MIS. FUERST DAY LAWSON LTD v. JINDAL EXPORTS LTD

Appellant and respondent entered into an agreement for supply of certain goods. During the course of the agreement certain dispute arose between the parties which was referred to arbitration before the International General B · Produce Association. Arbitrators passed an Award on 13.8.1996 allowing the claims of the appellant Respondent's appeals before the Appellate Board and Queen's Bench of the High Court of Justice at London were dismissed. Thereafter, appellant filed an execution application before the High Court of Delhi for enforcement of the said foreign Award. J'he High Court issued an C order of attachment against the respondent. Aggrieved, respondent filed an application for dismissal of the execution petition under Section 151 of the Code of Civil Procedure, 1908, and also a petition under Section 48 of the Arbitration and Conciliation Act, 1996. Single Judge of High Court dismissed the execution petition of appellant holding that the execution application filed for eDrorccment of foreign Award dated 13.8.i996 was not maintainable under D Act as the arbitration proceedings had commenced prior to the coming into force of the Act Appellant's appeal before Division Bench of High Court was also dismissed. Hence the present appeal. On behalf of the appellant, it was contended that Single Judge as well E as the Division Bench of the High Court erred in holding that since the arbitration proceedings were commenced prior to the commencement of the Act, the foreign Award dated 13.8.1996 could not be enforced under the Act in terms of Section 85 read with Section 21 of the Act in view of the judgment of this Court in Thyssen case; that at no stage before the High Court either before the Single Judge or before the Division Bench respondent questioned F the date of commencement of Act and in fact Division Bench proceeded on the admitted position that the new Act commenced from 25.11.1996 and, therefore, it cannot be raised for the first time in the instant proceedings. On behalf of the respondent it was contended that the date from which G the Act came into force was an issue of fact and not an issue of law and this Court in the cases relied _upon on behalf of the appellant had wrongly mentioned the date of enforcement of the Act as 25.1.1996 instead of 22.8.1996 and thus the error will have to be corrected as the decision would be 'per incuriam'; that in Thyssen case it was held that a foreign award given after the commencement of the new Act can be enforced only under the new Act; H in the instant case, the Award was passed on 13.8.1996 i.e. 9 days prior to .L - . FUERST DAY LAWSON LTD. v. JINDAL EXPORTS LTD. 481 coming into force of the Act and as such the Foreign Awards (Recognition A , and Enforcement) Act, 1961 would apply in which case enforcement would be only through a suit and the execution petition was thus rightly rejected. Allowing the appeal, the Court HELD : 1. A foreign award given after the commencement of the B Arbitration and Conciliation Act, 1996 even in cases where the arbitration proceedings were commenced prior to the enforcement of the Act can be enforced under the Act. [487-H; 488-A] ...... -'-, Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., [1999] 9 sec 334, reiterated. c Western Ship Breaking Corporation v. Clarehaven Ltd. UK, (C.A. No. 4928 of 1997) decided by Gujarat High Court, approved.

2.1. An Ordinance operates in the field it occupies, with same effect and force as an 'Act'. Article 367(2) of the Constitution states that any D reftrence in the Constitution to Acts or laws of, or made by Parliament, or to Acts or laws of or made by the Legislature of a State shall be construed as including a reference to an Ordinance made by the President or to an Ordinance made by a Governor as the case may be. This Article read with Section 30 of the General Clauses Act clearly indicate that when a reference is made to an Act, it shall be construed as including a reference to an E Ordinance. Under Articles 123 and 213, subject to the limitation stated therein, an Ordinance promulgated shall have the same force and effect as an Act of Parliament or an Act of a Legislature of a State. [490-C-D]

2.2. Though the plain and literal reading of Section 1(3) of the Act and the Gazette Notification, suggests that the Act came into force on 22.8.1996, F but the purposive reading would show that the Act came into force in continuation of the Ordinance which was brought into force on 25.1.1996. This makes the position clear that although the Act came into force on 22.8.1996, for all practical and legal purposes it shall be deemed to have been effective from 25.1.1996 particularly when the provisions of the G ordinance and the Act are similar and there is nothing in the Act to the contrary so as to make the Ordinance ineffective as to either its coming into force on 25.1.1996 or its continuation upto 22.8.1996.[495-F-G-H; 496-A] A.K Roy v. Union of India and Ors., [1982] 1 SCC 271; R.K Garg v. Union of India and Ors., AIR (1981) SC 2138 and T. Venkata Reddy and Ors. H 482 SUPREME COURT REPORTS [2001] 3 S.C.R. A v. State of Andhra Pradesh, (1985) 3 SCC 198, followed. She ttys Constructions Co. Pvt. Ltd. v. Konkan Railway Constructions and Anr:, (1998) 5 SCC 599 and NALCO v. Metalimpex, (2000) 3 A.L.R. 422, relied on. B Western Ship Breaking Corporation v. Clarehaven Ltd. UK., (C.A. No. 4928 of 1997) decided by Gujarat High Court, approved.

3. It cannot be said that the Thyssen judgment is per incuriam A prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence C or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive commission, it is not desirable to depend on the principle of judgment 'per incuriam'. It is also not shown that some part of the decision based on a reasoning which was demonstrably wrong, hence the principle of 'per incuriam' cannot be D applied. It cannot also be said that while deciding Thyssen, the promulgation of the first ordinance, which was effective from 25.1.1996, or subsequent ordinances were not kept in mind. The Thyssen, judgment has not failed to notice either a statutory provision in substance and effect or a binding precedent running counter to the reasoning and the result reached. E F (493-C-D; 494-A] Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., [1999) 9 SCC 334; She ttys Constructions Co. Pvt. Ltd. v. Konkan Railway Construction and Anr:, (1998) 5 SCC 599 and NALCO v. Metalimpex, (2000) 3 A.L.R. 422, held not per incuriam.