TaxTMI 
TaxTMI 
2020 (7) TMI 843
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..../by M/s. DSK Legal, for the Petitioner in CARBP/892/2019. Mr. Iqbal Chagla, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/737/2019. Mr. Janak Dwarkadas, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/738/2019. Mr. Pravin Samdani, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/892/2019. JUDGMENT: 1. By Arbitration Petition No.737 of 2019 filed under section 34 of the Arbitration and Conciliation Act, 1996, the petitioner has impugned the majority arbitral award dated 16th January,2019 and order dated 11th May, 2017 passed by the Arbitral Tribunal under section 16 of ....
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.... of the petitioner that the said 2015 SLA was continuation of the 2004 SLA. According to the petitioner, the respondent did not transfer any technology, confidential information or knowhow under 2004 to the petitioner but had only provided 50 Donor seeds of a transgenic variety which was used by the petitioner to develop several new proprietary Bt.cotton varieties which were multiplied under agriculture operations to produce seeds and sell to farmers. 7. It was the case of the petitioner that under the said two agreements, the respondent was liable to pay to the petitioner and has paid one time non-refundable fee of Rs. 50 lakhs. The respondent was also required to pay the amount as and by way of royalty fees/trait fees/ trait value on every 450gm packet of Bt.Cotton seeds of the proprietary varieties of the petitioner sold every year. 8. It was the case of the petitioner that since the year 2006-2007, the trait value charged and collected by the respondent had been subject to the various State Government Price Control Notifications. Since the year 2016, the said trait value was being regulated by the Central Government under the Cotton Seeds Price (Control) Order 2015. There wer....
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....obligations against the petitioner and its group companies. It is the case of the petitioner that several other parties had also filed complaints with CCI relating to various clauses of SLA so executed alleged to be anti-competitive and alleging abusive conduct of the respondent against them. 12. According to the petitioner, there was delay of over two years in submitting Investigation Report by the Director General to the CCI due to non-cooperation by the respondent and its group companies. The said CCI therefore levied a monetary penalty upon the respondent and its other group companies. On 28th June, 2018, the Director General submitted a Investigation Report before the said CCI. By letter dated 12th March,2019, the said CCI directed the parties including 18 officials of the respondent and Monsanto group companies under section 48 of the Companies Act to collect non-confidential Investigation Report by filing an undertaking that the Investigation Report would not be used for any purpose other than those provided under the Competition Act and Rules thereunder. 13. On 18th February,2016, the respondent and its group companies filed an infringement suit before the Delhi High Cour....
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....imited purpose of the deciding application filed by the petitioner under section 16 of the Arbitration Act. The Tribunal did not express any opinion on the merits of the matter. The Tribunal made it clear that it would be open for the parties to raise all objections available to them and the Tribunal would consider and decide such objections in accordance with law without being influenced or inhibited by the observations made in the said order by the Arbitral Tribunal. The said order dated 11th May,2017 passed by the Tribunal is also impugned by the petitioner in this petition along with arbitral award. 17. The Arbitral Tribunal framed about 16 points for determination. Both the parties led oral as well as documentary evidence before the Arbitral Tribunal. The witness examined by the respective party was cross examined by the other party. Both the parties also filed written submissions before the Arbitral Tribunal in the application filed under section 16 as well as after conclusion of the oral submissions. Two of the arbitrators made an arbitral award dated 16th January,2019 allowing the claim of the respondent partly and directed that the respondent (original claimant) is entitl....
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....ith section 19(3) of the Competition Act and has held that in view of the contravention of various provisions of the said Act, case was made out for investigation in the matter. Out of seven members of the said CCI, only one member had differed. 21. It is submitted by the learned senior counsel that the arbitration notice was issued by the respondent on 23rd February,2016 only after such prima facie findings were rendered by the said CCI against the respondent. In support of this submission, learned senior counsel invited my attention to paragraphs 16 to 20, 24 and 26 of the order passed by the CCI making various prima facie findings against the respondent. Learned senior counsel invited my attention to various points for determination framed by the Arbitral Tribunal and the findings rendered thereon by the Arbitral Tribunal. 22. It is submitted by the learned senior counsel that the dispute between the parties referred to the Arbitral Tribunal arose from a Sub- Licence Agreement dated 10th March, 2015 which was a renewal of Sub-Licence Agreement dated 21st February, 2004. Under the said 2015 SLA, the petitioner was required to pay to the respondent the royalty "Trait Value" or t....
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....eference that various representations were made by it regarding the unreasonable high prices of Bt. cotton seeds due to charging of high royalties in the name of trait value by the respondent. The said complaint also referred to the dominant position which it was exploiting in an anti-competitive manner. The Government of India requested the said CCI to prescribe appropriate terms including trait value/royalties under the Sub-Licence Agreements so that the technology license was given at reasonable terms to all seed companies. 26. It is submitted by the learned senior counsel that the petitioner and its group companies filed information under section 19(1)(a) of the Competition Act with the CCI placing on record various violations of the provisions of the Competition Act allegedly committed by the respondent. Learned senior counsel invited my attention to the order dated 10th February,2016 passed by the Investigation Officer on the said information filed by the petitioner and the reference filed by the Government of India making various prima facie observations against the respondent and holding that the conduct of the respondent prima facie appears to be in violation of section 4....
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....it value as per the terms of the said 2015 SLA. It was a specific plea raised by the petitioner before the Arbitral Tribunal that the said 2015 SLA was void under the provisions of Competition Act. The validity of the said agreement was pending adjudication before the said CCI even prior to the invocation of the arbitration. He invited my attention to the various averments made in the application filed by his client under section 16 of the Arbitration Act before the Arbitral Tribunal, reply filed by the respondent to the said application before the Arbitral Tribunal and would submit that the dispute before the Arbitral Tribunal and the said CCI were interlinked. He submits that the scheme of the Competition Act expressly and impliedly excludes adjudication of competition law disputes through arbitration. 31. After inviting my attention to various provisions of the said Competition Act already referred to aforesaid, learned senior counsel would submit that the provision of the Competition Act vests vast and plenary powers upon the CCI and empowers to pass various orders/grant reliefs which a civil court or Arbitral Tribunal cannot grant. He relied upon section 27 of the Competition....
