TaxTMI 
TaxTMI 
2017 (7) TMI 1454
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....Network Limited is a public limited company incorporated under the laws of India (hereinafter referred to as 'Raj TV' for the sake of brevity). Raj TV is engaged in the business of operating and broadcasting television channels, providing news, entertainment and other programmes to its viewers. 3(c) Thaicom and Raj TV entered into a Transponder Service Agreement dated 10.09.2003. Under this Transponder Service Agreement, Raj TV was permitted to use what is technically described as 'C-Band Regional Beam Transponder on Thaicom 3' for delivery of its television transmissions for a period of four years and nine months from 1.10.2003 to 30.06.2008. This Transponder Service Agreement dated 10.09.2003 is hereinafter referred to as the 'said contract' for the sake of brevity, convenience and clarity. The service which is subject matter of the 'said contract' is hereinafter referred to as 'transponder services' for the sake of brevity. 3(d) Under the said contract, it was agreed that Raj TV would pay Thaicom a service fee of 35,834 US Dollars per month for the transponder services. Further, under the said contract, Raj TV was responsible to uplink t....
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....n Thaicom agreed to waive outstanding Teleport Service fees and granted Raj TV further fee adjustments to facilitate timely payment of all outstanding payments. It is stated that it was also further agreed in this second meeting that the fee for Teleport Service would be reduced to 15,800 US $ per month. However, we are informed that Raj TV continued to be in default. 3(i) When things stood as above, some time in July 2007, there were large scale changes in Indian regulations qua broadcasting services owing to which local broadcasters were required to broadcast only via Indian satellite. Therefore, in compliance with the Indian regulations, Raj TV shifted from Thaicom to an Indian satellite called INSAT-2E. Therefore, the said contract between Thaicom and Raj TV was terminated by mutual consent on 4.8.2007. 3(j) On 23.10.2012, Thaicom issued a legal notice to Raj TV demanding amounts allegedly due and owing to Thaicom under the said contract. It is for all practical purposes is the arbitration trigger notice, because clauses 19 and 23 of the said contract provide for dispute resolution by arbitration. 3(k) While clause 19 of the said contract stipulates that the agreement, right....
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....ourt appeal is not maintainable. 4(c) It is the specific contention of the learned counsel for Thaicom that the order of the learned Single Judge is one allowing a petition for enforcement of a foreign award and is, therefore, not covered by Section 50 of the A and C Act, which enumerates/adumbrates appealable orders under Part II of the A and C Act. In other words, he would contend that an appeal under Section 50 of the A and C Act would lie only when the learned Judge has passed an order refusing to enforce the foreign award under Section 48 of the A and C Act. 4(d) It is necessary to extract usefully Section 50 of the A and C Act, which reads as follows: "50. Appealable orders.-(1) An appeal shall lie from the order refusing to -- (a) refer the parties to arbitration under section 45; (b) enforce a foreign award under section 48, to the Court authorised by law to hear appeals from such order. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court." 4(e) A perusal of Section 50 of the A and C Act would show that Mr. R. Parthasarathy is correct in co....
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....itration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it "a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done". In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. 90. We, thus, arrive at the conclusion regarding the exclusion of a letters patent appeal in two different ways; one, so to say, on a micro basis by examining the scheme devised by Sections 49 and 50 of the 1996 Act and the radical change that it brings about in the earlier provision of appeal under Section 6 of the 1961 Act and the other on a macro basis by taking into account the nature and ....
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....t within parenthesis, we are also of the considered view that the ratio in Videocon Power Limited's case does not help the respondent in the instant case, because Videocon Power Limited's case is clearly distinguishable on facts. That was a case where there was an issue about whether a particular award was domestic award or foreign award. As a sequitur, a further question was whether such an award can be questioned under Section 34 of Part I of the A and C Act. This court on examination of facts and circumstances of the case, came to the conclusion that the award in question in that case is a foreign award and therefore, the same cannot be questioned under Section 34 of the A and C Act. It was ultimately held in that case that it was open to the company in whose favour the award was passed to approach this court for enforcement of such foreign award. We, therefore, proceed to examine the matter on merits. 4(j) For the purpose of further discussion, it is essential to examine the grounds on which Raj TV resisted the original petition for enforcement of foreign award before the learned Single Judge. 4(k) Raj TV resisted the petition before the learned Single Judge on two gr....
