BRACE TRANSPORT CORPORATION OF MONROVIA, BERMUDAversusORIENT MIDDLE EAST LINES LTD., SAUDI ARABIA & ORS.

            BRACE TRANSPORT CORPORATION OF                                     A
                  MONROVIA, BERMUDA
                                    v.
  ORIENT MIDDLE EAST LINES LTD., SAUDI ARABIA & ORS.

                          OCTOBER 12, 1993
                                                                               B
            [KULDIP SINGH AND S.P. BHARUCHA, JJ]

      Foreign Awards (Recognition and Enforcement) Act, 1961-Sections
5,6 and 7-ATbilration award-Allowing of claims relating to sale of a vessel--
Injunction restraining further sale-Attachment of sale proceeds-Jurisdiction C
of Civil Coul't--74scertaining o~Amendment of petition before the Civil
Court-Directions issued.

      The appellant owned a vessel and agreed to sell the same in an
amended Norwegian sale rorm, to the second respondent, or its nominee.
Clause 15 o(the sale rorm provided that disputes arising thereunder would      D
be rererred to arbitration in England. The first respondent, who has the
nominee or the second respondent purchased the vessel. Certain disputes
arose and they were rererred to arbitration. The arbitrators were ap-
pointed by the parties and they made an award allowing certain claims or
the appellant-claimant. Pursuant to the award, the appellant recovered a       E
part of the amount awarded.

      Later, the appellant ~me to know that the said vessel was being sold
to the third respondent. The appellant gave·notice to the third respondent
of its above-mentioned claim. However, the third respondent sold the
vessel to the· fourth respondent.                                              F
      The appellant filed a petition be(ore the Civil Judge, Bhavnagar
praying for various reliers keeping in view the claims awarded by the
Arbitrator. The appellant also applied (or attachment or the sale proceeds
of the said vessel and ror an injunction restraining the third and fourth G
respondents from parting with the sale proceeds without first satist'ying
the claim or the appellant.

      The Civil Court, Bhavnagar, restrained the third respondent rrom
paying to the first respondent an amount or US$62,000 equivalent to Rs.
6,40,000 out or the price of the said vessel. The Civil Court also held that   H
                                     227
    228                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A it had jurisdiction to entertain the application of the appellant. Against
    this order, the first respondent preferred revision petition before the High ·
    Court. The revision petitions were allowed and the order of the Bhavnagar
    Civil Court was set aside. It was ordered that the petition should be
    returned to the appellant for presentation to the proper Court. The
    injunctions issued by the Civil Court were also vacated.
B
          The present appeals were preferred against the High Court's orders.

          Allowing the appeals, this Court

          HELD: .1. The New York Convention speaks of recognition and
C   enforcement of an award. An award may be recognised without being
    enforced; but if it is enforced, then it is necessarily recognised. Recognition
    alone may be asked for as a shield against re-agitation of issues with which
    the awards deals. Where a court is asked to enforce an award, it must
    recognise not only the legal effect of the award but must use legal sanctions
D   to ensure that it is carried out. [237·B·D]

          Law and Practice of International Commercial Arbitration by Redfren
    and Hunter, 1986 Edition pp.337 & 338, referred to.

           2. In the ins~nt case, the vessel having been sold to the 3rd and 4th
E    respondents it is no more an asset of the 1st or 2nd respondents and the
     award cannot be executed there against: that is why the appellants claim
    ·in the application to have a maritime lien. But the Bhavnagar court has,
     admittedly, no jurisdiction to enforce a martime lien, assuming it to exist.
                                                                       [239·B·CJ
F       3. This being an award for money its subject matter may be paid to
  be money. It is for the appellant to ascertain where the monies were held
  and, if they were held within the jurisdiction of the Bhavnagar court, to
  apply for an amendment of the jurisdiction paragraph of its application
  to the Bhavnagar court accordingly. The Bhavnagar court would then,
  after notice to the parties, consider whether or not the amendment should
G be allowed. It would, ordinarily, have in regard to the object of the Foreign
  Awrads (Recognition and Enforcement) Act, 1961, and the fact that these
  events have transpired aft~r the application to it was fil~d, allow the
  amendment. Thereafter, it would determine whether the averment in the
  amendment is correct. In the event of its coming to the conclusion that the
H 1st and 2nd respondents had monies within its jurisdiction, it would be
          TRANSPORT CORP. v. V.S. ARABIA [BHARUCHA, J:)                 229

said to have jurisdiction to take the award on file under Section 5 of the A
said Act and it would proceed thereafter under the subseqent provisions
of the said Act. [239-D; 240-8-E]

