to be inexecutable so longGas the Indian Nil Award stands. In view of this finding, it did not go intothe natural justice point argued by HCL.

14. In the first round in this court, S.B. Sinha, J. did not go into thenatural justice point, in view of his finding that the arbitration clauseitself was null and void. Chatterjee, J., after agreeing with Centrotrade’sH

case on the arbitration clause, then went into issue no. 4 and held asfollows:

“Issue 4

Whether HCL was given proper opportunity to present its casebefore the ICC arbitrator?

164. Under Section 48(1)(b) enforcement of a foreign awardcan be refused if:

“48. (1)(b) the party against whom the award is invoked was notgiven proper notice of the appointment of the arbitrator or of thearbitral proceedings or was otherwise unable to present hiscase;”(emphasis supplied)

165. In the case at hand, HCL had the knowledge of appointmentof the arbitrator. In fact, it had approached the Indian courts tostall the ICC arbitral proceedings. On a special leave petition filedby Centrotrade against the order of the Rajasthan High Courtstaying the ICC arbitral proceedings, an order was passed by thisCourt by which the stay order of the Rajasthan High Court wasvacated on 8-2-2001 and directions were given for the ICCproceedings to continue in accordance with law.

166. It is true, in his award, Mr Jeremy Lionel Cooke, the ICCarbitrator has noted that he was appointed by ICC on 7-6-2000and that HCL refused to participate in the arbitral proceedings onthe ground that the second arbitration clause in the contract wasnull and void. He directed Centrotrade and HCL to file submissionsand supporting evidence through orders dated 20-12-2000,19-1-2001 and 3-5-2001. However, HCL did not comply with theseorders. On 30-7-2001, he sent a fax to HCL to find out whetherthey intended to file their defence. He sent a further fax on9-8-2001 informing them that he was proceeding with theaward. (emphasis supplied) Then on 11-8-2001, the ICC arbitratorreceived a reply seeking extension of time. He granted time till31-8-2001. He received another request from HCL’srepresentatives on 27-8-2001 for further extension of time. Hegranted extension till 12-9-2001. He received the first set ofsubmissions filed by HCL, without supporting evidence, on13-9-2001. He considered those submissions and took them into A

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account while making the award. He has further recorded in hisaward that:

“I made plain in my orders that no further material providedthereafter would be taken into account, and I have not doneso.”

This last statement indicates that he received further material fromHCL, which he did not consider while making the award. On theface of it, it seems that HCL was given sufficient opportunity topresent its case by the arbitrator. However, this question must belooked into from the then existing situation.

167. It must be noted that this Court vacated the stay on theproceedings on 8-2-2001. The first direction of the ICC arbitratorto the parties, after the order of this Court on 8-2-2001, to servesubmissions to him was made on 3-5-2001 i.e. after a time gap ofnearly 3 months. Cooperation of HCL was next requested onlyon 30-7-2001 i.e. after a time gap of nearly 2 months. Then thecommunication on 9-8-2001 stated that the arbitrator wasproceeding with the award. This time there was a response fromHCL. Upon these requests, a time-limit of nearly one month endingon 12-9-2001 was given to HCL. The arbitrator received the firstset of submissions filed by HCL on 13-9-2001. Then he made theaward 16 days later on 29-9-2001. It seems that between13-9-2001 and 29-9-2001, he did receive further material fromHCL which he did not consider while making the award on theground that they were received after the time-limit granted byhim to HCL had lapsed.

168. It is clear from the above layout of facts that there havebeen delays in the arbitral proceedings right from the beginningwhen Centrotrade approached ICC on 22-2-2000. Most of thedelays were due to HCL’s refusal to participate in the proceedings.However, there were some delays which cannot be related toHCL’s conduct. For instance, the period from 8-2-2001 when theorder of this Court was made to 3-5-2001 when the first directionof the arbitrator was made. The whole arbitral proceeding wasconducted in a manner indicative of lack of urgency. Further, Ifind merit in the submission of HCL that due to the total dislocation

of air traffic caused by the terrorist attack of 11-9-2001, thematerials sent by HCL to the ICC arbitrator reached late. Underthese circumstances, a delay of few days in serving theirsubmissions with supporting evidence, after having accepted toparticipate in the arbitral proceedings, seems excusable and shouldhave been excused. Considering the overall picture of thecircumstances and the delays, refusal of the arbitrator to considerthe material received by him after 13-9-2001 and before29-9-2001, seems to be based on a frivolous technicality. Thearbitrator ought to have considered all the material received byhim before he made the award on 29-9-2001. Considering thedecisions in Hari Om Maheshwari v. Vinitkumar Parikh [(2005)1 SCC 379] and Minmetal Germany GmbH v. Ferco Steel Ltd.[ (1999) 1 All ER (Comm) 315] it is true that where a party isrefused an adjournment and where it is not prevented frompresenting its case, it cannot, normally, claim violation of naturaljustice and denial of a fair hearing. However, in the light of thedelays, some of which were not attributable to HCL’s conduct, itwas only fair to excuse HCL’s lapse in filing the relevant materialon time. Therefore, it can be said that HCL did not get a fairhearing and could not effectively present its case.

169. For the reasons aforesaid, I am of the view that HCL couldnot effectively present its case before the ICC arbitrator andtherefore enforcement of the ICC award should be refused inview of Section 48(1)(b) of the Act. Accordingly, the judgment ofthe Division Bench and also the judgment of the learned SingleJudge of the Calcutta High Court must be set aside and the matterbe remitted back to the ICC arbitrator for fresh disposal of thearbitral proceedings in accordance with law after giving fair andreasonable opportunity to both the parties to present their casesbefore him. In view of the fact that I have set aside the award ofthe ICC arbitrator on the ground that HCL was unable toeffectively present its case before the ICC arbitrator, in compliancewith Section 48(1)(b) of the Act, I direct the ICC arbitrator topass a fresh award within three months from the date ofcommencement of the fresh arbitral proceedings.”

