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2019 DIGILAW 2540 (BOM)

Nobel Resource Ltd v. Dharni Sampda Private Ltd

2019-11-18

R.I.CHAGLA

body2019
JUDGMENT : R.I. Chagla, J. This Notice has been filed by the Applicant under Order XXI, Rule 22 of the Code of Civil Procedure, 1908 ("CPC") in respect of foreign award dated 13th July, 2016 ("the foreign award") passed at Singapore. The Applicant has sought leave of this Court to execute the foreign award. The Notice has been contested by the Judgment Debtor/Respondent and the objections are heard in this Notice without the requirement of filing a separate Petition under Section 48 of the Arbitration and Conciliation Act, 1996 ("the said Act"). The foreign award has been passed by the Sole Arbitrator appointed in accordance with Singapore International Arbitration Centre, SIAC Rules in arbitration initiated by the Applicant under Clause 14 of the Deed of Agreement dated 7th June, 2013 against the Respondent. 2. The foreign award which is sought to be enforced by the Applicant directs the Respondent to pay :- (a) EUR 290,920.70, USD 3570,333.49 and GBP 36,162.41 due and owing under the Deed of Agreement dated 7th June, 2013 and alternatively damages in the same amount; (b) Basic Interest (Basic Interest) in the sums of USD 5751.71 plus EUR 4284.78 plus GBP 573.84 till the date of the Statement of Claim (27th October, 2014) and from 28th October, 2014 until the later of the final New York banking day of December, 2014 or the date of full settlement of the remaining Outstanding Dues; (c) Default interest in the sums of USD 100,181.49 plus EUR 8919.23 plus GBP 1,120.33 till the date of the Statement of Claim (27th October, 2014) until the settlement of the remaining Outstanding Dues, Outstanding Interest and Basic Interest; (d) USD 924,877.65 as the Applicant's legal costs and expenses; (e) SGD 88,308.29 as reimbursement of the advance on costs paid by the Applicant to the SIAC. 3. Before adverting to the objections raised by the Respondent to the Notice, it would be appropriate to set out a brief background of facts which culminated in the foreign award. 4. In 2008, the Applicant, Respondent and one Taurian Manganese ("Taurian") executed two agreements namely Purchase Contract dated 22nd January, 2008 for sale and purchase of manganese and the loan agreement dated 3rd July, 2008 by which the Applicant advanced a loan to the Respondent. 5. 4. In 2008, the Applicant, Respondent and one Taurian Manganese ("Taurian") executed two agreements namely Purchase Contract dated 22nd January, 2008 for sale and purchase of manganese and the loan agreement dated 3rd July, 2008 by which the Applicant advanced a loan to the Respondent. 5. Since there were dues owed by the Respondent to the Applicant under the Purchase Contract and Loan Agreement, the Applicant, Respondent and Taurian entered into two agreements namely Cargo Repayment Agreement under which the Respondent admitted its liability to repay the amount USD 2,97,364 which was due to the Applicant for cargo loss or mark loss and which stipulated monthly repayment of the cargo loss by the Respondent and the loan repayment agreement under which the Respondent admitted its liability to repay the amount USD 1,518,655.29 and EURO 1,200,000 and stipulated monthly repayment of the same. 6. Thereafter, the amount due and payable by the Respondent to the Applicant under the aforementioned agreements were crystallized under a single agreement viz. the Deed of Agreement dated 7th June 2013. Under the Deed of Agreement, the Respondent has admitted its debts due to the Applicant and promised to pay in agreed installments. Under the recitals of the Deed of Agreement the parties have categorically agreed and confirmed the amount payable by the Respondent to the Applicant which is mentioned in Clause 3 of the Deed of Agreement. It has stipulated monthly repayment of the aforementioned dues till such amounts mentioned therein were repaid in full. It is further provided in Clause 7(b) of the said Deed of Agreement that in the event of default, the entire amount shall become payable. Clause 10 of the Deed of Agreement provides that the Deed of Agreement constitutes the entire agreement between the parties and supersedes all prior oral and written negotiations/agreement between the parties. Further, under Clause 14(b) of the said Deed of Agreement all disputes under the Deed of Agreement have been referred to the Arbitration Proceedings at Singapore to be governed by the SIAC Rules. 7. The Respondent made payments under the Deed of Agreement till 2013 and thereafter committed defaults on its payments under the said Deed of Agreement. Accordingly, the claimant initiated the arbitration proceedings as provided under Clause 14 of the Deed of Agreement before the SIAC. 8. It appears that during the arbitration proceedings certain events pertaining to the evidence of one Mr. Accordingly, the claimant initiated the arbitration proceedings as provided under Clause 14 of the Deed of Agreement before the SIAC. 8. It appears that during the arbitration proceedings certain events pertaining to the evidence of one Mr. Anurag Bhatnagar which have been relied upon by the Respondent in raising its objection to the enforceability of the foreign award are required to be referred herein to below : (a) Certain procedural orders had been issued by the Arbitrator which included submission of list of witnesses by the parties. The Respondent submitted its list of witnesses with the Arbitrator on 9th January, 2015 and in which list the name of Mr. Anurag Bhatnagar, an Ex-employee of the Applicant / Claimant was included. It appears that in the defence raised by the Respondent to the claim of the Claimant, an oral agreement was pleaded and reliance was placed on such oral agreement for contending that the parties viz. Mr. Bhatnagar for the Claimant and Mr. Bajla for Respondent had agreed that the aforementioned written agreement viz. Cargo Repayment Agreement and the Loan Repayment Agreement was not to be acted upon. Mr. Bhatnagar, was claimed to be aware of the representations and proposals made by the Claimant to the Respondent prior to the execution of the Deed of Agreement as well as Repayment Agreement. (b) On 9th January, 2015, the Claimant through its Advocate Reed Smith PTE LLP addressed a letter to Mr. Bhatnagar which has been relied upon by the Respondent to contend that Mr. Bhatnagar was threatened of grave legal consequences and accused of fraud, deception and conspiracy if he deposed in favour of the Respondent and was called upon to give witness statement on the