Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 5131-5133 OF 2016

(Arising out of SLP (CIVIL) Nos. 2210-2212/2011)

EITZEN BULK A/S …. APPELLANT (S)

VERSUS

ASHAPURA MINECHEM LTD. & ANR. …. RESPONDENT(S)

WITH

CIVIL APPEAL No. 5136 OF 2016

(Arising out of SLP (CIVIL) No. 3959/2012)

ASHAPURA MINECHEM LTD. …. APPELLANT (S)

VERSUS

EITZEN BULK A/S …. RESPONDENT(S)

WITH

SLP (CIVIL) No. ………../2016

(Arising out of CC NO. 3266/2013)

ASHAPURA MINECHEM LTD. …. PETITIONER (S)

VERSUS

ARMADA (SINGAPORE) PTE LTD. …. RESPONDENT(S)

WITH

SLP (CIVIL) No. ………../2016

(Arising out of CC NO. 3382/2013)

1

Page 2 ASHAPURA MINECHEM LTD. …. PETITIONER (S)

VERSUS

ARMADA (SINGAPORE) PTE LTD. …. RESPONDENT(S)

WITH

CIVIL APPEAL Nos. 5134-5135 OF 2016

(Arising out of SLP (CIVIL) Nos. 7562-7563/2016)

ASHAPURA MINECHEM LTD. …. APPELLANT (S)

VERSUS

EITZEN BULK A/S …. RESPONDENT(S)

JUDGMENT

S. A. BOBDE, J.

Leave granted in SLP (C) Nos.2210-2212/2011, SLP (C)

Nos.3959/2012 and SLP (C) No.7562-7563/2016.

2. The dispute in these appeals, arises out of the Contract of

Affreightment dated 18.1.2008 (hereinafter referred as `the Contract’).

Eitzen Bulk A/S of Denmark (hereinafter referred to as `Eitzen’) entered

into the contract with Ashapura Minechem Limited of Mumbai (hereinafter

referred to as `Ashapura’) as charterers for shipment of bauxite from

2

Page 3 India to China. The Charter party contains an Arbitration Clause as

follows:-

“Clause No. 28

Any dispute arising under this C.O.A. is to

be settled and referred to Arbitration in London.

One Arbitrator to be employed by the

Charterers and one by the Owners and in case

they shall not agree then shall appoint an

Umpire whose decision shall be final and

binding, the Arbitrators and Umpire to be

Commercial Shipping Men. English Law to

apply. Notwithstanding anything to the

contrary agreed in the C.O.A., all disputes

where the amount involved is less then USD

50,000/- (fifty thousand) the Arbitration shall

be conducted in accordance with the Small

Claims Procedure of the L.M.A.A.”

(emphasis supplied)

3. Disputes having arisen between the parties, the matter was

referred to Arbitration by a sole Arbitrator. The Arbitration was held in

London according to English Law. Ashapura Minechem was held liable

and directed to pay a sum of 36,306,104 US$ together with compound

interest at the rate of 3.75 % per annum. In addition they were directed

to pay 74,135 US$ together with compound interest at the rate of 3.75%

per annum and another sum of 90,233.66 Pounds together with

compound interest at the rate of 2.5% per annum vide Award of the Sole

Arbitrator dated 26.5.2009.

Proceedings in Gujarat

3

Page 4 4. Before Arbitration had commenced, Ashapura filed a suit

alongwith an application for injunction before the Civil Judge at

Jam-khambalia, Gujarat praying inter-alia that the Contract and the

Arbitration Clause contained therein was illegal, null and void, ab-initio.

Though initially an interim injunction was granted, the learned Civil Judge

dismissed the suit for want of jurisdiction vide order dated 12.1.2009.

The appeal filed by Ashapura before the Gujarat High Court was

dismissed as withdrawn on 2.7.2009.

