CARBP.398.2025.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

COMMERCIAL ARBITRATION PETITION NO. 398 OF 2025

WITH

CONTEMPT PETITION (L) NO.29255 OF 2024

IN

COMMERCIAL ARBITRATION PETITION NO. 398 OF 2025

Osterreichischer Lloyd Seereederei (Cyprus) Ltd. ….Petitioner

Versus

Victore Ships Pvt. Ltd. ….Respondent

WITH

INTERIM APPLICATION (L) NO. 28906 OF 2024

IN

COMMERCIAL ARBITRATION PETITION NO. 398 OF 2025

Victore Ships Pvt. Ltd. ….Applicant

IN THE MATTER BETWEEN

Osterreichischer Lloyd Seereederei (Cyprus) Ltd. ….Petitioner

Versus

Victore Ships Pvt. Ltd. ….Respondent

Mr. Prathamesh N. Kamat a/w. Mr. Shiv Iyer, Ms. Ankita Sen,

Ms. Arpeeta Panvalkar, Mr. Vishesh R. Kulkarni and Mr. Kayush

Zaiwalla i/b Renata Partners, for Petitioner.

Mr. Vishal Kanade a/w. Ms. Prachiti Naik, Ms. Tanaya Patankar

i/b Adv. Manish Rai, for Respondent.

Ms. Laxmi Yadav, Authorized Representative of Respondent.

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MARCH 10, 2026

AARTI

GAJANAN

PALKAR

Digitally

signed by

AARTI

GAJANAN

PALKAR

Date:

2026.03.10

15:18:58

+0530

CARBP.398.2025.docx

CORAM: SOMASEKHAR SUNDARESAN, J.

DATE: MARCH 10, 2026

JUDGEMENT:

Context and Factual Background:

1. This is a Petition filed under Section 9 (“Section 9 Petition”) of

the Arbitration and Conciliation Act, 1996 (“the Act”) with the

Petitioner, Osterreichischer Lloyd Seereederei (Cyprus) Limited

(“Petitioner”), seeking interlocutory measures of protection, pending

enforcement of a foreign arbitral award dated March 23, 2020 (“Foreign

Award”), to secure the amount awarded in the sum of USD 269,105.08

(“Award Amount”).

2. The Petitioner has parallelly filed Commercial Arbitration

Petition No. 403 of 2025 under Sections 47 and 48 of the Act, seeking

enforcement and execution of the said Foreign Award (“Enforcement

Petition”).

3. The fundamental opposition to the captioned Petition from

the Respondent, Victore Ships Private Limited, (“Respondent”) is

premised on the ground that the jurisdiction under Section 9 is not

available when a Petition under Part II of the Act has been initiated for

enforcement of foreign awards. Since enforcement and execution are

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rolled up into one petition under Part II, it is contended by the

Respondent that “enforcement” and “execution” are interchangeable

terms and the approach to Section 9 of the Act would not be available.

Since a foreign award is considered to be a decree for enforcement, the

contention is that the Section 9 Court cannot be approached as

conflicting views may emerge in the proceedings under Part II of the Act

and under Section 9 of the Act.

Contentions of the Parties:

4. I have heard Mr. Prathamesh Kamat, Learned Advocate f or

the Petitioner and Mr. Vishal Kanade, Learned Advocate for the

Respondent, and with their assistance examined the record and the

judgements sought to be relied upon by them.

5. Mr. Kanade places reliance primarily on a decision o f a

Learned Single Judge passed in Centrient

1

which holds that Section 9

proceedings would not lie once proceedings to execute an arbitral award

have been filed. Mr. Kanade would submit that the jurisdiction of

Section 9 can be invoked before commencement and during conduct of

arbitral proceedings (subject of course to Section 17) but after the

arbitral award is made, the approach under Section 9 would need to be

1

Centrient Pharmaceuticals India Pvt. Ltd. v. Hindustan Antibiotics Ltd. – 2019 SCC OnLine

Bom 1614

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before the same is enforced. Relying on judgements that declare that

proceedings under Part II roll up recognition and enforcement into one,

he would submit that the filing of a Petition for enforcement under Part

II partake the character of execution proceedings and therefore the

approach under Section 9 would be barred.

6. Mr. Kanade would rely on Fuerst Day Lawson

2

and LMJ

International

3

to indicate that the proceedings under Part II being a

composite one, it would not be proper to invoke Section 9 of the Act

once the Court is presented with a Petition under Part II of the Act.

