1. ' Application under section 5 of the Arbitration (Protocol and Convention) Act, 1937 (hereinafter referred to as "Act of 1937") registered as a suit, seeks enforcement of a Foreign Award. Defendant had filed the written statement/objections to the said application on 23-12-1997. Before the objection to the award could be heard and decided, defendant filed an application under section 151, C.P.C. Being C.M.A. No, 3117 of 1998 on 12-3-1998, seeking direction to the plaintiff to supply document referred to in the application, counter-affidavit and rejoinder to said application have been filed.
2. ' Mr. Naraindas Motiani, learned counsel for the defendant contended that, under Article 4 to the 2nd Schedule to the Act of 1937 (i,e, "Convention on the Execution of Foreign Arbitral Award") read with rule 297 of the Sindh Chief Court Rules the plaintiff is required to file and furnish all the documents referred to in the Award and unless same is done, main suit/application cannot be heard and decided. As against this Mr. Arif Khan learned counsel for the plaintiff contended that, a party seeking to enforce a foreign award is only required to file such document, as are detailed in section 8 of the Arbitration (Protocol and Convention) Act, 1937. According to him, all the documents now required to be filed are correspondence exchanged between the parties, and plaintiff is not obliged to file any document not required by law.
3. ' By consent arguments on C.M.A. No,3117 of 1998 were heard and same is being decided first.
4. ' In order to appreciate contention of Mr. Motiani, learned counsel for the defendant, contents of the C.M.A. No, 3117 of 1998 are reproduced for ready reference: ' It is prayed on behalf of the defendant abovenamed that this Hon'ble Court be pleased to direct the plaintiff to supply the copy of power of attorney on the basis of which this petition has been filed and to produce all the record and proceedings of the arbitrators as the award refers to so many documents described below, which are essential and necessary for the properly adjudication of the matter:
(i) Documents No,10.
(ii) Documents. No,12.
(iii) Letter, dated 21-9-1994.
(iv) Reply of Rizvi and Essa & Co.
(v) L.C.
(vi) Amended L.Cs.
(vii) Letter, dated 3-10-1994.
(viii) Letter, dated 3-10-1994.
(ix) Letter, dated 11-10-1994.
(x) Fax, dated 25-10-1994.
(xi) Letter, dated 17-11-1994.
(xii) Full By-Laws and Rules of Liverpool Cotton Association Ltd.
5. ' Prayer is made in the interest of justice.
6. ' Any person interested to seek enforcement of a foreign award may, through an application made in writing, which is registered as a suit, apply to the Court having jurisdiction to cause the award filed in Court. The Court after notice and inviting objection. May announce judgment in accordance with the award, provided Award is enforceable under the Act of 1937.
7. ' Application under section 5 of the Act of 1937 must be accompanied by following documents as required under section 8, thereof:-
(a) The original award or a copy duly authenticated in the manner required by the country of origin;
(b) evidence proving that the award has become final;
(c) such evidence as may be necessary to prove that the award is a foreign award.
8. ' Rule 297 of the Sindh Chief Court Rules in addition to above, requires following additional documents to accompany the application:--
(d) Original agreement or arbitration or its duly authentic copy thereof.
(e) An affidavit to the effect that (i) said agreement was valid under the law by which it was governed. (ii) that the award was made by the tribunal provided for in the agreement or constituted in the manner agreed upon by the parties (iii) that it was made in conformity with the law governing the arbitration procedure, and (iv) that it has become final in the country in which it was made.
9. ' In case any .Of the above documents are in foreign language then, certified true English translation thereof, is also required to be filed.
10. ' Contention of Mr. Narain Das, that in terms of rule 297(1)(iv) of Sindh Chief Court Rules, applicant is required to file documents as prayed for in the listed application. In order to appreciate his contentions rule 297 of Sindh Chief Court Rules is reproduced as follows:--
297. (1) The party seeking to enforce a foreign award shall produce with his petition:
(i) The documents specified in section 8(1) of the said Act and where such document is in a foreign language, a translation thereof into English certified in the manner prescribed in subsection (2) of the said section 8.
(ii) The original agreement for arbitration or copy thereof authenticated in manner required by the law of the country in which it was made and, when the same is in a foreign language, a translation thereof into English certified in manner prescribed in subsection (2) of the said section 8.
(iii) An affidavit or affidavits showing (a) that the said agreement was valid under the law by which it was governed, (b) that the award was made by the tribunal provided for in the agreement or constituted in the manner agreed upon by the parties, (c) that it was made in conformity with the law governing the arbitration procedure, and (d) that it has become final in the country in which it was made; and
(iv) Other document or documents in support of his application.
(2) If the application under section 5 of the said Act be presented without the document specified in clause (i) of the sub-rule (1), it shall forthwith be returned to the party presenting it. If such application is unaccompanied by the documents specified in clauses (ii) and (iii) of sub-rule (1), the Court may allow time within which such documents must be filed.