5. In London, Mr. Tim Marshal, who was appointed as Arbitrator,

held that Ashapura was in repudiatory breach and awarded Eitzen Bulk an

amount of 36,306,104.00 $ plus interest, as stated above.

6. Having failed to stall the Arbitration and then having failed in the

Arbitration proceedings, Ashapura resorted to Section 34 of the

Arbitration Act and filed objections in India in respect of the Award passed

in London. These proceedings were filed before the District Judge,

Jamnagar for setting aside the Foreign Award made in London. A Misc.

Civil Application No. 101/2009 for injunction restricting Eitzen Bulk from

enforcing the Award in foreign jurisdictions outside India was also moved.

The District Judge, Jamnagar on 24.8.2009 dismissed the application for

injunction seeking restraint on enforcement of the Award.

7. From 14.7.2009 to 3.8.2009 Eitzen applied for enforcement of

the Award in the countries of Netherlands, USA, Belgium, UK. The Courts

4

Page 5 in various jurisdictions have held the Award to be enforceable as a

judgment of the Court.

8. On 14

th

July, 2009, the appellant filed proceedings in Netherlands

Court seeking a declaration that the award dated 26

th

May, 2009 is

enforceable as a judgment of the Court. The respondent appeared in the

said proceedings and filed their objections. The Netherlands Court,

however, declared that the award is enforceable as a judgment of the

Court on 17

th

March, 2010.

9.On 24

th

July, 2009, the United States District Court for Southern State

of New York declared the award dated 26

th

May, 2009 enforceable as a

judgment of that court. The proceedings filed by the appellant were

contested by the respondent.

10. On 27

th

July, 2009, the appellant filed present proceedings under

Sections 47 to 49 of Part II of the Arbitration Act for enforcing the award

dated 26

th

May, 2009 on the ground that the respondent was carrying on

business within the jurisdiction of this Court and has its registered office

and corporate office and assets within the territorial jurisdiction

of this Court.

11. On 29

th

July, 2009, the Antwerp Court declared the award dated

26

th

May, 2009 enforceable as a judgment of the Court. The said

proceedings were contested by the respondent. On 3

rd

August, 2009, the

5

Page 6 English High Court declared the award dated 26

th

May, 2009 enforceable

as a judgment of the Court.

12. Against the rejection of the application for injunction Ashapura

filed a petition under Articles 226 and 227 of the Constitution of India

before the High Court of Gujarat at Ahmadabad for a Writ of Certiorari to

quash and set aside the Order dated 24.8.2009 rendered by the District

Judge, Jam-Khambalia and for a direction not to enforce the execution of

the judgment dated 24.7.2009. Ashapura inter-alia contended that the

Award cannot be enforced or executed since their objections under

Section 34 were pending. A learned Single Judge who heard the petition

however, observed that the issues before him were inextricably connected

with the issues of jurisdiction of the Court in the Section 34 application

and the contentions of Eitzen opposing the said Section 34 application.

The Single Judge, therefore, set aside the Order dated 24.8.2009 and

remanded the matter for fresh decision in accordance with law by Order

dated 3.9.2009. In Letters Patent Appeal filed by Eitzen the Division

Bench of the High Court of Gujarat directed the District Judge to consider

all contentions by its Order dated 29.10.2009.

13. Eitzen however questioned the very jurisdiction of a Court in

India to decide objections under Section 34 of the Arbitration Act in

respect of a Foreign Award by way of a Writ Petition. They prayed for

issue of a Writ of Prohibition and an Order restraining the learned District

6

Page 7 Judge at Jam-Khambhalia from adjudicating Ashapura’s application under

Section 34 of the Arbitration and Conciliation Act, 1996 against the

Foreign Award dated 26.5.2009.

