May & Shall

It is not quite accurate to say that the word ‘may’, by itself, acquires the meaning of ‘must’ or ‘shall’ sometimes.”

– Dharti Dhan, (1977) 2 SCC 166.

It is not to be taken that once the word ‘may’ is used, it per se would be directory. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in light of the settled principles, and while ensuring that intent is not frustrated.”

Dinesh Chandra Pandey, (2010) 11 SCC 500.

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So far as the “public policy of India” ground is concerned, both Sections 34 and 48 are now identical, so that in an International Commercial Arbitration conducted in India, the ground of challenge relating to “public policy of India” would be the same as the ground of resisting enforcement of a foreign award in India.

It is clear that enforcement of a foreign award may under Section 48 be refused only if the party resisting enforcement furnishes to the Court proof that any of the stated grounds has been made out to resist enforcement. The said grounds are watertight – no ground outside Section 48 can be looked at. Also, the expression used in Section 48 is ‘may’. Shri K.V. Viswanathan, Learned Senior Advocate has argued that ‘may’ would vest a discretion in a Court enforcing a foreign award to enforce such award despite the fact that one or more grounds may have been made out to resist enforcement. For this purpose, he relied upon Sections 45 to 47, which contain the word ‘shall’ in contradistinction to the word ‘may’. He also relied upon Article V of The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 which also uses the word ‘may’.

The expression ‘may’ in Section 48 can, depending upon the context, mean ‘shall’ or as connoting that a residual discretion remains in the Court to enforce a foreign award, despite grounds for its resistance having been made out. What is clear is that the width of this discretion is limited to the circumstances pointed out… in which case a balancing act may be performed by the Court enforcing a foreign award.”

Hon’ble Justice R.F. Nariman, Vijay Karia v. Prysmian Cavi E Sistemi SRL, [Civil Appeal No. 1544 of 2020].