NOY VALLESINA ENGNR.SPA (NKA NOY AMBIENTE S.P.A.) A CORP. ORGANISED AND EXISTING UNDER THE LAWS OF I vs. JINDAL DRUGS LTD. THR. M.D.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8607 OF 2010 NOY VALLESINA ENGINEERING SpA, (now known as Noy Ambiente S.p.a) ...APPELLANT(S) VERSUS JINDAL DRUGS LIMITED & ORS. ...RESPONDENT(S) J U D G M E N T S. RAVINDRA BHAT, J. 1. The appellant, which was granted special leave, challenges a judgment of the 1 Bombay High Court . It urges that the impugned judgment is erroneous because it concludes that proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter “the Act”) can be maintained to challenge a foreign award, defined as one, under that enactment. The facts 2. The appellant company (hereafter “NV Engineering” or “the appellant”) was Signature Not Verified Digitally signed by Dr. Mukesh Nasa Date: 2020.11.26 19:39:19 IST Reason: at the relevant time, incorporated under Italian law and involved in the setting-up 1 Dated 28.4.2008 in Appeal No. 519/2002 2 and construction of plants for production of synthetic fibers, polymers and ascorbic acid. The respondent (hereafter “Jindal”) is a public limited company incorporated under relevant Indian law. In1994, Jindal negotiated with a company - Engineering Chur AG of Sagenstrasse 97, 7001 Chur, Switzerland (hereafter,‘Enco’) and, on 30.01.1995 entered into four related agreements with Enco to set up an ascorbic acid plant in India. These were: (i) Engineering Contract for Ascorbic for Acid Plant (ECAAP, or “plant contract”); (ii) Supply contract for Ascorbic Acid plant (SCAAP or “supply contract”); (iii) Service agreement for Ascorbic Acid plant (SAAAP “service contract”); and (iv) License agreement for Ascorbic acid plant (LAAAP “license contract”). 3. Under the plant contract, Enco agreed to provide Jindal with technical information and basic engineering documentation for the construction, commission, operation and maintenance of the Ascorbic Acid Plant (“the plant”). In consideration of Enco's obligations, Jindal was to pay a total fee of Swiss Francs 86,00,000/- in the manner provided in the Agreement. ECAAP as well as the other three agreements had an arbitration clause. In March 1995, with the consent of the respondent, Enco assigned ECAAP to NV Engineering. All the obligations of Enco towards Jindal were taken over by NV Engineering. 4. Disputes arose between Jindal and NV Engineering. The latter terminated the agreement and claimed damages. On 31.10.1996, Jindal filed a request for arbitration under the ECAAP, i.e. the plant contract, before the International Court of Arbitration (ICC), Paris. The appellant filed its reply to Jindal’s claim and also made a counter claim. Jindal appointed Mr. Desai as its nominee on the arbitral tribunal. NV Engineering nominated Prof. ACC Alberto Santa Maria as its nominee. The appointment of Mr. Desai and Prof. ACC Alberto Santa Maria as Arbitrators was confirmed by the ICC. Mr. Richard Fernyhough Q.C. was appointed as Chairman of the Arbitral Tribunal. 3 5. After considering the claims and counter claims, the tribunal made a partial award on 01.02.2000; by that award, Jindal’s claims were rejected. NV Engineering was awarded SFr.44,33,416 (Swiss Francs) towards its counterclaims under the ECAAP. The tribunal then called upon the parties to present written representations on interest and costs in terms of Article 20 of the ICC Rules of Arbitration to enable it to frame the final award. 2 6. On 20.2.2000 Jindal filed a petition before the Bombay High Court under Section 34 of the Act challenging the partial award. The petition was admitted for final hearing on 01.03.2000 and notice was issued to the respondents (including the ICC and the tribunal). An interim injunction restraining the said respondents “from receiving any further submissions, and/or passing any further direction and/or Ruling and/or Award in the arbitration proceedings….” was issued. This order was continued from time to time till the petition was decided. The ICC tribunal in the meanwhile was of the view that the interim order passed by the high court was not binding on it and consequently, proceeded further. NV Engineering filed written submissions on interest and cost on 14.03.2001. Jindal, however, notified the tribunal that it did not intend to make any submission on the issue of interest and cost. Mr. Desai (the respondent's nominee) indicated that he was unable to continue on the tribunal due to the interim order passed by the court. Resultantly the ICC appointed Mr. Ashok Sancheti as a replacement co-arbitrator in place of Mr. Desai, and the tribunal made its final Award on 22.10.2001. When the final award was 3 made, Jindal’s challenge to the partial award, and the interim application were both pending in the High Court. 7. The petition (under Section 34) challenging the partial award was decided by 4 the High Court by an order of a Single Judge dated 6.2.2002 , which held that the 2 Arbitration petition No. 49/2000. 3 No. 98/2000, under Section 9 of the Act. 4 Dated 06.02.2002, which is now reported as Jindal Drugs Ltd v Noy Vallesina 2002 (2) Mah. LJ 820. 4 since the partial award was a foreign award, a challenge through a petition was not maintainable under Section 34 of the Act. Jindal preferred an appeal against that 5 order before the Division Bench (hereafter “Jindal’s challenge appeal”). During the pendency of the appeal, NV Engineering had applied for enforcement of the two awards, i.e. the partial and final awards, under Sections 47 and 48 of the Act, in the chapter relating to foreign awards. This petition was allowed and Jindal’s objections against the two awards’ enforceability were overruled. The single judge who decided the petition held, in a judgment (hereafter referred to as “the enforcement 6 order”) that the two awards “at Exh. A & B are enforceable, save and except that part of the award at Exh. A which directs payment of Swiss Fr.1,453,316” by Jindal to NV Engineering. Jindal preferred an appeal (hereafter “Jindal’s enforcement 7 appeal”) and NV Engineering filed a cross appeal . 8. By the impugned judgment, even as the later two appeals, which directly dealt with the same subject matter (enforcement of a foreign award were pending), the Division Bench decided Jindal’s challenge appeal preferred in 2002, and set aside the single judge’s order (which had ruled that a petition under Section 34 was not maintainable). The Division Bench relied on the judgments of this court, i.e. 8 Bhatia International v. Bulk Trading S. A. & Anr and Venture Global Engineering 9 v. Satyam Computer Services Ltd. & Anr to hold that proceedings under Section 34 of the Act could be validly maintained to challenge a foreign award. The parties’ contentions 9. Appearing for the appellant, NV Engineering, Mr. Joydeep Gupta, learned senior counsel, urged that the impugned judgment is unsupportable in law because a 5 Appeal No. 519/2002.