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....te about the fact that the 'proper law' for the 'arbitration agreement' is Singaporean law. In other words, the Curial Law is Singaporean Law. 4(r) While proper law for the arbitration agreement is indisputably Singaporean law, proper law for the contract is put an issue. While Thaicom would contend that proper law for the contract is also Singaporean Law, Raj TV would contend that proper law for the contract is not Singaporean Law. 4(s) While Thaicom would contend that the limitation is procedural law and therefore, Curial Law would apply, Raj TV would contend that it is not just procedural law, but substantive law too and therefore, cannot be governed by Curial Law alone. 4(t) While both contracting parties, namely, Thaicom and Raj TV, agreed without any dispute that there is an arbitration agreement between them for Transponder Services, there is disagreement between the contracting parties about the existence of an arbitration agreement for the other two services, namely, Teleport services and occasional services. While Thaicom would contend that the arbitration agreement is applicable for all three services, Raj TV would contend that the arbitration agreemen....
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.... that action founded on contract "shall not be brought after the expiration of 6 years from the date on which the cause of action accrued". The earliest due date of payment for the invoices was 23 July 2007. The Notice of Arbitration was served on the Respondent on 23 October 2012 and pursuant to Article 3(2) of the UNCITRAL Rules, "arbitral proceedings shall be deemed to commence on the date on which the notice of arbitration is received by the Respondent". Hence, any claim within six years before 23 October 2012, i.e. 24 October 2006 is not time-barred. 41. Save for the Occasional Service fees, which the Claimant is no longer pursuing, all the claims made are within the limitation period and thus, not time-barred. 42. The Tribunal agrees with the submissions of the Counsel for the Claimant that, neither the nationality of a party, nor the actual or possible forum of enforcement are touchstones for the determination of which limitation law applies to the claim. Counsel for the Respondent failed to provide legal bases or authorities to support his contention to the contrary." 4(y) As stated supra, arbitration agreement in the instant case is constituted by clauses 19 and 23 of....
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....per law for the contract is Singaporean Law in the instant case. Therefore, it follows as a natural and inevitable corollary that it is not necessary to even enter into the arena of debate as to whether limitation is merely procedural law or substantive law. On a demurer, even if it is conceded that limitation is not merely procedural law, but substantive law too, as both are governed by Singaporean Law, the limitation that shall be applicable is Singaporean Law. 4(ab) This takes us to the next question as to whether limitation being determined on the basis of Singaporean Law where law of limitation of money claim is six years unlike three years in India would per se render the award opposed to public policy and therefore unenforceable. 4(ac) Public policy in India has been well articulated and explained by the Hon'ble Supreme Court, commencing from Renusagar Power Co. Ltd. Vs. General Electric Co. [1994 Supp. (1) SCC 644]. In Renusagar Power Co. Ltd.'s case, public policy was explained by the Hon'ble Supreme Court of India in the following words: "46. While observing that "from the very nature of things, the expressions 'public policy', 'opposed to publ....
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....nd Hira Chand v. Askar Nawaz Jung [(1991) 3 SCC 67, 76-77].] 50. In the field of private international law, courts refuse to apply a rule of foreign law or recognise a foreign judgment or a foreign arbitral award if it is found that the same is contrary to the public policy of the country in which it is sought to be invoked or enforced. The English courts follow the following principles: "Exceptionally, the English court will not enforce or recognise a right conferred or a duty imposed by a foreign law where, on the facts of the particular case, enforcement or, as the case may be, recognition, would be contrary to a fundamental policy of English law. The court has, therefore, refused in certain cases to apply foreign law where to do so would in the particular circumstances be contrary to the interests of the United Kingdom or contrary to justice or morality." (See: Halsbury's Laws of England, 4th Edn., Vol. 8, para 418.) 51. A distinction is drawn while applying the said rule of public policy between a matter governed by domestic law and a matter involving conflict of laws. The application of the doctrine of public policy in the field of conflict of laws is more limited t....
