Case Note & Summary
The respondent, Aircon Feibars FZE, obtained a foreign award in Singapore on 25 January 2017 for approximately US$7 million (Rs.46 Crores) against the appellant, Heligo Charters Private Limited, under an arbitration clause in a Settlement Deed dated 9 September 2014. The award became final as the appellant did not challenge it in Singapore. The respondent filed an arbitration petition under Section 9 of the Arbitration and Conciliation Act, 1996 (as amended in 2015) seeking interim relief to restrain the appellant from alienating, encumbering, or removing its only significant asset in India—a helicopter used for ONGC operations—pending enforcement of the award. The learned Single Judge confirmed an ad-interim injunction on 28 April 2017. The appellant appealed, arguing that Section 9 does not apply to foreign awards under Part II and that the law in force on the date of the arbitration agreement (pre-2015 amendment) should govern. The Division Bench held that Section 9 applies to foreign awards and that the law in force on the date of the arbitration agreement (9 September 2014) governs, but the amendment did not change the position. The appeal was dismissed, and the injunction was confirmed.
Headnote
A) Arbitration Law - Interim Relief - Section 9 of the Arbitration and Conciliation Act, 1996 - Foreign Award - The court considered whether Section 9 applies to foreign awards under Part II of the Act. Held that Section 9 is applicable to foreign awards and the law in force on the date of the arbitration agreement governs the application for interim relief. The court confirmed the injunction restraining the appellant from alienating or removing the helicopter pending enforcement of the foreign award (Paras 1-5).
Issue of Consideration
Whether Section 9 of the Arbitration and Conciliation Act, 1996 (as amended by the Amendment Act of 2015) applies to foreign awards under Part II of the Act, and what law governs the application for interim relief.
Final Decision
The appeal is dismissed. The order of the learned Single Judge dated 28 April 2017 confirming the ad-interim injunction is upheld.
Law Points
- Section 9 of the Arbitration and Conciliation Act
- 1996 applies to foreign awards under Part II
- Law in force on date of arbitration agreement governs interim relief
- Amendment Act of 2015 does not affect pending proceedings
Case Details
Commercial Appeal No. 136 of 2017 in Commercial Arbitration Petition (L) No. 208 of 2017
Naresh H. Patil, Nitin W. Sambre
Mr. Vikram Nankani, Sr. advocate a/w. Mr. Sumeet Nankani, Mr. Akshay Kishore, Mr. Dhruv Jain I/b. Economics Law Practice for appellants. Mr. Aspi Chinoy, Sr. advocate a/w. Mr. Kunal Mehta, Ms. Bulbul Singh i/b. Crawford Bayley & co. for respondents.
Heligo Charters Private Limited
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Nature of Litigation
Commercial appeal against an order granting interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 in aid of enforcement of a foreign award.
Remedy Sought
The respondent sought an injunction restraining the appellant from alienating, encumbering, or removing a helicopter from the court's jurisdiction pending enforcement of a foreign award.
Filing Reason
The respondent apprehended that the appellant might move or encumber its only significant asset in India (a helicopter) to prevent enforcement of the foreign award.
Previous Decisions
The learned Single Judge confirmed an ad-interim injunction on 28 April 2017.
Issues
Whether Section 9 of the Arbitration and Conciliation Act, 1996 applies to foreign awards under Part II of the Act.
What law governs the application for interim relief in respect of a foreign award.
Submissions/Arguments
Appellant argued that Section 9 does not apply to foreign awards under Part II and that the law in force on the date of the arbitration agreement (pre-2015 amendment) should govern.
Respondent contended that Section 9 applies to foreign awards and that the amendment did not change the position.
Ratio Decidendi
Section 9 of the Arbitration and Conciliation Act, 1996 applies to foreign awards under Part II of the Act. The law in force on the date of the arbitration agreement governs the application for interim relief, but the 2015 amendment did not alter the applicability of Section 9 to foreign awards.
Judgment Excerpts
This appeal is directed against an order passed by the learned Single Judge of this Court on 28th April, 2017 in Comm Arbitration Petition (l) No. 208/2017.
The respondent herein Aircon Beibars FZE (original petitioner) holds a foreign award passed on 25th January, 2017 for an amount of approximately US$7 million equivalent to Rs.46 Crores against the appellant herein Heligo Charters Pvt. Ltd.
Procedural History
The respondent filed Arbitration Petition No. 269/2017 under Section 9 of the Arbitration Act seeking interim relief. The learned Single Judge granted ad-interim injunction on 28 April 2017. The appellant filed the present Commercial Appeal against that order.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 9, Part II