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....roviding the statutory right of protection and remedies against anti-competitive conduct. Learned senior counsel placed reliance on the judgment of Delhi High Court in case of Jindal Steel & Power Ltd. vs. Union of India, 2012(127) DRJ 285 and in particular paragraphs 24, 25 and 28. 34. Learned senior counsel for the petitioner submits that the Arbitration Act carries with it a negative import that only such acts as are mentioned are permissible to be done and acts not mentioned are prohibited. Any remedy would have to be found within that statutory code itself. Since sufficient and adequate remedies are provided under the Competition Act for deciding disputes relating to violation of the provisions of the Competition Act, the remedy to enforce those statutory provisions lies exclusively within the Competition Act and the jurisdiction of an Arbitral Tribunal to decide such disputes is barred. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Fuerst Day Lawson vs. Jindal Exports Limited, (2011) 8 SCC 333 and in particular paragraphs 84, 88 and 89, judgment of Supreme Court in case of Vimal Kishor Shah vs. Jayesh Dinesh....
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.... 10 SCC 386 and in particular paragraph 14, judgment of Supreme Court in case of Emaar MGF Land Limited vs. Aftab Singh, 2018 SCC Online SC 2771 and in particular paragraph 32, judgment of this court in case of Kingfisher Airlines Ltd. vs. Capt.Prithvi Malhotra, 2011 SCC Online Bom 1999 and in particular paragraphs 14, 16, 20 and 21. 38. Learned senior counsel also placed reliance on the judgment of Supreme Court in case of Pawan Hans Ltd. vs. Union of India (2003) 5 SCC 71 and judgment of Delhi High Court in case of Telefonaktiebolaget LM Ericsson (PUPL) vs. Competition Commission of India, (2016) SCC Online Delhi 1591. 39. The next submission of the learned senior counsel for the petitioner is that the proceedings before the CCI were pending even prior to the date of the respondent invoking arbitration agreement relating to the validity of the said 2015 SLA and thus the Arbitral Tribunal ought to have awaited the decision of the said CCI regarding the validity of the said 2015 SLA under the provisions of the Competition Act. The monetary claim made by the respondent under the said 2015 SLA was totally dependent upon the issue of the validity of the said 2015 SLA which was pendi....
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....assed by the Arbitral Tribunal under section 16 of the Arbitration Act, the Tribunal has prima facie observed that it did not find merit in the contention raised by the petitioner in respect of the jurisdiction of the Arbitral Tribunal. At the same time, the Arbitral Tribunal noted that several issues raised by the parties which require adjudication at an appropriate stage including the issue whether the provisions of the Competition Act apply to the present case or not. In support of this submission, learned senior counsel placed reliance on paragraphs 46, 47, 51 and 52 of the order dated 11th May, 2017 passed by the Arbitral Tribunal. He submits that it is thus clear that the Arbitral Tribunal accepted the position that it could not proceed with the arbitration without finally deciding the issue of jurisdiction. 44. Learned senior counsel invited my attention to the issue nos. 2, 3, 3(a) to 3(f) framed by the Arbitral Tribunal for determination. He submits that the Arbitral Tribunal does not even purport to determine the plea of jurisdiction raised by the petitioner. Such plea of jurisdiction was not a stand alone plea. It is weeded inextricably to the defence, since the very en....
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.... Pandya, (2003) 5 SCC 531 and in particular paragraphs 16 and 17. 47. It is submitted by the learned senior counsel that though the petitioner had expressly raised various defences under the Competition Act regarding the invalidity of the SLA and the Arbitral Tribunal had framed issues 2 and 3 based on those defences, the Arbitral Tribunal had ignored the defences raised by the petitioner in its statement of defence and has decided those issues by only looking at the averments in the statement of claim. Learned senior counsel invited my attention to the findings rendered by the learned Arbitral Tribunal in paragraphs 78 to 86 of the impugned award rejecting the jurisdictional objection raised by the petitioner by merely stating that the reliefs sought by the respondent only relates to the alleged breaches of the said 2015 SLA and therefore the Arbitral Tribunal had jurisdiction to deal with the same. The Tribunal completely ignored the fact that the jurisdictional plea raised by the petitioner pertained entirely to the enforceability of the claim itself and involved matters relating to the Competition Act which could only be adjudicated by the CCI. 48. It is submitted by the lear....
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.... can only be a dispute when claim is asserted by one party and denied by the other. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Major (Retd.) Inder Singh Rekhi vs. Delhi Development Authority, (1988) 2 SCC 338 and in particular paragraph 4. He submits that while ruling on its own jurisdiction, the Arbitral Tribunal may embark upon an inquiry into the issues raised by the parties to the dispute. The issues are the disputed questions upon which the parties are at variance and desirous of obtaining a decision of the court. He relied upon the judgment of the Supreme Court in case of Indian Farmers Fertilizer Co-operative Ltd. vs. Bhadra Products, (2018) 2 SCC 534 and in particular paragraph 18 and in case of Gangai Vinayagar Temple vs. Meenakshi Ammal, (2009) 9 SCC 757 and in particular paragraph 53. 52. It is submitted by the learned senior counsel that the Arbitral Tribunal has permitted the recovery of the trait value in excess of that prescribed under statutory price control notifications issued by the various State Governments from the petitioner. Various State Governments had introduced legislation to inter al....
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.....) 132 of 2016 and would submit that while holding that the termination of the agreement by the respondent dated 14th November, 2015 was illegal, considered the impact of the fixation of the maximum trait value by the state price control notifications on the SLA in light of Article 11.03. He submits that Delhi High Court has rendered prima facie finding that the termination of the agreement by the respondent was unlawful, agreement stands reinstated but the obligation to pay trait value will have to be in accordance with Indian law. 56. Learned senior counsel invited my attention to the order passed by the Division Bench of the Delhi High Court against the said order passed by the learned Single Judge and would submit that the Division Bench of the Delhi High Court dismissed the appeal filed by the respondent bearing appeal no.FAO (OS) (Comm.) No. 76 of 2016. The petitioner had also filed a separate appeal being FAO (OS) (Comm.) No.86 of 2016 challenging the directions passed by the learned Single Judge. On 11th April, 2018, the Division Bench allowed the appeal filed by the petitioner and revoked the patent of the respondent over Bt.cotton seeds. 57. The respondent filed Special....
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....aw laid down by the Supreme Court in case of Associate Builders (supra) and judgment of Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. (supra). 61. It is submitted by the learned senior counsel that the trait value sought to be recovered by the respondent from the petitioner in the arbitral proceedings was nothing but a royalty for a licence of purported patent of the respondent granted to the petitioner under the said 2015 SLA and was sought to be claimed as compensation for the use of its patent. In support of this submission, learned senior counsel relied upon Articles 1.24, 1.25, 1.32, 2.01, 2.05(k), 2.05(l), 3.01, 9.02(b)(i), 9.04 and 9.06 of the said 2015 SLA. He submits that the petitioner had urged before the Arbitral Tribunal that the patent of the respondent was invalid in view of section 3(j) of the Patents Act, 1970 which expressly prohibits the patenting of plants, in whole or part thereof including seeds, varieties and essential biological processes. 62. It is submitted that the rights of the respondent if any in respect of its technology could only be protected under the Protection of Plant Varieties and Farmers Rights Act, 2001 (for short P....