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....cquired right on the ground that its enforcement would affront some moral principle the maintenance of which admits of no possible compromise, have been classified as under: "(i) Where the fundamental conceptions of English justice are disregarded; (ii) Where the English conceptions of morality are infringed; (iii) Where a transaction prejudices the interests of the United Kingdom or its good relations with foreign powers; (iv) Where a foreign law or status offends the English conceptions of human liberty and freedom of action;" (See : Cheshire and North, Private International Law, 12th Edn., pp. 131-133.) 55. As observed by Lord Simon of Glaisdale "an English Court will exercise such a jurisdiction with extreme reserve". (Vervaeka v. Smith [(1983) 1 AC 145, 164 : (1982) 2 All ER 144, 158]) 56. In Dalmia Dairy Industries Ltd. v. National Bank of Pakistan [(1978) 2 Lloyd's LR 223] the Court of Appeal refused to extend the doctrine of public policy to embrace the principle that the English courts should refuse to enforce an award arising out of a contract between persons who are nationals of foreign States which were at war with each other but each of which was in f....
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.... to enforcement. ... We conclude, therefore, that the convention's public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum State's most basic notions of morality and justice." (pp. 973-974) 59. While dealing with arbitration agreements in international business transactions, the U.S. Supreme Court, has disapproved a parochial refusal by the courts of one country to enforce an international arbitration agreement as well as the "parochial concept that all disputes must be resolved under our laws and in our courts". It has been observed: "We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our Courts." (Fritz Scherk v. Alberto-Culver Co. [41 L. Ed. 2d 270, 279, 281 : 417 US 506 (1974)]) 60. Similarly in Mitsubishi Motors Corpn. v. Soler Chrysler-Plymouth Inc. [87 L Ed 2d 444] it was observed: "We conclude that concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system....
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....ry to the public policy of the State of New York?", and (ii) "what is meant by public policy in Section 7(1)(b)(ii) of the Foreign Awards Act?". This Court held that the words "public policy" used in Section 7(1)(b)(ii) of the Foreign Awards Act meant public policy of India. The argument that the recognition and enforcement of the award of the Arbitral Tribunal, GAFTA can be questioned on the ground that it is contrary to the public policy of the State of New York was negated. A clear and fine distinction was drawn by this Court while applying the rule of public policy between a matter governed by domestic laws and a matter involving conflict of laws. It has been held in unambiguous terms that the application of the doctrine of "public policy" in the field of conflict of laws is more limited than that in the domestic law and the courts are slower to invoke public policy in cases involving a foreign element than when purely municipal legal issues are involved. * * * * * * * * * * * * * * 27. In our view, what has been stated by this Court in Renusagar [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644] with reference to Section 7(1)(b)(ii) of the Foreig....
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....cy' and 'public policy of India', culled out the principles and laid down a triple test. By this triple test, it was held that enforcement of a foreign award can be refused qua public policy in India only if such enforcement would be contrary to (i) fundamental policy of Indian law or (ii) the interest of India or (iii) justice or morality. 4(ag) Relevant paragraph in the Bombay High Court judgment with regard to triple test (culled out from the principles laid down by the Hon'ble Supreme Court of India in O.N.G.C. Ltd.'s case (supra), Renusagar Power Co. Ltd. (supra) and also Shri Lal Mahal Limited (supra), is articulated in paragraph 71 of the said judgment. We deem it appropriate to extract the said paragraph 71 and the same reads as follows: "71. The Supreme Court clarified that the principles in the case of Renusagar Power Co. Ltd. (supra) must apply for the purpose of section 48 of the Arbitration & Conciliation Act, 1996 and insofar as the proceedings for setting aside the award under section 34 of the Arbitration Act is concerned, the principles laid down in the case of O.N.G.C. Ltd. vs. Saw Pipes Ltd. (supra) governed the said proceedings. The Suprem....