15. The law on the subject matter of Section 48(1)(b) of theArbitration Act has been laid down in a recent judgment of this Court in ABC

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AVijay Karia (supra). In paragraph 21 of the aforesaid judgment, thisCourt stated that it was important to note that no challenge was made tothe aforesaid award under the English arbitration law, though available,just as in the facts of the present case. This Court then set out theparameters of a Section 48 challenge which reaches this Court as follows:

B“24. Before referring to the wide ranging arguments on both sides,it is important to emphasise that, unlike Section 37 of the ArbitrationAct, which is contained in Part I of the said Act, and which providesan appeal against either setting aside or refusing to set aside a‘domestic’ arbitration award, the legislative policy so far asrecognition and enforcement of foreign awards is that an appealCis provided against a judgment refusing to recognise and enforcea foreign award but notthe other way around (i.e. an orderrecognising and enforcing an award). This is because the policyof the legislature is that there ought to be only one bite at thecherry in a case where objections are made to the foreign awardDon the extremely narrow grounds contained in Section 48 of theAct and which have been rejected. This is in consonance with thefact that India is a signatory to the Convention on the Recognitionand Enforcement of Foreign Arbitral Awards, 1958 (hereinafterreferred to as “New York Convention”) and intends - through thislegislation - to ensure that a person who belongs to a ConventionEcountry, and who, in most cases, has gone through a challengeprocedure to the said award in the country of its origin, must thenbe able to get such award recognised and enforced in India assoon as possible. This is so that such person may enjoy the fruitsof an award which has been challenged and which challenge hasFbeen turned down in the country of its origin, subject to grounds toresist enforcement being made out under Section 48 of theArbitration Act. Bearing this in mind, it is important to rememberthat the Supreme Court’s jurisdiction under Article 136 should notbe used to circumvent the legislative policy so contained. We aresaying this because this matter has been argued for several daysGbefore us as if it was a first appeal from a judgment recognisingand enforcing a foreign award. Given the restricted parametersof Article 136, it is important to note that in cases like the present- where no appeal is granted against a judgment which recognisesand enforces a foreign award - this Court should be very slow inHinterfering with such judgments, and should entertain an appeal only with a view to settle the law if some new or unique point israised which has not been answered by the Supreme Court before,so that the Supreme Court judgment may then be used to guidethe course of future litigation in this regard. Also, it would only bein a very exceptional case of a blatant disregard of Section 48 ofthe Arbitration Act that the Supreme Court would interfere with ajudgment which recognises and enforces a foreign award howeverinelegantly drafted the judgment may be. With these prefatoryremarks we may now go on to the submissions of counsel.”

The Court then went on to refer to Minmetals Germany GmbHv. Ferco Steel Ltd. (1999) C.L.C. 647 in paragraph 59, and Jorf LasfarEnergy Co. v. AMCI Export Corp. 2008 WL 1228930 in paragraph61 as follows:

“59.The English judgments advocate applying the test of aperson being prevented from presenting its case by mattersoutside his control. This was done in Minmetals GermanyGmbH v. Ferco Steel Ltd. (1999) C.L.C. 647 as follows:

“In my judgment, the inability to present a case to arbitratorswithin s.103(2)(c) contemplates at least that the enforcee hasbeen prevented from presenting his case by matters outsidehis control. This will normally cover the case where theprocedure adopted has been operated in a manner contrary tothe rules of natural justice. Where, however, the enforcee has,due to matters within his control, not provided himself with themeans of taking advantage of an opportunity given to him topresent his case, he does not in my judgment, bring himselfwithin that exception to enforcement under the convention. Inthe present case that is what has happened”

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61. An application of this test is found in Jorf Lasfar EnergyCo. v. AMCI Export Corp. 2008 WL 1228930, where the U.SDistrict Court, W.D. Pennsylvania decided that if a party fails toobey procedural orders given by the arbitrator, it must suffer theconsequences. If evidence is excluded because it is not submittedin accordance with a procedural order, a party cannot purposefullyignore the procedural directives of the decision-making body andthen successfully claim that the procedures were unfair or violative AB

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of due process. Likewise, in Dongwoo Mann+Hummel Co.Ltd. v. Mann+Hummel GmbH (2008) SGHC 275, the SingaporeHigh Court held:

“145. A deliberate refusal to comply with a discovery order isnot per se a contravention of public policy because theadversarial procedure in arbitration admits of the possiblesanction of an adverse inference being drawn against the partythat does not produce the document in question in compliancewith an order. The tribunal will of course consider all therelevant facts and circumstances, and the submissions by theparties before the tribunal decides whether or not to draw anadverse inference for the non-production. Dongwoo also hadthe liberty to apply to the High Court to compel production ofthe documents under s 13 and 14 of the IAA, if it was notcontent with merely arguing on the question of adverseinference and if it desperately needed the production by M+Hof those documents for its inspection so that it could properlyargue the point on drawing an adverse inference. However,Dongwoo chose not to do so.

146. Further, the present case was not one where a partyhides even the existence of the damning document and thendishonestly denies its very existence so that the opposing partydoes not even have the chance to submit that an adverseinference ought to be drawn for non-production. M+H in factdisclosed the existence of the documents but gave reasonswhy it could not disclose them. Here, Dongwoo had the fullopportunity to submit that an adverse inference ought to bedrawn, but it failed to persuade the tribunal to draw the adverseinference. The tribunal examined the other evidence before it,considered the submissions of the parties and rightfullyexercised its fact finding and decision making powers not todraw the adverse inference as it was entitled to do so. It wouldappear to me that the tribunal was doing nothing more thanexercising its normal fact finding powers to determine whetheror not an adverse inference ought to be drawn.””

The Court finally summed up its conclusion on this aspect of thecase, as follows:

M/S. CENTROTRADE MINERALS AND METALS INC.v. HINDUSTAN COPPER LTD. [R. F. NARIMAN, J.]