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....nd the same is also applicable to the seeds. He placed reliance on the judgment of the Delhi High Court in case of Emergent Genetics India Private Limited vs. Shailendra Shivam, 2011(125) DRJ 173 and in particular paragraph 36. He submits that the said Act is a legislation enacted as a part of the public policy and is for the benefit of the farming and agricultural community at large. 66. Learned senior counsel invited my attention to the judgment of Supreme Court in case of Shri Lachoo Mal vs. Shri Radhey Shyam, (1971) 1 SCC 619 and in particular paragraphs 6 and 8 which judgment is relied upon by the Arbitral Tribunal to hold that the benefit sharing mechanism under section 26 of the PPVFR Act is a personal benefit available to the petitioner and therefore the petitioner could have waived such personal benefit by electing to enter into the SLA. He submits that this view of the Arbitral Tribunal is totally erroneous and contrary to the provisions of the PPVFR Act. The petitioner could not have waived the benefit, if any available to its under the said PPVFR Act. 67. Learned senior counsel strongly placed reliance on section 92 of the PPVFR Act and would submit that the said provi....
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.... seed was in operation, the Arbitral Tribunal thus ought to have heard the parties on the effect of the said Supreme Court judgment which had set aside the judgment of the Division Bench of the Delhi High Court. If the Arbitral Tribunal would have granted hearing on those aspect before rendering the arbitral award, the petitioner could have explained the impact of the Supreme Court judgment and would have submitted that the validity of the respondent's patent was pending adjudication in the proceedings before the Delhi High Court and if the respondent's patent was ultimately revoked, then there would be a complete failure of consideration under the said 2015 SLA. 71. Learned senior counsel for the petitioner submits that various findings rendered by the Arbitral Tribunal were based on the factually incorrect premise. Section 2(3) of the Arbitration Act has to be read with sections 60 and 61 of the Competition Act. Section 60 of the Competition Act clearly provides that the provisions of the said Act would have effect notwithstanding anything thereof contacting any other law for the time being in force. The Arbitral Tribunal ought to have interpreted sections 60 to 62 of the Compet....
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....itration Act in this court. The net profit for the Financial Year 2015-16 even according to the petitioner was Rs. 154 crores as reflected in the said affidavit. 75. It is submitted that on one hand, the petitioner has failed to make payment of trait value under the terms of the contract for the technology of the respondent and on the other hand has used the very same technology to make and sell seeds to farmers at the maximum selling price and has earned huge revenues and profits from it. He submits that one of the components of maximum selling price of cotton seeds is trait value itself. He submits that the petitioner has already paid approximately Rs. 14 crores under the said 2015 SLA till June 2015. The petitioner however started raising dispute regarding the quantum of trait value thereafter and stopped making payments to the respondent. The petitioner had also deposited TDS amount with the authorities in favour of the respondent on 24th July, 2015 and 16th May, 2016 without making the payment of the balance amount to the respondent. He submits that the petitioner did not raise any dispute with regard to the quantum/quantification of the amounts due by the petitioner to the r....
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...., the petitioner was required to register itself under sections 14 and 15 read with section 24 of the said Act for section 26 to trigger. The petitioner as plant breeder, did not obtain registration under section 24 of the said Act to receive the benefits, if any, under the PPVFR Act. 78. It is submitted by the learned senior counsel that on 25th January, 2007, after detailed negotiations, the petitioner and the respondent agreed to amend the 2004 SLA and fixed a trait value of Rs. 150/- per packet of BG-I cotton seeds costing Rs. 750/- per packet for the period 2006-2008 onwards and Rs. 266/- per packet of BG-II cotton seeds costing Rs. 950/- per packet for the period 2007-2008 onwards. On 8th May, 2007, in view of the settlement, the State of Andhra Pradesh filed an additional affidavit before the MRTPC bringing on record the (1) Settlement and Release of Claims Agreement and (2) Supplementary and Amendment Agreement executed by and between the parties on 25th January, 2007 and prayed that the matter before the MRTPC had become infructuous. He submits that on 25th May, 2007, the second amendment agreement was executed between the parties under the trait value for BG-II further r....
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....f trait value for the Kharif 2009 seasons. The petitioner has filed petition under section 9 of the Arbitration Act on 9th February, 2010 seeking stay of the termination notice dated 19th November, 2009 before Delhi High Court. On 11th February, 2010, Delhi High Court disposed of the said petition filed by the petitioner under section 9. Delhi High Court recorded the statement made by the learned counsel for the petitioner that the petitioner would pay on or before 16th February, 2010, the amount claimed in the notice after deducting Rs. 9,49,03,263/- already paid by the petitioner to the respondent. Delhi High Court recorded in the said order that the petitioner had agreed to pay the amount claimed in the termination notice dated 19th November, 2009 within the time period stipulated in it. Delhi High Court accordingly disposed of the said arbitration petition having become infrutuous keeping all the rights and contentions of both the parties left open. 82. In the Writ Petition No.6802 of 2010 filed by the respondent before the Andhra Pradesh High Court challenging the prospective action of the State Government to fix trait value, the State of Andhra Pradesh stated that neither th....
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....lue/license fee. The claims made by the respondent for contractual license fee were not contrary to the State Government Price Notifications. The said 2015 SLA is not vitiated either by fraud or misrepresentation. It is submitted that the view taken by the arbitral tribunal is a plausible view. Even if two views are possible based on the interpretation of the contract, such possible interpretation or such plausible interpretation cannot be substituted by another plausible view or another possible interpretation by this Court under Section 34 of the Arbitration Act. 86. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of McDermott International Inc v/s. Burn Standard Co. Ltd., (2006) 11 SCC 181 and in particular paragraph 111 and judgment of this Court in case of Fermenta Biotech Limited v/s. KR Patel in Arbitration Petition No. 545 of 2017 and in particular paragraph 10. He also placed reliance on the judgment of this Court in Arbitration Petition No. 1714 of 2014 in case of JSW Steel Limited v/s. ICICI Lombard General Insurance Company Limited and in particular paragraphs 16 and 17. Learned senior counsel also placed r....
