TaxTMI 
TaxTMI 
2022 (2) TMI 88
X X X X Extracts X X X X
X X X X Extracts X X X X
....80 of 2021, are against impugned orders dated 29.10.2021 passed in Arb. A (Comm.) No. 63 of 2021 and I.A. No. 14285 of 2021 in Arb. A (Comm.) No. 64 of 2021 respectively. 3. At the outset, it is necessary for this Court to have a brief background before indulging in analyzing the issue at hand. On 22.08.2019, Amazon entered into Shareholder and ShareSubscription Agreements with Future Coupon Private Limited (FCPL). Through these instruments, Amazon intended to acquire 49% stake in FCPL. The aforesaid agreements contained an arbitration agreement, wherein parties resolved to settle their disputes in accordance with the Arbitration Rules of the Singapore International Arbitration Center (SIAC). The parties had further resolved to have the seats at New Delhi. 4. On 12.08.2019, FCPL and its promoters entered into a Shareholder Agreement with Future Retail Limited (FRL). Through this Agreement, FCPL was granted certain protective rights. One such right is produced as under: Clause 10 of SHA: 10. TRANSFER OF RETAIL ASSETS 10.1 As of the Execution Date, the Company has set up an aggregate of at least 1,534 (one thousand five hundred and thirty four) retail....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Arbitration seeking interim prohibitory injunction to prevent FRL and FCPL from taking further steps in the aforesaid transaction with the Reliance Group. Parallelly, FRL filed a suit before the Delhi High Court registered as CS(COMM) No. 493 of 2020, against Amazon for tortious interference in the Scheme for the sale of assets. 7. On 25.10.2020, the Emergency Arbitrator passed an Interim Award in favor of Amazon. It may be noticed that the Emergency Arbitrator and the Single Bench came to diametrically opposite conclusions which are juxtaposed herein below: Order of Emergency Arbitrator dated 25.10.2020 Order of Single Judge Bench in I.A. No. 10376 of 2020 in CS(COMM) No. 493 of 2020 dated 21.12.2020 285. In the result, I award, direct, and order as follows: (a) the Respondents are injuncted from taking any steps in furtherance or in aid of the Board Resolution made by the Board of Directors or FRL on 29 August 2019 in relation to the Disputed Transaction, including but not limited to filing or pursuing any application before any person, including regulatory bodies or agencies in India, or requesting for approval at any company meeting; (b) the Respondents are injun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eir evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transaction between FRL and Reliance being in breach of the FCPL SHA and FRL SHA would outweigh the plea of FRL in the present suit. Further in case Amazon is not permitted to represent its case before the statutory authorities/Regulators, it will suffer an irreparable loss as Amazon also claims to have created preemptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Amazon makes a representation based on incorrect facts thereby using unlawful means, it will be for the statutory authorities/Regulators to apply their mind to the facts and legal issues therein and come to the right conclusion. There is yet another aspect as to why no interim injunction can be granted in the present application for the reason both FRL and Amazon have already made their representations and counter representations to the statutory authorities/regulators and now it is for the Statutory Authorities/Regulators to take a decision thereon. Therefore, this Court finds that no case for grant of interim injun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led the response. 2. Learned senior counsels for the respondents have concluded the oral arguments. 3. List for rejoinder submissions of the petitioner on 02nd February, 2021. 4. It is clarified that no further written submissions shall be filed by any of the parties." 10. On 02.02.2021, the first substantive order [1st impugned Order] was passed in the following manner: "8. This Court is of the prima facie view that the Emergency Arbitrator is an Arbitrator; the Emergency Arbitrator has rightly proceeded against the respondent No.2; the order dated 25th October, 2020 is not a nullity; the order dated 25th October, 2020 is an order under Section 17(1) of the Arbitration and Conciliation Act. This Court is of the view that the order dated 25th October, 2020 is appealable under Section 37 of the Arbitration and Conciliation Act. This Court is of the clear view that the order dated 25th October, 2020 is enforceable as an order of this Court under Section 17(2) of the Arbitration and Conciliation Act. The detailed reasons shall be given in the reserved order. 9. This Court is satisfied that immediate orders are necessary to protect the ri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ections: "188. The Emergency Arbitrator is an Arbitrator for all intents and purposes; order of the Emergency Arbitrator is an order under Section 17(1) and enforceable as an order of this Court under Section 17(2) of the Arbitration and Conciliation Act. ............ 190. The respondents have raised a vague plea of Nullity without substantiating the same. The interim order of the Emergency Arbitrator is not a Nullity as alleged by respondent No.2. 191. Combining/treating all the agreements as a single integrated transaction does not amount to control of the petitioner over FRL and therefore, the petitioner's investment does not violate any law. 192. All the objections raised by the respondents are hereby rejected with cost of Rs. 20,00,000/to be deposited by the respondents with the Prime Minister Relief Fund for being used for providing COVID vaccination to the Below Poverty Line (BPL) category senior citizens of Delhi. The cost be deposited within a period of two weeks and the receipt be placed on record within one week of the deposit. 193. The respondents have deliberately and wilfully violated the interim order dated 25th O....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ered declaring that no appeal lies under Section 37 of the Arbitration Act against an order of enforcement of an Emergency Arbitrator's order made under Section 17(2) of the Act. As a result, all interim orders of this Court stand vacated. The impugned judgments of the Division Bench, dated 8th February, 2021 and 22nd March, 2021, are set aside. The appeals are disposed of accordingly." 