Claimant's behalf. (c) On 11th January, 2015, a procedural order came to be passed by the Arbitral Tribunal recording inter alia the claim of the parties that they would be sharing the witness statements by 16th January, 2015 and directing the parties to exchange the witness statements by 5 p.m. on 16th January, 2015. (d) On 21st January, 2015, Mr. Bhatnagar, through its Advocate Mayer Brown JSM, replied to the letter of the claimant's Advocate dated 9th January, 2015 taking offence to the language and the tenor of the said letter. (d) On 21st January, 2015, Mr. Bhatnagar, through its Advocate Mayer Brown JSM, replied to the letter of the claimant's Advocate dated 9th January, 2015 taking offence to the language and the tenor of the said letter. It has been stated in the said letter that if the claimant's Advocate had contacted the Respondent, they would have learnt that no witness statement had been given to the Respondent. The Advocate for Mr. Bhatnagar has confirmed that the written agreements entered into between the Claimant and the Respondent are valid and binding and that there was never any "side agreement" that the written agreements were not legally enforceable. It is further stated that a written statement of Mr. Bhatnagar shall be prepared which will be issued to both Claimant and the Respondent in the Singapore Arbitration. (e) On 28th January, 2015, the Claimant's Advocate replied to the aforementioned letter dated 21st January, 2015 of the Advocate of Mr. Bhatnagar and contended that their prior letter had not made any defamatory statement and/or threats against Mr. Bhatnagar and that the Claimant's Advocate would be grateful if Mr. Bhatnagar would respond in detail to the allegations contained in the amended statement of defence. (f) On 2nd February, 2015, the Advocates for Mr. Bhatnagar reiterated Mr. Bhatnagar's position that there was no side agreement or representation that the Claimant would not take steps to enforce the repayment agreements or that they were otherwise a sham. (g) On 12th February, 2015, a letter was addressed by the Advocates for the Claimant to the Advocate for Mr. Bhatnagar, wherein Mr. Bhatnagar was requested to respond to the very serious allegations made by the Respondent in the amended statement of defence. (h) On 25th February, 2015, the Advocates for Mr. Bhatnagar has although referring to threat of criminal proceedings by the Claimant's Advocates which was stated to continue to remain as well as threat of legal recourse against Mr. Bhatnagar, they have requested the Claimant's Advocate to provide copies of the supporting documentation together with the copies of the witness statements served by the parties. This would be required for the Advocates for Mr. Bhatnagar to prepare his written statement which will be issued to both the parties in the arbitration. (i) On 17th March, 2015, the Advocates for Mr. Bhatnagar addressed an email to the Advocates for the Claimant reiterating Mr. This would be required for the Advocates for Mr. Bhatnagar to prepare his written statement which will be issued to both the parties in the arbitration. (i) On 17th March, 2015, the Advocates for Mr. Bhatnagar addressed an email to the Advocates for the Claimant reiterating Mr. Bhatnagar's intention to give written statement to both parties. (j) On 18th March, 2015, the Arbitral Tribunal passed procedure order No.11 recording that the Claimant have served witness statement on 11th March, 2015 and granting the Respondent time till 24th March, 2015 to file their witness statement. The schedules has been laid down by the Arbitral Tribunal for the Claimant to file their responsive statement by 7th April, 2015 and the response witness statement of the Respondent shall be submitted within one week of the Claimant's witness response statement being served upon the Respondent. The opening statements were to be submitted by 21st April, 2015 and the oral/evidentiary hearing is re-fixed and to take place from 28 to 30th April, 2015. (k) On 24th March, 2015, the Respondent's Advocate served the witness statement of Mr. Bhajla. Thereafter, no response witness statement was filed by the Respondent to the Claimant's witness statement. (l) On 13th April, 2015, the Advocates for Mr. Bhatnagar addressed an email to both the Claimant and Respondent informing them that Mr. Bhatnagar would be in position to issue written statement to both parties by the following week. The Advocates for the Claimant responded to this email requesting confirmation on when Mr. Bhatnagar witness statement could be expected and the availability of Mr. Bhatnagar to lead evidence on either 29 or 30th April, 2015. (m) The Advocates for the Respondent on 14th April, 2015 addressed an email to the Arbitral Tribunal of the prospect of Mr. Bhatnagar providing a witness statement which according to them would be potentially influenced and prejudiced by the Claimant. However, in the context of the correspondence generated by the Claimant's lawyers in relation thereto, they have stated that the same is of "little value save for unnecessary posturing". (n) The Arbitral Tribunal responded to the Advocate for the Respondent's email by inviting comments from the Claimant as to whether it intended to submit Mr. Bhatnagar's witness statement without making the witness available for Cross examination. The Arbitral Tribunal also noted that depending on the Claimant's response the Tribunal will decide as to whether Mr. (n) The Arbitral Tribunal responded to the Advocate for the Respondent's email by inviting comments from the Claimant as to whether it intended to submit Mr. Bhatnagar's witness statement without making the witness available for Cross examination. The Arbitral Tribunal also noted that depending on the Claimant's response the Tribunal will decide as to whether Mr. Bhatnagar's witness statement should be admitted and what weight should be given to it, if admitted. (o) On 15th April, 2015, the Advocates for Claimant responded to the Arbitral Tribunal that the background to the Respondent naming Mr. Bhatnagar as one of its key witnesses is unclear. The Respondent had not disclosed any correspondence pertaining to the same. They have stated that the Advocates for the Respondent was attempting to exclude any and all evidence from any other party who alleges was a party to the oral agreements. They have stated that the main defence of the Respondent in the arbitration being based on Mr. Bhajla's witness statement viz. the statement of oral agreements between himself and Mr. Bhatnagar. (p) On 15th April, 2015, the Arbitral Tribunal issued procedural Order No.15 