“76. Given the fact that the object of Section 48 is to enforceforeign awards subject to certain well-defined narrow exceptions,the expression “was otherwise unable to present his case”occurring in Section 48(1)(b) cannot be given an expansive meaningand would have to be read in the context and colour of the wordspreceding the said phrase. In short, this expression would be afacet of natural justice, which would be breached only if a fairhearing was not given by the arbitrator to the parties. Read alongwith the first part of Section 48(1)(b), it is clear that this expressionwould apply at the hearing stage and not after the award hasbeen delivered, as has been held in Ssangyong(supra). A goodworking test for determining whether a party has been unable topresent his case is to see whether factors outside the party’scontrol have combined to deny the party a fair hearing. Thus,where no opportunity was given to deal with an argument whichgoes to the root of the case or findings based on evidence whichgo behind the back of the party and which results in a denial ofjustice to the prejudice of the party; or additional or new evidenceis taken which forms the basis of the award on which a party hasbeen given no opportunity of rebuttal, would, on the facts of agiven case, render a foreign award liable to be set aside on theground that a party has been unable to present his case. Thismust, of course, be with the caveat that such breach be clearlymade out on the facts of a given case, and that awards mustalways be read supportively with an inclination to uphold ratherthan destroy, given the minimal interference possible with foreignawards under Section 48.”

16. Shri Raval took exception to the interpretation of the word“otherwise” occurring in Section 48(1)(b) and cited a Constitution Benchjudgment of this Court in Kavalappara Kottarathil Kochuni v. Statesof Madras and Kerala(1960) 3 SCR 887, for the proposition that theexpression “otherwise” cannot be read ejusdem generis with wordsthat precede it.

17. Kochuni’s case (supra) was concerned with the constitutionalvalidity of the Madras Marumakkathayam (Removal of Doubts) Act,1955. Section 2(b) of the aforesaid Act reads as follows:

“2. Notwithstanding any decision of Court, any sthanam in respectof which:

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A(b) the members of the tarwad have been receiving maintenancefrom the properties purporting to be sthanam properties as of right,or in pursuance of a custom or otherwise”

The Constitution Bench then held:

“The word “otherwise” in the context, it is contended, must beBconstrued by applying the rule of ejusdem generis. The ruleis that when general words follow particular and specific wordsof the same nature, the general words must be confined to thethings of the same kind as those specified. But it is clearly laiddown by decided case that the specific words must form aCdistinct genus or category. It is not an inviolable rule of law, butis only permissible inference in the absence of an indication tothe contrary. On the basis of this rule, is contended, that theright or the custom mentioned in the clause is a distinct genusand the words “or otherwise” must be confined to thingsanalogous to right or contract such as lost grant, immemorialDuser etc. It appears to us that the word “otherwise” in thecontext only means “whatever may be the origin of the receiptof maintenance”. One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observedthat the receipt of maintenance might even be out of bounty. ItEis most likely that a word of the widest amplitude was used tocover even acts of charity and bounty. If that be so, under theimpugned Act even a payment of maintenance out of charitywould destroy the character of an admitted sthanam which exfacie is expropriatory and unreasonable.”

FGiven the object of the 1955 Act, the Constitution Bench wascareful to state that the word “otherwise” in the contextonly means“whatever may be the origin of the receipt of maintenance”.18. P. Ramanatha Aiyar’s Advanced Law Lexicon defines theexpression “otherwise” as follows:G“Otherwise. By other like means; contrarily; different from thatto which it relates; in a different manner; in another way; in anyother way; differently in other respects in different respects; insome other like capacity.”

The Law Lexicon then refers to an early judgment of Cleasby B.Hin Monck v. Hilton 46 LJNC 167, in which it is stated as follows:

M/S. CENTROTRADE MINERALS AND METALS INC.v. HINDUSTAN COPPER LTD. [R. F. NARIMAN, J.]

“As a general rule “otherwise” when following an enumeration,should receive an ejusdem generis interpretation (per CLEASBY,B. Monck v. Hilton, 46 LJMC 167, The words ‘or otherwise,’ inlaw, when used as a general phrase following an enumeration ofparticulars, are commonly interpreted in a restricted sense, asreferring to such other matters as are kindred to the classes beforementioned.”

As has been held in paragraph 76 of Vijay Karia (supra), thecontext of Section 48 is recognition and enforcement of foreign awardsunder the New York Convention of 1958. Given the context of the NewYork Convention, and the fact that the expression “otherwise” issusceptible to two meanings, it is clear that the narrower meaning hasbeen preferred, which is in consonance with the pro-enforcement biasspoken about by a large number of judgments referred to in Vijay Karia(supra). Kochuni’s case (supra) dealing with an entirely different Actwith a different object cannot, therefore, possibly apply to construe thisword in the setting in which it occurs.

19. As a matter of fact, three earlier judgments of this Court, allunder the Arbitration Act, 1940, are also instructive. The ground on whicha domestic award could be set aside under Section 30 of the 1940 Act,inter alia, was if the arbitrator misconducted himself or the proceedings.It will be seen that “misconduct” as a ground for setting aside an awardis conceptually much wider than a party being unable to present its casebefore the arbitrator, which is contained in Section 48(1)(b). Thus, inGanges Waterproof Works (P) Ltd. v. Union of India (1999) 4 SCC33, this Court was faced with the legality and validity of the arbitrationproceedings, three grounds being raised as follows:

“2. Challenge to the legality and validity of the arbitrationproceedings has been laid on three grounds: firstly, that theclaimant-Union of India (respondent herein) filed an additionalstatement accompanied by documents before the arbitrator on11-8-1982, which was the last day of hearing, and that was takeninto consideration by the arbitrator without affording the petitioneran opportunity for contesting the same or even delivering a copythereof to the petitioner; secondly, though no oral evidence wasadduced by any of the parties, yet the arbitrator has in his awardexpressed having heard the evidence which shows inapplicationof mind to the record of the proceedings and material available AB

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Abefore the arbitrator; and thirdly, that the arbitrator in the sittingheld on 11-8-1982 heard the parties hardly for five or seven minutesin which limited time, no real hearing could have taken place. It issubmitted that the manner in which the arbitrator has conductedhimself, has resulted in violation of the principles of natural justiceand vitiated the arbitration proceedings. Similar grounds wereBraised before the learned Single Judge as also in the intra-courtappeal before the High Court and have been turned down. Havingheard the learned counsel for the parties, we are also of the opinionthat here too the petitioner must meet the same fate.”

