Arbitration and Conciliation Act, 1996: ss.34 to 36 – Automatic stay of award – Held: s.36 when read with s.35 states that enforcement of a final award will be under the CPC, and in the same manner as if it were a decree of the Court – The raison d’etre for s.36 is only to make it clear that when an arbitral award is not susceptible to challenge, either because the time for making an application to set it aside has expired, or such application having been made is refused, the award, being final and binding, shall be enforced under the CPC, as if it were a decree of the court – To read s.36 as inferring something negative, namely, that where the time for making an application under s.34 has not expired and, therefore, on such application being made within time, an automatic-stay ensues, is to read something into s.36 which is not there at all – Automatic stay of award is, therefore, not a rule – Also, this construction omits to consider the rest of s.36, which deals with applications under s.34 that have been dismissed, which leads to an award being final and binding when read with s.35 which then becomes enforceable under the CPC, the award being treated as a decree for this purpose – This is also supported by the language of s.9 of the Arbitration Act, 1996, which specifically enables a party to apply to a Court for reliefs “…after the making of the arbitration award but before it is enforced in accordance with s.36.” – These words in s.9 have not undergone any change by reason of the 2015 or 2019 Amendment Acts – Further, s.36, even as originally enacted, was not meant to do away with Art.36(2) of the UNCITRAL Model Law, but is really meant to do away with the two bites at the cherry doctrine in the context of awards made in India, and the fact that enforcement of a final award, when read with s.35, is to be under the CPC, treating the award as if it were a decree of the court – The amended s.36, being clarificatory in nature, merely restates the position that the unamended s.36 does not stand in the way of the law as to grant of stay of a money decree under the provisions of the CPC..

Arbitration and Conciliation (Amendment) Act, 2019: s.13 – Removal of basis of *BCCI judgment by Amendment Act, 2019 – Whether 2019 Amendment Act removes the basis of *BCCI judgment of Supreme Court – Held: Argument that the question of removing the basis of a judgment cannot arise unless and until the judgment is present in the mind of the legislature and expressly referred to in the concerned Statement of Objects and Reasons is rejected – What is important is to see whether in substance, the basis of a particular judgment is in fact removed, and not whether that judgment is referred to in the Statement of Objects and Reasons of the amending act which seeks to remove its basis – Further argument that s.87 is nothing but a rehash of s.26 is also rejected – The scheme of s.87 is different from that of s.26, and is explicit in stating that court proceedings are merely parasitical on arbitral proceedings – It is, therefore, clear that only arbitral proceedings have to be looked at to see whether the 2015 Amendment Act kicks in – Argument that in the instant case there was a direct assault on a judgment of this Court without first removing its basis is, therefore, rejected – Legislative competence – Arbitration and Conciliation Act, 1996.

Arbitration and Conciliation Act, 1996: s.87 – Constitutional validity of introduction of s.87 into the Arbitration Act, 1996, and deletion of s.26 of the 2015 Amendment Act by the 2019 Amendment Act – Held: The law on s.26 of the 2015 Amendment Act was laid down in *BCCI with great clarity – After construing s.26, the Court cautioned the Government that the immediate effect of enacting the proposed s.87 would be directly contrary to the Statement and Objects and Reasons of the 2015 Amendment Act, which made it clear that the law prior to the 2015 Amendment Act resulted in delay of disposal of arbitral proceedings and an increase in interference by courts in arbitration matters which tends to defeat a primary object of the Arbitration Act, 1996 – To thereafter delete this salutary provision and introduce s.87 in its place would be wholly without justification and contrary to the object sought to be achieved by the 2015 Amendment Act, which was enacted pursuant to a detailed Law Commission Report which found various nfirmities in the working of the original 1996 statute – The introduction of s.87 and deletion of s.26 of the 2015 Amendment Act was thus manifestly arbitrary having been enacted unreasonably, without adequate determining principle and contrary to the public interest sought to be subserved by the Arbitration Act, 1996 and the 2015 Amendment Act – Arbitration and Conciliation (Amendment) Act, 2015 – s.26.

Arbitration and Conciliation Act, 1996: s.34 – It is well settled law that an application under s.34 of the Act, 1996 is a summary proceeding not in the nature of a regular suit – As a result, a court reviewing an arbitral award under s.34 does not sit in appeal over the award, and if the view taken by the arbitrator is possible, no interference is called for.

Insolvency and Bankruptcy Code, 2016: s.3(7) – Interpretation of term ‘Corporate person’ – Plea that for recovery of money from Government Companies, the definition of ‘corporate person’ contained in s.3(7) of the Insolvency Code should either be read without the words “with limited liability” contained in the third part of the definition or have s.3(23)(g) of the Insolvency Code, which is the definition of ‘person’ read into the said provision – Held: A statutory body which functions as an extended limb of the Central Government, and performs governmental functions cannot be taken over by a resolution professional under the Insolvency Code, or by any other corporate body – Nor can such Authority ultimately be wound-up under the Insolvency Code – For such reasons, it is not possible to either read in, or read down, the definition of ‘corporate person’ in s.3(7) of the Insolvency Code.

Insolvency and Bankruptcy Code, 2016: Object of – Held: The Insolvency Code is not meant to be a recovery mechanism, the idea of the Code being a mechanism which is triggered in order that resolution of stressed assets then takes place.

Insolvency and Bankruptcy Code, 2016: s.5(6) – Definition of ‘dispute’ – Held: The definition of ‘dispute’ in s.5(6) of the Insolvency Code deals with a suit or arbitration proceedings relating to one of three things - (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty – Insofar as (a) is concerned, the definition of the word ‘debt’ contained in s.3(11) of the Insolvency Code, refers to a liability or obligation in respect of a claim which is due from any person – This necessarily postulates the existence of a contractual or other relationship, which gives rise to a liability or obligation between parties in law – The same goes for (c), as a breach of a representation or warranty can only be by one contracting party to another – Also, when the quality of goods or service is referred to in (b), this again postulates some contractual or other relationship in law by which one party may sue the other – Therefore, a dispute must be between the parties as understood under the Insolvency Code, which does not contain an Or.VIII-A CPC type mechanism – Code of Civil Procedure, 1908 – Or.VIIIA. 

Constitution of India: Art.32 – Writ jurisdiction, invocation of – Factual disputes between parties relating to exact quantum of arbitral awards in favour of petitioner company – Held: It is settled law that when exercising its jurisdiction under Art.32 of the Constitution, Supreme Court cannot embark on a detailed investigation of disputed facts – In the instant case, there was factual dispute between the parties relating to: (i) the exact quantum of the arbitral awards in favour of the Petitioner company due from the Respondent PSUs; (ii) the amounts which may have already been paid and/or deposited by the Respondent PSUs in favour of the Petitioner company under the said arbitral awards; and (iii) whether stay orders of competent Courts were passed in respect of these arbitral awards, and if so, whether they were under the automatic-stay mode or not – This Court cannot, therefore, in exercise of its jurisdiction under Art.32 undertake a detailed investigation to determine the status of monies paid/deposited pursuant to arbitral-awards in favour of the Petitioner company – Consequently, no directions in respect thereof can be made in these proceedings.