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....course of arguments that the monetary relief claimed by the respondent before the arbitral tribunal could not be granted by the said CCI. Under Section 61 of the Competition Act, jurisdiction of an arbitral tribunal is ousted only in respect of the matters which the commission or the Appellate Tribunal is empowered by or under the Competition Act to determine. He submits that since the CCI or the Appellate Tribunal is not empowered to determine the monetary claims made by the respondent, such claims made by the respondent before the arbitral tribunal were within the jurisdiction of the arbitral tribunal and could not be ousted. The petitioner had never challenged the said 2015 SLA as void ab-initio before the said CCI. On the contrary, the petitioner had prayed for specific performance of the said 2015 SLA before the said CCI. He submits that the proceedings before the said CCI predominantly dealt with post-termination obligations. The interim order passed by the said CCI on 13th April, 2016 also was confined itself only with post-termination obligations of the parties. 90. It is submitted by the learned senior counsel that for deciding the issue of jurisdiction, triple test under....
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....ence raised by the petitioner does not, in law, determine or oust the jurisdiction of the arbitral tribunal. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Church of North India v/s. Lavajibhai Ratanjibhai, (2005) 10 SCC 760 and in particular paragraphs 38 and 39, judgment of Supreme Court in case of Abdulla v/s. Galappa, (1985) 2 SCC 54 and in particular paragraphs 5, 7 and 9 and judgment of Andhra Pradesh High Court in case of Sangnbhotla Venkatramaiah v/s. Kallu Venkataswamy, (1976) 2 APLJ 28 and in particular paragraphs 1, 3 and 6. 94. Learned senior counsel distinguished the judgments of the Supreme Court in case of A. Ayyasamy (supra) and paragraphs of the judgment in case of Vimal Kishore Shah (supra) relied upon by the petitioner and judgment of this Court in case of Dinesh Jaya Poojary (supra) on the ground that the Supreme Court and this Court in those judgments has held that the claims made by the claimant himself were non-arbitrable in the fact situation of those matters. He submits that those judgments are clearly distinguishable in the facts of this case. 95. Learned senior counsel invited my attention to Section 61 of the Competi....
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....the said CCI are different and distinct from recovery proceedings. Since the respondent could not seek any relief from CCI and since the said CCI does not provide a remedy to respondent, the jurisdiction of the arbitral tribunal to determine the claims made by the respondent cannot be ousted. He submits that since the respondent does not have a remedy under the Competition Act for recovery of its contractual dues, the Competition Law can never be regarded as a self-contained code qua such contractual claims. 98. In support of the aforesaid submissions, learned senior counsel placed reliance on the following Judgments :- (a) Judgment of Supreme Court in case of Saurabh Prakash v/s. DLF Universal Limited, (2007) 1 SCC 228 and in particular paragraphs 34 and 35. (b) Judgment of Supreme Court in case of Pawan Hans Limited v/s. Union of India, (2003) 5 SCC 71 and in particular paragraph 9. (c) Judgment of Delhi High Court in case of Telefonaktiebolaget LM Ericson (PUBL) v/s. CCI, (2016) SCC OnLine Del 1951 and in particular paragraphs 153, 154, 168, 173, 175, 176 and 180 to 182. (d) Judgment of Supreme Court in case of Balawaa v/s. Hasanabi, (2000) 9 SCC 272 and in particular p....
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....nitio. He submits that under the Competition Law, the concept of voidness has always been considered to be "transient" and not absolute and, thus, curable. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Mahindra and Mahindra Limited v/s. Union of India, (1979) 2 SCC 529 and in particular paragraphs 10 and 14. He also relied upon the judgment of Court of Appeal in case of David John Passmore v/s. Morland, (1999) 1 CMLR 1129 and in particular paragraphs 7, 27, 28, 34 and 50. 102. In so far as the reliance placed by the learned senior counsel for the petitioner on the order dated 10th February, 2016 passed by the said CCI is concerned, it is submitted by the learned senior counsel for the respondent that the said order has been challenged by the respondent in Writ Petition No. 1776 of 2016. By an order dated 29th February, 2016, the Delhi High Court has directed that no final order should be passed by the said CCI and that any interim order under Section 33 shall not be given effect to without the leave of the Delhi High Court. The said Writ Petition filed by the respondent is still pending before the High Court. 103....
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....dia. 106. Learned senior counsel invited my attention to ground (F) and would submit that it was contended by the petitioner itself that the those issues which the CCI was seized were only capable of being decided by the CCI exclusively. He submits that the arbitral tribunal rightly has not decided those issues and not expressed any opinion on those issues. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Harsha Constructions v/s. Union of India, (2014) 9 SCC 246 and in particular paragraphs 2 and 16 to 20. He submits that if the arbitral tribunal would have rendered a decision on issue nos. 2 and 3, it would have clearly exceeded its jurisdiction and such award would have been set aside under Section 34(2)(b)(i) of the Arbitration Act. In support of this submission, learned senior counsel placed reliance on the judgment of this Court in case of Union of India v/s. Sarthi Enterprises, (2015) SCC OnLine Bom 1511 and in particular paragraph 27. The said judgment of learned Single Judge has been upheld by the Division Bench in case of Sarthi Enterprises v/s. Union of India, (2016) 6 MHLJ 598. 107. It is submitted by the learned senior counsel that w....
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....cular paragraphs 6, 7, 9 and 10. 110. During the course of the arguments advanced by the learned senior counsel for the petitioner, this Court inquired as to the option if any available to the arbitral tribunal to deal with the claims made by the respondent on its own merit or whether the arbitral Tribunal could suspend the arbitral proceedings and wait for outcome of the proceedings before CCI. The learned senior counsel for the petitioner made three possible recourse which according to him, the arbitral tribunal could have adopted i.e. (a) to dismiss the entire claim of the respondent. The respondent in that event should initiate arbitration after a final order in its favour under the Competition Act is passed by the said CCI or (b) to stay the arbitral proceedings under Section 9 and/or Section 17 of the Arbitration Act and (c) to seek a indefinite extension of time under Section 29A of the Arbitration Act. 111. It is submitted by the learned senior counsel for the respondent that the option (a) suggested by the learned senior counsel for the petitioner is untenable in law on the ground that the claim of the respondent was arbitrable and was not capable of being granted by the....
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....t is pending adjudication before the Delhi High Court, the arbitral tribunal has no jurisdiction to decide the claim of the respondent is concerned, it is submitted by the learned senior counsel that the patent remains valid and enforceable till the time it is revoked. On the date of the claim as well as on the date of the award, the patents covering the technology of the respondent were and even today are valid and enforceable. The award cannot be challenged on the basis of alleged assumed invalidity of patents. It is submitted that no other arguments regarding Patent Act was argued during the course of arguments by the learned senior counsel for the petitioner and are therefore deemed to have been given up. The petitioner has simplicitor raised a plea that the said 2015 SLA is forbidden by Section 3(j) of the Patents Act and thus is void under Section 23 of the Indian Contract Act, 1872. He submits that this argument of the petitioner is totally untenable. Section 3(j) of the Patents Act does not prohibit any type of agreement or declare any type of agreement void. 115. It is submitted that the claim of the respondent in the arbitral proceedings were not for recovery of patent f....