      [This Court directed that if no application for amendment is made
by the appellant to the Bhavnagar court within 16 weeks, the respondent
shall be entitled to withdraw the amount of Rs.6,40,000 deposited by it in B
the Registry of this Court, and in the event of such an application being
made within time, the amount of Rs.6,40,000 deposited by the 3rd respon-
dent in the Registry of this Court shall stand transferred to the credit of
the application of the appellant in the Bhavnagar court and its disposal
shall be subject to the orders of the Bhavnagar court.] [240-G-H;241-A)     C
     CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 5438-
39of1993.

     From the Judgment and prder dated 8.5.85 of the Gujarat High
Court in Appeal from Order No. 155 ()f 1984.                      D
                                                                                   ·-
     Dr. Sbankar Ghosh, A.K. Sil, G. Joshi and G. Kandpal for the
Appellant.

      D.P~ Gupta, Solicitor General, O.P. Rana, and Mrs. K. Sarda Devi
for the Respondents.                                                           E
      The Judgments of the Court was delivered by

      BHARUCHA, J, Leave granted

      Heard.                                                                   F
      These appeals raise in interesting question relating to the Foreign
Awards (Recognition and Enforcement) Act. 1961 (now referred to as the
said Act).

      The appeals concern that was an ocean going vessel originally called     G
Leda Maersk and thereafter Saudi Cloud. The appellant M/s Brace
Tr~sport Corporation of Monrovia a Corporation incorporated under the
laws of Liberia was the owner of the said vessel. It agreed to sell the sam~
in an amended Norwegian sale form dated 24th February. 1981 to the
second respondent M/s Orri Navigation Lines Saudi Arabia, Jeddah or its        H
     230                    SUPREME COURT REPORTS (1993) SUPP. 3S.C.R.

__ A. . . nominee for the sum of US$ 15,50,000. Clause 15 of the sale form provide
      that disputes arising thereunder would be referred .to arbitration in
      England. The nominee of the second respondent who purchased the said
      vessel was the first respondent. Orient Middle East Lines. Ltd. Saudi
      Arabia, Jeddah. Disputes having arisen they were referred to arbitration.
      The Arbitrators appointed by the parties made an award on 25th August,
 B    1983. Holding that:

              (a) the Claimants succeed in their claim for the balance of the
              purchase price in the sum of US $ 155000.

              (b) the Claimants succeed in their claim for damaged for late
 c            acceptance of the ship by the buyers in the sum of US ·s 24,252,

              ( c) the Claimants succeed in their claim· for the cost diesel on
              board at delivery in the sum of US $ 3280;

 D            (d) the Claimants succeed in their claim for expenses paid on
              behalf of the Buyers in respect of Polish Officers in the sum of US
              $ 2,976.

    Pursuant thereto the appellant recovered a part of the amount awarded,
    leaving unpaid the amount of US $ 56789 47 and interest and costs. The
 E cost of the award was taxed and settled at US $ 1172 and the appellants
  · costs in the reference at U $ 10,000.

            On or about 15th December, 1983, the appellant learnt that the said
      vessel was being sold to the third respondent, an Indian Government
      company. The appellant gave notice to the third respondent of its
 F    aforementioned claim. However the said vessel was purchased by the third ·
      respondent and sold by the third respondent, in turn to the fourth respon-
      dent, a partnership firm having its office at Bhavnagar in the State of
      Gujarat for the purposes of being broken up at the port of Alang near
      Bhavnagar. We are informed that the said vessel is now beached at Alang.
 G
            On 6th January, 1984 the appellant filed a petition in the court of the
     Civil Judge, Senior Division, Bhavnagar and prayed for the following reliefs
     under the said Act:

                 (a). That the notice of this petition/application be directed to
 H            be given to the respondents requiring them t<;> show cause why the
.    TRANSPORT CORP. v. V.S. ARABIA [BHARUCHA, J.)                231

    said (Exhibit 0) should not been filed in this Hon'ble Court within A
    the time specified by this Hon'ble Court;

    (b) That this Hon'ble Court may be pleased to order that the said
    award (Exhibit) be filed in this Hon'ble Court.