7. Mr. Kamat would counter this with reliance upon Heligo

Charters

4

to contend that this issue is already addressed by a Learned

Division Bench of this Court and that Centrient is distinguishable on

facts, since it not only relates to a domestic arbitral award but also was

rendered in a situation where execution proceedings were underway.

On the other hand, for Part II, the award is not automatically a decree

but needs to be recognised which has to positively be granted, until

which time, it would be appropriate to ensure that the award does not

become a paper award.

2

Fuerst Day Lawson v. Jindal Exports Ltd. – (2001) 6 SCC 356

3

LMJ International Ltd. v. Sleepwell Industries Company Ltd. – (2019) 5 SCC 302

4

Heligo Charters Private Limited v. Aircon Feibars FZE, 2018 SCC OnLine Bom

1388

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Analysis and Findings:

8. At the threshold, the opening portion of Section 9(1)of the Act

may be noticed:

A party may, 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, apply to a court—

[Emphasis Supplied]

9. Section 9 of the Act is contained in Part I of the Act which

deals with domestic arbitral awards and therefore it would be

appropriate to also extract Section 2(2) of the Act:

2(2) This Part shall apply where the place of arbitration is in India:

Provided that subject to an agreement to the contrary, the provisions

of section 9, 27, and clause (a) of subsection (1) and sub-section (3) of

section 37 shall also apply to international commercial arbitration,

even if the place of arbitration is outside India, and an arbitral award

made or to be made in such place is enforceable and recognised under

the provisions of Part II of this Act.

[Emphasis Supplied]

10. Therefore, in terms of Section 2(2), Section 9 would indeed

apply to a foreign award but the short issue is whether it would continue

to be available once a Petition under Part II is filed seeking recognition

and enforcement of the foreign award.

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11. The judgements sought to be relied upon by Mr. Kam at,

particularly the decision of the Learned Single Bench and the upholding

judgement of the Learned Division Bench in the context of a foreign

award in Heligo Charters, dealt with a contention that there is no scope

for interim measures being sought in respect of a foreign award unless

the foreign award is put into execution.

12. The issue presented by Mr. Kanade is different in substance

and nuance – the objection is that with the filing of a Petition having

been made under Part II, the ability to invoke Section 9 has come to an

end. To make this point, he relies on Centrient and draws a parallel

between the filing of execution proceedings and filing of the Part II

Petition. Centrient dealt with the phrase “but before it is enforced in

accordance with Section 36

” used in Section 9(1) of the Act in context of

when a party can apply for interim reliefs to the Court. In that context,

the provisions of Section 36 were also examined in

Centrient to hold

that once the period for challenge under Section 34 expires, the arbitral

award becomes enforceable as if it were a decree. On facts, it was found

that the award-creditor had actually initiated execution proceedings.

Therefore, it was held that once an arbitral award becomes capable of

enforcement as if it were a decree, and in fact steps to execute such

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decree had been initiated, the recourse to Section 9 of the Act would

become unavailable.

13. Section 2(2) of the Act makes Section 9 applicable to

international commercial arbitration even if the place of arbitration

were outside India and the arbitral award made

is enforceable and

recognised under Part II of the Act

. This plain provision should suffice

to indicate that there can be no controversy at all. However, once

Section 9 applies, how it would work in relation to foreign awards is the

subject matter of dispute.

Section 36 and Part II Compared:

14. Against this backdrop, one must examine how to ap ply

Section 9 to a foreign award by operation of Section 2(2) of the Act, and

examine whether there are any differences between the provisions of

Section 36 and the relevant provisions of Part II of the Act because

Section 9 uses the phrase “

but before it is enforced in accordance with

Section 36

”.

15. Therefore, one has to examine the terms on which a foreign

award is enforced to see if the temporal standard under Section 36 of

the Act, in terms of timelines, would limit the period of operation of the

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jurisdiction under Section 9 in relation to foreign awards. In other

words, it would be necessary to examine how a foreign award becomes a

decree in India and whether the mere filing of a Part II Petition for

recognition would constitute a bar for purposes of the phrase “

but

before it is enforced

” used in Section 9, even if one could ignore the

words “

in accordance with Section 36” that follows thereafter in relation

to foreign awards (to which Section 36 has no application).