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....to consideration the trait value. The Andhra Pradesh Government has fixed the maximum sale price and not the trait value under the said notifications. 119. Learned senior counsel also invited my attention to the notifications issued by the State of Maharashtra and would submit that the State of Maharashtra also has not fixed the trait value/license fee but has only fixed the maximum sale price of cotton seeds. He submits that the State Government of Andhra Pradesh has infact admitted before the Andhra Pradesh High Court in a writ petition by filing an affidavit that it did not intent to fix the trait value/license fee. State of Telangana had also fixed Maximum Sales Price under the AP Cotton Seeds Act. The Andhra Pradesh High Court has stayed the Government notification issued by the State of Andhra Pradesh. On 31st March, 2016, the said notification issued by the State of Andhra Pradesh has lapsed. On 20th April, 2016, a Division Bench of the Andhra Pradesh High Court stayed the operation of the judgment delivered by the learned single Judge but made it clear that stay order would not affect the arbitrations. 120. Learned senior counsel invited my attention to various findings r....
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....der the said Cotton Seeds (Price Control) 2015, the Central Government was empowered to and had fixed the trait value. He submits that even in the said judgment of Delhi High Court and more particularly in paragraphs 131 and 134(8), this position was confirmed by holding that the order will apply only to financial year 2016-2017. 124. In so far as the issue as to whether the arbitral tribunal ought to have given hearing to the petitioner to make submissions on the order dated 14th January, 2019 passed by the Supreme Court or not is concerned, learned senior counsel for the respondent invited my attention to the minutes of meeting dated 16th January, 2019 on page 531 of the Convenient Compilation No.II of the documents. No prejudice of any nature was caused to the petitioner. The arguments were already concluded between the parties before the arbitral tribunal when such request was made by the petitioner. 125. In so far as the issue nos. 2 and 3 framed by the arbitral tribunal is concerned, it is submitted that the arbitral tribunal could not have gone into and decided whether the said 2015 SLA was void or not based on the provisions of the Competition Act. He submits that the pet....
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....achieve full relief before the CCI. He submits that the said judgment would not apply to the facts of this case. In this case, the proceedings before the arbitral tribunal and before the CCI were filed by the two opposite parties. The CCI has no power to grant monetary relief in favour of the respondent. He submits that in any event, the said judgment would assist the case of the respondent on the issue that parallel proceedings are maintainable but unlike writ proceedings. There being no power granted to the arbitral tribunal to adjourn the arbitral proceedings sine die. The powers of Writ Court cannot be compared with the powers of the arbitral tribunal. 128. Learned senior counsel for the respondent distinguished the judgment of Supreme Court in case of Fuerst Day Lawson Ltd. (supra) on the ground that the Supreme Court in that judgment had considered the issue whether the appeal was maintainable under Section 50 of the Arbitration Act by exercising powers under Letters Patent. In that context, the Supreme Court held that the provisions of Arbitration and Conciliation Act, 1996 being a self-contained code the Letters Patent Appeal would be excluded. He submits that the said jud....
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....id judgment. It is submitted that the Supreme Court in the said judgment did not hold that the consumer disputes are non-arbitrable. It is held that the remedy under the Consumer Protection Act was available to a consumer in addition to the general remedy and once he had invoked that special remedy, he could not be relegated to arbitration. He submits that in this case since the CCI has no jurisdiction to award any monetary claim in favour of the respondent, the respondent had rightly invoked the arbitration agreement. 132. Learned senior counsel distinguished the judgment of this Court in case of Dinesh Jaya Poojary (supra). He invited my attention to the paragraphs 3, 28, 33, 34, 37, 38 and 39 of the said judgment and would submit that admittedly the CCI is not empowered to adjudicate upon the contractual claim of the respondent for unpaid trait value. The claimant in that case had approached the arbitral tribunal for a claim which should have been filed before the Registrar under the Chit Funds Act. The dispute raised and the relief claimed in the statement of claim fell exclusively within four corners of the said Act as it was touching the management of a chit business. 133. ....
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....al tribunal under Section 16 of the Arbitration Act. Invalidity of a contract is a arbitral dispute by itself on merits and is not a jurisdictional fact. Statutory remedies against validity of contract provide a 'jurisdictional fact' but restricts itself to the aspects mentioned in the statute. The question as to whether contract being void or not is not a jurisdictional fact. 136. Learned senior counsel for the respondent distinguished the judgment of Supreme Court in case of Competition Commission of India (supra) relied upon by the learned senior counsel on the ground that the said judgment support the case of the respondent and not the petitioner. It was held by the Supreme Court in the said judgment that an order under Section 26(1) of the Competition Act is only akin to a departmental function and does not affect rights and liabilities of parties. He submits that while the Court has imposed restrictions on the CCI while passing interim orders under Section 33 of the Competition Act, that would not convert an interim order into an order of a final nature. The interim orders passed by the CCI was even otherwise not binding on the arbitral tribunal and does not constitute res-j....
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....er before the said CCI that the said 2015 SLA is forbidden by law. He submits that unless the petitioner would have produced any order from the said CCI holding the 2015 SLA as void or forbidden by law, the arbitral tribunal was not bound to stay its all proceedings and had jurisdiction to proceed on the premise that the said 2015 SLA was valid and enforceable. 141. In so far as the judgment of this Court in case of M3NERGY SDN. BHD. (supra) is concerned, it is submitted by the learned senior counsel that the said judgment has been set aside by the Division Bench of this Court reported in 2019 SCC Online Bom 2915. The Special Leave Petition filed against the said judgment of the Division Bench of this Court has been dismissed. The judgment of the learned Single Judge thus cannot be relied upon by the petitioner. 142. Learned senior counsel distinguished the judgment of Delhi High Court in case of Telefonaktiebola get LM Ericsson (supra) on the ground that the said judgment is not applicable to the facts of this case since the claim of the respondent was referred to arbitration and did not involve enforcement of right or any obligation under the Patent Act. He submits that on the ....