7 Jindal’s appeal was Appeal No. 492/2006; NV Engineering’s appeal was Appeal. No. 740/2006 8 (2002) 4 SCC 105 9 2008 (4) SCC 190 5 foreign award cannot be challenged under Section 34 of the Act. It was urged that 10 the three-judge decision in Bhatia International and the subsequent holding in 11 Venture Global were both held to be incorrect in the larger, five judges ruling in Bharat Aluminium Company vs Kaiser Aluminium Technical Services 12 Inc ( “BALCO” hereafter) . Learned counsel submitted that even the caveat in BALCO that a class of foreign awards made prior to its pronouncement cannot aid Jindal’s essential argument with respect to maintainability of a challenge under Section 34 and that such challenge under Part I is untenable. 10. Mr. Gupta relied on BALCO extensively in support of his argument that the foreign awards in this case, having been rendered outside India under the aegis of the ICC cannot be challenged merely because a condition in the underlying contract says that the law governing the agreement, would be Indian law. The following discussion in BALCO was pressed into service: “117. It would, therefore, follow that if the arbitration agreement is found or held to provide for a seat/place of arbitration outside India, then the provision that the Arbitration Act, 1996 would govern the arbitration proceedings, would not make Part I of the Arbitration Act, 1996 applicable or enable the Indian courts to exercise supervisory jurisdiction over the arbitration or the award. It would only mean that the parties have contractually imported from the Arbitration Act, 1996, those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the English procedural law/curial law. This necessarily follows from the fact that Part I applies only to arbitrations having their seat/place in India. * 123. Thus, it is clear that the regulation of conduct of arbitration and challenge to an award would have to be done by the courts of the country in which the arbitration is being conducted. Such a court is then the supervisory court possessed of the power to annul the award. 10 Supra n. 8 11 Supra n. 9 12 2012 (9) SCC 552 6 This is in keeping with the scheme of the international instruments, such as the Geneva Convention and the New York Convention as well as NCITRAL the U Model Law. It also recognises the territorial principle which gives effect to the sovereign right of a country to regulate, through its national courts, an adjudicatory duty being performed in its own country. By way of a comparative example, we may reiterate the observations made by the Court of Appeal, England in C v. D [2008 Bus LR 843 : 2007 EWCA Civ 1282 (CA)] wherein it is observed that: “It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award.” (emphasis supplied) In the aforesaid case, the Court of Appeal had approved the observations made in A v. B [(2007) 1 All ER (Comm) 591: (2007) 1 Lloyd's Rep 237] wherein it is observed that: “… an agreement as to the seat of an arbitration is analogous to an exclusive jurisdiction clause. Any claim for a remedy … as to the validity of an existing interim or final award is agreed to be made only in the courts of the place designated as the seat of arbitration.”

