' AMIR HANI MUSLIM, J.---The plaintiffs have filed the present proceedings under section 5 of the Arbitration (Protocol and Convention) Act, 1937 ("the Act of 1937") with the following prayers:-- "That in view of the above it is respectfully prayed that this Honourable Court may graciously be pleased to defer the enforceability and stay the operation of the said Award dated 1-12-2008 till the final disposal of the objections to the validity of the said Award which the plaintiff may be advised to file under the International Arbitration Act in Singapore."
2. Along with these proceedings, an application (C.M.A. No,11970 of 2008) under section 151, C.P.C.
Was made seeking suspension/stay of the operation of the Award dated 1-12-2008 pronounced under the ICC Rules of Arbitration at Singapore till the final disposal of the application under section 5 of the Act of 1937. Notice was issued to the defendants who have filed counter-affidavit to the application.
3. Brief facts of the case as they appear from the pleadings of the parties are that the plaintiffs have entered into a Gas Supply Agreement dated 31-3-1996 with the defendants for a period of twenty years on various terms and conditions contained therein. The terms of the agreement are not disputed by the parties. The Clause 18 of the Agreement provides mechanism for dispute resolution and clause 18.3 deals with resolution of dispute through Arbitration. It is not disputed that the parties on account of dispute had invoked the arbitration clause. The arbitration proceedings were held in Singapore and on 1-12-2008 the Award was given by the Arbitrators. According to the learned counsel for the plaintiffs, the copy of the award was received by the plaintiffs in London, United Kingdom, after 2 to 3 days of its pronouncement.
4. The learned counsel for the plaintiffs contends that the award is appealable. The limitation for preferring an appeal against the said award is ninety (90) days. His grievance before this Court is that the award passed by the arbitrators is self-executory and no intervention of a Court is required. According to him, the arbitrators in subparagraph 4(b) of paragraph 12.1 of the award have ordered the plaintiffs to pay to the defendants the sums itemized in paragraph 12.1(3) within 21 days of receipt of the award. According to the learned counsel for the plaintiffs if the above subparagraph 4(b) of paragraph 12.1 of the award is read with subparagraph 5(g) of paragraph 12.1, it provides that if the plaintiffs fail to make payment to the defendants within 21 days of the award, the defendants would be entitled to set-off any future sums owing under any validly issued debit notes in a similar manner.
5. The next contention of Mr. Bilal A. Khawaja , learned counsel for the plaintiffs is that even otherwise the arbitrators at Singapore while passing the award have completely overlooked the period of limitation provided for appeal against the award. He submits that this Court, in the given circumstances, can exercise jurisdiction under section 5 of the Act of 1937 and grant relief of the nature prayed for in these proceedings by suspending the award to enable plaintiffs to avail remedy of appeal. He further contended that the language of section 5 of the Act of 1937 is distinct and covers the case in hand. According to him the language of section 5 of the Act of 1937 is distinct than the language of section 7, which provides the grounds for seeking enforcement of an award. The learned counsel for the plaintiffs contended that section 5 of the Act of 1937 entitles a party to approach the Court for an interim measure seeking suspension of an award, which has not attained finality and right of such party to prefer appeal survives.
6. As against this, Mr. Ijaz Ahmad, learned counsel for the defendants, has contended that this Court has not jurisdiction to grant relief of the nature to the plaintiffs in a matter where the award has attained finality on its pronouncement and the party in whose favour the award has been pronounced has yet to seek its enforcement by invoking the provisions of sections 5 read with section 7 of the Act of 1937. The learned counsel for the defendants further contends that in any event the plaintiffs could have approached the appellate forum seeking an interim order for suspension of the award in regard to the payment to the defendants within 21 days. He submits that the concept that the award could only attain finality on the disposal of the appeal preferred by an aggrieved party is contrary to the language of the ICC Rules. Mr. Ijaz Ahmed further contends that right to file an appeal is available to an aggrieved party but it does not mean that unless the period of filing of appeal expires the award does not attain finality. In support of his contentions Mr. Ijaz Ahmed, learned counsel for the defendants, has relied upon the case of Marines Limited v.
