INDIAN OIL CORPORATION LTD. V. TOYO ENGINEERING CORPORATION & OTHERS
It was an application filed under section-36(3) of the Arbitration and CONCILIATION Act. In this, the Respondents requested modification of the judgment given by the high court. The contention of the applicants/respondents is that the current Arbitration was invoked on 13.05.2013 and the Award was rendered on 11.03.2019. President gave his assent to the amended act on 9th August 2019 and the same was published in the official gazette on 9th August 2019 itself.
The interim order whose modification was requested was also passed on 09.08.2019 wherein the Court has directed the petitioner to make only a partial deposit of the awarded amount, which amounts to be about 20%.
The controversy which the Court had to decide in the present application was whether the interim order passed by the Court on 09.08.2019 directing the petitioner to deposit Rs. 125 crores which amounted to 20% of the awarded amount, deserved to be modified or not.
1) The Supreme Court in Hindustan Construction Company Limited & Anr. Vs. Union of India & Ors., 2019 SCC online SC 1520 had declared Section- 87 introduced by way of the Amendment Act to be unconstitutional. Therefore, the current proceedings will be governed by the 2015 Amendment Act and there cannot be an automatic stay on the Enforcement of the Arbitral Award.
2) Mr. Nayar also contended that in the above case, the Supreme Court held that an award holder should never be deprived of the fruits of the award rendered in his favor and hence the petitioner must be directed to deposit the entire awarded amount, which in his submission, along with the post-award interest as on 27th January 2020 sums out to be Rs. 695 Crores. In recent cases also the amount to be deposited was decided to be full.
3) The Respondent also cited the case, Power Mech Projects Ltd. v. SEPCO Electric Power Construction Corporation, OMP (I) (COMM) 523/2017 decided on 17.02.2020, where the Supreme Court directed the petitioner therein to deposit the entire principal amount.\
1) Mr. Sharma argued that the Respondents are seeking modification in the interim order without any change pleaded in the situation. It is just an abuse of the process of law and also wastage of time as the same matter had already been decided by the court on 9th august 2019 and judgment was adequately given.
2) Mr. Sharma also argued that the opposition is giving the wrong impression that the order was passed at such a time when there was a provision of automatic stay during the pendency of section-34 of the act. But in reality, He submitted that this was completely wrong as on 09.08.2019 the legal position was that there was no automatic stay of the Arbitral Awards and it was for this reason that the petitioner had filed an application for stay of the operation of the Impugned Award.
3) He argued that there is no mention in the law that in such cases there would be 100% deposit by a party. Rather, it just depends upon the discretion of the court. In the present case, The court had already exercised its jurisdiction under section 36(2) of the act.
The court said that it was based on the discretion of the court and there being no strict laws mentioned regarding the same and no change in the situation, the order remains unchanged.