11. Rule 297 of Sindh Chief Court Rules is in line with the provision of sections 7 and 8 of the Act and so also in conformity with Article 4 of the "Convention on the Execution of Foreign Arbitral Award" appended as Second Schedule to the Act of 1937. Article 4, thereof, with necessary modification has been translated into section 8 of the Act of 1937. From the bare perusal of rule 297, Sindh Chief Court Rules, it is clear that, it merely lays down in a composite manner the requirement that are to be met and fulfilled by a person seeking enforcement of a foreign award. What further is provided by rule 297(2) of Sindh Chief Court Rules is that. Any application under section 5 of the Act of 1937, deficient in any material particulars as referred to above, is to be returned to the applicant for removing the deficiency within such time as may be allowed by the Court.
12. It is not, that merely causing to file the award in Court entitles, a party to a judgment and decree according to the award. The applicant is required to satisfy the Court, that, the award, sought to be enforced as per section 7 of the Act, 1937, qualifies following conditions:
(a) Made in pursuance of an agreement of arbitration which was valid under the law by which it was governed;
(b) made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties;
(c) made in conformity with the law governing the arbitration procedure;
(d) become final in the country in which it is made;
(e) must be in respect of a matter which may lawfully be referred to arbitration under the law of Pakistan;
(f) enforcement thereof, must not be contrary to the public policy or the law of Pakistan.
13. ' Now examining the case of the plaintiff in the light of the above, plaintiff has produced (i) Certified copy of the Foreign Arbitration Award, dated 16-4-1996, (ii) certified copy of the contracts, dated 25-4-1994 and 12-5-1994 respectively containing Arbitration clause, (iii) copy of Bye-Laws and Rules of the Liverpool Cotton Association Limited, and (iv) affidavit of one, Nigel Meredith Jones to the effect that, said agreement was valid under the law by which it was governed and other requirement as laid down in sub-rule (1) to rule 297 of the Sindh Chief Court Rules.
14. ' For the foregoing discussion neither, section 8 of the Act 1937 nor, Rule 297 of Sindh Chief Court Rules nor, Article 4 of the 'Convention on the Execution of Foreign Awards' referred to by Mr. Motiani, requires that the plaintiff is bound to produce the documents as detailed in the application under discussion.
15. Contention of the learned counsel for the defendant that the plaintiff is not only required to file the award but each and every documents which has been relied upon in the award and unless said documents are filed. The defendant cannot defend the suit. Contentions of the learned counsel for the defendant are not substantiate by any provision of the Act of 1937 or the Sindh Chief Court Rules discussed above. A party interested to challenge a Foreign Award is required to satisfy the Court under subsection (2) to section 7 of the Act of 1937 that any of the following conditions exist:
(i) That the award has been set aside in the country of origin.
(ii) That opposite-party was not given sufficient notice in sufficient time to defend.
(iii) Opposite-party was under some legal disability and not able to defend properly.
(iv) The award has not decided the question referred to, and/or
(v) Award has gone beyond the scope of arbitration.
16. It is only when any of the aforesaid objections are sustained, then the Court may either refuse to enforce the award or defer implementation of a Foreign Award, for such reasonable period as may be considered proper to, enable the opponent to have the award annulled by the Competent Tribunal.
17. From the discussion made above, it is clear that plaintiff under law are not obliged to file any document not required under section 8 of the Act, read with rule 297(1), Sindh Chief Court Rules or the Convention applicable thereto. Such document may, if at all be necessary if parties are before the Arbitration Tribunal before the award is made. Once the award is made, it in fact amounts to a foreign judgment and the proceeding before this Court are merely for affirmation of award or otherwise. Only limited objections as to the validity and enforceability of the foreign award are permitted under section 7(2) of the Act of 1937 as discussed above. This Court does not sit over the Foreign Award as a Court of appeal nor will scrutinize or examine the quality of evidence before the Foreign Arbitrator, therefore, entire matter cannot be allowed to be reopened by calling for any additional evidence or documents not required under the law, this Court in fact acts like an executing Court and cannot go beyond the award, save as expressly provided for under section 7(2) of the Act of 1937, that too, for a limited, purpose to enable the defendant to question the award on merits before the competent forum in the country of origin.
18. ' It is to be noted that the written statement and objections were already filed by the defendant on 23-12-1997 contesting award on merits, without any reservation as to their rights, if any, to call for any documents or to add to any other grounds calling for any documents from the plaintiff.
19. Learned counsel for the defendant failed to point out any deficiency in terms of section 8 of the Act of 1937 or rule 297(1), Sindh Chief Court Rules for the purpose of hearing and deciding main suit.
20. I see no merit in the application, same is frivolous and is accordingly dismissed with cost of Rs,5,000 to be paid to the plaintiff within 30 days. Let matter be fixed for hearing of the objections to the award according to roster.