regarding the arrangement for the calling of Mr. Bhatnagar as witness by both the parties. The witness or his lawyers was not to be communicated unilaterally and endeavor should be made to send joint letters to his lawyers or otherwise copy to the other side and no letters should make any threats. Mr. Bhatnagar must also agree to be cross examined on his statement. (q) By an email dated 24th April, 2015, the Advocates for Mr. Bhatnagar forwarded a signed statement of Mr. Bhatnagar to the Claimant and the Respondent as well as the arbitrator. The Arbitrator admitted the witness statement of Mr. Bhatnagar subject to cross examination by the Respondent. This was pursuant to the several emails exchanged between the Advocates for the Claimant and the Respondent as well as the Advocate for Mr. Bhatnagar regarding inclusion of Mr. Bhatnagar witness statement which was provided to the Arbitrator. The Tribunal had requested for the Respondent to respond to the Claimant's request to admit the evidence of Mr. Bhatnagar. The Respondent's response to the Arbitral Tribunal is in an email dated 25th April, 2015. The primary conditions for admitting Mr. Bhatnagar regarding inclusion of Mr. Bhatnagar witness statement which was provided to the Arbitrator. The Tribunal had requested for the Respondent to respond to the Claimant's request to admit the evidence of Mr. Bhatnagar. The Respondent's response to the Arbitral Tribunal is in an email dated 25th April, 2015. The primary conditions for admitting Mr. Bhatnagar's witness statement in evidence was stated by the Respondent to be that the Respondents should be allowed to adduce responsive witness statements to Mr. Bhatnagar's statement, the Respondent should have an opportunity to cross examine Mr. Bhatnagar and that the Claimant's evidence including Mr. Bhatnagar's examination closes before the Respondent's witness takes the stand. (r) On 25th April, 2015 the Arbitral Tribunal issued procedural order No.18 ruling that it would not admit the statement of Mr. Bhatnagar as evidence unless the Respondent is allowed the opportunity to test the evidence by cross examination at an oral hearing. The Tribunal further ruled that the Respondent could make applications to the Tribunal at the appropriate time seeking to adduce responsive witness statements to Mr. Bhatnagar's statement and that there was also scope for witnesses to be interposed or for witnesses to be recalled to give evidence after another witness has given his evidence. This was followed by another procedural order 19, on 27th April, 2015. The Arbitrator reiterated that the evidence of Mr. Bhatnagar would not be admitted unless the Respondent was allowed the opportunity to cross examine Mr. Bhatnagar at an in-person oral hearing. Further, given the importance of the intended testimony, it would not be sufficient to conduct the cross examination by video link. (s) By an email issued by the Arbitral Tribunal on 27th April, 2015, the Tribunal proposed that it was prepared to give directions that Mr. Bhatnagar may give his evidence in Hong Kong on 4th May, 2015 and that the Tribunal would be prepared to hear and rule on application by the Respondent to recall Mr. Bajla to give evidence in response to Mr. Bhatnagar. (t) The Arbitral Tribunal held evidentiary hearings on 28th - 30th April, 2015. The Tribunal also heard Advocates for the parties on the recording of evidence of Mr. Bhatnagar. (u) On 30th April, 2015, the Arbitral Tribunal issued procedural order No.20 reiterating that Mr. Bajla to give evidence in response to Mr. Bhatnagar. (t) The Arbitral Tribunal held evidentiary hearings on 28th - 30th April, 2015. The Tribunal also heard Advocates for the parties on the recording of evidence of Mr. Bhatnagar. (u) On 30th April, 2015, the Arbitral Tribunal issued procedural order No.20 reiterating that Mr. Bhatnagar's witness statement will be admitted provided that an opportunity is afforded to the Respondent to test his evidence by cross examination. An in-person oral hearing was fixed on 19th May, 2019 at the HKIAC for Mr. Bhatnagar to give evidence. (v) There were emails exchange between 4th and 8th May, 2015 on the logistics for conducting the cross examination of Mr. Bhatnagar on 19th May, 2015. On 9th May, 2015, the Arbitral Tribunal addressed an email stating that if the questioning of Mr. Bhatnagar as witness cannot be reasonably completed on 19th May, 2015, the Tribunal would be willing to direct another hearing date to take place for the remaining questions. (w) Mr. Bhatnagar's was cross examined by the Respondent on 19th May, 2015 and the cross examination was completed on that date. 9. Mr. Vikram Nankani, the learned Senior Counsel appearing for the Respondent has submitted that the foreign award is in gross contravention of the fundamental policy of India and in conflict with the basic principles and notions of morality and justice and hence contrary to the public policy of India. He has further submitted that the manner in which the Arbitration Proceedings were conducted by the Arbitrator undoubtedly indicates bias in favour of the Claimant. He has submitted that the Arbitrator instead of outright rejecting the witness statement of Mr. Bhatnagar, a key and critical witness, and without dealing with the question of admissibility of Mr. Bhatnagar's evidence, based his entire conclusion in not accepting the Respondent's defence solely on Bhatnagar's witness statement. He has submitted that no system concerning administration of justice can accept or tolerate, including in India, criminal intimidation of a witness so as to "procure" favourable evidence. He has submitted that like in any adversarial system of dispensation of justice witness plays a crucial role. The Supreme Court has quoted Benthem to say that, witnesses are the "eyes and ears" of the case. He has submitted that Mr. Bhatnagar's testimony was important for the Respondent's defence and accordingly Mr. Bhatnagar was named by the Respondent as witness. He has submitted that like in any adversarial system of dispensation of justice witness plays a crucial role. The Supreme Court has quoted Benthem to say that, witnesses are the "eyes and ears" of the case. He has submitted that Mr. Bhatnagar's testimony was important for the Respondent's defence and accordingly Mr. Bhatnagar was named by the Respondent as witness. He has submitted that the events immediately thereafter leave no doubt whatsoever that Mr. Bhatnagar ultimately becoming a witness for the Claimant was as a result of his being threatened by the Claimant with criminal prosecution and on account of criminal intimidation. He has submitted that the fact that the Respondent was allowed to and got the opportunity to cross examine Mr. Bhatnagar was of no consequence as ex-facie from the record, it can be seen that Mr. Bhatnagar was an unreliable, influenced, threatened, tainted and tutored witness as he was under intimidation and threat of criminal prosecution and undue influence of the Claimant. He has submitted that cross examination served no purpose and it was an empty formality because any deviation in the answers by Mr. Bhatnagar would be self incriminating. He has submitted that the evidence of Mr. Bhatnagar was compromised and not truthful. The Arbitrator has overlooked his own directions and after expressing that he would decide the question of admissibility of Mr. Bhatnagar's statement, later made only a cursory and cavalier observations in paragraph 325 of the Award that "There is nothing in those assertions". 