Enforcement of Arbitral Awards

MUMBAI SILICON VALLE Y BENG ALURU SING APORE NE W DELHI MUNICH / AMSTERDAM NE W YORK GIF T CIT Y
Research
Enforcement of
Arbitral Awards
and Decrees in
India
Domestic and Foreign
February 2024
© Nishith Desai Associates 2024 www.nishithdesai.com

Research
Enforcement of
Arbitral Awards
and Decrees in
India
February 2024
DMS Code: 1,437,226
© Nishith Desai Associates 2024 [email protected]

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Enforcement of Arbitral Awards and Decrees in India — Domestic and Foreign

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Contents
Introduction 1
I. Enforcement of Arbitral Awards 2
1. Enforcement of Domestic Awards 2
Process for Challenge and Enforcement
2. Enforcement of Foreign Awards 3

Requirements for Enforcement of Foreign Awards
3. Conditions for Enforcement of Arbitral Awards — Domestic and Foreign 4
4. Stamping and Registration Requirements of Awards — Domestic and Foreign 5
5. Enforcement of Arbitral Awards: Appropriate Forum and Limitation 6
6. How Courts Examine Awards 7
7. Payments under a Foreign Award 8
II. Enforcement of Decrees in India 9
1. Enforcement of Decrees in India: Appropriate Forum and Limitation 9
2. Enforcement of Foreign Judgments in India 10
Procedure for Enforcement of Foreign Judgments

Requirements for Enforcement of Foreign Judgment
Grounds of Challenge to Enforcement of Foreign Judgments
Judicial Approach
3. Enforcement of Foreign Judgments from Non-Reciprocating Territories 12
Requirements for Enforcement of Foreign Judgments from Non-reciprocating Territories

Procedure for Execution of Foreign Judgments from Non-reciprocating Territories
Enforcement of Foreign Judgments in India: Limitation
Modes of Execution 15
Our Expertise 16
Enforcement of Awards and Execution of Decrees 25
© Nishith Desai Associates 2024 Provided upon request only

Introduction
The growth of international commerce has necessitated the creation of efficient methods of resolution of
disputes. In some situations, securing an award or a final judgment from the courts may only be a battle half
won; this is especially true in the Indian context.
We have come across situations where the opposite parties decide to not participate in the arbitral process or
abandon it mid-way. The enforcement of these awards/judgments where the party is in absentia is sometimes
more complicated than one where the opposite party has participated in the proceedings. In certain situations,
objections have been raised even against costs awarded by the tribunal or the jurisdiction of the tribunal
or court, as the case may be. Therefore, the stage of enforcement of an award or decree warrants a high degree
of caution.
The procedure for enforcement and execution of decrees in India is governed by the Code of Civil Procedure,
1908 (“CPC”) while that of arbitral awards in India is primarily governed by the Arbitration & Conciliation
Act, 1996 (“Act”) as well as the CPC.
Domestic and foreign awards are enforced in the same manner as a decree of the Indian court. This is true
even for consent awards obtained pursuant to a settlement between parties. However, there is a distinction
in the process for enforcement of an award based on the seat of arbitration. While the enforcement and
execution of an India - seated arbitral award (“domestic award”) would be governed by the provisions of Part
I of the Act, enforcement of foreign - seated awards (“foreign award”) would be governed by the provisions
of Part II of the Act. 1
A few steps that are crucial for ensuring successful enforcement of arbitral awards and execution of decrees are:
§ Making effective service on opposite party/ judgment debtor is crucial to prevent objections at later stage;
§ Taking necessary steps by way of attachment/ notice/ arrest/ appointment of receiver or in another manner;
§ Remember that principles of natural justice apply to even execution proceedings.
1 Part II specifically deals with foreign awards which are in consonance with the provisions of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, 1958 or Convention on the Execution of Foreign Arbitral Awards, 1927.
© Nishith Desai Associates 2024 Provided upon request only 1

I. Enforcement of Arbitral Awards
1. Enforcement of Domestic Awards
An award holder would have to wait for a period of three months after the receipt of the award prior to applying
for enforcement and execution. 1 During the intervening period, 2 the award may be challenged in accordance
with Section 34 of the Act. After expiry of the aforesaid period, if a court finds the award to be enforceable,
at the stage of execution, there can be no further challenge as to the validity of the arbitral award.
Prior to the recent Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”), an application
for setting aside an award would tantamount to a stay on proceedings for execution of the award. However,
by virtue of the Amendment Act, a party challenging an award would have to move a separate application
in order to seek a stay on the execution of an award.
Domestic Award Commercial Court or Commercial

Division of the High Court, where
subject-matter of dispute lies or
3 Months + 30 days of the date of where respondent resides or carries
receipt of award / date of correction on business
Application to Set
Aside the Award Appeals
Rejected
Enforcement of Award a as a Decree Appeals
1 See Arbitration and Conciliation Act 1996, s 34(3) proviso.

2 A further period of 30 days may be granted by a court upon sufficient cause being shown for condonation of delay.

Introduction
2. Enforcement of Foreign Awards
India is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958
(“New York Convention”) as well as the Geneva Convention on the Execution of Foreign Arbitral Awards,
1927 (“Geneva Convention”). If a party receives a binding award from a country which is a signatory to the
New York Convention or the Geneva Convention and the award is made in a territory which has been notified
as a convention country by India, 3 the award would then be enforceable in India.
The enforcement of a foreign award in India is a two-stage process which is initiated by filing an execution
petition. Initially, a court would determine whether the award adhered to the requirements of the Act. Once
an award is found to be enforceable it may be enforced like a decree of that court. However, at this stage parties
would have to be mindful of the various challenges that may arise such as objections taken by the opposite
party, and requirements such as filing original/ authenticated copy of the award and the underlying agreement
before the court.
Foreign Award
Period for setting aside

in the curial court.
Application for Setting aside in

the Foreign Curial Court.
Appeals
Offshore
In India
Enforcement of Award as
a Decree-Recognition
Appeals
3 Australia; Austria; Belgium; Botswana; Bulgaria; Canada, Central African Republic; Chile; China (including Hong Kong and Macau) Cuba;
Czechoslovak Socialist Republic; Denmark; Ecuador; Federal Republic of Germany; Finland; France; German Democratic Republic; Ghana;
Greece; Hungary; Italy; Japan; Kuwait; Mauritius, Malagasy Republic; Malaysia; Mexico; Morocco; Nigeria; Norway; Philippines; Poland; Republic
of Korea; Romania; Russia; San Marino; Singapore; Spain; Sweden; Switzerland; Syrian Arab Republic; Thailand; The Arab Republic of Egypt;
The Netherlands; Trinidad and Tobago; Tunisia; United Kingdom; United Republic of Tanzania and United States of America. India has entered
into an agreement with the United Arab Emirates for juridical and judicial co-operation.