So far as the first ground was concerned, it was held that as aCmatter of fact, nothing was filed by the Union of India on 11.08.1982 andthe additional statement and documents that were filed by the Union ofIndia before the learned arbitrator was way before on 31.05.1982. Thisbeing so, and as no specific case was made out in an additional affidavitbefore the learned single Judge supporting the plea that the additionalDstatement and documents that were furnished could not be effectivelydealt with by the appellant, plea no.1 was turned down. The thirdcontention was then disposed of as follows:

“6. The third and the last plea urged is equally devoid of anymerit. The burden of substantiating the averment urged as anEobjection tantamounting to misconduct on the part of the arbitratoror complaining of violation of the principles of natural justice wason the petitioner. No evidence was adduced to substantiate theplea. The best person to depose as to what had actually transpiredat the hearing and whether the same was a real hearing or aneyewash merely was the counsel who actually made submissionsFon behalf of the petitioner before the arbitrator. The least thatwas expected of the petitioner was to have filed an affidavit ofthe counsel before the Court. That was not done. No timely protestwas raised before the arbitrator. The hearing was concluded on11-8-1982 and the award was made on 23-8-1982. During theseG12 days also, the petitioner-Company never urged before thearbitrator that submissions on its behalf were not permitted to bemade by the arbitrator. The learned Single Judge, as also theDivision Bench, have arrived at a finding that the plea was anafterthought and certainly not substantiated. We also do not findany reason to take a view different from the one taken by theHHigh Court.”

20. In Sohan Lal Gupta v. Asha Devi Gupta (2003) 7 SCC492, this Court dealt with the arbitrator misconducting the proceedingsas follows:

“27. The arbitrator, as appears from the minutes of the meeting,proceeded only on the documentary evidence. No party appearsto have presented oral evidence. Thus, the question of cross-examination of the witnesses appearing on behalf of the otherparties did not arise. Submissions must have been made by theparties themselves. Ghanshyamdas Gupta does not say that hehad difficulty in appearing on 15-6-1976 or any subsequent dateand he had asked for an adjournment. Even otherwise, a partyhas no absolute right to insist on his convenience being consultedin every respect. The matter is within the discretion of the arbitratorand the Court will intervene only in the event of positive abuse.(See Montrose Canned Foods Ltd. [(1965) 1 Lloyd’s Rep 597])If a party, after being given proper notice, chooses not to appear,then the proceedings may properly continue in his absence. (SeeBritish Oil and Cake Mills Ltd. v. Horace Battin& Co. Ltd.[(1922) 13 LI L Rep 443] )” (emphasis supplied)

In a significant paragraph which foreshadowed the law as it istoday, this Court referred to the Minmetals (supra) judgment and heldas follows:

“43. Furthermore, in this case Ghanshyamdas Gupta expresslyrelinquished his right by filing an application stating that he wouldwithdraw his objection. Such relinquishment in a given case canalso be inferred from the conduct of the party. The defence whichwas otherwise available to Ghanshyamdas Gupta would not beavailable to others who took part in the proceedings. They cannottake benefit of the plea taken by Ghanshyamdas Gupta. Eachparty complaining violation of natural justice will have to provethe misconduct of the Arbitration Tribunal in denial of justice tothem. The appellant must show that he was otherwise unable topresent his case which would mean that the matters were outsidehis control and not because of his own failure to take advantageof an opportunity duly accorded to him. (See Minmetals GermanyGmbH v. Ferco Steel Ltd. [(1999) 1 All ER (Comm) 315] ) ThisCourt’s decision in Renusagar Power Co. Ltd. v. GeneralElectric Co. [1994 Supp (1) SCC 644 : AIR 1994 SC 860] is alsoa pointer to the said proposition of law.” (emphasis supplied)

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SCC 379, this Court recorded the arguments of learned counsel appearingon behalf of the appellant on the natural justice aspect of the case asfollows:

“7. Shri Jaideep Gupta, learned Senior Counsel appearing for theBappellant herein contended that the grounds on which the HighCourt has set aside the award are not the grounds contemplatedunder Section 30 of the Act. He submitted that arbitrationproceedings having started in the year 1995 could not be completedeven in the year 1999, therefore, the High Court ought not to haveinterfered with the award. He pointed out that in Reference CaseCNo. 313 of 1995 pertaining to Deepa Jain the evidence had alreadyconcluded and the explanation given by the respondent for notleading evidence on 10-5-1999 was frivolous and the arbitratorsrightly did not entertain a prayer for granting a further opportunityfor leading evidence. Such a denial of a further opportunity by theDarbitrators would not be a ground contemplated under Section 30of the Act to set aside the award. Hence, the courts below havegone beyond the scope of Section 30 of the Act while allowingpetitions to set aside the arbitration awards.”

The learned Single Judge’s finding in the aforesaid case, whichEwas accepted by the Division Bench judgment on the facts of the case,is set out in paragraph 12 of the said judgment as follows:

“12. It is the above award that was challenged under Section 30of the Arbitration Act, 1940 before the learned Single Judge bythe respondent which came to be allowed by the learned SingleFJudge. While doing so learned Single Judge observed:

“the cross-examination of M/s D. Jain and Co. was over in 1997,the cross-examination of witness examined in Shri Maheshwari’sreference was completed on 8-4-1999 and the arbitrators adjournedthe matter to 10-5-1999 and 11-5-1999 for the petitioner to leadGhis evidence. However, it appears that the petitioner noted a wrongdate and therefore, he did not appear on 10-5-1999. It is clearfrom the record that there is an application submitted by thepetitioner before the arbitrators on 20-5-1999 regarding the mistakecommitted by him in recording the date of hearing and requestedthe arbitrators to give an opportunity to lead the evidence. OneHcan understand if the arbitrators have after closing the matter for award delivered the award immediately but since the arbitratorshad not delivered their award by 20-5-1999, they also did not delivertheir award immediately thereafter, but waited till November 1999to make their award, the arbitrators could have easily permittedthe petitioner to lead evidence. I do not think that the arbitratorswere justified in denying the petitioner an opportunity to leadevidence….”