    (c) That judgment be pronounced and decree passed in terms of         B
    the award in favour of the petitioners ordering the respondents
    N.o. 1 and/or 2 to pay to the petitioners a sum of US dollars
    56,789,47 equivalent to Indian Rs. 5,84,931,54 with interest at 15%
    per annum from the date of the .award until payment/realisation.

    (d) For costs of the award in the sum of US dollars 1,172,00
                                                                          c
    equivalent to Indian Rs. 17,908.16 as taxed and settled by the
    learned arbitrators in terms of the said award.

    (e) For the petitioners cost of reference to arbitration being U~
    Dollars 10,000000 equivalent to Indian Rs. 1,52,800,00.               D
    (t) For a permanent order and injunction of this Hon'ble Court
    restraining the respondents their servants from sailing or causing
    to sale the said vessel SAUDI CWUD' at present lying in the port
    of Alang in the district of Bhavnagar. Gujarat and/or receiving or
    respastriction/withdrawing any amount out of the sale proceeds        E
    are lying with the respondents No.3 and/or No.4 unless and until
    the award, the oosts of the award and the petitioners costs of
    reference in this Hon'ble Court and/or execute the necessary bank
    guarantee in favour of the petitioners.
                                                                          F
    (g) That pending the hearing and final disposal of this petition for
    an order and injunction of this Hon'ble Court restraining the
    respondent No. 1 and/or 2, their servants and/or agents from scliling
    or causing to sail the said vessel SAUDI CLOUD' at present lying
    in the port of. Alang in the district of Bhavnagar. 'Gujarat and/or . G
    receiving or repartinglwithdrawing any amount of the said sale of
    the said vessel Saudi Cloud' which sale proceeds are lying with the
    respondents No.3 and/or 4 unless and until the respondents No.1
    and/or 2 pay to the petitioners the sum of Rs. 7,84,884,27 being
    the balance amount under the award the cost of the award and
    the cost of reference or deposit the said sum of Rs. 7,84,884,27 in H
      232                SUPREME COURT REPORTS (1993) SUPP. 3 S.CR..

 A          this Hon'ble Court and/or execute the necessary Bank guarantee
            in favour of the petitioner.

            (h) for an order and injunction of this Hon'ble Court restraining
            the respondents No.2 and/or 4 their servants and/or agent from
            paying and/or remitting and/or crediting any amo!;lnt of the sale
 B          proceeds of the vessel SAUDI CLOUD to respondents No.1
            and/or 2 unless and until the respondents No.1 and/or 2 pay to the
            petitioners a sum of Rs.7,84,884,27 or deposit the said sum in this
            Hon'ble Court and or execute the necessary bank· guarantee in
            favour of the petitioners.
 c                                     I

            (i) Pending the nearing and. final disposal of this petitioners for an
            order and injunction of this Hon'ble Court restraining remitting
            and/or crediting any amount of the same proceeds of the said vessel
            SAUDI CLOUD to respondents No.1 and/or 2 unless and until
            the respondents No. 1. and/ or 2 pay to the petitioners a sum of
 D          Rs;7,84,884,27 or deposit the said sum in this Hon'ble Court and/or
            execute the necessary Bank guarantee in favour of the petitioners

            (j) For a mandatory order the injunction of this Hon'ble Court
            directing the respondent No.3 and/or 4 to deposit in this Hon'ble
            Court a sum of Rs. 7,84,884,27 which is the amount due and
 E
            payable by the respondents No.1 and/or 2 to the petitioners being
            the balance of the amount under the award the costs. of the award
            and the petitioners costs of reference to arbitration.

            (k) Pending the hearing and final disposal of this petition for an
 F          order and injunction of this Hon'ble Court directing the respon-
            dents No.3 and/or 4 to deposit a sum of Rs.7,84,884,27 in this
            Hon'ble Court which is the amount payable by the respondent No.1
            and/or 2 to the petitioners being the balance of the amount under
            the award the costs of the award and the petitioners costs of
            reference to arbitration.
 G
            (1) Pending the hearing and final disposal of the petition for an
            order of attachment before judgment under order Rule 45 of the
            Civil Procedure Code 1908 on the said vessel SAUDI CLOUD at
            present lying in the Port Alang in the district. of Bhavnagar Gujarat
i H         and/or on the money being the sale procees of the purported also
             1RANSPORTCORP. v. V.S.ARABIA[BHARUCHA,J.)                       233.

            of the vessel SAUDI CLOUD lying with respondents No.3 and or            A
            4.