Introduction
Requirements for Enforcement of Foreign Awards
§ Original award or a duly authenticated copy in the manner required by the country where it is made;
§ Original agreement or duly certified copy;
§ Evidence necessary to prove the award is a foreign award, wherever applicable.
Section 47 of the Act provides that the above “shall” be produced before the court, at the time of the application
for enforcement of the foreign award. However, in a recent judgment, the Supreme Court of India interpreted
that the word “shall” appearing in Section 47 of the Act relating to the production of the evidence as specified
in the provision at the time of application has to be read as “may”. 4 It further observed that such an interpre-
tation would mean that a party applying for enforcement of the award need not necessarily produce before
the court a document mentioned therein “at the time of the application”. Nonetheless, it further clarified that
such interpretation of the word “shall” as “may” is restricted “only to the initial stage of the filing of the application
and not thereafter.”
For enforcement of a foreign award, there is no need to initiate separate proceedings — for recognition and
subsequent execution. 5
3. Conditions for Enforcement of Arbitral Awards —

Enforcement of a foreign award may be refused 6 and a domestic award may be set aside 7 if the award debtor
furnishes to the court proof (in case of foreign award) or establishes on the basis of the record of the arbitral
tribunal (in case of domestic award) that:
§ The parties to the agreement were under some incapacity;
§ The agreement in question is not in accordance with the law to which the parties have subjected it, or
under the law of the country where the award was made (especially in case of foreign awards);
§ There is a failure to give proper notice of appointment of arbitrator or arbitral proceedings or the party
against whom the award was rendered was otherwise unable to present his case;
§ Award is ultra vires the agreement or submission to arbitration;
§ Award contains decisions on matters beyond the scope of submission to arbitration;
§ Composition of the arbitral authority or the arbitral procedure is ultra vires agreement;
§ Composition of the arbitral authority or the arbitral procedure is not in accordance with the law of the
country where the arbitration took place;
§ The award (specifically a foreign award) has not yet become binding on the parties or has been set aside
or suspended by a competent authority of the country in which, or under the law of which that award
was made.
4 PEC Limited v. Austbulk Shipping SDN BHD (Civil Appeal No. 4834 of 2007), decided on 14 November 2018.
5 Fuerst Day Lawson Ltd. v. Jindal Export Ltd. (2001) 6 SCC 356).
6 Arbitration and Conciliation Act 1996, s 48.
7 Arbitration and Conciliation Act 1996, s 34.

Introduction
Enforcement of foreign award may also be refused and a domestic award may be set aside if the court finds that:
§ Subject matter of the dispute is not capable of settlement by arbitration under Indian law;
§ Enforcement of the award would be contrary to the public policy of India. 8
A foreign award is in conflict with the public policy of India, only if, —
a. the making of the award was induced or affected by fraud or corruption or was in violation of section
75 or section 81 of the Arbitration Act; or
b. it is in contravention with the fundamental policy of Indian law; or
c. it is in conflict with the most basic notions of morality or justice.
The test as to whether there is a contravention with the fundamental policy of Indian law shall not entail
a review on the merits of the dispute.
A domestic award arising out of arbitrations other than international commercial arbitrations, may also
be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the
face of the award. However, a domestic award shall not be set aside merely on the ground of an erroneous
application of the law or by reappreciation of evidence.
4. Stamping and Registration Requirements of Awards —

Domestic Awards
§ The Indian Stamp Act 1899 provides for stamping of arbitral awards with specific stamp duties and
Section 35 provides that an award which is unstamped or is insufficiently stamped is inadmissible for
any purpose, which may be validated on payment of the deficiency and penalty (provided it was original).
Issues relating to the stamping and registration of an award or documentation thereof, may be raised at
the stage of enforcement under the Act. (M. Anasuya Devi and Anr v. M. Manik Reddy and Ors 9). The Supreme
Court had also observed that the requirement of stamping an award and registration is within the ambit
of Section 47 of the CPC and not covered by Section 34 of the Act.
§ The quantum of stamp duty to be paid would vary from state to state depending on where the award
is made. Currently, as per the Maharashtra Stamp Act, the stamp duty for arbitral awards stands at five
hundred rupees in Maharashtra; and in case of Delhi, as per Schedule 1A to the Stamp (Delhi Amendment)
Act 2001, the stamp duty is calculated at roughly 0.1% of the value of the property to which the award
relates.
§ Under Section 17 of the Registration Act, 1908 an award has to be compulsorily registered if it affects
immovable property, 10 failing which, it shall be rendered invalid.
8 Vijay Karia v. Prysmian Cavi E Sistemi SRL, (2020) 11 SCC 1; Ssangyong Engineering and Construction Company Ltd. v. NHAI, 2019 (15) SCC
131; Associate Builders v. DDA, (2015) 3 SCC 49; Aapico Hitech Public Company Limited and Others v. Sakthi Auto Component Ltd. 2023 SCC
OnLine Mad 514.
9 (2003) 8 SCC 565.
10 The Registration Act, 1908, s 17(1)(e).