This finding of the learned Single Judge has been accepted by theDivision Bench without any further discussion.”

This Court then set aside the Single Judge’s judgment in languagethat is even more appropriate today, given the object of the ArbitrationAct, 1996, as follows:

“16. From the above it is seen that the jurisdiction of the courtentertaining a petition or application for setting aside an awardunder Section 30 of the Act is extremely limited to the groundsmentioned therein and we do not think that grant or refusal of anadjournment by an arbitrator comes within the parameters ofSection 30 of the Act. At any rate the arbitrator’s refusal of anadjournment sought in 1999 in an arbitration proceeding pendingsince 1995 cannot at all be said to be perverse keeping in mind theobject of the Act as an alternate dispute resolution system aimedat speedy resolution of disputes.”

22. Shri Banerjee then referred to a number of judgments includingCuckurova Holding A.S. v. Sonera Holding B.V. (2014) UKPC15 of the Privy Council. In this judgment, the Minmetals (supra) testwas referred to with approval as follows:

“31. Section 36(2)(c) is in the same terms as section 103(2)(c) ofthe Arbitration Act 1996 in England. They reflect Article V(1)(b)of the New York Convention. In Minmetals Germany GmbH vFerco Steel Ltd [1999] CLC 647, 658 Colman J said that thesubsection contemplates that the enforcee has been preventedfrom presenting his case by matters outside his control, which willnormally cover the case where the procedure adopted has beenoperated in a manner contrary to the rules of natural justice. InKanoria v Guinness [2006] EWCA Civ 222 Lord Phillips CJ heldin the Court of Appeal that, on the ordinary meaning of section103(2)(c), a party to an arbitration is unable to present his case if AB

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he is never informed of the case he is called upon to meet. Hereferred to the statements in Minmetals referred to above withapproval.

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34. The general approach to enforcement of an award should bepro-enforcement. See eg Parsons & Whittemore Overseas CoInc v Société Générale 508 F 2d 969 (1974) at 973:

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“The 1958 Convention’s basic thrust was to liberalize proceduresfor enforcing foreign arbitral awards … [it] clearly shifted theburden of proof to the party defending against enforcement andClimited his defences to seven set forth in Article V.”

In IPCO (Nigeria) v Nigerian National Petroleum [2005] 2Lloyd’s Rep 326, Gross J said at para 11, when considering theequivalent provision of the English Arbitration Act 1996:

“… there can be no realistic doubt that section 103 of the Actembodies a pre-disposition to favour enforcement of New YorkConvention awards, reflecting the underlying purpose of the NewYork Convention itself …”

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The Board agrees. There must therefore be good reasons forrefusing to enforce a New York Convention award. The BoardEcan see no basis upon which it should refuse to enforce the awardhere if Cukurova fails to show that it was unable to present itscase for reasons beyond its control.”

The Privy Council, on facts, then dealt with the natural justiceground by rejecting it as follows:F

“53. The approach of the Tribunal described above and thereasoning in the First Partial Award shows that it gave Cukurovaevery opportunity to develop its case. The basis upon which theTribunal reached its conclusions is clear. As stated above, theTribunal indicated that it assumed Mr Berkmen’s evidence to beGtrue. It is therefore difficult to see on what grounds Cukurova canproperly complain. It is not suggested that the Tribunal deliberatelyignored Mr Berkmen’s evidence. Although Cukurova submits thatthe outcome of the arbitration would have been different if MrBerkmen had had an opportunity to be heard, it does not identifyHon what basis. It is of course no part of the role of the enforcing court to consider whether the decision was correct either in lawor on the facts.”

23. In Eastern European Engineering v. Vijay Consulting(2019) 1 LLR 1 (QBD), the Queen’s Bench Division dealt with the“inability to present case” challenge by following CukorovaHoldings(supra) and Minmetals(supra),and then concluding:

“89. It was also common ground that, as indicated as a “given”by Lord Clarke in Cukorova at [53], the party challenging theaward must also demonstrate that the outcome of the arbitrationwould have been different had there been no breach of naturaljustice.”

Applying the test of “matters outside one’s control”, it was foundthat VCL’s challenge on this ground was not outside its control as follows:

“98. In this specific context what VCL did not do (and perfectlywell could have done) was to raise with the arbitrator the questionof whether the form of his order in fact shut them out from puttingin a statement from Dr du Toit Malan, or to make submissions asto why they needed to get evidence from some other identifiedperson in order to respond to the submissions made. Instead theychose to seek to challenge the decision on the basis that theyshould be allowed to put in new evidence which covered all issues,not simply in response to Large 3. This decision to challenge onone basis and not the other is a matter which was entirely withinVCL’s control.

99. In those circumstances too I accept the submission that theadmission of Large 3 (or failure to allow responsive evidence)would not have had an impact on the result of the arbitration. Theliability decision was based on the earlier reports of Mr Large andother witnesses. That is common ground. In relation to quantum,the arbitrator’s reliance upon Large 3 had the effect of reducingthe quantum awarded to EEEL (by some €9 million). It thereforecannot be said that VCL was prejudiced by Large 3. If it wasprejudiced it was by its failure to avail itself of the opportunity”given it to respond. (emphasis supplied)

24. Jorf Lasfar (supra), referred to in paragraph 61 of VijayKaria (supra), is also instructive. This case deals with a specific plea A

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Arelating to natural justice in relation to a Tribunal’s procedural orders asfollows:

“7.We disagree. AMCI was given a full and fair opportunity topresent its case. However, AMCI failed to meet its obligationsunder the Tribunal’s procedural orders, 3 and suffered theBconsequences. It failed to submit any witness statements by thedeadline set forth by the Tribunal. Rather, AMCI attempted toname Mr. Thrasher as a witness after the deadline, and withoutsubmitting a witness statement. AMCI submitted no documentaryevidence save a governmental report indicating that coal was inshort supply around the time of the alleged breach.