7

8

9

10

14 12. The appellants also contended that Union of India v Reliance Industries 15 Harmony Innovation Shipping Ltd v Gupta Goal India Ltd and Roger Shashoua v 16 Mukesh Sharma have now established that pre-Balco awards involving agreements which stipulate that the juridical seat is in India, and which stipulate or 13 The term based on the rule spelt out in Roger Shashoua v Mukesh Sharma 2009 EWHC 957 (Comm) 14 2015 (10) SCC 213 15 2015 (9) SCC 172 16 2017 (14) SCC 722 11 can be read as stipulating that the law governing arbitration would be Indian law, would not be ruled by BALCO. However, cases where juridical seat is not in India, or the law governing arbitration is not Indian law, would be bound by BALCO. Therefore, the impugned judgment, which held to the contrary, cannot be sustained. 13. The appellant lastly relied on Section 50 of the Act and argued that the order holding that the petition under Section 34 was not maintainable was not appealable. 17 Learned counsel also relied on Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. in this context. 14. Mr. Jay Salva, learned senior counsel for Jindal, submitted that the impugned judgment is unexceptionable and not liable to be interfered with. He argued that Section 34 operates in a field different from Section 48. The latter enables the enforcement of a foreign award, and the court may only refuse enforcement, whereas under Section 34, the legality of an award can be gone into and the court has the jurisdiction to set it aside. This crucial difference was recognized by Indian 18 courts, as is evident from the decisions in Bhatia International and Venture 19 Global . 15. Learned counsel contested the appellants’ argument that the decision in BALCO would govern the dispute in the present case. He relied on the observations in BALCO that arbitration agreements entered into before the decision, and disputes which arose under them, would continue to be bound by the pre- BALCO rules. Since, in this case, the agreements were entered into, and awards too were rendered 20 during the prevalence of Bhatia principle, the later decision in BALCO or any subsequent judgment could not apply. 16. Learned counsel emphasized that though the ECAAP (the plant contract) stated that the arbitration was to be in London, under the ICC. Clause 12.4.1 clearly 17 (2011) 8 SCC 333 18 Supra n. 8 19 Supra n. 9 20 Supra n. 8 12 stated that the contract would be governed by Indian law, which unambiguously pointed to the fact that the parties intended that the law governing arbitration too was Indian law. Therefore, there is no question of the applicability of the ratio in BALCO. Analysis & Conclusions 21 22 17. The decision in Bhatia , and later, in Venture Global , had ruled that resort to remedies under Part I of the Act can be made in respect of foreign awards, despite the clear dichotomy in the enactment between domestic awards (covered by Part I) and foreign awards (covered by Part II). This understanding was re-visited in BALCO where this court held as follows: “75. We are also unable to accept the submission of the learned counsel for the appellants that the Arbitration Act, 1996 does not make seat of the arbitration as the centre of gravity of the arbitration. On the contrary, it is accepted by most of the experts that in most of the national laws, arbitrations are anchored to the seat/place/situs of arbitration. Redfern in Para 3.54 concludes that ‘the seat of the arbitration is thus intended to be its centre of gravity.’ [Blackaby, Partasides, Redfern and Hunter (Eds.), Redfern and Hunter on International Arbitration (5th Edn., Oxford University Press, Oxford/New York 2009)] This, however, does not mean that all the proceedings of the arbitration have to take place at the seat of the arbitration. The arbitrators at times hold meetings at more convenient locations. This is necessary as arbitrators often come from different countries. It may, therefore, on occasions be convenient to hold some of the meetings in a location which may be convenient to all. Such a situation was examined by the Court of Appeal in England in Naviera Amazonica Peruana SA v. Compania International de Seguros del Peru [Naviera Amazonica Peruana SA v. Compania International de Seguros del Peru, (1988) 1 Lloyd's Rep 116 (CA)] wherein at p. 121 it is observed as follows: ‘The preceding discussion has been on the basis that there is only one “place” of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms of 21 Supra n.8 22 Supra n.9 13

