In an important judgment, the Bombay
High Court has clarified that the judgment of the Supreme Court in BALCO is not
entirely prospective: not the entire reasoning of the Supreme
Court applies prospectively. In
particular, there have been some recent occasions when questions have arisen as
to what the proper court for filing of s.9 application is; and what is the
effect of the observations in BALCO on the issue. The Division Bench has observed,
High Court has clarified that the judgment of the Supreme Court in BALCO is not
entirely prospective: not the entire reasoning of the Supreme
Court applies prospectively. In
particular, there have been some recent occasions when questions have arisen as
to what the proper court for filing of s.9 application is; and what is the
effect of the observations in BALCO on the issue. The Division Bench has observed,
“In our view, it would not be appropriate, while applying the ratio of the
judgment in BALCO to hold that the reasons which are contained in the judgment
would operate with prospective effect. What the Supreme Court has essentially
ordered, while moulding the reliefs is that the declaration of law to the
effect that Part-I shall apply only to those arbitrations where the place of
arbitration in India shall take prospective effect after the date of the judgment.
But equally, it would be impermissible to hold that the interpretation
which has been placed by the Supreme Court on the provisions of Section 2(1)(e)
would apply only prospectively. The judgment of the Supreme Court is
declaratory of the position of law that the Court having jurisdiction over the
place of arbitration can entertain a proceeding in the exercise of its
supervisory jurisdiction as indeed the Court where the cause of action arises.…”
judgment in BALCO to hold that the reasons which are contained in the judgment
would operate with prospective effect. What the Supreme Court has essentially
ordered, while moulding the reliefs is that the declaration of law to the
effect that Part-I shall apply only to those arbitrations where the place of
arbitration in India shall take prospective effect after the date of the judgment.
But equally, it would be impermissible to hold that the interpretation
which has been placed by the Supreme Court on the provisions of Section 2(1)(e)
would apply only prospectively. The judgment of the Supreme Court is
declaratory of the position of law that the Court having jurisdiction over the
place of arbitration can entertain a proceeding in the exercise of its
supervisory jurisdiction as indeed the Court where the cause of action arises.…”
The judgment, Konkola Copper Mines v. Stewarts & Lloyds of India in Appeal
(Lodging) No 199 of 2013, delivered on July 9, 2013, is available here; and
offers guidance on the application of BALCO.