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9. The requirements of Procedural Order No. 4 are clear,reasonable, and common in international arbitration practice. Thereis no dispute that AMCI understood what the Order required atDthe time. A party cannot purposefully ignore the proceduraldirectives of a decision-making body, and then successfully claimthat the procedures were fundamentally unfair, or violated dueprocess. Under the circumstances, we find that AMCI has failedto satisfy its burden to prove that the arbitral process violated ourbasic notions of fundamental fairness and justice. As such, AMCIEcannot avail itself of either the Article V(1)(b) defense or theArticle V(2)(b) defense.” (emphasis supplied)

25. Shri Banerjee then referred to two United States District Courtjudgments. In Consorcio Rive v. Briggs of Cancun 134 F. Supp 2d789, the US District Court, E.D. Louisiana, found that Briggs of Cancun,Fthe respondent before it, refused to participate in the arbitration due toalleged criminal proceedings in Cancun. At the trial, David Briggs(representative of the respondent therein) testified that he did not seekalternative ways to appear at the hearings such as by way of telephone,nor did he send a representative of the company to appear on behalf ofGthe company. In this fact situation, Article V(1)(b) of the New YorkConvention was referred to, the court finding:

“26. Because Briggs of Cancun was continuously informed of allhearing dates and was provided sufficient opportunity to presentwitnesses and evidence in defense of the action, Briggs of Cancunwas given proper notice of the arbitration proceedings.

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27. The due process guarantee incorporated in article V(1) (b) ofthe Convention requires that “an arbitrator must provide afundamentally fair hearing.” Generica Ltd., 125 F.3d at 1130. “Afundamentally fair hearing is one that `meets “the minimalrequirements of fairness” adequate notice, a hearing on theevidence, and an impartial decision by the arbitrator.’” Id. “[P]artiesthat have chosen to remedy their disputes through arbitration ratherthan litigation should not expect the same procedures they wouldfind in the judicial arena.” Id. Essentially, in exchange for theconvenience and other benefits obtained through arbitration, partieslose “the right to seek redress from the court for all but the mostexceptional errors at arbitration.” Dean v. Sullivan, 118 F.3d 1170,1173 (7th Cir.1997).

28. Consistent with the federal policy of encouraging arbitrationand enforcing arbitration awards, the defense that a party was“unable to present its case” raised pursuant to article V(1) (b) ofthe Convention is narrowly construed. Parsons & WhittemoreOverseas Co. v. Societe Generale de L’Industrie du Papier,508 F.2d 969, 975 (2d Cir.1974).

29. In the instant case, the Court finds that Briggs of Cancun wasnot “unable to present its case,” because Briggs of Cancun couldhave participated by means other than David Briggs’s physicalpresence at the arbitration. For instance, Briggs of Cancun couldhave sent a company representative to attend; could have sent itsattorney to attend; or David Briggs could have attended bytelephone.

30. Moreover, the evidence indicates that Briggs of Cancun didparticipate to the extent that it designated an arbitrator and filedover 80 pages of legal argument and documentation in support ofits position. Because Briggs of Cancun has brought forward noadditional information or evidence that it would have presented atthe arbitration if it had the opportunity to do so, the Court findsthat Briggs of Cancun did have an opportunity to meaningfullyparticipate in the arbitration.

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33. For the foregoing reasons, the Court finds that Briggs ofCancun’s defense under article V(1) (b) of the Convention must AB

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Afail. The Court also specifically finds that even if there was avalid arrest warrant pending against David Briggs for some periodof time, Briggs of Cancun is not entitled to a defense under articleV(1) (b) of the Convention because Briggs of Cancun could haveparticipated through its Mexican attorney or corporaterepresentative or by telephone. Further, Briggs of Cancun has notBdemonstrated that it was prejudiced in any way by whateverrestrictions the alleged criminal action might have imposed, becauseit has not pointed to exonerating evidence that it would havepresented, but could not, but for the filing of the criminal Statementof Facts.”

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26. In Four Seasons Hotels v. Consorcio Barr S.A. 613 Supp2d 1362 (S.D. Fla. 2009), the U.S District Court, S.D. Florida, dealt withthe respondent, having discontinued its participation in the arbitralproceedings just prior to the final evidential hearings, as follows:

“Moreover, regardless of the decision ultimately reached by theDCourt of Appeals concerning the waiver issue in the previous actionto confirm the Partial Arbitration Award, the issue of the ArbitralTribunal’s jurisdiction and the propriety of the anti-suit injunctionwas to be conclusively decided one way or the other in the actionto confirm the Partial Arbitration Award. With the jurisdictionalEand anti-suit injunction issues thus decided, Consorcio’s withdrawalfrom the final evidentiary hearing, the proceeding governing theissuance of the Final Award, in an attempt to preserve its right tocontest jurisdiction, was futile. Consorcio’s withdrawal was thusineffective to preserve its right to contest jurisdiction or the anti-suit injunction in the appeal of the Partial Arbitration Award or inFthis action to confirm the Final Award.

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Given that Consorcio’s withdrawal from the arbitration proceedingwas unnecessary to preserve its rights Consorcio was not precludedfrom or unable to present its case. Even if Consorcio’s decision towithdraw from the proceeding was taken based on a good faithGsubjective belief that such action was necessary to preserve itsrights on appeal, such a misgiving did not render Consorcio unableto present its case within the meaning of Article V(1)(b). Therefore,Consorcio has not met its burden of proving that Article V(1)(b)applies as a defense.”

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v. HINDUSTAN COPPER LTD. [R. F. NARIMAN, J.]

27. Shri Banerji then referred to a judgment of the Supreme Courtof Hong Kong, reported in Nanjing Cereals v. LuckmateCommodities XXI Y.B. Com. Arb. 542 (1996). In paragraph 5 of thejudgment the court held:

“5.However, it appeared that the Defendants had had ampleopportunity to present their own evidence as to quantum to theTribunal, but by their own admission they had failed to do so. Inaddition, regarding the issue of whether I should exercise mydiscretion in refusing in any case to set aside the Award, Mr.Chan conceded that the fact that the final Award was lower thanthat claimed by the Plaintiffs was against his clients.

