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Friday, December 16, 2011

international arbitration= we are inclined to agree with Mr. Rautray that the corrections and clarifications sought for have to be allowed. In particular, the observations made in paragraphs 35 and 37, if read together, indicate that, although, when the seat of arbitration was in Singapore, the SIAC Rules would apply, the same included Rule 32 which provides that it is the International Arbitration Act, 2002, which would be the law of the arbitration. Accordingly, it is clarified that while mention had been made in paragraph 35 that the Curial law of the arbitration would be the SIAC Rules, what has been subsequently indicated in paragraph 37 of the judgment is that International Arbitration Act of Singapore would be the law of the arbitration. 9. The judgment and order dated 1st September, 2011, be read and understood on the basis of the corrections and clarifications hereby made in this order.


                                          REPORTABLE








                  IN THE SUPREME COURT OF INDIA






                   CIVIL APPELLATE JURISDICTION






             INTERLOCUTORY APPLICATION NO.3 OF 2011






                                  IN






                   CIVIL APPEAL NO.7562 OF 2011










YOGRAJ INFRASTRUCTURE LTD.              ...     APPELLANT  










          Vs.










SSANGYONG ENGINEERING & 


CONSTRUCTION CO. LTD.                   ...     RESPONDENT










                             O R D E R










ALTAMAS KABIR, J.








1.    Interlocutory Application No.3 of 2011 has been filed by 






SSANGYONG   Engineering   &   Construction   Company   Limited   in 






disposed   of   Civil   Appeal   No.7562   of   2011,   seeking 






clarification   and   correction   of   certain   clerical   errors   in 



the   judgment   passed   by   this   Court   on   1st  September,   2011, 






under Order XIII Rule 3 of the Supreme Court Rules, 1966.  










2.     Mr.   Dharmendra   Rautray,   learned   Advocate-on-Record,   who 






had         earlier         appeared         for         SSANGYONG         Engineering         & 






Construction   Company   Limited,   submitted   that   in   paragraph   5 






of   the   aforesaid   judgment   it   had   been   mentioned   that   his 






clients   had   filed   an   application   before   the   Sole   Arbitrator 






on 5th June, 2010, for interim relief under Section 17 of the 






Arbitration and Conciliation Act, 1996.   Mr. Rautray pointed 






out   that   the   said   application   had   been   made   not   under 






Section   17   of   the   above   Act,   but   under   Rule   24   of   the   SIAC 






Rules   and   the   same   would   be   evident   from   the   application 






made before the sole Arbitrator in SIAC Arbitration No.37 of 






2010,   by   the   Respondent,   being   Annexure-B   to   the   present 






application.










3.     Mr. Rautray then submitted that through inadvertence, in 






paragraph   35   of   the   judgment,   it   has   been   indicated   that 






there   was   no   ambiguity   that   the   SIAC   Rules   would   be   the 






Curial   law   of   the   arbitration   proceedings   and   that   the   same 



had   been   subsequently   clarified   in   paragraph   37,   wherein 






while   indicating   that   the   arbitration   proceedings   would   be 






governed by the SIAC Rules as the Curial law, which included 






Rule   32,   which   made   it   clear   that   where   the   seat   of 






arbitration   is   Singapore,   the   law   of   the   arbitration   under 






the   SIAC   Rules   would   be   the   International   Arbitration   Act 






(Cap. 143A, 2002 Ed, Statutes of the Republic of Singapore). 






Mr.   Rautray   submitted   that   it   was   a   clear   case   of 






inadvertence   in   paragraph   35   that   needs   to   be   clarified   by 






indicating   that   the   Curial   law   is   the   International 






Arbitration law of Singapore and not the SIAC rules.  










4.    It   was   also   pointed   out   that   in   paragraph   36   of   the 






judgment in the sentence beginning with the words "In Bhatia 






International   (supra)...",   it   had   been   indicated   that   while 






considering   the   applicability   of   Part   I   of   the   1996   Act   to 






arbitral   proceedings   where   the   seat   of   arbitration   was   in 






India, this Court was of the view that Part I of the Act did 






not   automatically   exclude   all   foreign   arbitral   proceedings 






or   awards.     Mr.   Rautray   submitted   that   as   would   be   evident 






from   reading   the   judgment   as   a   whole,   this   Court   had 



intended   to   indicate   that   where   the   seat   of   arbitration   was 






"outside"   and   not   "in"   India,   the   said   portion   of   the 






sentence   should   read   "where   the   seat   of   arbitration   was 






outside India".  










5.    It was lastly submitted by Mr. Rautray that in paragraph 






4   of  the   judgment  it   had  been   mentioned  that   an  application 






had been filed by the Appellant under Section 9 of the 1996 






Act   before   the   District   and   Sessions   Judge,   Narsinghpur, 






Madhya Pradesh, whereas such an application had been made by 






the Respondent.  










6.    Mr.   Rautray   submitted   that   the   aforesaid   clarification 






and   corrections   are   required   to   be   made   in   the   final 






judgment.  










7.    However,   on   behalf   of   Yograj   Infrastructure   Limited   it 






was   urged   that   except   for   the   clarification   sought   for   with 






regard   to   the   Rules   applicable   to   the   arbitral   proceedings, 






the other clarifications could be made.  



8.    Having   regard   to   the   submissions   made   on   behalf   of   the 






respective   parties,   we   are   inclined   to   agree   with   Mr. 






Rautray   that   the   corrections   and   clarifications   sought   for 






have to be allowed.  In particular, the observations made in 






paragraphs   35   and   37,   if   read   together,   indicate   that, 






although, when the seat of arbitration was in Singapore, the 






SIAC   Rules   would   apply,   the   same   included   Rule   32   which 






provides that it is the International Arbitration Act, 2002, 






which   would  be   the  law   of  the   arbitration.    Accordingly,  it 






is   clarified   that   while   mention   had   been   made   in   paragraph 






35 that the Curial law of the arbitration would be the SIAC 






Rules,   what   has   been   subsequently   indicated   in   paragraph   37 






of   the   judgment   is   that   International   Arbitration   Act   of 






Singapore would be the law of the arbitration.  










9.    The judgment and order dated 1st September, 2011, be read 






and   understood   on   the   basis   of   the   corrections   and 






clarifications hereby made in this order.  



10.    The   interlocutory   application   filed   on   behalf   of 






SSANGYONG   Engineering   &   Construction   Company   Limited,   is 






allowed and disposed of accordingly.










                                               ................................................J.


                                          (ALTAMAS KABIR)










                                               ................................................J.


                                          (CYRIAC JOSEPH)


New Delhi


Dated: 15.12.2011