Introduction
Foreign Awards
§ As far as foreign awards are concerned, the Supreme Court of India has categorically held that a foreign
award is not liable to be stamped. 11
§ Previously, the Delhi High Court in Naval Gent Maritime Ltd v Shivnath Rai Harnarain (I) Ltd. 12 had observed
that a foreign award would not require registration and can be enforced as a decree, and the issue of stamp
duty cannot stand in the way of deciding whether the award is enforceable or not. A similar approach
had been adopted by the Bombay High Court in the case of Vitol S.A v. Bhatia International Limited 13 and the
High Court of Madhya Pradesh in Narayan Trading Co. v. Abcom Trading Pvt. Ltd. 14
5. Enforcement of Arbitral Awards: Appropriate Forum and Limitation
If, as often happens in international commerce, assets are located in different parts of the world, the party
seeking enforcement of the award has a choice of country in which to proceed–a chance to go ‘forum shopping’,
as it is sometimes expressed. 15 The Supreme Court in its recent ruling in, Sundaram Finance Ltd. v. Abdul Samad
and Anr. 16 clarified that an award holder can initiate execution proceedings before any court in India where
assets are located. In case the subject-matter of the arbitration is of a specified value. 17 Commercial courts
established under the Commercial Courts Act 2015 (“Commercial Courts Act”) would have jurisdiction,
as given below:
Award Arising out of an India Seated Arbitration — Being an International

Commercial Arbitration
By virtue of the Commercial Courts Act and the Amendment Act, the Commercial Division of a High Court
where assets of the opposite party lie shall have jurisdiction for applications relating to enforcement of such
awards if the subject matter is money. In case of any other subject matter, Commercial Division of a High
Court which would have jurisdiction as if the subject matter of the award was a subject matter of a suit shall
have jurisdiction, i.e., where the opposite party resides or carries on business or personally works for gain.
Award Arising out of an India Seated Arbitration — not Being an International

Commercial Arbitration)
As per the Commercial Courts Act and the Amendment Act, for such cases, the appropriate court would be
the Commercial Court exercising such jurisdiction which would ordinarily lie before any principal Civil
Court of original jurisdiction in a district, as well as the Commercial Division of a High Court in exercise
of its ordinary original civil jurisdiction.
11 M/S. Shri Ram EPC Limited v Rioglass Solar SA (2018) SCC Online 147.
12 174 (2009) DLT 391.
13 2014 SCC OnLine Bom 1058.
14 2012 SCC OnLine MP 8645.
15 Nigel Blackaby, Constantine Partasides, et al., ‘Recognition and Enforcement of Arbitral Awards’, in Redfern and Hunter on International Arbitration
(6th edn., Kluwer Law International; Oxford University Press 2015) (para 11.29); Taqa India Power Ventures v. NCC Infrastructure Holdings, OMP(EFA)
(COMM) 1 of 2018 (Delhi High Court, judgment dated 09 November 2023).
16 (2018) 3 SCC 622.
17 Commercial Courts Act, s 2(1)(i): “Specified Value”, in relation to a commercial dispute, shall mean the value of the subject-matter in respect of a suit
as determined in accordance with section 12 which shall not be less than three lakh rupees or such higher value, as may be notified by the Central
Government”.

Introduction
Foreign Awards
Where the subject matter is money, the Commercial Division of any High Court in India where assets of the
opposite party lie shall have jurisdiction. In case of any other subject matter, Commercial Division of a High
Court which would have jurisdiction as if the subject matter of the award was a subject matter of a suit shall
have jurisdiction.
Limitation Period for Enforcement of Awards
Foreign Awards
Under Indian law, a foreign award is already stamped as the decree, and once the court decides that the foreign
award is enforceable, it can proceed to take further effective steps for execution of the same (M/s. Fuerst Day
Lawson Ltd v. Jindal Exports Ltd. (2001) 6 SCC 356).
ACA 1996 does not specify the time period within which the application for enforcement should be made
before Indian courts.
Enforcement of a foreign award under Part II of the Arbitration Act would be covered by Article 137 of the
Limitation Act which provides a period of three years, from when the right to apply accrues. 18
6. How Courts Examine Awards

§ The grounds of challenge enlisted are exhaustive and courts cannot expand the grounds for refusal
of enforcement.
§ In limited circumstances, the court may refuse to enforce the foreign award even if one of the grounds
under Section 48 of the Arbitration Act for refusing enforcement of the award has been proved.
§ Executing court cannot re-examine the award apart from satisfying itself on a superficial basis about
the award.
§ Executing court cannot examine the merits of the case. 19
§ The exercise is not an “appeal” on merits against order of tribunal, but merely review.
§ Accordingly, the court has to first make enquiry as to enforceability of award and secondly hold that it is
enforceable and thereafter enforce it.
§ Once an award is found to be enforceable by a court, it would be enforced like a decree of that court
(in accordance with relevant provisions of the CPC — as explained below).
18 Government of India v. Vedanta Ltd. and Ors., Civil Appeal No. 3185 of 2020, judgment dated 16 September 2020.
19 Shri Lal Mahal v. Progetto Grano Spa (2014) 2 SCC 433.

Introduction
7. Payments under a Foreign Award
Payments that are being made by a person in India to a person outside India may require the permission
of the Reserve Bank of India in the usual course. However, such permission may not be required if the arbitral
tribunal has characterised the payment to be made under the award as ‘damages’. 20 Further, several courts
have been of the view that payment under the judgment of a court or an arbitral award should not be subject
to any withholding tax in India. 21 Thus, payments made pursuant to the orders of the Indian court would
not be subject to withholding tax and the full amount would be remitted. 22 However, this position is yet
to be confirmed by the Supreme Court of India.
In case of foreign awards which have to be enforced in India in INR, the rate of conversion expressly provided
for in the award 23 or the underlying contract 24 would be considered for the purposes of the forex rate. In these
scenarios, the executing court would be bound to follow such date as provided for in the award or contract,
as the case may be. In the absence of such express provision on the forex rate, the effective date for considering
the exchange rate is the date of rejection of objections to the enforcement of the foreign award, or when
all the remedies (including appeals, revision petitions, etc.) against enforcement of the foreign award were
exhausted. 25
20 NTT Docomo v Tata Sons 2017 (4) ArbLR 127.