10. He has submitted that under Section 48 (2) (b) (iii) of the Arbitration and Conciliation Act, 1996, enforcement of an arbitral award may be refused if the Court finds that enforcement of the award would be contrary to public policy of India, i.e. award is in conflict with the fundamental policy and basic notions of morality and justice. He has submitted that by allowing the evidence of Mr. Bhatnagar who was completely influenced, tainted and given under threat and intimidation of criminal prosecution from the Claimant is against the most basic principles of fair and independent trial. In this context, he has relied upon the judgment in the case of National Human Rights Commission Vs. The State of Gujarat and Ors. (Writ Petition (Cri) No.109 of 2003 decided on 1st May, 2009.) in support his contention that, it is important for a witness to be fair and independent. In this context, he has relied upon the judgment in the case of National Human Rights Commission Vs. The State of Gujarat and Ors. (Writ Petition (Cri) No.109 of 2003 decided on 1st May, 2009.) in support his contention that, it is important for a witness to be fair and independent. He has further relied upon the case of Mahendar Chawla Vs. Union of India, 2018 SCCOnlineSC 2679 (Writ Petition (Cri) No.156 of 2016.) in support of his contention that witnesses are important players in the judicial system who help the judges in arriving at correct factual findings. He has submitted that a witness statement ought to be independent, unbiased and free from any kind of influence, threat and intimidation. It is only an unbiased and independent witness who can ensure a fair trial. He has submitted that when in the facts of a particular case, there are glaring facts and records to show that the witness was visibly and ex-facie influenced and intimidated by threat of criminal prosecution, the Court ought to discard and ignore the testimony of any such witness. He has submitted that admission of such tainted and influenced evidence of a witness would lead to an unfair conduct of a trial and that is in conflict with the basic principles and notions of morality and justice. He has submitted that any award which is passed by following any practice or procedure which is so unfair and unreasonable that it shocks the conscience of the Court is liable to be set aside by a Court exercising jurisdiction under Section 48 of the Act. He has relied upon the Supreme Court decision in the case of Ssangyong Engineering & Construction V. National Highways Authority of India, 2019 SCCOnlineSC 677 (Civil Appeal No.4779 of 2019;.) confirming the ratio of the judgment in the case of Associate Builders V. Delhi Development Authority, (2015) 3 SCC 49 which has held that arbitral awards that shock the conscience of the Court can be refused enforcement. 11. He has submitted that despite the Respondent in correspondence as well as closing submissions made a categorical submission that Mr. Bhatnagar's objectivity was seriously and irreversibly prejudiced by the Claimant's solicitors indulging in a slugfest of allegations with Mr. Bhatnagar and his lawyers and that the evidence of Mr. 11. He has submitted that despite the Respondent in correspondence as well as closing submissions made a categorical submission that Mr. Bhatnagar's objectivity was seriously and irreversibly prejudiced by the Claimant's solicitors indulging in a slugfest of allegations with Mr. Bhatnagar and his lawyers and that the evidence of Mr. Bhatnagar was evidently influenced by the Claimant, the foreign award has only stated that "There is nothing is those assertions". He has submitted that the learned Arbitrator in taking the evidence of Mr. Bhatnagar on record, inspite of such glaring evidence of threat, intimidation and influence of the Claimant over Mr. Bhatnagar, demonstrates bias towards the Claimant. He has submitted that any prudent person in the face of such evident instance of threat and intimidation would have required greater degree of corroborative evidence on part of the influenced witness to even consider the admissibility or the truthfulness of such evidence. He has submitted that the foreign award being against basic notions of morality and justice and tainted by bias of the learned Arbitrator ought to be refused to be enforced by this Court. 12. Mr. Kapadia, the learned Counsel for the Claimant has submitted that the contentions of the Respondent regarding the effect of the Arbitrator taking on record Mr. Bhatnagar's evidence is squarely covered by the ratio laid down by the Supreme Court in Shri Lal Mahal Ltd. v. Progetto Grano Spa, (2014) 2 SCC 433 . He has submitted that in the case before the Supreme Court there was a challenge to the enforceability of a foreign award and it was held that consideration of inadmissible evidence or rejecting evidence on a binding nature are merely procedural defects. Such procedural defects are not grounds for refusing enforcement under Section 48 of the Act. In that case, the award debtor had challenged the award on the ground that the Tribunal had wrongly taken into consideration a report which was inadmissible. Rejecting this contention, the Supreme Court held that even if the Tribunal wrongly admitted certain evidence while rejecting other relevant evidence, such an error would not bar the enforcement of the award. The Supreme Court has held that at the enforcement stage, the Court is not permitted to take a "second look" at the award as the Court does not exercise appellate jurisdiction nor does it inquire whether an error has been committed while rendering the award. The Supreme Court has held that at the enforcement stage, the Court is not permitted to take a "second