Summary

...

73. I am, therefore, of the view that the 2016 [Final Partial Award] FPA is not an executable arbitral award, for the following reasons:

(i) The 2016 FPA does not award any amount to the petitioner.

(ii) The 2016 FPA cannot be likened to an award which sets out the manner in which the liability is to be computed, and leaves the parties to do the math. The manner of computation of liability, in the Execution Petition, goes far beyond a mere academic exercise, and transgresses the boundaries of the 2016 FPA.

(iii) The CRL is one of the most essential elements which go towards determining the CP entitlement of the respondents, or the shares of the petitioner and respondents in the PP. So long as the applicable CP had not been finally determined by the learned AT, the liability of the respondents towards the petitioner, if at all, remained inchoate and unknown. An Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:03.06.2023 13:21:01 execution petition, under Section 48 of the 1996 Act, could not lie for execution of a partial award which decided only some of the issues, while deferring the decision regarding the remaining issues, which too were essential to ascertain the liability of the parties, for later. Any attempt at execution had necessarily, in such a situation, to await such latter determination.

(iv) Enforcement and execution of the 2016 FPA is being sought contrary to the orders passed by the learned AT itself, which clearly hold that the findings in the 2016 FPA can be implemented only after the CRL increase application of the respondents, as well as all other issues, are finally decided and a final quantum award is passed.

(v) The petitioner seeks, therefore, by the Execution Petition, to pre-empt this exercise, and effectively usurp the jurisdiction which the learned AT has consciously vested in itself.

(vi) The petitioner seeks enforcement of the 2016 FPA by viewing the FPA in isolation, and ignoring the subsequent 2018 and 2021 FPAs, even after it has failed in its challenge, before the UK High Court, against the 2018 FPA. This is impermissible, as the arbitral proceedings are integrated, and one FPA cannot be sought to be enforced in isolation de hors the findings contained in other FPAs.

(vii) This legal position stood recognized by the petitioner itself. The Execution Petition was, therefore, contrary to the Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:03.06.2023 13:21:01 legal position which the petitioner itself acknowledged as being applicable.

74. Ex Appl (OS) 1012/2020, insofar as it seeks determination, at the outset, of the aspects of maintainability of the present execution proceedings and enforceability of the 2016 FPA, therefore, succeeds. The Court holds that the 2016 FPA is not executable, for the reasons stated hereinabove, and that OMP (EFA) (Comm) 1 of 2019 is premature and not maintainable.

75. OMP (EFA) (Comm) 1 of 2019 does not, therefore, survive for adjudication on merits. It is, accordingly, dismissed.

76. Liberty would, however, stand reserved with the parties to move for execution of any executable award which may come to be passed, at that stage.

77. Pending applications do not survive for adjudication and are, accordingly, disposed of.

...