21 M/s. Goldcrest Exports v. ITO, ITA No.442/Mum/2009.
22 Glencore International AG v. Dalmia Cement (Bharat) Limited 2019 SCC OnLine Del 9634.
23 Forasol v. Oil and Natural Gas Commission (1984) Supp SCC 263.
24 Meenakshi Saxena & Anr. v. ECGC Ltd. (Formerly known as Export Credit Guarantee Corporation of India Ltd.) and Anr. Civil Appeal No.5681/2018
(arising out of SLP (C) No. 6286 of 2017).
25 Fuerst Day Lawson Limited v. Jindal Exports Limited; Progetto Grano S.P.A. v. Shri Lal Mahal Limited;
DLF Universal Limited & Ors. v. Koncar Generators and Motors Limited (2018) 190 PLR 398.

II. Enforcement of Decrees in India
On a decree being passed, execution proceedings can be initiated for enforcement of the decree. Section 36
to 74 and Order XXI of the CPC set out the provisions in respect of execution.
The person in whose favour a decree has been passed or an order capable of execution has been made is known
as a “decree-holder” while the person against whom a decree has been passed or an order capable of execution
has been made is known as a “judgment-debtor”.
1. Enforcement of Decrees in India: Appropriate Forum and Limitation
Domestic Decrees
Appropriate Forum
The proceedings to execute a decree must be initiated, in the first instance, before the court which passed
it. Where appropriate, such court may transfer the decree to another court for execution for various reasons
including the locus of the judgment debtor or the locus of the property against which the decree is sought
to be executed. 1
Limitation Period
As per the Limitation Act 1963, the period of limitation for the execution of a decree (other than a decree
granting a mandatory injunction, in which case, it is three years) is twelve years from the date of the decree.
However, an application for execution of a decree granting a perpetual injunction shall not be subject to any
period of limitation.
Foreign Judgments
Appropriate Forum
An application for execution of a foreign judgment may be filed in the jurisdiction where the assets of the
judgment-debtor are, or where the judgment-debtor resides or carries on business.
Regarding the “court” before which an execution petition is to be filed, where there is a split jurisdiction
between High Courts exercising original jurisdiction and District Courts based on pecuniary value, such
High Courts would be competent to execute a foreign decree of the superior court of a reciprocating territory. 2
1 The Code of Civil Procedure 1908, s 39.

2 Code of Civil Procedure 1908, s 44A; Messer Griesheim GmbH (now Air Liquide Deutschland GmbH) v. Goyal MG Gases Pvt. Ltd.
2022 SCC OnLine SC 97.

Limitation Period
If a decree holder does not take any steps to execute the foreign judgment in the foreign country, where it
was rendered, he may file an execution petition in India as per the law of limitation of that foreign country. 3
However, if the decree holder takes steps-in-aid to execute a foreign decree in the country where it was rendered
and the decree was not fully satisfied, he may file an execution petition in India within 3 years from the
finalization of the execution proceedings in such foreign country. 4
2. Enforcement of Foreign Judgments in India
Section 2(6) of the CPC defines “foreign judgment” as “the judgment of a foreign Court,” which refers to a Court
situated outside India and not established or continued by the authority of the Central Government.
At the time of enforcement of foreign judgments in India, two situations may arise depending on whether
the foreign judgment is passed by a court in: (i). A reciprocating country; 5 (ii). A non-reciprocating country.
A party seeking enforcement of a decree of a court in a reciprocating country is required to file execution
proceedings in India while in case of a decree from a non-reciprocating country, a fresh suit has to be filed
before the relevant court in India. The time limit for filing a suit for enforcement for such foreign judgments
is three years from such judgment being delivered.
Procedure for Enforcement of Foreign Judgments
Foreign Judgments
From the Superior Courts of reciprocating territory.

Not from the reciprocating territory
(Section 44A of CPC)
By virtue of Section 44A such foreign decrees can

A fresh suit has to be filed in the Indian court of
be directly enforced in india by filling an execution
competent jurisdiction. In the fresh suit, the said
application. Thereafter, Section 51 and Order XXI of
foreign judgment eill be treated as evidence
CPC will be applicable
The foreign judgment has to satisfy the conditions laid down under Section 13 of the
CPC, failing which such a judgment is rendered inconclusive
3 Bank of Baroda v. Kotak Mahindra Bank Ltd., 2020 SCC OnLine SC 324.
4 ibid.
5 “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette,
declare to be a reciprocating territory for the purposes of Section 44A of the Civil Procedure Code. Countries which have been officially recognized
as “reciprocating countries” by the Central Government of India include:- Aden; Bangladesh; Federation of Malaya (now Malaysia); Fiji Colony;
Hong Kong; New Zealand, Cook Islands and Western Samoa; Papua New Guinea; Republic of Singapore; Trinidad and Tobago; United Kingdom
of Great Britain and Northern Ireland, UAE.

The first major step towards enforcement of foreign judgments in India is, to file execution proceedings,
which is done by following the procedure, as envisaged under Section 44A and Order XXI of the CPC
(illustrated above).
Requirements for Enforcement of Foreign Judgment
Under Section 44A of the CPC, where a ‘certified copy of decree’ of any of the superior courts of any recipro-
cating territory has been filed in a district court, the decree may be executed in India as if it had been passed
by the district court. For proceeding with the execution, the certified copy of the decree shall be filed along
with a ‘certificate’ from such superior court stating the extent, if any, to which the decree has been satisfied
or adjusted. Such certificate shall be deemed as the conclusive proof of the extent of such satisfaction or
adjustment.
Grounds of Challenge to Enforcement of Foreign Judgments
Section 13 of the CPC provides that a foreign judgment may operate as res judicata by being conclusive with
respect to any matter adjudicated upon thereby (which does not include the reasons laid down in the foreign
judgment). However, this shall not be applicable where:
a) It has not been pronounced by a Court of competent jurisdiction. While ascertaining competence of
a foreign court, it has to be established that the concerned court is vested with jurisdiction in terms of its
pecuniary and territorial limits, as well as rules of private international law.
b) It has not been given on the merits of the case;
c) It appears on the face of the proceedings to be founded on an incorrect view of international law or
a refusal to recognise the law of India in cases in which such law is applicable;
d) The proceedings in which the judgment was obtained are opposed to natural justice;
e) It has been obtained by fraud;
f) It sustains a claim founded on a breach of any law in force in India.
Judicial Approach
Courts have been consistent of the view that a party would not be bound by the jurisdiction of a foreign court
if it has not submitted to such jurisdiction of the foreign court. 6 Whether a party has voluntarily submitted
to the jurisdiction of the foreign court, would depend on the facts and circumstances of the concerned case,
for example, if a defendant appears in the court where the suit is instituted and questions both the jurisdiction
and challenges the action on merits, he is said to have submitted to the jurisdiction voluntarily. 7 Generally,
as noted by the Madras High Court, the following denote instances of submission to the jurisdiction of the
foreign court:
6 Raj Rajendra Sardar Maloji v. Sri Shankar Saran AIR 1962 SC 1737; R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar AIR 1973 Mad. 141.
7 Chormal Balchand Firm v. Kasturi Chand AIR 1938 Cal 511.