look" at the award as the Court does not exercise appellate jurisdiction nor does it inquire whether an error has been committed while rendering the award. He has submitted that this Court would be precluded from entering into an inquiry on this issue of admissibility of Mr. Bhatnagar's evidence by the Arbitrator. He has further relied upon the judgment of this Court in M/s. Louis Dreyfus Commodities Suisse S.A. V. Sakuma Exports Ltd., (2015) 6 BCR 258 2015 SCC Online Bom 5006. In that case the award debtor had contended that the Tribunal had not given it an equal opportunity of oral hearing and the expert report relied upon by the award debtor had not considered by the Tribunal. Rejecting both contentions, this Court reiterated that the Section 48 does not permit a "second look" at the award and even if the Arbitral Tribunal has improperly considered or rejected evidence, it would not be a ground for refusing enforcement of the award. This would at best be a procedural defect and mere procedural defects cannot be a ground for refusal of enforcement of a foreign award particularly, as in the present case, the foreign award recorded that the documentary evidence corroborated the testimony of the so called "coerced" witness. 13. He has further placed reliance upon the decision of the Delhi High Court in Cruz City 1 Mauritius Holdings v. Unitech Ltd., (2017) 239 DLT 649 which has drawn applicable principles from decisions of various Courts in other New York convention countries which have held that the objections to enforcement on the ground of public policy must be such that offend the core values of a member's national policy which it cannot be expected to compromise. Once it is accepted that the Arbitral Tribunal had the jurisdiction and was competent to decide the issues between the parties, no challenge to the merits of the decision ought to be entertained. He has submitted that the objections to enforcement on the ground of violation of public policy may include drastic serious national policy matters such as trading in elephant tusks from India and the sale of peacock meat from India. He has submitted that this would certainly not encompass contentions of the nature raised by the Respondent (on appreciation of evidence). He has submitted that the objections to enforcement on the ground of violation of public policy may include drastic serious national policy matters such as trading in elephant tusks from India and the sale of peacock meat from India. He has submitted that this would certainly not encompass contentions of the nature raised by the Respondent (on appreciation of evidence). He has submitted that it is settled law in common law countries including India that the arbitral tribunal is the sole judge of the weight, materiality and credibility of the evidence and there can be no-reappreciation of evidence at the enforcement stage. He has relied upon decision of the Supreme Court in Zahira Habibulla v. State of Gujarat & Ors., (2004) 4 SCC 158 which has held that the question of whether a witness has told the truth or not is a matter of assessment of evidence. 14. He has submitted that in the present case the Respondent had been given ample opportunity to cross examine the witness and it was only then that Mr. Bhatnagar's evidence was admitted. He has submitted that given the narrow scope of interference permitted under Section 48 of the Act and the Respondent having failed to establish its case before the Arbitral Tribunal after being given adequate opportunity of doing so cannot be permitted to reagitate the issue on which the Arbitral Tribunal has rendered a finding on merits corroborated by contemporaneous documentary evidence. Further, no appeal has been preferred against the foreign award in the Court having appropriate jurisdiction and the award has attained finality on merits. 15. He has submitted that assuming that the scope of inquiry under Section 48 of the Arbitration Act permits an examination of the admissibility / weight of a witness testimony, the testimony of Mr. Bhatnagar was demonstrably independent and corroborated by contemporaneous documentary evidence. He has submitted that the argument of the Respondent that Mr. Bhatnagar's evidence was coerced and / or compelled to give evidence in favour of the Applicant against his will and volition cannot be raised in respect of a witness who was according to both parties a key protagonist for the transaction in question and who was competent, relevant and subjected to cross examination. The contention that Mr. Bhatnagar's evidence was coerced and / or compelled to give evidence in favour of the Applicant against his will and volition cannot be raised in respect of a witness who was according to both parties a key protagonist for the transaction in question and who was competent, relevant and subjected to cross examination. The contention that Mr. Bhatnagar's evidence was not admissible was not part of the closing submissions of the Respondent or the objections filed with this Court in the present proceedings. This was raised for the first time during the oral submissions in the present proceedings. 16. He has submitted that the only objection of the Respondent to the testimony of Mr. Bhatnagar's witness statement being taken on record was never on the ground of so called threats / coercion but was on the ground that he had not agreed to cross examination; his statement was not introduced with the consent of the Respondent and that the Respondent should be allowed to adduce a responsive witness statement. He has submitted that it has infact been stated by the Respondent in the email dated 14th April, 2015, that the correspondence between the Claimant's advocates and Mr. Bhatnagar's advocates has "little value save for unnecessary posturing". He has submitted that when Mr. Bhatnagar was directly asked by the Respondent whether he was acting under any threat, while leading his testimony, he strongly denied the same. Thereafter, no further question on the alleged threats/coercion was put to him. He has relied upon transcript of cross examination at internal page 142, placitum 3 to 25 and internal page 143, placitum 1 to 15 at pages 1816 and 1817 of Volume VIII of the Respondent's compilation in support thereof. He has submitted that the Arbitrator has decided the issue of admissibility of Mr. Bhatnagar's evidence, in procedural order No.18 dated 25th April, 2015 by allowing the primary conditions to admissibility of Mr. Bhatnagar's evidence in favour of the Respondent by granting the Respondent an opportunity of cross examination as well as permitting the Respondent