14

We are of the opinion, the term “subject-matter of the arbitration” cannot be confused with “subject-matter of the suit”. The term “subject-matter” in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order Under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to 15 be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the courts would have jurisdiction i.e. the court within whose jurisdiction the subject-matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution i.e. arbitration is located.

16

17

18

23 This court, in the facts of this case, is of the opinion that it is inessential to explain or notice the difference between the “venue” which is a matter of convenience, and “seat” – an expression that has definite legal connotations in regard to intention of parties, vis-à-vis jurisdiction of the courts. 24 Supra n. 14 19 Infrastructure Ltd. v. Ssang Yong Engg. and Construction Co. Ltd. [(2011) 9 SCC 735 : (2011) 4 SCC (Civ) 864] , the very judgment in this case reported in Reliance Industries Ltd. v. Union of India [Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 : (2014) 3 SCC (Civ) 737] and a recent judgment in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. [(2015) 9 SCC 172 : (2015) 4 SCC (Civ) 341] ]. 19. In fact, in Harmony case [(2015) 9 SCC 172 : (2015) 4 SCC (Civ) 341] , this Court, after setting out all the aforesaid judgments, set out the arbitration clause in that case in para 36 as follows: (SCC p. 193) “36. In view of the aforesaid propositions laid down by this Court, we are required to scan the tenor of the clauses in the agreement specifically, the arbitration clause in appropriate perspective. The said clause reads as follows:

20

21

“46. As stated earlier, in Shashoua [Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm)] Cooke, J., in the course of analysis, held that “London arbitration” is a well-known phenomenon which is often chosen by foreign nationals with a different law, such as the law of New York, governing the substantive rights of the parties and it is because of the legislative framework and supervisory powers of the courts here which many parties are keen to adopt. The learned Judge has further held that when there is an express designation of the arbitration venue as London and no designation of any alternative place as the seat, combined with a supranational body of rules governing the arbitration and no other significant contrary indicia, the inexorable conclusion is that London is the juridical seat and English law the curial law. ALCO ALCO 47. In B [B v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810] the Constitution Bench referred to Shashoua [Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm)] and reproduced certain paragraphs from the 25 Supra n. 16 22 same. To appreciate the controversy from a proper perspective, we have already reproduced para 54 of the said judgment which has succinctly stated the proposition. 50. Proceeding further the Court in Enercon (India) Ltd. case [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59] approved the Shashoua [Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm)] principle and referred to McDonnell Douglas Corpn. [Union of India v. McDonnell Douglas Corpn., (1993) 2 Lloyd's Rep 48] wherein the principles stated in Naviera Amazonica Peruana S.A. [Naviera Amazonica Peruana S.A. v. Compania International de Seguros del Peru, (1988) 1 Lloyd's Rep 116 (CA)] were reiterated. Construing the clauses in the agreement, the said authority has held: (Enercon (India) case [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59] , SCC p. 56, para 129)