14. A learned Single Judge issued notice and stayed further

proceedings before the Jamnagar Court on 20.11.2009. Ashapura

however filed LPA No. 2469 of 2009 challenging the Order of the learned

Single Judge dated 20.11.2009. The Division Bench which heard the

appeal has held by Judgment and Order dated 22.9.2010, that Ashapura

is entitled to challenge the Foreign Award under Section 34 of Part I of

the Arbitration Act. It has further held that the territorial jurisdiction is a

mixed question of fact and law and is required to be decided by the

Trial Court on the basis of the Plaint and Written Statement

and Evidence before it. This judgment was questioned by way of SLP (C)

Nos. 2210-2212 of 2011 filed by Eitzen.

Proceedings in Maharashtra

15. On 27.7.2009, Eitzen filed Arbitration Petition No. 561/2009

under Sections 47 to 49 of the Arbitration Act for enforcing the Foreign

Award in the Bombay High Court, within whose jurisdiction Ashapura

carries on business and has a registered office. The Award was also

received by Ashapura within the jurisdiction of the Bombay High Court.

This petition for enforcement was filed on the basis that Part I of the

Arbitration Act has no application to a Foreign Award made in London

7

Page 8 under English Law. The petition for enforcement of a Foreign Award was

accompanied by Notice of Motion No. 3143 of 2009 under Section 49 (3)

of the Arbitration Act for securing their claim under the ex-parte Award

dated 26.5.2009.

16. The learned Single Judge held that since the parties had agreed

that the juridical seat of the Arbitration in this case would be at London

and English Law would apply there was an express and in any case an

implied, exclusion of Part I of the Arbitration Act.

17. Ashapura filed Notice of Motion No. 3975 of 2009 claiming that

since proceedings had already been initiated under Part I before the

Gujarat High Court, the Bombay High Court had no jurisdiction in the

matter by virtue of Section 42 of the Arbitration Act. A learned Single

Judge of the Bombay High Court vide order dated 05.10.2011 dismissed

the Notice of Motion and held that Part I of the Arbitration Act was

excluded by the parties and therefore Section 42, which occurs in Part I,

had no application to the present case. The learned Single Judge also

directed that the petition be heard on merits. This decision is questioned

by Ashapura in SLP (C) No. 3959 of 2012.

18. The learned Single Judge of the Bombay High Court has allowed

Arbitration Petition No. 561 of 2009 of Eitzen for enforcing the Foreign

Award dated 26.5.2009.

8

Page 9 19. As a preliminary objection, it was contented before the Bombay

High Court that this Court had passed an Order on 27.2.2012 ordering

status quo on further proceedings and, therefore, the Hon’ble Court ought

not to proceed in the matter. That this Order was to operate upto

16.4.2012 and was thereafter extended till 22.8.2012. The High Court

rejected this contention on the ground that the Order of status quo had

not been extended. We have examined the matter and find that there

was no Order of this Court restraining the High Court from hearing the

matter in October, 2015.

20. The High Court has also rejected the contention of Ashapura

under Section 42

1

of the Arbitration Act, rightly; that since an application

under Section 34 of the Arbitration Act, which is an application

contemplated by Part I of the Arbitration Act, has been made before the

Court in Gujarat and that Court alone has jurisdiction over the Arbitration

proceedings and all subsequent applications must be made to that Court

alone. This contention was rejected by the High Court on the ground that

Section 42 occurs in Part I of the Arbitration Act and in its view since

Part I itself had no application to the Foreign Award, Section 42 would

have no application either. The moot question thus arises is whether

1

Notwithstanding anything contained elsewhere in this Part or in any other law for the

time being in force, where with respect to an arbitration agreement any application

under this Part has been made in a Court, that Court alone shall have jurisdiction over

the arbitral proceedings and all subsequent applications arising out of that agreement

and the arbitral proceedings shall be made in that Court and in no other Court.

9

Page 10 Part I of the Arbitration Act has any application to the Foreign Award in

this case where the proceedings were held in London and the Arbitration

was governed by English Law.