to adduce responsive witness statements. In the foreign award at paragraph 325, the Arbitral Tribunal has after appreciation of evidence produced before it concluded that there was no substance to the allegations of the Respondent that Mr. Bhatnagar had been threatened to depose in favour of the Applicant. In the foreign award at paragraph 325, the Arbitral Tribunal has after appreciation of evidence produced before it concluded that there was no substance to the allegations of the Respondent that Mr. Bhatnagar had been threatened to depose in favour of the Applicant. He has submitted that this finding of fact which was arrived at by the Tribunal after examination of evidence has attained finality and cannot be reopened at the enforcement stage. The Respondent has neither led any evidence in support of its allegations that Mr. Bhatnagar had agreed to give evidence on its behalf nor did the Respondent submit a response statement or recall its witness to rebut Mr. Bhatnagar. It is not open now for the Respondent to dispute the admissibility of evidence of Mr. Bhatnagar at the stage of enforcement. 17. He has submitted that the Arbitral Tribunal has found that Mr. Bhatnagar's testimony was backed by contemporaneous documentary evidence and his evidence was prepared by his own lawyer rather than in consultation with the Applicant's lawyer and that he was an honest and reliable witness. Whereas on the other hand, the Arbitral Tribunal found the Respondent's witness Mr. Bajla's evidence to be over all unsatisfactory. He has submitted that even assuming that Mr. Bhatnagar was infact a hostile witness, the Supreme Court in its decision in Paramjit Singh v. State of Uttarkhand, (2010) 10 SCC 439 has held that testimony of a hostile witness cannot be effaced from the record and has to be scrutinized based on contemporaneous evidence. He has further relied upon the decision of the Supreme Court in Waman & Anr. v. State of Maharashtra, (2011) AIR SC 3327 to contend that an interested witness is one who has an interest in the final outcome of the proceedings and such testimony should be scrutinized with care and cannot be disregarded solely on the basis of a relationship with a party. The evidence must be recorded and thereafter weighed in accordance with law. He has submitted that in any event the credibility or otherwise of Mr. Bhatnagar as a witness does not affect the enforceability of the award as it does not prove the Respondent's case of oral side agreement as Mr. Bajlas's evidence was found to be untruthful, contradictory and unsatisfactory 18. He has submitted that in any event the credibility or otherwise of Mr. Bhatnagar as a witness does not affect the enforceability of the award as it does not prove the Respondent's case of oral side agreement as Mr. Bajlas's evidence was found to be untruthful, contradictory and unsatisfactory 18. He has submitted that in clause 10 of the Deed of Agreement, it was provided that the agreement constituted the entire agreement and understanding between the parties and superseded all prior oral communications, writings, agreements, negotiations and discussions between the parties with respect to the same. The Respondent's case of the existence of an oral side agreement between the Applicant and Respondent, the terms of which having not been incorporated in the Deed of Agreement, cannot be considered, as the Agreement constituted the entire agreement. He has relied upon the decision of the Supreme Court in the case of Joshi Technologies International Inc. v. Union of India, 2015 (7) SCC 754 which has held that where there is an "entire agreement" clause, the Court cannot look into any other document or correspondence exchanged between the parties prior to signing the agreement and even the so called understanding between the parties is to be ignored if the same is contrary to what is expressly recorded in the terms of the agreement. In this context he has also relied upon the judgment of the English Court in Inntrepreneur Pub Co. (Gl) V. East Crown Ltd, (2000) 2 LloydsRep 611 In the present case, the Arbitral Tribunal at paragraph 410 of the award held that even if its finding as to the non-existence of an oral side agreement was wrong, Clause 10 of the Deed of Agreement precluded the Respondent from relying on such oral side agreement. 19. He has submitted that the vitiating of Mr. Bhatnagar's testimony does not discharge the Respondent's burden to prove that an oral side agreement existed and could be relied upon. He has submitted that the Deed of Agreement signed by the parties was a keenly negotiated document and could never be considered to be a sham document as there would have been otherwise no reason to enter into protracted negotiations on its terms. He has submitted that as the Respondent had failed to prove its defence through both oral and documentary evidence in the arbitration. 20. He has submitted that as the Respondent had failed to prove its defence through both oral and documentary evidence in the arbitration. 20. He has submitted that the Respondent has for the first time in sur-rejoinder attributed procedural/subject matter bias to the Sole Arbitrator without pointing to a single circumstance which would lead to bias and this was merely because the Respondent disagreed with the Arbitrator's finding. He has relied upon the decision of the Andhra Pradesh High Court in the case of Y.S. Vijaya v. Union of India & Ors., (2012) 4 ALT 334 (DB) to contend that judicial bias can only be raised when the arbitrator has a direct pecuniary or proprietary connection with the subject matter of the dispute or the parties. He has submitted that insofar as non-pecuniary bias alleged against a Judge, the Courts in India have applied the test of real likelihood of bias. This test is whether a reasonable person, being in possession of the relevant information would have thought that bias was likely. He has submitted that not a single fact has been alleged by the Respondent on which it has based its argument that the arbitrator was biased against it. He has accordingly submitted that there is no merit in the objections raised by the Respondent to the notice under Order XXI Rule 22 of the CPC and that the notice be allowed and leave be granted to the Applicant to enforce the award in accordance with law. 21. Having considered the submissions, it appears that the enforceability of the foreign award is objected to on the ground that the foreign award is in contravention of the public policy of India. It would in this context be necessary to refer to Section 48 (2) of the Act which reads thus: (2) Enforcement of an arbitral award may also be refused if the Court finds that, (a) .... (b) the enforcement of the award would be contrary to the public policy of India. Explanation 1 - for the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, - (i) .... (b) the enforcement of the award would be contrary to the public policy of India. Explanation 1 - for the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, - (i) .... (ii) it is in contravention with the fundamental policy of Indian law, or (iii) It is in conflict with the most basic notions of morality or justice." Explanation 2 - For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian Law shall not entail a review on the merits of the dispute. 