Titagarh Wagons Limited Vs. Rsk Logistics and Trading Gmbh and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1060593
CourtKolkata High Court
Decided OnJul-04-2013
JudgeSANJIB BANERJEE
AppellantTitagarh Wagons Limited
RespondentRsk Logistics and Trading Gmbh and anr.
Excerpt:
ap no.709 of 2013 in the high court at calcutta ordinary original civil jurisdiction original side titagarh wagons limited versus rs.logistics & trading gmbh & anr. appearance mr.jishnu saha, adv.…petitioner mr.sudhakar prasad, adv.…respondent no.2 before: the hon'ble justice sanjib banerjee date :4. h july, 2013. the court : the petitioner seeks refund of a deposit made in terms of an order dated july 7, 2006 passed on a previous petition under section 9 of the arbitration and conciliation act, 1996. that order was made prior to the arbitral reference being taken up. the petitioner reports that the reference has since been concluded and an award has been passed in the petitioner’s favour on september 3, 2012. the award finds the petitioner entitled to payment from the firs.respondent. the petitioner says that the firs.respondent has gone into liquidation in germany and the second respondent is no longer the agent of the firs.respondent. it is unclear as to whether any custodian or liquidator has been served to represent the firs.respondent, but the second respondent is represented. the present petition cannot be entertained since section 9 of the said act of 1996 permits a petition to be made thereunder before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36 of the act. the expression, “before it is enforced”., appears to not imply the actual enforcement of the arbitral award but the gap between the making of an award and the enforcement thereof as statutorily recognised in section 36 of the act. since the award in this case has been passed more than a year back and the petitioner cannot demonstrate that the award has not ripened for enforcement, it does not appear that the petitioner as award-holder can invoke section 9 of the said act of 1996 in respect of the same arbitration reference. ap no.709 of 2013 is dismissed as not maintainable without going into the merits of the matter. the petitioner will, thus, be free to apply for the same orders in accordance with law before the appropriate forum. there will be no order as to costs. urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (sanjib banerjee, j.) sg.
Judgment:

AP No.709 of 2013 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE TITAGARH WAGONS LIMITED Versus Rs.LOGISTICS & TRADING GMBH & ANR.

Appearance Mr.Jishnu Saha, Adv.…Petitioner Mr.Sudhakar Prasad, Adv.…Respondent No.2 BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date :

4. h July, 2013.

The Court : The petitioner seeks refund of a deposit made in terms of an order dated July 7, 2006 passed on a previous petition under Section 9 of the Arbitration and Conciliation Act, 1996.

That order was made prior to the arbitral reference being taken up.

The petitioner reports that the reference has since been concluded and an award has been passed in the petitioner’s favour on September 3, 2012.

The award finds the petitioner entitled to payment from the fiRs.respondent.

The petitioner says that the fiRs.respondent has gone into liquidation in Germany and the second respondent is no longer the agent of the fiRs.respondent.

It is unclear as to whether any custodian or liquidator has been served to represent the fiRs.respondent, but the second respondent is represented.

The present petition cannot be entertained since Section 9 of the said Act of 1996 permits a petition to be made thereunder before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36 of the Act.

The expression, “before it is enforced”., appears to not imply the actual enforcement of the arbitral award but the gap between the making of an award and the enforcement thereof as statutorily recognised in Section 36 of the Act.

Since the award in this case has been passed more than a year back and the petitioner cannot demonstrate that the award has not ripened for enforcement, it does not appear that the petitioner as award-holder can invoke Section 9 of the said Act of 1996 in respect of the same arbitration reference.

AP No.709 of 2013 is dismissed as not maintainable without going into the merits of the matter.

The petitioner will, thus, be free to apply for the same orders in accordance with law before the appropriate forum.

There will be no order as to costs.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(SANJIB BANERJEE, J.) sg.