Aegus Shipping Co. Ltd. Reported in 1987 CLC 1299 and the case of Hassanali and Co. v. Policy Cotton, S.A. Reported in PLD 1996 Kar: 416.
7. According to the learned counsel for the defendants, the application under section 5 of the Act of 1937 made by the plaintiffs is not maintainable and is liable to be dismissed besides this Court has no jurisdiction to grant any relief either interim or final to the plaintiffs, who, in law, can approach the appellate forum for seeking appropriate reliefs.
8. I have heard the learned counsel and have perused the record. In the first place, I will deal with the objections raised by the learned counsel for the defendants in regard to the maintainability of these proceedings.
9. The prayer clause in these proceedings is confined to the extent that the Award dated 1-12-2008 be deferred till the disposal of the objections to the validity of the said award, which the plaintiffs may be advised to file under the International Arbitration Act in Singapore by preferring an appeal.
The question is whether the plaintiffs, who could challenge the award in an appeal, could invoke the jurisdiction of this Court by filing an application under section 5 of the Act of 1937 to seek a relief of the nature instead of approaching the appellate forum. My understanding of law is that such a relief is not available to the plaintiffs. The plaintiffs can avail all the reliefs, including interim relief in the appeal.
10. For the sake of convenience, section 5 of the Act is reproduced hereunder:- "5. Filing of foreign award in Court.--(1) Any person interested in a foreign award may apply to any Court having jurisdiction over the subject-matter of the award that the award be filed in Court.
(2) The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants.
(3) The Court shall direct notice to be given to the parties to the arbitration, other than the applicant, requiring them to show-cause, within a time specified, why the award should not be filed."
11. A bare reading of section 5 of the Act of 1937 clearly shows that it is confined to a situation where any party interested in any foreign award approaches this Court with the prayer that notice for filing of the award be given to the other side but this Court under section 6 ibid after issuing notice has to satisfy itself that the award sought to be filed and enforced fulfils the conditions laid down in section 7 of the Act of 1937. This application under section 5 of the Act of 1937 in fact is an attempt to pre-empt any order, which the appellate forum may pass against the parties on filing of appeal by the plaintiffs.
12. In the present proceedings the plaintiffs themselves claim that they have right of appeal against the award, which is subject matter of these proceedings. But since time period of 21 days have been provided coupled with the direction of set-off, preferring appeal by the plaintiffs was time consuming and was not efficacious remedy, hence the present suit was filed. The arguments of the learned counsel for the plaintiffs do not appeal to reasons. The plaintiffs can always file an appeal and seek interim relief. The relief claimed in these collateral proceedings under section 5 of the Act of 1937 is not available. This Court could only pass an order within the parameters of sections 5 and 7 and the scheme of the Act of 1937 provides for enforcement of a foreign award in Pakistan. There is no provision under the Act of 1937, which authorizes this Court to either suspend or set-aside and or annul the award.
13. The question as to whether the arbitrators were justified in issuing a direction to the plaintiffs to make payments to the IA defendants is a question, which is opened to adjudication before the proper forum in appeal. This Court while hearing an application under section 5 of the Act of 1937 cannot sit in appeal against the award passed by the arbitrators in terms of the arrangement between the parties. The question as to whether the award has attained finality on its pronouncement is also simple. An award becomes final the moment it is pronounced, unless the party against whom such an award has been passed prefers an appeal and gets it set 'aside. The reliance placed by Mr. Ijaz Ahmed, learned counsel for the defendants, on the two citations in support of his contention have no direct nexus with the issues involved herein except that in both the judgments powers of this Court in relation to section 7 of the Act of 1937 have been spelt out.
14. For the foregoing reasons, I am of the firm view that no cause of action has accrued to the plaintiffs to invoke jurisdiction of this Court and the application under section 5 of the Act of 1937 is not maintainable and suit is accordingly dismissed along with the listed application.