22. The Respondent has contended that the arbitrator had accepted the witness statement of Mr. Bhatnagar ("Bhatnagar") without dealing with the issue of admissibility of the evidence and had based his conclusion in not accepting the Respondent's defence solely on Bhatnagar's witness statement. It is the further contention of the Respondent that the Arbitrator had considered the evidence of Bhatnagar despite the witness being an unreliable, influenced, threatened, tainted and tutored witness as he was under intimidation and threat of criminal prosecution and undue influence of the Claimant. These contentions appear to be the basis for objecting to the foreign award as being in gross contravention of the fundamental policy of India and in conflict with the principles and notions of morality and justice and hence contrary to the Public Policy of India. 23. This objection of the Respondent to the enforceability of the foreign award is nothing but a challenge to the admissibility of evidence. The Supreme Court in Shri Lal Mahal Ltd. (Supra) has held that an objection to the enforceability of a foreign award on the ground that the Arbitrator considered inadmissible evidence is merely a challenge to the procedural defects in the foreign award. Such procedural defects are not a ground to refuse enforcement under Section 48 of the Act. In the decision of Supreme Court in Shri Lal Mahal Ltd. (Supra), it has been held that :- 45. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a "second look" at the foreign award in the award enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Moreover, Section 48 of the 1996 Act does not give an opportunity to have a "second look" at the foreign award in the award enforcement stage. The scope of inquiry under Section 48 does not permit review of the foreign award on merits. Procedural defects (like taking into consideration inadmissible evidence or ignoring/rejecting the evidence which may be of binding nature) in the course of foreign arbitration do not lead necessarily to excuse an award from enforcement on the ground of public policy." 24. It is thus clear from the decision of the Supreme Court that presuming there were procedural defects by taking into consideration inadmissible evidence in the course of the foreign arbitration, this does not lead necessarily to excuse the award from enforcement on the ground of public policy. This decision of the Supreme Court has been followed by this Court in M/s. Louis Dreyfus Commodities Suisse S.A. (Supra), wherein this Court held that Section 48 of the Act does not permit a "second look" at the award and that even if the Arbitral Tribunal has improperly considered or rejected evidence, it would not be a ground for refusing the enforcement of the award. 25. It is well settled that the discretion of a Court to refuse to enforce a foreign award at the request of a party is narrow and limited. At the same time there is no absolute or open discretion to reject the request for declining to enforce a foreign award. It is only upon sufficient grounds being established that a Court is not precluded from rejecting the request for declining the enforcement of a foreign award. Further, it is also well settled that once it is accepted that the Arbitral Tribunal has jurisdiction and was competent to decide the issues between the parties, no challenge to the merits of the award ought to be entertained. 26. In the context of contravention of Public Policy when it comes to enforcement of a foreign award, it has been held by the Delhi High Court in Cruz City 1 Mauritius Holdings (Supra), in paragraph 96 as follows:- 96. It plainly follows from the above that a contravention of a provision of law is insufficient to invoke the defence of public policy when it comes to enforcement of a foreign award. It plainly follows from the above that a contravention of a provision of law is insufficient to invoke the defence of public policy when it comes to enforcement of a foreign award. Contravention of any provision of an enactment is not synonymous to contravention of fundamental policy of Indian Law. The expression fundamental policy of Indian law refers to the principles and the legislative policy on which Indian Statutes and laws are founded. The expression "fundamental policy" connotes the basic and substratal rationale, values and principles which form the bedrock of laws in our country. Thus, the fundamental policy of Indian Law in Section 48 of the Act connotes the basic and substratal rationale, values and principles which forms the bedrock of laws in India. It is only when the foreign award is in contravention of that fundamental policy of Indian Law, that its enforcement may be refused. The objection as to enforcement of the foreign award on the ground of public policy must be such that the foreign award offends the core values of a member's national policy, which it cannot be expected to compromise. The learned Counsel for the Claimant is right in his contention that violation of public policy includes drastic serious national policy matters such as trading in elephant tusks from India and the sale of peacock meat from India. Mere improper admission of evidence by the Arbitrator as contended by the Respondent cannot amount to a violation of public policy. It is settled law in India that the Arbitral Tribunal is the sole judge of the weight, materiality and credibility of the evidence and there can be no-reappreciation of evidence at the enforcement stage. 