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7. …At all events, the Defendants maintain that they did not submittheir own figures to the Tribunal, though this was clearly going tobe an issue before the Tribunal,nor, it appears, did they availthemselves of the opportunity to submit them later. That decisionwas up to them. They must now live with its consequences.

8. Their omission was similar to that of the Defendants in anothercase, namely QinghuangdaoTongda Enterprise DevelopmentCo. v. Million Basic Co. Ltd. [1993] 1 HKLR 173, where I held:-

“It is not accepted that the defendant had no opportunity to presentits case. On the contrary, the defendant made full use of the ampleopportunity given and only complained after the proceedings hadfinally been closed, having foregone the opportunity of asking foran extension of those proceedings. All proceedings must have afinite end.”

9. In conclusion, I am not satisfied that the Defendants have madeout sufficient grounds for me to refuse leave to enforce the Awardunder S.44 of the Arbitration Ordinance. Even if they had madeout sufficient grounds, in my opinion this is a classic case where acourt should exercise its discretion to refuse to set aside an award,due to the failure of the Defendants to prosecute their own caseproperly by submitting their own evidence to the Tribunal. Thefact that the award was lower than that sought by the Claimantsis also a powerful factor against exercising discretion not toenforce.” (emphasis supplied)

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A28. Shri Banerjee then referred to a judgment to the SupremeCourt of Italy reported in De Maio Giuseppe v. Interskins Y.B. Comm.Arb. XXVII (2002) 492. The Italian Supreme Court, in considering theground contained in Article V(1)(b) of the New York Convention held asfollows:

B“[5] “The first two grounds for appeal, which must be examinedtogether since they concern the same issues, are unfounded. Art.V(1)(b) of the New York Convention provides that the failure tocommunicate either the arbitrator’s appointment or the arbitralproceedings, which makes it impossible to present one’s case, is aground for refusing enforcement of the award. De Maio maintainsCthat it was unable to present its case because it was given onlyfourteen days to appoint an arbitrator.

[6] “This Court deems that there was no violation of due processas alleged by De Maio, and that one or more missing pages onthis issue in the Court of Appeal’s decision do not make this decisionDinvalid. Since this is a procedural defect, we can settle the issuedirectly, independent of whether the lower decision failed to givereasons on this issue, the more so as we deal here exclusivelywith the interpretation and the application of a procedural provision.

[7] “Art. V(1) provides that the party against whom the award isEinvoked has the burden to prove the ground for refusal ofenforcement under letter (b), as well as the other grounds in thatparagraph. Further, we must consider that, according to the spiritof the Convention, the recognition of arbitral awards depends onspecific requirements which must be interpreted narrowly.

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[8] “Since in the present case it is undisputed that Interskinsinformed De Maio that it had appointed an arbitrator, the reasonsgiven in the lower decision, which deems that this information andthe time limit [given to De Maio] guaranteed due process, suffice,independent of a failure to give reasons on the objections raisedGby De Maio.

[9] “Second, we must consider that the ground for refusal underletter (b) concerns the impossibility rather than the difficulty topresent one’s case. De Maio does not argue and certainly doesnot prove that it could not present its case when the arbitrationwas commenced or while it was held.”H

29. We now come to the facts of the present case. Shri Raval’splea that this Court cannot go into the question posed before it as therewas no difference of opinion on HCL being unable to present its case,Justice Chatterjee J’s being the only judgment on this score, has no legsto stand. The reference order that is extracted by us in paragraph 7above, and that is contained in paragraph 1 of the decision in Centrotrade[2017] (supra), makes it clear that, “in view of difference of opinion, thematteris referred to a larger bench for reconsideration”. That theexpression the matterwas understood as meaning the entire matter andnot merely issue 1, is further made clear by paragraph 5 of the saidjudgment as follows:

“For the present, we propose to address only the first questionand depending upon the answer, the appeals would be set downfor hearing on the remaining issue. We have adopted this somewhatunusual course since the roster of business allowed us to hear theappeals only sporadically and therefore the proceedings beforeus dragged on for about three months.”

Finally, the 3 Judge Bench concluded:

48. In view of the above, the first question before us is answeredin the affirmative. The appeals should be listed again forconsideration of the second question which relates to theenforcement of the appellate award.”

In this view of the matter, we have proceeded to examine thecorrectness of Chatterjee J’s views.

30. Shri Raval has argued that the London arbitrator ought tohave determined the question of jurisdiction as a preliminary question, ashe himself had initially indicated, before going into the substantive issuesrelating to the contract. We are afraid that this is an argument that hasnever been raised earlier, and has been raised by Shri Raval here for thefirst time. Even otherwise, and even if we were to go by the documentsthat were submitted to us for the first time by Shri Raval, the fax sent on20.12.2000 by the arbitrator to the parties is incomplete. Even otherwise,it speaks of issues of jurisdiction and Indian law having to be addressedas a primary questionbefore matters of substance relating to the disputeon the contract. None of this clearly and unequivocally shows that thelearned arbitrator sought to take up the plea as to jurisdiction as apreliminary objection which should be decided before other matters. This A

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Aplea of Shri Raval, being taken here for the first time and for the reasonsgiven by us, is devoid of substance.

31. Shri Raval then argued that HCL was unable to present itscase as the learned arbitrator did not heed the stay order of the RajasthanHigh Court dated 27.04.2000. First and foremost, the stay order of theBRajasthan High Court was not and could not be directed against thearbitrator – it was directed only against the parties to the proceeding.Secondly, the learned arbitrator initially began the proceedings, after thegreen signal given to him by the ICC Court to proceed with the arbitration,by directing that the appellant serve submissions along with supportingevidence, followed by the respondent’s response and evidence onC19.01.2001. This, however, was reiterated only on 03.05.2001, by whichtime the Supreme Court had vacated the ad-interim ex parte order on08.02.2001. This plea taken by Shri Raval, also taken before us for thefirst time, has no legs to stand on.