18. It may be noted that this Court, in the aforesaid judgment of 06.08.2021, did not adjudicate upon the merits of the case and limited its reasoning only to answer the legal questions which arose therein. On a reading of this judgment, the contention of the learned Senior Advocate Mr. Gopal Subramanium, that this Court has upheld the Emergency Arbitrator Award and did not interfere with the enforcement orders in OMP (ENF)(Comm.) No. 17 of 2021, on merits, is not correct. Although, the judgment narrates the facts leading up to the appeal, the Court neither returned any findings on facts, nor adjudicated on merits of the Order passed by Justice Midha in the enforcement proceedings. It is this gap which has led to the current round of litigation on merits of the case for the second time before thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssuing notice in both matters, by orders dated 29.10.2021 (3rd impugned Order), the Delhi High Court (Justice Suresh Kumar Kait) refused any immediate relief to FRL in the following words: "15. During the course of hearing, this Court time and again referred that when the subject matter of this appeal is pending subjudice before the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 1354748/ 2021 and infact, by virtue of order dated 09.09.2021 proceedings before this Court have been stayed and also directions have been passed to NCLT, CCI, SEBI to not pass any final order, then how interim relief, that too without therebeing any hearing or any reply from side opposite on record, application for interim stay can be heard and orders be passed. Upon this, Mr. Harish Salve, learned senior counsel submitted in such eventuality, this Court may dismiss the application. 16. In view of the above, the application seeking interim stay being IA No. 14285/2021 (u/S 151 CPC) is accordingly dismissed." 24. Aggrieved by the aforesaid order, FCPL and FRL have approached this Court in SLP (C) Nos. 18089 and 18080 of 2021 respectively. 25. Mr. Harish Salve, learned Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d be caused to Amazon by setting aside the impugned order passed in the enforcement proceedings or by the passing of an interim measure allowing continuation of the proceedings before the NCLT. In fact, this Court, vide order dated 22.02.2021, has already created an interim arrangement by allowing the NCLT proceedings to continue with a direction to the NCLT not to pass any final order. On the other hand, the impugned order dated 18.03.2021, directed recall of the approvals granted by the statutory authorities. 31. Mr. Gopal Subramanium, learned Senior Counsel appearing for Amazon, submitted that the appellants, by their conduct have demonstrated willful and intentional disobedience of the Emergency Arbitrator's interim Award, after agreeing for the Emergency Arbitrator. While he fairly stated that Amazon is not interested in pursuing the punitive directions imposed on FCPL and others, he submitted that the Emergency Arbitrator's interim Award stands confirmed by the Arbitral Tribunal, which must be abided by the appellants. Learned Counsel argued that when no stay has been granted against the interim protection afforded to them by the Arbitral Tribunal, the appellants cannot op....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., our attention has been drawn to a catena of procedural orders passed by the High Court in OMP (ENF) (COMM) No.17 of 2021. From the record, we observe that FRL and FCPL were not provided sufficient time or opportunity to file their counter or raise their defense. On 29.01.2021, they were allowed to file a brief note of submission within twentyfour hours, before orders were passed on 02.02.2021. 36. On a perusal of the orders, we find that serious procedural errors were committed by the learned Single Judge. Natural justice is an important facet of a judicial review. Providing effective natural justice to affected parties, before a decision is taken, is necessary to maintain the Rule of law. Natural justice is usually discussed in the context of administrative actions, wherein procedural requirement of a fair hearing is read in to ensure that no injustice is caused. When it comes to judicial review, the natural justice principle is built into the rules and procedures of the Court, which are expected to be followed meticulously to ensure that highest standards of fairness are afforded to the parties. 37. It is well known that natural justice is the sworn enemy of unfairness. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thin a period of two weeks and the receipt be placed on record within one week of the deposit. 193. The respondents have deliberately and wilfully violated the interim order dated 25th October, 2020 and are liable for the consequences enumerated in Order XXXIX Rule 2A of the Code of Civil Procedure. 194. In exercise of power under Order XXXIX Rule 2A(1) of the Code, the assets of the respondents No.1 to 13 are hereby attached. Respondents No. 1 to 13 are directed to file an affidavit of their assets as on today in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within 30 days. Respondent No. 1, 2, 12 and 13 are directed to file an additional affidavit in the format of Annexure B1 and respondents no. 3 to 11 are directed to file an additional affidavit in the format of Annexure A1 to the judgment of M/s. Bhandari Engineers & Builders Pvt. Ltd. v. M/s. Maharia Raj Joint Venture, (supra) along with the documents mentioned therein within 30 days." 40. Our attention is drawn to the fact that the learned Single Judge had relied on M/s. Bhandari Engineers & Builders Pvt. Ltd. v. M/s. Maharia Raj Joint Venture, 2019 SCC Online Del. 11879, which ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Single Judge had earlier allowed FRL and Amazon to continue their pursuit before various regulatory authorities, and in view of the interim orders of this Court dated 22.02.2021 and 09.09.2021, and the Courts below, we are inclined to set aside aforesaid directions as the precondition of 'sufficient mental element for wilful disobedience' is not satisfied. Moreover, Mr. Gopal Subramanium, learned Senior Advocate appearing for Amazon, has fairly stated that Amazon is not interested in proceeding with the punitive directions. Taking note of the aforesaid submission, we set aside the punitive directions issued in the impugned orders of learned Single Judge dated 02.02.2021 and 18.03.2021. 43. Coming to the merits of the case, we would like to mention a disconcerting aspect wherein the interim order enforcing the Emergency Award has adopted a standard beyond 'prima facie view', as required under law. It is expected of Courts to be cautious while making observations on the merits of the case, which would inevitably influence the Arbitral Tribunals hearing the matters on merit. 44. Therefore, we set aside the order of the learned Single Judge dated 02.02.2021 and 18.03.2021 pass....