Before this Court

21. We thus have, on the one hand, the decision of the Gujarat High

Court holding that a Court in India has jurisdiction under Section 34 to

decide objections raised in respect of a Foreign Award because Part I of

the Arbitration Act is not excluded from operation in respect of a Foreign

Award and on the other, a decision of the Bombay High Court holding that

Part I is excluded from operation in case of a Foreign Award and

thereupon directing enforcement of the Award. The decisions of the

Gujarat High Court are questioned by Eitzen by way of SLP (C)

Nos.2210-2212/2011. The decisions of the Bombay High Court are

questioned by Ashapura by way of SLP (C) Nos.7562-7563/2016. Interim

order dated 05.10.2011 passed by the High Court of Judicature at

Bombay in Notice of Motion No. 3975 of 2009 in Arbitration Petition No.

561 of 2009 is under challenge in appeal arising out of SLP (C) No. 3959

of 2012.

22. Apparently Ashapura had a similar dispute with Armada

(Singapore) Pvt. Ltd. Armada had, similarly filed an application for

enforcement of the foreign award in its favour under Section 42 of the

Arbitration Act being Arbitration Petition Nos.1359 and 1360 of 2010

10

Page 11 before the Bombay High Court. Ashapura has raised similar objection to

the enforcement of the Foreign Award by way of Notice of Motion. By

Notices of Motion Nos. 2390 and 2444 of 2012 Ashapura had contended

that the Bombay High Court cannot entertain the application in view of

the Section 42 of the Arbitration Act. Both these Notices of Motion

were dismissed by the learned Single Judge of the Bombay High

Court. Ashapura has challenged the said dismissal by way of filing

SLP Nos.….of 2016 [CC Nos.3266 and 3382 of 2013] before this Court.

23. It may be noted at the outset that since proceedings under the

Sick Industrial Companies (Special Provisions) Act, 1985 (for short, the

SICA Act) are pending before the Board for Industrial and Financial

Reconstruction (BIFR), though the Bombay High Court has ordered

execution of the Award, it has held that Eitzen would not be entitled to

take any step in execution of the Award or seek any relief in violation of

Section 22 of the SICA Act without permission from the BIFR.

The main question

24. Thus, the main question on which contentions were advanced by

the learned counsel for the parties is whether Part I of the Arbitration Act

is excluded from its operation in case of a Foreign Award where the

Arbitration is not held in India and is governed by foreign law.

25. Shri Prashant S. Pratap, learned senior counsel appearing for

Eitzen submitted that the main issue is covered by a decision of this Court

11

Page 12 in Bhatia International v. Bulk Trading S.A. and another

2

and two

recent decisions of this Court in Union of India v. Reliance Industries

Limited and others

3

and Harmony Innovation Shipping Limited v.

Gupta Coal India Limited and another

4

. We have not considered the

decision in the Balco v. Kaiser Aluminium Technical Services Inc.

5

since the decision in that case does not govern Arbitration agreements

entered prior to 6.9.2012 and the contract in the instant case is

dated 18.1.2008.

26. According to the learned counsel, Clause 28, which is the

Arbitration Clause in the Contract, clearly stipulates that any dispute

under the Contract “is to be settled and referred to Arbitration in London”.

It further stipulates that English Law to apply. The parties have thus

clearly intended that the Arbitration will be conducted in accordance with

English Law and the seat of the Arbitration will be

at London.