§ Where the person is a subject of the foreign country in which the judgment has been obtained against
him on prior occasions;
§ Where he is a resident in foreign country when the action is commenced;
§ Where a person selects the foreign court as the forum for taking action in the capacity of a plaintiff,
in which forum he is sued later;
§ Where the party on summons voluntarily appears;
§ Where by an agreement a person has contracted to submit himself to the forum in which the judgment
is obtained. 8
As had been held in International Woollen Mills v. Standard Wool (U.K.) Ltd., 9 a judgment would be considered
to be given on merits if some evidence (oral and/or documentary) is adduced on behalf of the plaintiffs. The
Orissa High Court in Trilochan Choudhury v. Dayanidhi Patra, 10 observed that a judgment, however, brief,
would be enforceable if it is based on a consideration of evidence. Similarly, the Bombay High Court, in
Marine Geotechnics LLC, v. Coastal Marine Construction & Engineering Ltd 11 held that ex parte decrees would also
be valid. Judgments which follow summary procedure or otherwise shall not be considered as judgments
given on merits of the case if there has been no examination of the evidence. Further, judgments based on
consent or terms of settlement are also considered valid as being given on merits of the case. 12 However, cases
where the decree results from the sheer absence of the defendant either by way of penalty or in a formal
manner, the judgment may not be one based on the merits of the case.
Similarly, the Supreme Court in R. Vishwanathan v. Rukn — Ul- Mulk Syed Abdul Wajid, 13 observed that
enforcement of a foreign judgment would be vitiated on non-observance of the judicial process, i.e. if the
court rendering the judgment fails to observe the minimum requirements of natural justice. Thus, it is
required that parties are given reasonable notice and adequate opportunity of presenting their respective
cases. Additionally, a foreign judgment would be rendered unenforceable if the foreign court was imposed
upon or tricked into giving the judgment. 14
3. Enforcement of Foreign Judgments from

Non-Reciprocating Territories
In case of a foreign judgment from a non-reciprocating country, it can be enforced only by filing a suit upon
the judgment. The party is left with the option to sue on the basis of the foreign judgment or on the original
cause of action in the domestic court or both. The resultant decree would thereafter be executed in India.
Where a suit on a foreign judgment is dismissed on merits, no further application shall lie for the execution
of such foreign judgment as it had merged in the decree which dismissed such suit for execution. In an event
a decree is passed in favour of the party filing such a suit for enforcing the foreign judgment, it may proceed
to execute it.
8 Ramanathan Chettiar v. Kalimuthu Pillai AIR 1914 Mad. 556.

9 (2001) 5 SCC 265.
10 AIR 1961 Ori 136.
11 (2014) 3 AIR Bom R 193.
12 HSBC Bank USA v. Silverline Technologies Ltd. AIR 2006 Bom 134.
13 AIR 1963 SC 1.
14 Sankaran Govindan v. Lakshmi Bharathi & Others AIR 1974 SC 1764; Satya v. Teja Singh AIR 1975 SC 105.

Requirements for Enforcement of Foreign Judgments

from Non-reciprocating Territories
A certified copy of the foreign judgment would have to be filed along with the plaint. This judgment would
have evidentiary value, and be certified in manner, as required under Section 86 of the Evidence Act 1872
(“Evidence Act”). Further, an additional certificate by a representative of the Central Government of India in
the foreign country is required under Section 86 of the Evidence Act. The procedure stipulated under Section
86 of the Evidence Act does not exclude other modes of proof, e.g. deposition of an official as to what took
place in his presence in the court of the foreign jurisdiction (subject to the requirements of the Evidence Act).
In any event, as a preliminary requirement, such foreign judgments sought to be executed in India have
to satisfy the tests prescribed under Section 13 of the CPC (as stated above).
Procedure for Execution of Foreign Judgments

from Non-reciprocating Territories
Filing a Fresh Suit in the Relevant Court of Jurisdiction in India
A suit is instituted by filing a ‘plaint’ in a manner prescribed under Orders VI and VII of the CPC in a court
of competent jurisdiction, along with the payment of appropriate court fees. Under Order V of the CPC, notice
is issued to the defendant summoning his appearance and directing him to file his reply within a specified
date.
After the plaintiff has instituted the suit and notified the defendant, the defendant is required to file its
written statement, along with a set-off or counter claim, if any, in the court within 90 days of service of the
summons. This is governed by Order VIII of the CPC.
After the parties complete the pleadings in the suit, the court frames the issues under Order XIV of the CPC,
which is followed by the production, admission and denial of evidence. Thereafter, the examination and
recording of evidence (documentary and/or oral) is completed.
After the hearing of a matter is completed, the judgment is pronounced in open court. Within fifteen days
of the pronouncement of a judgment, the concerned court draws up the decree. 15 If a defendant does not appear
when the suit is called for hearing, irrespective of summons being duly served on him, the court may make
an order that the suit be heard ex parte. 16
Fresh Suit Filed under Commercial Courts Act
In case the dispute is commercial in nature and of a specified value (as discussed earlier), a suit under the
Commercial Courts Act would be initiated.
15 Code of Civil Procedure 1908, Order XX, Rule 1.