23

London, leaves no doubt that the place of arbitration will attract the law of UK in all matters concerning arbitration.” After holding that the parties’ choice of seat 26 2017 (5) SCC 331

25

26 in Shashoua [Shashoua v. Sharma, 2009 EWHC 957 (Comm) : (2009) 2 Lloyd's Law Rep 376]… * 51. The Court in Enercon [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1:(2014) 3 SCC (Civ) 59] then concluded : (SCC p. 60, para 138)

dispute arose out of a pre-BALCO contract; the award was rendered on 18.01.2011 (prior to the BALCO decision). The seat of arbitration was Kuala Lumpur; however, the governing law of the agreement or contract, was English law. This court, in its three-judge decision, held that the curial law, i.e. the law governing the challenge to 29 the award, was Malaysian law, in the following words: “(i) In the present case, the law governing the agreement to arbitrate was the English law as per Article 34.12 of the PSC, which provides that the arbitration agreement shall be governed by the laws of England. Even though there seems to have been some confusion in the application of the law governing the agreement to arbitrate by the seat courts, as pointed out by the learned Amicus, we will not dwell on this issue, since the enforcement court does not sit in appeal over the findings of the seat court. Furthermore, in view of the principles of comity of nations, this Court would not comment on the judgments passed by Courts in other jurisdictions. The enforcement of the award is a subsequent and distinct proceeding from the setting aside proceedings at the seat. The enforcement court would independently determine the issue of recognition and enforceability of the foreign award in India, in accordance with the provisions of Chapter 1 Part II of the Indian Arbitration Act, 1996. 28 2020 SCC Online (SC) 749 29 In fact, even the Government of India understood that to be the correct position, and had challenged the award, on a substantive basis, in Kuala Lumpur. 27 (ii) The courts having jurisdiction to annul or suspend a New York Convention award are the courts of the State where the award was made, or is determined to have been made i.e. at the seat of arbitration. The seat of the arbitration is a legal concept i.e. the juridical home of the arbitration. The legal “seat” must not be confused with a geographically convenient venue chosen to conduct some of the hearings in the arbitration. The courts at the seat of arbitration are referred to as the courts which exercise “supervisory” or “primary” jurisdiction over the award. The “laws under which the award was made” used in Article V (1)(e) of the New York Convention, is mirrored in Section 48(1)(e) of the Indian Arbitration Act, which refers to the country of the seat of the arbitration, and not the State whose laws govern the substantive contract.” The court then proceeded to rely on BALCO especially Paras 76 and 123, and thereafter stated as follows: “(iii) The courts before which the foreign award is brought for recognition and enforcement would exercise “secondary” or “enforcement” jurisdiction over the award, to determine the recognition and enforceability of the award in that jurisdiction. (iv) We will now briefly touch upon the four types of laws which are applicable in an international commercial arbitration, and court proceedings arising therefrom. These are: a) The governing law determines the substantive rights and obligations of the parties in the underlying commercial contract. The parties normally make a choice of the governing law of the substantive contract; in the absence of a choice of the governing law, it would be determined by the tribunal in accordance with the conflict of law rules, which are considered to be applicable. b) The law governing the arbitration agreement must be determined separately from the law applicable to the substantive 44 contract. The arbitration agreement constitutes a separate and autonomous agreement, which would determine the validity and extent of the arbitration agreement; limits of party autonomy, the jurisdiction of the tribunal, etc. c) The curial law of the arbitration is determined by the seat of arbitration. In an international commercial arbitration, it is necessary that the conduct of the arbitral proceedings are connected with the law of the seat of arbitration, which would regulate the various aspects of the arbitral proceedings. The parties have the autonomy to determine 28 the choice of law, which would govern the arbitral procedure, which is referred to as the lex arbitri, and is expressed in the choice of the seat 45 of arbitration. The curial law governs the procedure of the arbitration, the commencement of the arbitration, appointment of arbitrator/s in exercise of the default power by the court, grant of provisional measures, collection of evidence, hearings, and challenge to the award. The courts at the seat of arbitration exercise supervisory or “primary” jurisdiction over the arbitral proceedings, except if the parties have made an express and effective choice of a different lex arbitri, in which event, the role of the courts at the seat will be limited to those matters which are specified to be internationally mandatory and of a 46 nonderogable nature. d) The lex fori governs the proceedings for recognition and enforcement of the award in other jurisdictions. Article III of the New York Convention provides that the national courts apply their respective lex fori regarding limitation periods applicable for recognition and enforcement proceedings; the date from which the limitation period would commence, whether there is power to extend the period of limitation. The lex fori determines the court which is competent and has the jurisdiction to decide the issue of recognition and enforcement of the foreign award, and the legal remedies available to the parties for enforcement of the foreign award. (v) In view of the above-mentioned position, the Malaysian Courts being the seat courts were justified in applying the Malaysian Act to the public policy challenge raised by the Government of India. The enforcement court would, however, examine the challenge to the award in accordance with the grounds available under Section 48 of the Act, without being constrained by the findings of the Malaysian Courts. Merely because the Malaysian Courts have upheld the award, it would not be an impediment for the Indian courts to examine whether the award was opposed to the public policy of India under Section 48 of the Indian Arbitration Act, 1996. If the award is found to be violative of the public policy of India, it would not be enforced by the Indian courts. The enforcement court would however not second-guess or review the correctness of the judgment of the Seat Courts, while deciding the challenge to the award.” 29