            (m) Pending the hearing and final disposal of this petition for an
            order and injunction of this Hon'ble Court restraining the respon-
            dents their servants and/or agents from the breacking up or dis-
            mantling or scrapping or causing a break up or dismantle or scrap       B
            the vessel SAUDI CLOUD at present lying at the port of Alang
t           in the district of Bhavnagar in Gujarat unless and until the respon-
R
            dents pay to the petitioners a sum of Rs. 7,84,884,27, being the
            amount due and payable by respondents 1 and/or 2 to the
            petitioner, viz. the balance amount under the record, the costs of      C
            the award as taxes and restled by the lezard arbitrators and the
            petitioners cost of reference to arbitration.

            (n) for ad interim reliefs in terms of payable s.1.k.o and m

            (o) for cost of this petition and                                       D

            (p) for such other and further reliefs and as the nature and
            circumstances of the case niay require

    The appellants also applied under the provisions of Order 38, rule 5 and
    Order 39 rules 1 and 2 and Section 151 of the Code of Civil Procedure for       E
    the attachment of the sale proceeds of the said vessel and for an injunction
    restraining the third and the fourth respondents from parting with the sale
    proceeds without first satisfying the claim of the appellant. On 6th January,
    1984, the Bhavnagar court passed the following order.
                                                                                    F
                Heard the plaintiffs advocate Shri BJ. Bhatt. Read this ap-
            plication affidavit in support thereof and other papers. Issue Notice
            to defendant No.4 returnable on 21.1.1984 to show cause why they
            should not be required to furnish security in the sum of Rs. 8,00,000
            to secure the decree that may be passed in favour of the plaintiff.
            The defendant Nos. 3 and 4 are also restrained till 21.1.84 by an G
            ex parte ad-interim injunction from disposing breaking or removing
            the vessel name SAUDI CLOUD more particular described in this
            application from port Alang, Yadi to Asst. Collector of Custom,
            Alang Bhavnagar as prayed for Urgent process. Plaintiff to supply
            copies to the defendants as required by 0.39 R.3 of C.P.C.            H
    234                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   Notices were served upon the respondents. The first and second respon-
    dents filed an affidavit and challenged the jurisdiction of the Bhavnagar ·
    court. The 4th respondent also filed an affidavit. It was stated on behalf of
    the 4th respondent that the 4th respondent had made full payment of the ·
    purchase price to the third respondent and that the said vessel was in the
    4th respondent's possession. The third respondent did not file any ap-
B   pearance before the Bhavnagar court. On 3rd February 1984, the Bhav-             I-
    nagar court restrained the third respondent frnm paying to the first
    respondent an amount of US $ 62,000 equivalent to Rs. 6,40,000 from              t
    within the price of the said vessel. It clarified that the balance price could
    be paid by the 3rd respondent to the first respondent. On 5th March, 1984,
C   the Bhavnagar court, having heard arguments held that it had jurisdiction
    to entertain the appellant's application and it continued the operation of
    the order aforementioned.

           As against the aforesaid order of the Bhavnagar court, revision
D   petitions were preferred by the first respondent to the High Court of
    Gujarat. The revision petitions were allowed. The order of the Bhavnagar
    court holding that it had jurisdiction to entertain the appellant's petition
    was set aside and it was ordered to return the petition to the appellant for
    presentation to the proper Court. The injunction issued by the Bhavnagar
    court was vacated.
E
         These appeals are directed against the judgment and order of the
    Gujarat High Court.

           Notices were issued to the respondents upon the special leave peti-
F   tions. But they have not appeared On 27th May 1985, the 3rd and 4th
    respondents were restrained from making payment of the sum of
    Rs.6,40,000 to the first and second respondents and that order continued
    to operate until 12th April, 1993 when this Court directed the 3rd and 4th
    respondents to deposit the sum of Rs. 6,40,000 in the registry within 8
    weeks. Pursuant to this order the 3rd respondents without protest,
G   deposited the sum of Rs. 6,40,000 in the Registry on 7th June, 1993.