32. Shri Raval then strenuously argued that considering that theDlast extension expired on 12.09.2001, the learned arbitrator ought to havetaken on board two other bundles of documents and granted time for thesame, given the terrorist attack in New York on 11.09.2001.

33. The sequence of events, even from the documents presentedby Shri Raval for the first time, is that legal submissions were furnishedafter 11.09.2001 and received by the arbitrator’s office on 13.09.2001.EThe arbitrator then stated that these submissions have been fully takeninto account in the award and that by 18.09.2001, there would be noscope for any further material being supplied, as the publication of theaward will follow shortly. This was communicated by fax on 18.09.2001by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It isFonly thereafter, on 19.09.2001, that a couriered letter is sent to the learnedarbitrator stating that Fox & Mandal would be deeply obliged if documentscontained in paper binder no.1 would also be taken into account. It wasthen added that paper binder no.2, containing judgments of the Courts oflaw and authorities are being sent separately and it may take 7 to 10days’ more time beyond 19.09.2001.G

34. At this stage, it is important to point out that the learnedarbitrator had given a large number of opportunities to file documentsand legal submissions. On 03.05.2001 the learned arbitrator directedthat the appellant serve submissions along with supporting documents,following the respondent’s response and evidence therein, with a right inHthe appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supportingevidence was served by the respondent within the time prescribed, thetime was extended, giving the respondent one last opportunity to put intheir defence and to seek extension of time for so doing. Until August2001, it may be stated that respondent did not participate in the arbitralproceedings, even though invited to do so. It is only on 09.08.2001, whenthe learned arbitrator informed the parties that he is proceeding with theaward, that on 11.08.2001, the learned arbitrator received a fax fromFox & Mandal, Attorneys for HCL, requesting for an extension of onemonth’s time to put in their defence. This was acceded to by the learnedarbitrator on 16.08.2001, giving time upto 31.08.2001. However, on27.08.2001, Fox & Mandal sought for a further three weeks’ extensionof time, which was also granted by the learned arbitrator, allowing afinal extension of time until 12.09.2001. Despite the fact that the legalsubmissions running into 75 pages were submitted beyond time, that isonly on 13.9.2001, in view of the 11.09.2001 attack in New York, thelearned arbitrator received the same and took the same into accountdespite being beyond time. It was only on 29.09.2001 that the learnedarbitrator then passed his award. Given the aforesaid timeline, it is clearthat the learned arbitrator was extremely fair to the respondent. Havingnoticed that the respondent wanted to stall the arbitral proceedings byapproaching the Courts in Rajasthan and having succeeded partially, atleast till February 2001, the conduct of the respondent leaves much to becalled for. Despite being informed time and again to appear before theTribunal and submit their response and evidence in support thereof, it isonly after the arbitrator indicated that he was going to pass an awardthat the respondent’s attorneys woke up and started asking for time topresent their response. This too was granted by the learned arbitrator,by not only granting extension of time, but by extending this time evenfurther. Finally, when the legal submissions of 75 pages were sent evenbeyond the time that was granted, the learned Arbitrator took this intoaccount and then passed his award. This being the case, on facts wecan find no fault whatsoever with the conduct of the arbitral proceedings.

35. Justice Chatterjee, however, in his judgment, made severalerrors of fact. First and foremost, in paragraph 166 of Centrotrade[2006] (supra), the learned Judge quoted the penultimate line in paragraph8 of the award, without even adverting to the line just before the aforesaidline which indicated that the material that was received from HCL wasin fact taken into consideration while making the award, even beyondthe stipulated time of 12.09.2001. Secondly, in paragraph 167, AB

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AChatterjee, J. conjectured that between 13[th] and 29[th] September, 2001,the Arbitrator did receive further material from HCL which he did notconsider while making the award, on the ground that they were receivedafter the time limit granted by him to HCL. Factually, there is no supportingmaterial to show that any such further material was received by thelearned arbitrator, except documents that have been presented by ShriBRaval for the first time before us. They were clearly not beforeChatterjee,J. when this surmise was made by the learned Judge, Further,the arbitrator cannot be faulted on this ground as, given the authoritiesreferred to by us hereinabove, the arbitrator is in control of the arbitralproceedings and procedural orders which give time limits must be strictlyCadhered to. In paragraph 168, the learned Judge then said that given theattack in New York on 11.09.2001, the learned arbitrator should haveexcused further delay and should not have acted on frivoloustechnicalities. This approach of a Court enforcing a foreign award fliesin the face of the judgments referred to by us hereinabove. Evenotherwise, Chatterjee, J., refers to the judgment in Hari OmDMaheshwari (supra) as well as Minmetals (supra), but then does notproceed to apply the ratio of the said judgments. Had he applied the ratioof even these two judgments, it would have been clear that an arbitrator’srefusal to adjourn the proceedings at the behest of one party cannot besaid to be perverse, keeping in mind the object of speedy resolution ofEdisputes of the Arbitration Act. Further, the Minmetals (supra) testwas not even adverted to by Chatterjee,J., which is that HCL was neverunable to present its case as it was at no time outside its control tofurnish documents and legal submissions within the time given by thelearned arbitrator. HCL chosenot to appear before the arbitrator, andthereafter choseto submit documents and legal submissions outside theFtimelines granted by the arbitrator.36. Even otherwise, remanding the matter to the ICC arbitrator topass a fresh award in paragraph 169, is clearly outside the jurisdiction ofan enforcing court under Section 48 of the 1996 Act.

37. For all these reasons, it is clear that Chatterjee, J.’s judgmentGcannot be sustained. As a result, Centrotrade’s appeal, being Civil AppealNo. 2562 of 2006, is allowed. The judgment of Chatterjee, J is set aside.HCL’s appeal, being Civil Appeal No. 2564 of 2006, is dismissed.Resultantly, the foreign award, dated 29.09.2001, shall now be enforced.HDevika GujralAppeal disposed of.