16. The provisions of Section 36 read thus:

36. Enforcement.—

(1) Where the time for making an application to set aside the

arbitral award under section 34 has expired, then, subject to the

provisions of sub-section (2), such award shall be enforced in

accordance with the provisions of the Code of Civil Procedure, 1908

(5 of 1908), in the same manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been

filed in the Court under section 34, the filing of such an application

shall not by itself render that award unenforceable, unless the Court

grants an order of stay of the operation of the said arbitral award in

accordance with the provisions of sub-section (3), on a separate

application made for that purpose.

(3) Upon filing of an application under sub-section (2) for stay of

the operation of the arbitral award, the Court may, subject to such

conditions as it may deem fit, grant stay of the operation of such

award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for

grant of stay in the case of an arbitral award for payment of money,

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have due regard to the provisions for grant of stay of a money decree

under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

Provided further that where the Court is satisfied that a Prima facie

case is made out that,—

(a) the arbitration agreement or contract which is the basis

of the award; or

(b) the making of the award,

was induced or effected by fraud or corruption, it shall stay the award

unconditionally pending disposal of the challenge under section 34 to

the award.

Explanation.—For the removal of doubts, it is hereby clarified that the

above proviso shall apply to all court cases arising out of or in

relation to arbitral proceedings, irrespective of whether the arbitral or

court proceedings were commenced prior to or after the

commencement of the Arbitration and Conciliation (Amendment) Act,

2015 (3 of 2016).]

[Emphasis Supplied]

17. In Part II, a few provisions are noteworthy and are extracted

below:

46. When foreign award binding.—

Any foreign award which would be enforceable under this Chapter

shall be treated as binding for all purposes on the persons as between

whom it was made, and may accordingly be relied on by any of those

persons by way of defence, set off or otherwise in any legal

proceedings in India and any references in this Chapter to enforcing a

foreign award shall be construed as including references to relying on

an award.

47. Evidence.—

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(1) The party applying for the enforcement of a foreign award

shall, at the time of the application, produce before the court—

(a) the original award or a copy thereof, duly

authenticated in the manner required by the law of the

country in which it was made;

(b) the original agreement for arbitration or a duly

certified copy thereof; and

(c) such evidence as may be necessary to prove that

the award is a foreign award.

(2) If the award or agreement to be produced under sub-section

(1) is in a foreign language, the party seeking to enforce the award

shall produce a translation into English certified as correct by a

diplomatic or consular agent of the country to which that party

belongs or certified as correct in such other manner as may be

sufficient according to the law in force in India.

Explanation. – *****

48. Conditions for enforcement of foreign awards.—

(1) Enforcement of a foreign award may be refused, at the request

of the party against whom it is invoked, only if that party furnishes to

the court proof that—

(a) to (d) *******

(e) the award has not yet become binding on the parties, or has

been set aside or suspended by a competent authority of the country in

which, or under the law of which, that award was made.

(2) Enforcement of an arbitral award may also be refused if the

Court finds that—

(a) the subject-matter of the difference is not capable of

settlement by arbitration under the law of India; or

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(b) the enforcement of the award would be contrary to the

public policy of India.

Explanation.1 & 2 –– *******

(3) If an application for the setting aside or suspension of the

award has been made to a competent authority referred to in clause

(e) of sub-section (1) the Court may, if it considers it proper, adjourn

the decision on the enforcement of the award and may also, on the

application of the party claiming enforcement of the award, order the

other party to give suitable security.

49. Enforcement of foreign awards.—

Where the Court is satisfied that the foreign award is enforceable

under this Chapter, the award shall be deemed to be a decree of that

Court.

[Emphasis Supplied]

18. A plain reading of the foregoing would show that the statutory

scheme for treatment of arbitral awards under Part I as contained in

Section 34 read with Section 36 entails the following:-

(a) an arbitral award is to be treated by the Section 36

Court (the execution court) as a decree of a Court in India for

enforcement under the Code of Civil Procedure, 1908 (“CPC”)

if the time period for challenge under Section 34 has expired

without any challenge being made;

(b) the filing of a challenge under Section 34 would not

lead to an automatic stay – the Section 34 Court could grant a

stay on the arbitral award subject to conditions and for

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reasons recorded in writing, bearing in mind principles for

stay of a money decree under CPC;

(c) if it is found by the Section 34 Court

prima facie, that

the arbitration agreement or the arbitral award was induced

or affected by fraud or corruption, it shall stay the arbitral

award;

(d) the grounds of challenge under Section 34 are well

known and declared in multiple declarations of the law, and

those would govern a decision on the challenge under Section

34.