16 Code of Civil Procedure 1908, Order IX, Rule 6(b).

In all such commercial disputes of specified value, a party may make an application 17 (with a notice being
issued to the opposite party) for summary judgment requesting the court to decide on the claim underlying
the commercial dispute without recording oral evidence.
Prior to issues being framed the court may pass a summary judgment on consideration of the following:
§ the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of
successfully defending the claim, as the case may be; and
§ there is no other compelling reason why the claim should not be disposed of before recording the oral
evidence.
When it appears to a court that a judgment creditor may succeed but it is improbable that it will do so, it can
pass a conditional order against the judgment debtor including, but not limited to, a condition requiring the
judgment debtor to deposit a sum of money as security for the judgment. 18
Execution Proceedings
The resultant decree would be enforced like a decree of that court which rendered the same. The modes
of execution are elaborated below.
A detailed procedure for execution of foreign judgments from non-reciprocating territories is explained in
the Guide signed between Dubai International Financial Centre (“DIFC”) Courts and Nishith Desai Associates
on 14 September 2018. 19 Notwithstanding the focus of the Guide on recognition and enforcement of civil and
commercial judgments in DIFC Courts and the courts of India, this Guide may also be referred to, in the
context of execution of judgments from non-reciprocating territories.
Note: UAE was notified as a reciprocating territory by India, vide notification dated 17 January 2020
Enforcement of Foreign Judgments in India: Limitation
If the decree holder does not take any steps to execute the foreign decree in the country where the decree was
rendered, he may file an execution petition in India as per the law of limitation of that foreign country. 20
If the decree holder takes steps-in-aid to execute a foreign decree in the country where the decree was rendered,
and the decree is not fully satisfied, he may file an execution petition in India within 3 years from the
‘finalization’ of the execution proceedings in the country where the decree was rendered. 21
17 In accordance with Order XIII-A, Rule 4 of the CPC, as amended by the Commercial Courts Act 2015.
18 In accordance with Order XIII-A, Rule 7 of the CPC, as amended by the Commercial Courts Act 2015.
19 https://www.difccourts.ae/wp-content/uploads/2018/09/Guide-between-DIFC-Courts-and-Nishith-Desai-Associates-on-Mutual-Recognition-
and-Enforcement-of-Civil-and-Commercial-Judgments-in-DIFC-Courts-and-Courts-in-India.pdf.
20 Bank of Baroda v. Kotak Mahindra Bank Ltd. (2020) 17 SCC 798.
21 ibid.

Modes of Execution
Since foreign awards, domestic awards and foreign judgments (from reciprocating countries) are to be executed
in India as a decree passed by an Indian court, the modes of execution for foreign awards and judgments and
domestic awards and judgments are also common.
On an application made by the decree-holder for execution of the decree/ award (whether foreign or domestic),
the court may order the execution of the decree / award by one or more of the following modes:
§ by delivery of any property specifically decreed;
§ by attachment and sale or by sale without attachment of any property;
§ by arrest and detention in prison;
§ by appointing a receiver;
§ by any other manner as the nature of the relief granted may require.
In case of decrees involving payment of money, execution by arrest and detention in civil prison would be
ordered only after the judgment debtor is given an opportunity of showing cause as to why he should not be
imprisoned. 1 While issuing such notice, the executing court has to record in writing and be satisfied that
the judgment debtor would obstruct or delay the execution of the decree. 2 Such notice may not be necessary
if the court is satisfied, by affidavit or otherwise, that, with the object or effect of delaying the execution of
the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. 3 A
warrant for the arrest of the judgment debtor may also be made where appearance is not made in obedience to
the notice, if the decree holder so requires. 4
An executing court cannot go behind the decree, that is, it does not have the power to modify the terms of the
decree and must take it as it stands. In case there are multiple decree-holders, the assets, after deducting the
costs of realization, shall be distributed among all such persons.
1 Code of Civil Procedure Code 1908, Order XXI, Rule 37 (1).

2 ibid.
3 ibid.
4 Code of Civil Procedure Code 1908, Order XXI, Rule 37 (2).

Our Expertise
By way of strategy we seek measures of protection during the first hearing itself, in order to mitigate the
risks caused by time dilatory tactics and frivolous challenges adopted by the opposite parties. These mostly
include a stay order on alienation of the assets of the opposite parties. Where assets are not known, we
routinely engage experts to trace and identify the assets since obtaining a restraint order against alienation
of assets is possible only in a situation where such assets are identified. Obtaining the disclosure of assets
and financial status of the opposite parties at the initial stages is another facet of our strategy, which reduces
the risk of the opposite party alienating or disposing of its assets. Once a disclosure is made, the next step is
seeking an order for attachment and sale of assets disclosed.
An illustrative order obtained in the initial hearings for enforcement of a domestic award, granting disclosure
of assets and restraining the transfer/ alienation of assets is set out below:

Our Expertise
An illustrative order obtained in the initial hearings for enforcement of a foreign award, granting disclosure
of assets and restraining the transfer/alienation of assets is set out below:

Our Expertise
An illustrative order obtained in the initial hearings for enforcement of a foreign award, granting disclosure
of assets and restraining the transfer/alienation of assets is set out below:

Our Expertise
An illustrative order granting attachment of properties is set out below:

Our Expertise

Our Expertise
An illustrative order obtained in the initial hearings for enforcement of a foreign judgment, granting
disclosure of assets is set out below:

Our Expertise
An illustrative order granting attachment of properties in the course of enforcement of a foreign judgment is
set out below:

Our Expertise

Our Expertise
An extract of an illustrative order recognizing a foreign award is set out below:

Our Expertise
Enforcement of Awards and Execution of Decrees
Foreign and Domestic
A few of the clients that we have represented/are representing:
§ The world’s second largest oilfield services company in the enforcement of an award passed in a London
seated arbitration conducted as per UNCITRAL Rules. This matter was handled entirely by NDA’s internal
Advocacy Unit out of New Delhi. Within one month of initiating the said proceedings, we secured
favourable orders directing disclosure (of assets, bank accounts etc.) and the opposite party was restrained
by the Court from alienating any of its assets thus securing the award amounts.
§ A Singapore entity in the enforcement of an international commercial arbitration award passed in India
against an Indian listed entity. This matter was handled by NDA’s internal Advocacy Unit out of New Delhi.
Within one month of initiating the said proceedings, we secured favorable orders directing disclosure
(of assets, bank accounts etc.,) and the opposite party was restrained by the Court from alienating any
of its assets thus securing the award amounts.
§ An Indian fund in the enforcement of a domestic award in an ad hoc arbitration against an Indian public
listed infrastructure company and its promoters. This matter was handled by NDA’s internal Advocacy
Unit out of New Delhi. On the first hearing of the matter, we secured favorable orders directing disclosure
(of assets, bank accounts, tax returns etc.,) and the opposite parties were restrained by the Court from
alienating any of its assets thus securing the award amounts and costs were imposed. Subsequent appeals
by the opposite parties before a Division Bench of the Delhi High Court were dismissed. Thereafter, we
obtained an order for attachment of immovable as well as movable properties of the opposite parties.
§ A Swiss multi-national commodity trading and mining company against an Indian public company
in enforcement of a Singapore-seated SIAC award. In this matter, favourable orders were obtained for
recognition and enforcement of the award along with directions to the judgment-debtor deposit the
respective award amount.
§ A Korean conglomerate in enforcement of an award passed in an Austria seated ICC arbitration against
an Indian public listed company. The matter was handled at all stages by NDA’s Internal Advocacy Unit
out of New Delhi and comprised of several related and on-going litigations, each dependent on the success
of the other – initiated by the opposite party aimed at scuttling the realization of the awarded amounts
by our clients. The synchronized strategy adopted by us at all levels in India, Korea as well as other
jurisdictions where the Award was sought to be enforced, enabled us to successfully stem the attempts
made by Indian Award debtor seeking to restrain our client from pursuing enforcement of the Award in
a foreign jurisdiction through an injunction order from an Indian Court. Our concerted efforts ultimately
resulted in a settlement where the opposite party paid the entire awarded amount to our client.
§ A Japanese entity in enforcement in India of a multi-billion-dollar arbitral award delivered in Singapore

arising out of the biggest M&A transaction in India;
§ A Finnish Fund before Indian courts for enforcement of an award issued in a Finland-seated arbitration
administered under the Rules of Arbitration Institute of the Finland Chambers of Commerce;
§ An Indian joint venture partner against a large foreign multinational to resist enforcement of a multi-
million dollar award arising from an arbitration under LCIA Rules;
§ Enforcement in India of awards and judgments issued by Dubai International Financial Centre (“DIFC”)
Courts and executing a unique memorandum of guidance on execution of DIFC Court Judgments in India
with the Chief Justice of the DIFC Courts;

Our Expertise
§ One of the largest natural resource companies in an action for enforcement of a judgment of Singapore
court in India against a large public sector undertaking;
§ A Saudi-based fund in enforcement of a multi-million dollar domestic award against the Indian promoters;
§ A Singapore-based insurance company in enforcement of a judgment of Singapore High Court of over

INR 1 billion against an Indian listed entity;
§ An Indian (FinTech: Banking and Payment Software Solutions Co.) company in proceedings before the
Mauritius Supreme Court & Privy Counsel for setting aside a multi-million-dollar arbitration award
seated in Mauritius;
§ The world’s largest Art Fund before various courts including Supreme Court of India in a matter concerning
enforcement of multi-million-dollar judgment of Commercial Courts, United Kingdom;
§ A US-based company involved in the gaming industry for enforcement of an AAA arbitral award passed
in US against a Mumbai based leading gaming entity;
§ A leading Japanese company for enforcement of Singapore-seated, multi-million-dollar ICC arbitral award
in India.

About NDA
At Nishith Desai Associates, we have earned the reputation of being Asia’s most Innovative Law Firm —
and the go-to specialists for companies around the world, looking to conduct businesses in India and for
Indian companies considering business expansion abroad. In fact, we have conceptualized and created
a state-of-the-art Blue Sky Thinking and Research Campus, Imaginarium Aligunjan, an international
institution dedicated to designing a premeditated future with an embedded strategic foresight capability.
We are a research and strategy driven international firm with offices in Mumbai, Palo Alto (Silicon Valley),
Bengaluru, Singapore, New Delhi, Munich, and New York. Our team comprises of specialists who provide
strategic advice on legal, regulatory, and tax related matters in an integrated manner basis key insights
carefully culled from the allied industries.
As an active participant in shaping India’s regulatory environment, we at NDA, have the expertise and more
importantly — the VISION — to navigate its complexities. Our ongoing endeavors in conducting and
facilitating original research in emerging areas of law has helped us develop unparalleled proficiency to
anticipate legal obstacles, mitigate potential risks and identify new opportunities for our clients on a global
scale. Simply put, for conglomerates looking to conduct business in the subcontinent, NDA takes the uncer-
tainty out of new frontiers.
As a firm of doyens, we pride ourselves in working with select clients within select verticals on complex
matters. Our forte lies in providing innovative and strategic advice in futuristic areas of law such as those
relating to Blockchain and virtual currencies, Internet of Things (IOT), Aviation, Artificial Intelligence,
Privatization of Outer Space, Drones, Robotics, Virtual Reality, Ed-Tech, Med-Tech and Medical Devices and
Nanotechnology with our key clientele comprising of marquee Fortune 500 corporations.
The firm has been consistently ranked as one of the Most Innovative Law Firms, across the globe. In fact,
NDA has been the proud recipient of the Financial Times – RSG award 4 times in a row, (2014-2017) as the
Most Innovative Indian Law Firm.
We are a trust based, non-hierarchical, democratic organization that leverages research and knowledge to
deliver extraordinary value to our clients. Datum, our unique employer proposition has been developed
into a global case study, aptly titled ‘Management by Trust in a Democratic Enterprise,’ published by
John Wiley & Sons, USA.