30 ECAAP, i.e. the plant contract 31 Supra n. 17 30 by NV Engineering, for enforcement of the awards (through Application No 156/2005) . Jindal objected to the enforcement proceedings, in accordance with grounds articulated in Part II of the Act. A single judge substantially upheld the award, and proceeded to its enforcement, by a judgment dated 05.06.2006, at the same time rejecting the challenge to enforcement laid out by Jindal. Both parties appealed to the Division Bench; Jindal, on the challenge to the order rejecting its objection to enforcement (Appeal No. 492/2006), and NV Engineering, as to that part of the order of the single judge, refusing to enforce a part of the award (Appeal. No. 740/2006). 32 25. In the decision in Fuerst Day Lawson this court had to interpret Section 50 33 of the Act (quoted in the footnote below ), which provides for a restrictive category of appealable subject matters, and prohibits appeals in other matters. The court after noticing previous judgments held as follows: “88. Mohindra Supply Co. [Union of India v. Mohindra Supply Co., AIR 1962 SC 256] was last referred in a Constitution Bench decision of this Court in P.S. Sathappan [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672] , and the way the Constitution Bench understood and interpreted Mohindra Supply Co. [Union of India v. Mohindra Supply Co., AIR 1962 SC 256] would be clear from the following para 10 of the judgment: (P.S. Sathappan case [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672] , SCC pp. 689-90)

31

“20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 34 2017 (14) SCC 225 35 (2018) 14 SCC 715 32

33 36 conscious of the fact that Fuerst Day Lawson is a decision rendered over 10 years ago; it settled the law decisively and has been followed in later judgments. It cannot be said that Jindal was ignorant of the law. 27. In view of the foregoing discussion, the impugned judgment and order is hereby set aside; the appeal is allowed in the above terms. Costs quantified at ₹ 1,50,000/- shall be paid by the respondent No.1. .......................................................J [INDIRA BANERJEE] .......................................................J [S. RAVINDRA BHAT] New Delhi, November 26, 2020. 36 Supra n. 17