19. Part II is itself titled “

Enforcement of Certain Foreign

Awards

”. The provisions of Part II extracted above, entail the following:

(a) Section 46 provides that when a foreign award is

enforceable under Chapter I of Part II of the Act, it shall be

treated as binding for all purposes in India;

(b) Section 47 of the Act, provides for the evidence to be

produced by “the party applying for enforcement of a foreign

award” and stipulates what needs to be produced. In other

words, the onus is on the party seeking enforcement to apply

to the Court with the stipulated evidence to seek enforcement;

(c) Section 48(1) deals with the conditions that have to be

proven by the party against whom the award is invoked, for

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refusal of enforcement of a foreign award. One of these

conditions set out in Section 48(1)(e) is the foreign award not

having become binding on the parties under the law of the

country in which or of whose law, the foreign award was

made;

(d) Under Section 48(3), if the award-debtor has applied

for having the foreign award set aside or suspended before the

appropriate competent authority abroad, the Part II Court

may adjourn the “

decision on enforcement” and may also

impose security measures to protect the award-creditor; and

(e) Section 49 provides that a foreign award shall become

enforceable upon the Part II Court being satisfied that the

foreign award is enforceable under Chapter I of Part II of the

Act i.e. it is at this stage that the provisions of Section 46

treating the foreign award as a decree in India for all purposes

would be attracted.

20. The triggering point for enforcement under Section 36 is the

status of a

decree being conferred upon a domestic arbitral award,

which occurs on the expiry of the period of challenge under Section 34

(if no challenge is mounted); or upon the Section 34 Court rejecting a

challenge; or indeed upon a Section 34 Court refusing to grant any stay

on the operation of the arbitral award.

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21. The triggering point for enforcement of a foreign award under

Section 46 is when the foreign award becomes enforceable under

Chapter I of Part II i.e. when, under Section 49 of the Act, the Part II

Court is satisfied that the foreign award is enforceable. It is at this stage

that the foreign award is conferred with the status of a

decree.

22. Therefore, a domestic award automatically becomes a decree

upon the period for challenge expiring or upon the challenge being

rejected or upon refusal to stay the domestic award. For a foreign

award, a positive affirmation has to be made by the Part II Court to

declare the foreign award as being enforceable for it to become a decree

to then be subjected to enforcement proceedings. Put differently, a

further positive affirmation and validation is necessary for the Indian

Courts to treat a foreign award as a decree, but for a domestic award,

unless the Section 34 Court intercedes, the arbitral award is statutorily

treated as a decree.

23. When the proviso to Section 2(2) was inserted with effect from

October 23, 2015 to make Section 9 applicable to foreign awards, the

existing provisions of Section 9 was re-numbered as Section 9(1) and

new sub-sections were inserted. Parliament, in its wisdom did not

include any reference to Part II to bring about a time limit for the

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operation of Section 9 insofar as it relates to foreign awards. The

existing provision in Section 9, making a linkage to the period prior to

enforcement under Section 36 was left undisturbed. This is apparently

reasonable and logical because of the specific distinction between how

domestic awards and foreign awards respectively become decrees under

the Act.

24. There being no caveat to the operation of Section 9 even while

Parliament was conscious in extending Section 9 to foreign awards, one

cannot infer and presume a time limit to the operation of Section 9

lightly. The point canvassed by the Respondent is one of judicial

inference based on the scheme of the Act and importing the scheme

applicable to domestic awards to the scheme applicable to foreign

awards. Specifically, the observations that Part II proceedings entail

rolling up enforcement and execution in the same proceedings is heavily

relied upon by Mr. Kanade.

25. However, to my mind, if at all one were to ignore the positive

statutory choice of not imposing a time limit on the operation of Section

9 to a foreign award, one would need see if any absurd consequence

would emerge by letting Section 9 run its full course even after a Part II

Petition is filed. It is notable that under Part II, the foreign award has to

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pass muster through the prism of Section 48 after the award-creditor

applies for enforcement with evidence stipulated under Section 47,

before it can be recognised as a decree. This entails a positive

affirmation of recognition. Until such time, without a specific

prohibition, the plain language of Section 9 cannot be ignored by

making extrapolations of the reference to Section 36 and reading into it

an unstated reference to Part II.