27. The finding of the Arbitrator in paragraph 325 of the foreign award after considering the issue on the question of admissibility of Bhatnagar's witness statement viz. "there is nothing in those assertions" of Bhatnagar being threatened would be a finding of fact arrived at by the Arbitrator after appreciation of evidence and which finding has attained finality and cannot be reopened at an enforcement stage. The Supreme Court in Zahira Habibulla (Supra) has held that the question of whether a witness has told the truth or not is a matter of assessment of evidence. The Supreme Court in Zahira Habibulla (Supra) has held that the question of whether a witness has told the truth or not is a matter of assessment of evidence. It is not for the Court at the enforcement stage to reappreciate the evidence of the witness Bhatnagar who had given evidence in support of the Claimant's case and had subjected himself to cross examination. Further, it appears that the Respondent's objections to the testimony of Bhatnagar has been recorded in its email dated 25th April, 2015 viz. that Bhatnagar had not agreed to his cross examination and that his statement was not introduced with the consent of the Respondent as well as the Respondent should be allowed to adduce responsive witness statements. From the material on record, it appears that the Respondent had not objected to the testimony of Bhatnagar on the ground of the so called threats / coercion. The Respondent was mainly concerned with its right to cross examine the witness Bhatnagar on his statement which was in support of the Claimant. It appears that the Respondent has not produced any material in support of its contention that Bhatnagar was to be the Respondent's witness and / or agreed to give evidence in support of the Respondent's case. By merely including Bhatnagar's name in the list of witnesses filed by the Respondent with the Tribunal cannot lead to a conclusion that Bhatnagar had agreed to give testimony in support of the Respondent's case. In fact it appears from the email dated 25th January, 2015 that Bhatnagar had prior to the filing of his witness statement confirmed that the agreements relied upon by the Claimant were valid and binding and that there was never any oral "side agreement" to the effect that these agreements were not legally enforceable as contended by the Respondent in their additional defence statement. 28. It is the contention of the Respondent that it has been well settled that the foreign award passed by following a practice or procedure which is so unfair and unreasonable that it shocks the conscience of the Court is liable to be set aside by a Court exercising jurisdiction under Section 48 of the Act. Reliance has been placed upon the decisions of the Supreme Court in Ssangyong Engineering & Construction (Supra) and Associate Builders (Supra) in this context. Reliance has been placed upon the decisions of the Supreme Court in Ssangyong Engineering & Construction (Supra) and Associate Builders (Supra) in this context. However, this principle of law as well as the relied upon decisions do not apply in the facts and circumstances of the present case. In the present case, the Arbitrator had followed the principles of natural justice in admitting the witness statement of Bhatnagar subject to the Respondent's right of cross examination. In fact the allegation of the Respondent of Bhatnagar having been threatened/coerced by the Claimant which is contended to be apparent from its Advocates correspondence is itself contrary to the Respondent's own email wherein it is stated that the very same correspondence between the Claimant's and Bhatnagar through their respective Advocates have "little value save for unnecessary posturing". The case now put up by the Respondent that Bhatnagar's witness statement should have been disregarded on the ground that Bhatnagar was an unreliable, influenced, threatened, tainted and tutored witness as he was under intimidation and threat of criminal prosecution and undue influence of the Claimant appears to be an afterthought. This has now been contended despite the Respondent having availed full opportunity of cross examination of Bhatnagar. The Arbitrator has considered Bhatnagar to be a fair and independent witness. The decision of the Supreme Court in Mahendar Chawla (Supra) that witness are important players in the judicial system who help the judges in arriving at correct factual findings will apply to the witness Bhatnagar in the present case. 29. The contention of the Respondent of procedural/subject matter bias attributed to the Arbitrator in taking evidence of Bhatnagar has been raised for the first time in the sur-rejoinder. This contention is without any substance as no bias can be attributed to the Arbitrator by merely admitting the witness statement of Bhatnagar. Judicial bias has been considered in the decision of the Andhra Pradesh High Court in the case of Y.S. Vijaya (Supra). It has been held that judicial bias can arise only when the arbitrator has a direct pecuniary or proprietary connection with the subject matter of the dispute or the parties. In the present case, the Arbitrator cannot be considered to have demonstrated bias in favour of the Claimant which would be either a judicial bias or a non-pecuniary bias and this contention on the part of the Respondent also is made without any substance. In the present case, the Arbitrator cannot be considered to have demonstrated bias in favour of the Claimant which would be either a judicial bias or a non-pecuniary bias and this contention on the part of the Respondent also is made without any substance. 30. The Arbitrator has arrived at a conclusion that the Respondent had failed to prove the defence through both oral and documentary evidence. The foreign award has been passed on the basis of documentary evidence and from an appreciation of which a finding has been arrived at that the liability of the Respondent to pay the Applicant is established. Although submissions were made by the learned Counsel for the Claimant on the Deed of Agreement constituting an entire agreement as provided under Clause 10 of the Deed of Agreement and by virtue of which the Court cannot look into any other document or correspondence exchanged between parties prior to the signing of the agreement, this Court cannot under Section 48 of the Act go into issues on merits. Never the less the Arbitrator has considered the Deed of Agreement to be an entire agreement which would supersede any oral side agreements which have been pleaded in the defence by the Respondent. In any event the foreign award not being subjected to a challenge in the domestic country has attained finality on merits. 31. In view of the above findings, the foreign award is enforceable in India. The objection of the Respondent to the enforceability of the foreign award is rejected. In view thereof, the Notice under Order XXI Rule 22 of the CPC is made absolute by granting leave to the Applicant to enforce the foreign award in accordance with law.