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.... relief was depending upon the issue of validity of the 2015 SLA. The issue of validity of the said 2015 SLA is a jurisdictional fact. Learned senior counsel placed reliance on Section 2(4) of the Contract Act, 1872 and Section 10 of the Specific Relief Act, 1963 and would submit that the claims made by the respondent for recovery of the amount was depending upon the validity and enforceability of the said 2015 SLA. 145. It is submitted that since the validity of the said 2015 SLA which was challenged before the said CCI, the arbitral tribunal could not have proceeded on the premise that there was a valid agreement between the parties and based thereon could not have awarded any reliefs in favour of the respondent. Learned senior counsel invited my attention to the paragraph 5 of the judgment of Supreme Court in case of Vallabhdas v/ s. Dr. Madanlal, (1970) 1 SCC 761 and submits that the arbitral tribunal ought to have considered whether there was a jural relationship between the petitioner and the respondent or not, before granting any relief in favour of the respondent. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case....
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....f the Arbitration Act Court has to see the subject matter of dispute while hearing of the application under Section 34 impugning the arbitral award. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Prabhakaran and Ors. v/s. M. Azhagiri Pillai (Dead) by LRs. and Ors., (2006) 4 SCC 484 and in particular paragraph 21 and would submit that the arbitral tribunal cannot decide the issue of jurisdiction purely on the averments made in the plaint but has to decide the said issue based on the difference. The Competition Commission of India has already taken a prima-facie view on the issue of validity of the said 2015 SLA against the respondent and in favour of the petitioner herein. 149. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Man Roland Druckimachinen AG v/s. Multicolour Offset Ltd. and Anr., 2004 (7) SCC 447 and in particular paragraphs 18 and 46, in support of submission that issue of jurisdiction can be either taken by way of demurrer or at the time of trial. The arbitral tribunal in this case had not decided the issue of jurisdiction under Section 16 of the Arbitration Act immediately on demurrer but had post....
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....red by the Supreme Court in the said judgment is not similar to any of the provisions of the Competition Act. 154. Learned senior counsel distinguished the judgment of Supreme Court in case of Pankaj Mehra (supra) and would submit that the powers of Companies Court under Section 536 (3) of the Companies Act, 1956 to declare a transaction as void ab-initio unless otherwise rectified by the Companies Court is different then the powers of CCI under Section 3(2) of the Competition Act. 155. Learned senior counsel for the petitioner cited judgment of Supreme court in case of Tarsem Singh v/s. Sukhminder Singh, 1998 (3) SCC 471 and in particular paragraphs 30 to 33 and would submit that since the said 2015 SLA itself was void since inception, no relief could have been granted by the arbitral tribunal arising out of the said 2015 SLA. The arbitral tribunal could not have awarded any monetary relief under the said 2015 SLA unless the said agreement was found legally enforceable and valid agreement by the said CCI. 156. Learned senior counsel for the petitioner distinguished the judgment of Supreme Court in case of Piloo Dhuinshaw Sidhwa (supra) on the ground that the Supreme Court in th....
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....t collected by the petitioner for the subsequent period has been deposited before the Delhi High Court by the petitioner. The petitioner has merely developed seeds by biological process and has sold such seeds to large number of farmers. He submits that the Arbitration Act is a complete code. 160. It is submitted that the claim made by the respondent before the arbitral tribunal was based on such patent. These facts are admitted by the respondent in the pleadings filed before the arbitral tribunal. The respondent did not make any complaint against the petitioner for supply of seeds. The petitioner did not apply for declaration of the said 2015 SLA as void before the said CCI but had applied for modification of the said agreement. The said CCI can still declare the said 2015 SLA as void. The petitioner had applied for relief before the said CCI not to terminate the said 2015 SLA but had prayed for stay of termination. Learned senior counsel did not dispute that the petitioner is not register under the PPVFR Act. He submits that the provisions of the said Act are also self-contained. The respondent had not taken action against the petitioner for not registering itself under the said....
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.... of the Court and thus arbitral tribunal cannot exercise the powers to suspend the proceedings before the arbitral tribunal for non compliance of the order under Section 17. 165. Learned senior counsel placed reliance on the judgment of Delhi High Court in case of Shree Tirupathi Udyog v/s. Indraprastha Gas Ltd. in Arb.(Comm.) No.8 of 2018 dated 1st March, 2018, it has been held that there is no power/ provisions in the Arbitration Act empowering the arbitral tribunal to stay the proceedings before it. Learned senior counsel distinguished the judgment of Supreme Court in case of Prabhakaran and Ors. (supra) and would submit that the said judgment explains the meaning of "jural relationship" between the parties which would mean the rights and obligations of both against each other in the context of Section 29 of the Limitation Act. The jural relationship between the parties is undisputed and was subject matter of the arbitral proceedings. 166. Learned senior counsel distinguished the judgment of Supreme Court in case of State of Goa v/s. Praveen Enterprises (supra) on the ground that the said judgment lays down the proposition that the counter claim ought to be considered by the a....
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.... the Arbitration Act. In this case, existence and validity of the arbitration agreement is not disputed by the petitioner. 169. Learned senior counsel distinguished the judgment of Supreme Court in case of Tarsem Singh (supra) on the ground that the said judgment is not applicable to the facts of this case since the said 2015 SLA has not been declared void or discovered to be void as on date. Under Section 3 of the Competition Act an agreement is not void per se on account of the various reliefs possible under Section 27 of the Competition Act including modification of the agreement. He relied upon paragraphs 32 of the said judgment and would submit that the Supreme Court infact rejected the argument that Section 65 of the Contract Act was not applicable to void contracts. He relied upon the judgment of Supreme Court in case of Mahindra and Mahindra Limited v/s. Union of India, (1979) 2 SCC 529 and judgment in case of Passmore v/s. Morland, (1999) 1 CMLR 1129 holding that voidness under Competition Law is transient or temporal and is therefore curable. Facts and Submissions in Commercial Arbitration Petition No. 738 of 2019 :- 170. The petitioner in this case has impugned the o....
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....ated 23rd November, 2015, the petitioner called upon the respondent to withdraw the letter of termination of the said 2015 SLA. 174. On 2nd November, 2015, the Government of India filed a report before the Competition Commission of India (hereinafter referred to as "the said CCI") seeking investigation and action against the respondent and its group companies for alleged contravention of the provisions of the Competition Act. On 15th December, 2015, the petitioner in Commercial Arbitration Petition No. 737 of 2019 filed an Information before the said CCI against the respondent and its group companies challenging several alleged anti-competing clauses and alleged abusive conduct of the respondent including charge of high trait value over the State Government Price Control Notifications. On 10th February, 2016, the said CCI passed an order holding that there is then existed a prima- facie case of contravention of the provisions of Section 3(4) and Section 4 of the Competition Act by the respondent and its group of companies and directed the Director General to investigate into the matter. 175. The said CCI also passed an interim order on 13th April, 2016 thereby restraining the res....