26. Indeed, there could emerge a situation where the Section 9

Court is different from the Part II Court and there could be concurrent

jurisdiction, but this by itself need not boggle the mind if it were a

legislative scheme operating through the provisions of the Act. Indeed,

the concurrent jurisdictions of Section 9 and Section 17 ran their course

until Section 9(3) was inserted to provide that the Section 9 Court

should ordinarily defer to the Section 17 jurisdiction exercised by the

Arbitral Tribunal unless the remedy of Section 17 is not found

efficacious. There being no such formulation in the statutory provisions

to indicate that the concurrent jurisdictions of Section 9 and Part II

must not operate, it is not for the Court to read into the scheme of the

Act and refuse to exercise jurisdiction.

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27. Therefore, I am unable to agree with the contentions of the

Respondent about the Section 9 Court having no jurisdiction once a

Petition for recognition under Part II is filed. The Petition filed under

Part II is first and foremost a petition for recognition and thereafter,

without the need for another fresh set of proceedings being filed, upon

the foreign award being conferred with the status of a decree under

Section 49 of the Act, the proceedings would stand translated into

execution proceedings. At least until that stage, it would be clear that

even the submissions of schematic anomaly cannot be countenanced. It

is after the stage at which the foreign award becomes a decree of an

Indian Court that the words “

but before it is enforced in accordance

with section 36

” used in Section 9(1) of the Act would present any basis

for the Section 9 Court to refrain from entertaining prayers for any

protective measures, since at that stage execution proceedings would

have commenced, without the need to file a new set of proceedings.

28. Therefore, the observations by the Supreme Court in

Fuerst

Day Lawson

5

and LMJ International

6

would not be of relevance to

denude the Section 9 Court of jurisdiction to protect the creditor of the

foreign award from dissipation of assets and jeopardy to the assets of

the award-debtor. This is why the larger legislative purpose of Section 9

5

Fuerst Day Lawson v. Jindal Exports Ltd, (2001) 6 SCC 356

6

LMJ International Ltd V. Sleepwell Industries Company Ltd, (2019) 5 SCC 302

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i.e. to protect the award-creditor, by indicating that jurisdiction is

available even after making of an arbitral award, and the explicit scope

of Section 2(2) i.e. to extend the scope of Section 9 to foreign award

even after such awards are recognised in India, cannot be brushed aside

and ignored.

29. For the aforesaid reasons, the objection to jurisdiction by the

Respondent is without merit and is dismissed. There being no challenge

to the merits of the Foreign Award, the same being a money decree, it

would only be appropriate to grant protection to the Petitioner in the

form of a direction to secure the amount awarded. In any case, since

the Enforcement Petition has been filed, hearing of the same is

expedited and the same shall be listed within two weeks of the upload of

this judgement on this Court’s website.

30. In the result, the following order would meet the ends of

justice:

(a)The Respondent is directed to deposit a sum of USD

269,105.08 in its Indian Rupee equivalent at the value of the

USD-INR exchange rate as of today, with the Registry of this

Court within a period of four weeks from today;

(b)Pending such deposit, the Respondent is prohibited from

selling, disposing, alienating, encumbering or creating any

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third-party interests in relation to the movable and

immovable property owned by the Respondent save and

except for generating proceeds of such disposal to make the

deposit directed above;

(c)The Respondent shall disclose on affidavit, as per Exhibit-V

to the Petition, within two weeks of the upload of this

judgement on the Court’s website, a detailed list of the

Respondent's assets, including: (i) all its Bank Accounts; (ii)

all the Assets of the Respondent; (iii) Assets sold by the

Respondent in the last two years and the documents/deeds of

sale; (iv) Detailed list of all creditors and debtors of the

Respondent Company as on the date of hearing or such other

date as this Hon'ble Court deems fit, (v) Detailed list of all

legal proceedings including Winding-Up proceedings pending

against the Respondent Company; (vi) Identity of all assets

that are encumbered with full details of encumbrance

including list of the mortgage/charge lenders.

31. With the aforesaid directions, the Section 9 Petition is

disposed of. The Part II Petition shall be listed two weeks from today.

32. All actions required to be taken pursuant to this order shall be

taken upon receipt of a downloaded copy as available on this Court’s

website.

[ SOMASEKHAR SUNDARESAN, J.]

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