         Since the respondents were not appearing, the Solicitor General was
    requested to assist the Court amicus curiae and the Supreme Court Legal
    Aid Committee to appoint a senior advocate for the same purpose. We are
H   indebted to the Solicitor General and c:Ounsel for their assistance .
                                         •
         TRANSPORT CORP. v. V.S. ARABIA [BHARUCHA, J.)                  235

       The said Act has been placed on the st:..itute book to enable effect to A
be given to the Convention on the Recognition and Enforcement of Ar-
bitral Awards, done at New York on the tenth day of June, 1958, to which
India it is a party and for purposes connected therewith. Section 2 of the
said Act defines a foreign award to mean an award on differences between
persons arising out of legal relationship, whether contractual or not con- B
sidered as commercial under the law in force in India, made on or after
the 11th day of October, 1960 in pursuance of an agreement in writing for
arbitration to which the New York Convention applies and in one of such
territories as the Central Government, being satisfied that reciprocal
provisions have been made may, by notification in the Official Gazette C
declare to be territories to which the New York Convention applies.
Section 3 says that, notwithstanding anything contained in the Arbitration
Act, 1940 or in the Code of Civil Procedure, 1908, if any party to an
agreement to which Article II of the New York Convention applies com-
mences any legal proceedings in any court against any other party to the
agreement in respect of any matter agreed to be ·referred to arbitration in ~
such agreement any party to such legal proceedings may apply to the court
to stay the proceedings and the court, unless satisfied that the agreement
is null and void, inoperative or incapable of being performed or that there
is not, in fact, any dispute between the parties with regard to the matter
agreed to be referred shall make an order staying the proceedings. By E
reason of Section 4 a foreign a'.vard shall, subject to the provisions of the
said Act, be enforceable in India as if it were an award made on a matter
referred to arbitration in India .. Any foreign award which would be enfor-
ceable under ·the said Act shall be treated as binding for all purposes on
the persons as between whom it was made, and may accordingly be relied F
on by any of those persons by way of defence, set off or otherwise in any
legal proceedings in India. Sub-section (1) of Section 5 is the most relevant
provision of the said Act for our purposes and its reads thus:

        Any person interested in a foreign award may apply to any Court
        having jurisdiction over the subject matter of the award that the      G
        award be filed in Court.

Section 6 states that where the court is satisfied that the foreign award is
enforceable under the said Act, it shall order the award to be filed and
shall proceed to pronounce judgment according to the aw~d. Upon the            H
    236                   SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A judgment so pronounced a decree shall follow. Section 7 sets out the
    conditions for enforcement of a foreign award. It states that a foreign
    award may not be enforced under the said Act, if, inter alia, the award
    deals with questions not referred or contains decisions on matters beyond
    the scope of the agre.ement, provided that if the decisions on mattes
    submitted to arbitration can be separated from those not submitted that
B   part of the award which contains decisions on matters submitted to arbitra-
    tion may be enforced foreign award, it also states, may not be enforced if
    the Cour.t is satisfied that the subject matter of the difference is not capable
    of settlement by arbitration under the law in India. Section 8 sets out what
    evidence the party applying for the enforcement of an award shall produce.
c
          Reference may also be made, with advantage, to the relevant terms
    of the New York Convention. Clause I of Article I states that the New York
    Convention shall apply to the recognition and enforcement of arbitral
    awards made in the territory of a State other than the State where the
D   recognition and enforcement of s~ch award is sought, and .arising out of
    differences between persons where physical or legal. It shall also apply to
    arbitral awards not considered as domestic awards in the State where their
    recognition and enforcement are sought. Article II requires each contract-
    ing State to recognise an agreement in writing under which the parties
    undertake to submit to arbitration all or any differences which have arisen
E   or which may arise between them in respect of defined legal relationship.
    Whether contractual or not, concerning a subject matter capable of set-
    tlement by arbitration. The term agreement in writing includes an arbitral
    clause in a contract. The court of a contracting State, when seizes of an
    action in a matter in respect of which the parties have made in agreement
F   within the meaning of Article II.? shall upon the request of one of the
    parties refer the parties to arbitration unless it finds that the agreement is
    null and void, inoperative or incapable of being performed. Article III
    requires each contracting State to recognise arbitral awards as binding and
    enforce them in accordance with the rules of procedure of the territory
G   where the award is relied upon, under the conditions laid down in the
    Articles of the New York Convention Article IV sets out the documents
    which the party applying for recognition and enforcement must produce.
    Article V?states that recognition and enforcement of the award may be
    refused at the request of the party against whom it is invoked only if that
    party furnishes to the competent authority from whom recognition and
H   enforcement is sought proof that, inter alia, the award deals with a dif-
          TRANSPORTCORP. v. V.S. ARABIA [BHARUCHA,J.)                       237

ference not contemplated by or not falling within the terms of the sub-            A
missi9n to arbitration or it contains decisions on matters beyond the scope
of the submission to arbitration, provided that if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that
part of the award which contains decisions on matters submitted to arbitra-
tion may be recognised and enforced. Recognition and enforcement of                B
arbitral awards may also be refused if it is found that the subject matter of
the difference is not capable of settlement by arbitration under the law of
that country.

