The United Kingdom, where the Arbitration Award has been passed, is a reciprocating territory, thus, the Award would be capable of execution in India – Agrocorp International Private (PTE) Limited Vs. National Steel and Agro Industries Limited – NCLT Mumbai
On foreign award ‘not binding’ upon parties in India issue, NCLT held that the United Kingdom, where the Arbitration Award has been passed in the present case, is a reciprocating territory in terms of section 44A vide notification No. 51 dated 01.03.1953 published in the Gazette of India, Extraordinary as SRO 399. Thus, the Award would be capable of execution in India, and the challenge by the Corporate Debtor on this score need to be repelled.
On a pre-existing dispute between the parties since the Foreign Award has not obtained finality issue, NCLT held that The Hon’ble Supreme Court in K. Kishan Vs M/S Vijay Nirman Company Pvt. Ltd held that pendency of challenge to an arbitral award qualifies as ‘pre-existing dispute’ for the purposes of initiating corporate insolvency resolution process by the operational creditor. In the present case, there is no pending challenge to the Arbitral Award. This Bench is of the considered view that it is not possible to wait indefinitely for the Corporate Debtor to challenge the Arbitral Award, and that it has to decide the present petition on the basis of the admitted positions, that is to say, there is an Arbitral Award passed by a competent Arbitral Tribunal after the consideration of the positions of both the sides, and there is no challenge to the Arbitral Award dated 16.04.2018 in a manner known to law. Hence the same cannot be considered as a pre-existing dispute, and the objection of the Learned Counsel for the Corporate Debtor on this count is rejected.