27. The question is whether the above stipulations show the

intention of the parties to expressly or impliedly exclude the provisions of

Part I to the Arbitration, which was to be held outside India, i.e., in

London. We think that the clause evinces such an intention by providing

that the English Law will apply to the Arbitration. The clause expressly

2

(2002) 4 SCC 105

3

(2015) 10 SCC 213

4

(2015) 9 SCC 172

5

(2012) 9 SCC 552

12

Page 13 provides that Indian Law or any other law will not apply by positing that

English Law will apply. The intention is that English Law will apply to the

resolution of any dispute arising under the law. This means that English

Law will apply to the conduct of the Arbitration. It must also follow that

any objection to the conduct of the Arbitration or the Award will also be

governed by English Law. Clearly, this implies that the challenge to the

Award must be in accordance with English Law. There is thus an express

exclusion of the applicability of Part I to the instant Arbitration by

Clause 28. In fact, Clause 28 deals with not only the seat of Arbitration

but also provides that there shall be two Arbitrators, one appointed by the

charterers and one by the owners and they shall appoint an Umpire, in

case there is no agreement. In this context, it may be noted that the

Indian Arbitration and Conciliation Act, 1996 makes no provision for

Umpires and the intention is clearly to refer to an Umpire contemplated

by Section 21 of the English Arbitration Act, 1996. It is thus clear that

the intention is that the Arbitration should be conducted under the English

law, i.e. the English Arbitration Act, 1996. It may also be noted that

Sections 67, 68 and 69 of the English Arbitration Act provide for challenge

to an Award on grounds stated therein. The intention is thus clearly to

exclude the applicability of Part I to the instant Arbitration proceedings.

28. This is a case where two factors exclude the operation of Part I

of the Arbitration Act. Firstly, the seat of Arbitration which is in London

13

Page 14 and secondly the clause that English Law will apply. In fact, such a

situation has been held to exclude the applicability of Part I in a case

where a similar clause governed the Arbitration. In Reliance Industries

Limited and another v. Union of India

6

, this Court referred to

judgments of some other jurisdictions and observed in paragraphs 55 to

57 as follows:-

“55. The effect of choice of seat of arbitration

was considered by the Court of Appeal in C v.

D. This judgment has been specifically

approved by this Court in Balco and reiterated

in Enercon. In C v. D, the Court of Appeal has

observed: (Bus LR p. 851, para 16)

“Primary conclusion

16. I shall deal with Mr Hirst’s arguments

in due course but, in my judgment, they fail to

grapple with the central point at issue which is

whether or not, by choosing London as the

seat of the arbitration, the parties must be

taken to have agreed that proceedings on the

award should be only those permitted by

English law. In my view they must be taken to

have so agreed for the reasons given by the

Judge. The whole purpose of the balance

achieved by the Bermuda form (English

arbitration but applying New York law to issues

arising under the policy) is that judicial

remedies in respect of the award should be

those permitted by English law and only those

so permitted. Mr Hirst could not say (and did

not say) that English judicial remedies for lack

of jurisdiction on procedural irregularities

under Sections 67 and 68 of the 1996 Act were

not permitted; he was reduced to saying that

New York judicial remedies were also

6

2014 (7) SCC 603

14

Page 15 permitted. That, however, would be a recipe

for litigation and (what is worse) confusion

which cannot have been intended by the

parties. No doubt New York law has its own

judicial remedies for want of jurisdiction and

serious irregularity but it could scarcely be

supposed that a party aggrieved by one part of

an award could proceed in one jurisdiction and

a party aggrieved by another part of an award

could proceed in another jurisdiction. Similarly,

in the case of a single complaint about an

award, it could not be supposed that the

aggrieved party could complain in one

jurisdiction and the satisfied party be entitled

to ask the other jurisdiction to declare its

satisfaction with the award. There would be a

serious risk of parties rushing to get the first

judgment or of conflicting decisions which the

parties cannot have contemplated.”

56. The aforesaid observations in C v. D were

subsequently followed by the High Court of

Justice, Queen’s Bench Division, Commercial

Court (England) in Sulamerica Cia Nacional de

Seguros SA v. Enesa Engelharia SA — Enesa.