Research@NDA
Research is the DNA of NDA. In early 1980s, our firm emerged from an extensive, and then pioneering,
research by Nishith M. Desai on the taxation of cross-border transactions. The research book written by him
provided the foundation for our international tax practice. Since then, we have relied upon research to be
the cornerstone of our practice development. Today, research is fully ingrained in the firm’s culture.
Over the years, we have produced some outstanding research papers, reports and articles. Almost on a daily
basis, we analyze and offer our perspective on latest legal developments through our “Hotlines”. These
Hotlines provide immediate awareness and quick reference, and have been eagerly received. We also provide
expanded commentary on issues through detailed articles for publication in newspapers and periodicals
for dissemination to wider audience. Our NDA Labs dissect and analyze a published, distinctive legal trans-
action using multiple lenses and offer various perspectives, including some even overlooked by the executors
of the transaction. We regularly write extensive research papers and disseminate them through our website.
Our ThinkTank discourses on Taxation of eCommerce, Arbitration, and Direct Tax Code have been widely
acknowledged.
As we continue to grow through our research-based approach, we now have established an exclusive four-
acre, state-of-the-art research center, just a 45-minute ferry ride from Mumbai but in the middle of verdant
hills of reclusive Alibaug-Raigadh district. Imaginarium AliGunjan is a platform for creative thinking; an
apolitical ecosystem that connects multi-disciplinary threads of ideas, innovation and imagination. Designed
to inspire ‘blue sky’ thinking, research, exploration and synthesis, reflections and communication, it aims
to bring in wholeness — that leads to answers to the biggest challenges of our time and beyond. It seeks to be
a bridge that connects the futuristic advancements of diverse disciplines. It offers a space, both virtually and
literally, for integration and synthesis of knowhow and innovation from various streams and serves as a dais
to internationally renowned professionals to share their expertise and experience with our associates and
select clients.
We would love to hear from you about any suggestions you may have on our research publications.
Please feel free to contact us at [email protected].

Recent Research Papers
Extensive knowledge gained through our original research is a source of our expertise.
December 2023 December 2023 November 2023

Prevention of Sexual Harassment The Indian Defence Industry The Global Drone Revolution
at the Workplace (POSH) Redefining Frontiers Aerial Transport, Investments
India Legal & HR Considerations and Make in India Opportunities
October 2023 October 2023 October 2023

ESG and Human Rights ESOPs and Other Benefits Plans Private Equity and Private Debt
Supply Chain Management for Employees in India Investments in India
Legal, Regulatory and Tax Regulatory, Legal and Tax Overview
Considerations
For more research papers click here.

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Enforcement of Arbitral Awards and Decrees in India


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MUMBAI SILICON VALLE Y BENG ALURU SING APORE NE W DELHI MUNICH / AMSTERDAM NE W YORK GIF T CIT Y

© Nishith Desai Associates 2024 www.nishithdesai.com

DMS Code: 1,437,226

© Nishith Desai Associates 2024 [email protected]

© Nishith Desai Associates 2024 [email protected]

For any help or assistance please email us on [email protected]

© Nishith Desai Associates 2024 Provided upon request only

I. Enforcement of Arbitral Awards 2

1. Enforcement of Domestic Awards 2

Process for Challenge and Enforcement

2. Enforcement of Foreign Awards 3

Process for Challenge and Enforcement

3. Conditions for Enforcement of Arbitral Awards — Domestic and Foreign 4

4. Stamping and Registration Requirements of Awards — Domestic and Foreign 5

5. Enforcement of Arbitral Awards: Appropriate Forum and Limitation 6

6. How Courts Examine Awards 7

7. Payments under a Foreign Award 8

II. Enforcement of Decrees in India 9

1. Enforcement of Decrees in India: Appropriate Forum and Limitation 9

2. Enforcement of Foreign Judgments in India 10

Procedure for Enforcement of Foreign Judgments

3. Enforcement of Foreign Judgments from Non-Reciprocating Territories 12

Requirements for Enforcement of Foreign Judgments from Non-reciprocating Territories

Enforcement of Awards and Execution of Decrees 25

© Nishith Desai Associates 2024 Provided upon request only

§ Remember that principles of natural justice apply to even execution proceedings.

© Nishith Desai Associates 2024 Provided upon request only 1

I. Enforcement of Arbitral Awards

1. Enforcement of Domestic Awards

Process for Challenge and Enforcement

Domestic Award Commercial Court or Commercial

Enforcement of Award a as a Decree Appeals

1 See Arbitration and Conciliation Act 1996, s 34(3) proviso.

© Nishith Desai Associates 2024 Provided upon request only 2

2. Enforcement of Foreign Awards

Process for Challenge and Enforcement

Period for setting aside

Application for Setting aside in

© Nishith Desai Associates 2024 Provided upon request only 3

Requirements for Enforcement of Foreign Awards

§ Original agreement or duly certified copy;

§ Evidence necessary to prove the award is a foreign award, wherever applicable.

3. Conditions for Enforcement of Arbitral Awards —

§ The parties to the agreement were under some incapacity;

§ Award is ultra vires the agreement or submission to arbitration;

§ Award contains decisions on matters beyond the scope of submission to arbitration;

© Nishith Desai Associates 2024 Provided upon request only 4

§ Enforcement of the award would be contrary to the public policy of India. 8

b. it is in contravention with the fundamental policy of Indian law; or

c. it is in conflict with the most basic notions of morality or justice.

4. Stamping and Registration Requirements of Awards —

© Nishith Desai Associates 2024 Provided upon request only 5

5. Enforcement of Arbitral Awards: Appropriate Forum and Limitation

Award Arising out of an India Seated Arbitration — Being an International

Award Arising out of an India Seated Arbitration — not Being an International

© Nishith Desai Associates 2024 Provided upon request only 6

Limitation Period for Enforcement of Awards

6. How Courts Examine Awards

§ Executing court cannot examine the merits of the case. 19

II. Enforcement of Decrees in India

II. Enforcement of Decrees in India

II. Enforcement of Decrees in India

II. Enforcement of Decrees in India

II. Enforcement of Decrees in India