Section 48 of the Arbitration Act is only a defence to enforcement, not a standalone pre-enforcement challenge to a foreign award.

Under Part II of the Arbitration and Conciliation Act, 1996, resistance to a foreign award under Section 48 is available only when enforcement is sought. Section 46 makes a foreign award binding and usable by way of defence, set-off or otherwise, while Sections 47 to 49 create the enforcement framework. Section 48 operates as a responsive shield against enforcement, not as an independent pre-enforcement proceeding to set aside the award. In the absence of any enforcement action by the award-holder, a standalone Section 48 petition was held not maintainable.

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Issues: Whether a petition under Section 48 of the Arbitration and Conciliation Act, 1996 to resist enforcement of a foreign award is maintainable before any enforcement proceedings are initiated by the award-holder.

Analysis: Part II of the Arbitration and Conciliation Act, 1996 governs enforcement of foreign awards. Section 46 makes a foreign award binding and permits reliance upon it by way of defence, set-off or otherwise in legal proceedings, while Sections 47 to 49 constitute the enforcement mechanism. The expressions used in Section 48 indicate that refusal of enforcement is contemplated only when the award is invoked in the course of enforcement. A petition under Section 48 is responsive in nature and functions as a shield against enforcement; it is not a separate proceeding for setting aside a foreign award. The absence of a limitation period for Section 48 and the scheme of Part II support the conclusion that independent pre-enforcement proceedings are not contemplated.

Conclusion: A standalone petition under Section 48 was not maintainable in the absence of any enforcement proceedings in respect of the foreign award.

Ratio Decidendi: Under Part II of the Arbitration and Conciliation Act, 1996, resistance to a foreign award under Section 48 can be raised only when enforcement of that award is sought, and Section 48 does not create an independent pre-enforcement remedy to challenge the award.

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