In laying down the same proposition, the High

Court noticed that the issue in that case

depended upon the weight to be given to the

provision in Condition 12 of the insurance

policy that “the seat of the arbitration shall be

London, England”. It was observed that this

necessarily carried with it the English Court’s

supervisory jurisdiction over the arbitration

process. It was observed that:

“this follows from the express terms of

the Arbitration Act, 1996 and, in particular, the

provisions of Section 2 which provide that Part

I of the Arbitration Act, 1996 applies where the

seat of the arbitration is in England and Wales

or Northern Ireland. This immediately

establishes a strong connection between the

arbitration agreement itself and the law of

England. It is for this reason that recent

15

Page 16 authorities have laid stress upon the locations

of the seat of the arbitration as an important

factor in determining the proper law of the

arbitration agreement.”

57. In our opinion, these observations in

Sulamerica case are fully applicable to the

facts and circumstances of this case. The

conclusion reached by the High Court would

lead to the chaotic situation where the parties

would be left rushing between India and

England for redressal of their grievances. The

provisions of Part I of the Arbitration Act, 1996

(Indian) are necessarily excluded; being wholly

inconsistent with the arbitration agreement

which provides “that arbitration agreement

shall be governed by English law”. Thus the

remedy for the respondent to challenge any

award rendered in the arbitration proceedings

would lie under the relevant provisions

contained in the Arbitration Act, 1996 of

England and Wales. Whether or not such an

application would now be entertained by the

courts in England is not for us to examine, it

would have to be examined by the court of

competent jurisdiction in England.”

29. We are in agreement with the above observation and in this

clause 28 in the present case must be intended to have a similar effect

that is to exclude the applicability of Part I of the Indian Arbitration and

Conciliation Act since the parties have chosen London as the seat of

Arbitration and further provided that the Arbitration shall be governed by

English Law. In this case the losing side has relentlessly resorted to

apparent remedies for stalling the execution of the Award and in fact even

attempted to prevent Arbitration. This case has become typical of cases

where even the fruits of Arbitration are interminably delayed. Even

16

Page 17 though it has been settled law for quite some time that Part I is excluded

where parties choose that the seat of Arbitration is outside India and the

Arbitration should be governed by the law of a foreign country.

30. Mr. Divan attempted to persuade us to accept the possibility that

Part I is not excluded and in any case not wholly excluded in such a case,

but the law is too well settled and with good reasons, for us to take any

other view. We do not wish to endorse “a recipe for litigation and (what

is worse) confusion”

7

.

31. When the judgment in Reliance was sought to be indirectly

reviewed in another case under the same agreement and between the

same parties, this Court reiterated its earlier view and observed in Union

of India v. Reliance Industries Limited and others in para 18 as

follows:-

“18. It is important to note that in para 32 of

Bhatia International itself this Court has held

that Part I of the Arbitration Act, 1996 will not

apply if it has been excluded either expressly

or by necessary implication. Several

judgments of this Court have held that Part I is

excluded by necessary implication if it is found

that on the facts of a case either the juridical

seat of the arbitration is outside India or the

law governing the arbitration agreement is a

law other than Indian law. This is now well

settled by a series of decisions of this Court

[see Videocon Industries Ltd. v. Union of India,

Dozco India (P) Ltd. v. Doosan Infracore Co.

Ltd., Yograj Infrastructure Ltd. v. Ssang Yong

Engg. and Construction Co. Ltd., the very

7

C vs. D (2008 Bus LR 843)

17

Page 18 judgment in this case reported in Reliance

Industries Ltd. v. Union of India and a recent

judgment in Harmony Innovation Shipping Ltd.

v. Gupta Coal India Ltd.].”

We see no reason to take a different view. In Bhatia International’s

case, this Court concluded as follows:

“To conclude, we hold that the provisions of

Part I would apply to all arbitrations and to all

proceedings relating thereto. Where such

arbitration is held in India the provisions of

Part I would compulsorily apply and parties are

free to deviate only to the extent permitted by

the derogable provisions of Part I. In cases of

international commercial arbitrations held out

of India provisions of Part I would apply unless

the parties by agreement, express or implied,

exclude all or any of its provisions. In that

case the laws or rules chosen by the parties

would prevail. Any provision, in Part I, which is

contrary to or excluded by that law or rules

will not apply.”