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....missed the counter claim made by the petitioner for refund of Rs. 19.51 crores. The 3rd arbitrator made a dissenting award and dismissed the claims made by the respondent. Being aggrieved by the said majority award, the petitioner has filed this Commercial Arbitration Petition No. 738 of 2019. 179. Mr. Rohan Kadam, learned counsel for the petitioner adopted the submission made by Mr. Khambata, learned senior counsel for the petitioner in Commercial Arbitration Petition No. 737 of 2019. 180. Mr. Dwarkadas, learned senior counsel for the respondent on the other hand adopted the submission made by Mr. I. M. Chagla, learned senior counsel for the respondent in Commercial Arbitration Petition No. 737 of 2019 and made additional submissions. He submitted that trait value claimed by the respondent in the arbitration petition has already been collected by the petitioner from the farmers and has been retained by the petitioner. The petitioner did not seek any interim stay against the respondent from enforcing any claim for money or stay of the trait value clause under Article 3.01 of the said 2015 SLA. The claim for recovery of money under the said 2015 SLA made by the respondent was for ....
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....the findings if any rendered by the said CCI in future, the petitioner is nevertheless liable to pay the undisputed invoice amount since it has obtained benefits under the said 2015 SLA. 183. It is submitted by the learned senior counsel that in the interim application filed by the petitioner before the said CCI, under Section 33 of the Competition Act, the petitioner had prayed for an injunction against the respondent not to terminate the said 2015 SLA and applied for enforcement of the said 2015 SLA. The petitioner did not challenge the validity of the said 2015 SLA as void and prayed that the respondent shall not terminate the said 2015 SLA. 184. It is submitted by the learned senior counsel that the arbitral tribunal is not bound to wait for outcome of the proceedings under Section 3 of the Competition Act and to stay the arbitral proceedings during the pendency of the said proceedings under Section 3 of the Competition Act before the said CCI. Facts and Submissions in Commercial Arbitration Petition No. 892 of 2019 :- 185. The petitioner has impugned the order dated 11th October, 2017 passed by the learned arbitrator rejecting his application filed under Section 16 of the....
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....ment of India filed a reference before the said CCI seeking investigation and action against the respondent and its group companies for alleged contravention of the provisions of the Competition Act. On 15th December, 2015, the petitioner along with its associate companies filed an information before the said CCI against the respondent and its group companies challenging several alleged anti-competitive clauses and alleged abusive conduct of the respondent including charge of high trait value over the State Government Price Control Notifications. 189. It is the case of the petitioner that on 10th February, 2016, the said CCI passed an order after hearing the parties holding that there existed a prima-facie contravention of provisions of Section 3(4) and Section 4 of the Competition Act by the respondent and its group companies and directed the Director General to investigate into the matter. On 18th February, 2016, the respondent and its group companies filed an infringement suit before the Delhi High Court bearing No. 132 of 2016 inter-alia alleging that pursuant to the termination of the said 2015 SLA, the petitioner's sale of all cotton seeds with Bt. trait infringed its patent....
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....espondent under the said agreement. 193. It is submitted by the learned senior counsel that the impugned award is in contravention of Section 34(2)(b)(i) of the Arbitration Act on the ground that the validity of the said 2015 SLA was challenged before the said CCI and the same is still pending. On 27th November, 2015, the Ministry of Agricultural and Farmer Welfare, Government of India filed a reference under Section 19(1)(b) of the Competition Act with CCI regarding alleged unreasonable high price of Bt. cotton seeds charged by the respondent and others. The petitioner had filed an information under Section 19(1)(a) of the Competition Act with the CCI against the respondent alleging violation of the Competition Act on various grounds. The investigation officer submitted a report and recorded that the CCI was of a view there exist a prima-facie case of contravention under Sections 3 and 4 of the Competition Act by the respondent and thus was a fit case for investigation by the Director General to conduct the investigation. 194. It is submitted that only after such investigation order was passed by the CCI, the respondent invoked the arbitration agreement recorded under Article 11....
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....Regulation 2009 promulgated under Section 64 of the Competition Act and would submit that under the said Regulation, if the commission is of the opinion that a prima-facie case exists, the Secretary of the commission shall convey the direction of the commission within seven days to the Director General to investigate the matter. Such direction for investigation to the Director General shall be the deemed commencement of the enquiry under Section 26 of the Act. 198. Learned senior counsel invited my attention to the findings rendered by the learned arbitrator in paragraph 58 of the impugned award and would submit that the finding of the learned arbitrator that the learned arbitrator did not have jurisdiction is fallacious, erroneous and requires to be rejected. Learned senior counsel placed reliance on Section 61 of the Competition Act and would submit that the said provisions expressly oust the jurisdiction of the Civil Court to entertain any proceedings in respect of any matter which the CCI was empowered to determine. He relied upon the judgment of Supreme Court in case of Dhulabhai v/s. State of Madhya Pradesh (supra) and in particular paragraph 35 in support of the submission ....
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....t that are likely to cause adverse effects of competition or an abusive of dominance. Thus, prohibition of agreements effect the general public interest. Statutory prosecution under Section 3 against anti-competitive agreement is not prospective i.e. from the date the said CCI is seized all the matter. The CCI has wide powers under Section 19(1) to enquire into any alleged contravention of the provisions contained in Section 3(1) or 4(1) on its own motion or upon receipt of information from any person or through their association or trade association. Under Section 27(d) of the Competition Act, CCI may even direct that the contract in question stands modified to the extent and in the manner as may be specified by it. 202. In support of the submission that the Competition Act is a complete self-contained code providing the statutory right of protection and remedies against anti-competitive conduct, learned senior counsel placed reliance on the judgment of Delhi High Court in case of Jindal Steel & Power Ltd. v/s. Union of India, 2012 (127) DRJ 285 and in particular paragraphs 24. 203. Learned senior counsel for the petitioner placed reliance on Section 2(3) of the Competition Act ....
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....tion of the learned arbitrator to entertain the claim of the respondent would only spring forth after a determination of the issue whether the SLA's are valid under the Competition Act or not. It is only then the arbitral tribunal would possess the jurisdiction to enforce the SLA as a contract and grant relief thereon. He submits that if the sole arbitrator would not exercise its jurisdiction in adjudicating the claims made by the respondent, the respondent would not be remediless. Even if the CCI would have decided in favour of the respondent, the respondent could have always invoked arbitration after its final order would have been passed by the said CCI. 207. Mr. Pravin Samdhani, learned senior counsel for the respondent on the other hand adopts the submission made by the Mr. Chagla, learned senior counsel for the respondent in Commercial Arbitration Petition No. 737 of 2019 and Mr. Dwarkadas, learned senior counsel for the respondent in Commercial Arbitration Petition No. 738 of 2019 and made additional submissions. The facts in Commercial Arbitration Petition No. 892 of 2019 are identical to the facts in other two matters. The petitioner had not disputed the existence of the ....