       Before we deal with the facts of the case before us, a statement of
some broad principles is necessary. The New York Convention speaks of              C
recognition and enforcement" of an award. An award may be recognised
without being enforced; but if it is enforced, then it is necessarily recog-
nised. Recognition alone may be asked for as a shield against re-agitation
of issues with which the award deals. Where a court is asked to enforce
an award, it must recognise not only the legal effect of the award but must
use legal sanctions to ensure that it is carried out. In the Law and Practice      D
of International Commercial Arbitration by Redfern and Hunter (1986
edition) it is said (at pages 337 and 338):

        A party seeking to enforce an award in an international commercial
        arbitration may have a choice of country in which to do so; as it          E
        is sometimes expressed, the party may be able to go forum shop-
        ping. This depends upon the location of the assets of the losing
        party. Since the purpose of enforcement proceedings is to try to
        ensure compliance with an award by the legal attachment or
        seizure of the defaulting party's assets, legal proceedings of some
        kind are neeessary to obtain title to the assets seized or their           F
        proceeds of sale. These legal proceedings must be taken in the
        state or states in which the property or other assets of the losing
        party are located.

        xxx:                              xxx:                              xxx:   G
        In other words, the place or arbitration will have been chosen as
        a neutral forum. It will be rare for the parties to have assets situated
        within this neutral country; and the award if it has to be enforced
        must generally be enforced in a country other than that in which
        it was made. This is why it is so important that international awards      H
    238                  SUPREME COURT REPORTS (1993)SUPP. 3 S.C.R.

A           should be recognisable and enforceable international, and not
            merely in the country in which they are made; moreover, unlike
     '·
            the place of arbitration, the place of recognition and enforcement
            will not be chosen by or on behalf of the parties. It will depend
            upon the circumstances of each particular case.

B           So far as recognition of an international award is concerned the
            successful party only needs to seek recognition if proceedings are
            brought against him in respect of a matter which has already been
            dealt with and made the subject of an award. The party who is
            sued will then wish to rely on the award by way of defence or set
c           off or in some other way in the court proceedings. For this purpose
            he will ask the court concerned to recognise the award as binding
            on the person between whom it was made. It is impossible to know
            in what court or in what country such proceedings are likely to be
            brought and this fact emphasises once again how important it is
            that international awards should be truly international in their
D           validity and effect.

            Where it becomes necessary to enforce an international award the
            position is different. ·The first step is to determine the country or
            countries in which enforcement is to be sought. In order to reach
E           this decision the party seeking enforcement needs to locate the
            state or states in which the losing party has (or is likely to have)
            assets available to meet the award.

          Now, Section 5(1) of the said Act says that any person interested in
    a foreign award may apply to any court having jurisdiction over the subject
F   matter of the award that the award be filed in court. Dr. Ghosh learned
    counsel for the appallent submitted that the said vessel was within the
    jurisdiction of the Bhavnagar court and the Bhavnagar court had therefore,
    jurisdiction to take the award on file. The jurisdiction paragraph of the
    applications to- the Bhavnagar court reads thus :
G               The petitioners submit that the respondent No. 1 and or 2 have
            no assets whatsoever with the jurisdiction of this Hon'ble Court
            or elsewhere in India the only assets which is available within the
            jurisdiction of this Hon'ble Court is the said vessel SAUDI
            CLOUD. The petitioners submit that the respondent No. 1 and/or
H           2 and/or 3. With intent to delay obtruct and defeat the execution
         TRANSPORT CORP. v. V.S. ARABIA [BHARUCHA, J.)                 239

        of any decree that may be passed in this petition against them have A
        sold the said vessel SAUDI CLOUD. The petitioners further
        submit that they have a marti-time lien on the said vessel SAUDI
        CLOUD and the respondents No. 1 and/or 2 and/or submit that
        it is just necessary and in the interest of justice that this Hon'ble
        Court be pleased to order attachment before judgment of the B
        vessel SAUDI CLOUD at present lying in port Alang in the district
        of Bhavnagar, Gujarat.