32. We are thus of the view that by Clause 28, the parties chose to

exclude the application of Part I to the Arbitration proceedings between

them by choosing London as the venue for Arbitration and by making

English law applicable to Arbitration, as observed earlier. It is too well

settled by now that where the parties choose a juridical seat of

Arbitration outside India and provide that the law which governs

Arbitration will be a law other than Indian law, part I of the Act would not

have any application and, therefore, the award debtor would not be

entitled to challenge the award by raising objections under Section 34

18

Page 19 before a Court in India. A Court in India could not have jurisdiction to

entertain such objections under Section 34 in such a case.

33. As a matter of fact the mere choosing of the juridical seat of

Arbitration attracts the law applicable to such location. In other words it

would not be necessary to specify which law would apply to the

Arbitration proceedings, since the law of the particular country would

apply ipso jure. The following passage from Redfern and Hunter on

International Arbitration contains the following explication of the issue:-

“It is also sometimes said that parties have

selected the procedural law that will govern

their arbitration, by providing for arbitration in

a particular country. This is too elliptical and,

as an English court itself held more recently in

Breas of Doune Wind Farm it does not always

hold true. What the parties have done is to

choose a place of arbitration in a particular

country. That choice brings with it submission

to the laws of that country, including any

mandatory provisions of its law on arbitration.

To say that the parties have ‘chosen’ that

particular law to govern the arbitration is

rather like saying that an English woman who

takes her car to France has ‘chosen’ French

traffic law, which will oblige her to drive on the

right-hand side of the road, to give priority to

vehicles approaching from the right, and

generally to obey traffic laws to which she may

not be accustomed. But it would be an odd

use of language to say this notional motorist

had opted for ‘French traffic law’. What she

has done is to choose to go to France. The

applicability of French law then follows

automatically. It is not a matter of choice.

Parties may well choose a particular place of

arbitration precisely because its lex arbitri is

19

Page 20 one which they find attractive. Nevertheless,

once a place of arbitration has been chosen, it

brings with it its own law. If that law contains

provisions that are mandatory so far as

arbitration are concerned, those provisions

must be obeyed. It is not a matter of choice

any more than the notional motorist is free to

choose which local traffic laws to obey and

which to disregard.”

34. In this view of the matter, the judgment of the Gujarat High

Court holding that Ashapura’s objections under Section 34 of the

Arbitration Act are tenable before a Court in India that is the Court at

Jam-Khambalia, Gujarat is contrary to law. The proceedings under

Section 34, which occurs in Part I, are liable to be dismissed as

untenable. The Civil Appeals of Eitzen are liable to succeed and are,

therefore, allowed. The judgment of the Bombay High Court dated

03.12.2015 enforcing the Foreign Award under Part II of the Arbitration

Act is correct and liable to be upheld.

35. In view of the above findings, appeals filed by Eitzen Bulk A/S,

arising out of SLP (C) Nos. 2210-2212 of 2011 are allowed; appeals filed

by Ashapura Minechem Ltd., arising out of SLP (C) Nos. 7562-7563 of

2016 are dismissed; appeal arising out of SLP (C) No. 3959 of 2012 (filed

by Ashapura Minechem Ltd.) is dismissed.

36. Permission to file SLP (C) No.…of 2016 [CC No. 3266 of 2013 -

filed by Ashapura Minechem Ltd.] and SLP (C) No....of 2016 [CC No. 3382

of 2013 - filed by Ashapura Minechem Ltd.] is rejected. No costs.

20

Page 21 ………………………………… .……………….…..........…..J.

[FAKKIR MOHAMED IBRAHIM KALIFULLA]

…………………………………….......................………J.

[S.A. BOBDE]

NEW DELHI,

MAY 13, 2016

21