The said vessel having been sold to the 3rd and 4th respondents it is no
more an asset of the 1st of 2nd respondents and the award cannot be
executed thereagainst, which is why the appellants claim in the application   C
to have a maritime lien. But the Bhavnagar court has, admittedly, no
jurisdiction to enforce a maritime lien, assuming it to exit.

      It was then submitted by Dr. Ghosh that the subject-matter of the
award was money and the 1st and 2nd respondents had money in the
jurisdiction of the Bhavnagar Court in the form of part of the purchase D
price of the said vessel payable to them by the 3rd and 4th respondents.

     This being an award for money its subject-matter may be said to be
money, just as the $ubject-matter of a money-decree may be said to be
money.
                                                                              E
      The appellant's application to the Bhavnagar court stated, as
reproduced above, that the first and second respondents had no assets
within the jurisdiction of the Bhavnagar court or elsewhere in India.
However, having regard to the object of the said Act, note may be taken
of events that have transpired subsequently. The case of the 4th respondent F
before the Bhavnagar court was that it had paid over the full purchase price
of the said vessel to the 3rd respondent. Thereupon the Bhavnagar court
injected the 3rd respondent from paying the amount of Rs. 6,40,000 to the
1st and 2nd respondents and permitted the 4th respondent to break the
said vessel. When this Court called upon the 3rd and the 4th respondents
to deposit the amount of Rs. 6,40,000 in its Registry it was as we find from G
the record, the 3rd respondent which made the deposit. The deposit was
made without protest and the 3rd respondent had not appeared before this
Court to contend that the amount of Rs. 6,40,000 was not due to the 1st
and 2nd respondents as part of the purchase price of the said vessel. It can
therefore, be said .that the 3rd respondent was holding monies in the H
    240                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A amount of Rs. 6,40,000, of the 1st and 2nd respondents.

          The 3rd respondent as the cause title shows is a Government com-
    pany that the its registered office at Calcutta and a regional officer at
    Bombay. It is not known where the 3rd respondent held the said amount
    of Rs. 6,40,000.
B
           It is now for the appellant to ascertain where the monies were so
    held and, if they were held within the jurisdiction of the Bhavnagar court,
    to apply for an amendment of the jurisdiction paragraph of its application
    to the Bhavnagar court accordingly. The Bhavnagar court would then, after
C   notice to the parties, consider whether or not the amendment should be
    allowed. It would, ordinarily having regard to the object of the said Act
    and the fact that these events have transpired after the application to it was
    filed, allow the amendment. Thereafter it would determine whether the
    averment in the amendment is correct. In the event that it came to the
D   conclusion that the 1st and 2nd respondents had monies within its jurisdic-
    tion; it· could be said to have jurisdiction to take the award on file under
    Section 5 of the said Act and it would proceed thereafter under· the
    subsequent provisions of the said Act.

E        The appeal, therefore, succeeds and is allowed to the aforesaid
  extent. The judgment and orders under appeal are set aside. In the event
  that the appellant applies to the court of the Civil Judge. Senior Division,
  Bhavnagar, for an amendment of its petition within 16 weeks from today
  so as to over that the 1st and 2nd respondents had monies within its
F jurisdiction, the Bhavnagar court shall consider, after notice to the parties,
  the grant of such amendment. If it allows such amendment, it shall
  consider the correctness of the averment therein. If it comes to the con-
  clusion that the 1st and 2nd respondents did have monies within its
  jurisdiction, the Bhavnagar court shall take the award on file under the
  provision of Section 5 of the said Act and shall proceed thereafter in
G accordance with its subsequent provisions.

          In the event that no application for amendment as aforementioned
    is made by the appellant to the Bhavnagar court within 16 weeks from
    today the 3rd respondent shall be entitled to withdraw the amount of
H   Rs.6,40,000 deposited by it in the Registry of this Court. In the event of
          TRANSPORT CORP. v. V.S. ARABIA [BHARUCHA, J.)             241

such an application being made within the time aforemeµtioned the amount A
of Rs.6,40,000 deposited by the 3rd respondent in the Registry of this Court
shall stand transferred to the credit of the application of the appellant in
the Bhavnagar court and its disposal shall be subject to the order of the
Bhavnagar court.

       There shall be no order as to costs.                               B

G.N.                                                    Appeal allowed.