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.... award is a fraction from the sale price already received by the petitioner. 210. It is submitted by the learned senior counsel that mere pendency of proceedings before the CCI cannot oust the jurisdiction of the arbitral tribunal. There is no final determination of the issue whether the said 2015 SLA or any clauses under the 2015 SLA is in breach of Section 3 or 4 of the Competition Act. No final order under Section 27 of the Competition Act has been passed by the said CCI till date. By filing or pendency of a complaint before the said CCI by the petitioner cannot result in either a declaration of voidness under Section 3 or the passing of an order under Section 27 of the Competition Act, 2002. The said 2015 SLA is accordingly deemed to be valid and enforceable unless expressly declared to be void. 211. It is submitted by the learned senior counsel that the stand of the petitioner that in view of the pendency of the complaint filed by the petitioner against the respondent under the provisions of the Competition Act, 2002, such allegations cannot be looked into by the learned arbitrator and on that ground itself the monetary claim made by the respondent ought to have rejected is ....
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....before him by applying the analogy of the Section 10 of the Code of Civil Procedure, 1908. In any event, the decision whether or not to stay the proceedings is a discretional decision and cannot be questioned under Section 34 of the Arbitration Act. 215. It is submitted by the learned senior counsel that the petitioner is unjustly enriching itself of the amount recovered by the petitioner from the farmers including the contractual trait value of Rs. 13,23,39,225/-. He submits that the view taken by the learned arbitrator is a plausible view on the facts and in law and thus cannot be interfered with by this Court in this Commercial Arbitration Petition filed under Section 34 of the Arbitration Act. Learned senior counsel invited my attention to paragraphs 47, 48, 57, 59, 63, 68 to 71, 74, 78 and 190 of the impugned award and would submit that various findings of fact rendered by the learned arbitrator being not perverse cannot be interfered with by this Court. Learned senior counsel distinguished the judgment of Supreme Court in case of A. Ayyasamy (supra). He relied upon the judgment of Supreme Court in case of National Institute of Mental health and Neuro Science v/s. C. Paramesh....
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.... under Article 11.02. 219. The dispute arose between the parties. It was the case of the respondent that under the said 2015 SLA, the petitioner paid an amount of Rs. 9 crores towards the trait value in or around June 2015. Out of the said amount of Rs. 9 crores, the respondent on first in first out basis appropriated Rs. 80,38,636/- towards outstanding dues under 2004 SLA and Rs. 8,19,61,637/- towards dues under 2015 SLA. It was the case of the respondent that the petitioner failed to make payment of the balance amount of trait value and raised frivolous issues by letter dated 19th July, 2015 thereby refusing to make payment of the trait value. 220. It was contended by the petitioner that the petitioner was entitled to challenge the trait fee recovered by the respondent from the petitioner as specified under Article 3 of the respective SLA statutorily modified in the light of the Andhra Pradesh, Gujarat and Maharashtra Cotton Seeds (Regulation of Supply Distribution, Sale and Fixation of Sale Price) Act along with notification thereunder and that the respondent should have challenged the trait fee accordingly since 2010. Prior to issuance of the said letter dated 19th July, 2015....
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....dge of the Supreme Court as its nominee arbitrator. In the said reply, the petitioner reserved its right to initiate appropriate legal proceedings against the respondent for recovery of the claim against the petitioner in the sum of Rs. 308.95 lacs and any further/other claims as may be advised together with all damages, costs and expenses. 224. The respondent filed a detailed statement of claim before the arbitral tribunal inter alia praying for an amount of Rs. 117,39,38,943/- as and by way of trait value against the petitioner for the sales between 1st April, 2015 and 31st October, 2015 and a sum of Rs. 690,249/- as and by way of trait value on 1st November, 2015 and 14th November, 2015 under the 2015 Sub-Licence Agreement. The said claim was resisted by the petitioner by filing written statement. Alongwith the said written statement, the petitioner had also filed a counter claim against the respondent inter alia praying for refund of the total amount of Rs. 14,29,39,990/- paid by the petitioner to the respondent from 1st April, 2015 till the date of the filing of the said counter claim alongwith a sum of Rs. 52205858/- for interest. 225. The petitioner also filed an applicati....
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....itrability of the dispute. The arbitral tribunal interpreted the arbitration agreement forming part of the said 2015 SLA and rightly held that the claims made by the respondent were arbitrable. The arbitral tribunal also interpreted section 61 of the Competition Act which provides for exclusion of jurisdiction of Civil Court in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under the Competition Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. Arbitral tribunal held that section 62 clarifies that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 229. The arbitral tribunal rejected the contention of the learned counsel for the petitioner that the CCI had found prima facie case in favour of the petitioner and had directed enquiry under section 26 and that all those questions can be decided by the CCI alone and not by any authority or forum. The arbitral tribunal rightly held that section 61 is expressly clear that i....
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....ar amount to the respondent. The arbitral tribunal rightly held that the respondent had certain rights under the 2015 SLA and thus it must also have remedy for enforcement of such rights. If the challenge to the jurisdiction of the tribunal by the respondent is upheld, it would result in dismissal of the claim without adjudication of the merits and without granting any relief to him. The tribunal accordingly rightly held that wherever there is right, there is a remedy or where there is no wrong without remedy. 233. In paragraph 85 of the impugned award, the arbitral tribunal rightly held that the tribunal has jurisdiction to entirely deal with and decide the dispute raised by the respondent against the petitioner. In paragraph 86 of the impugned award, the arbitral tribunal rightly held that apart from the dispute by the respondent against the petitioner under 2015 SLA, the petitioner had also raised some disputes against the respondent arising out or in connection with 2015 SLA by challenging the termination thereof Agreement by the respondent by letter dated 14th November, 2015 and has claimed the damages in the counter claim to the tune of Rs. 2,500 crores, subsequently reduced....
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....(e)- Whether the Claimant via the Subject Agreement has leveraged its dominant position in violation of Section 4(2)(e) of the Competition Act, 2002 as alleged in the Defence read with Paragraphs 9.54 to 9.56 of the Information ? Issue No.3(f)-Whether the Subject Agreement is violative of Section 3(1) and 3(4) of the Competition Act, 2002 as alleged in the Defence read with the Information?" 237. Insofar as issue no.2 is concerned, arbitral tribunal held that it was clear that the question whether or not Competition Act, 2002 applies to 2015 SLA can and is to be decided only by the CCI. It is rightly held that once the CCI is empowered to determine the said question, section 61 of the Competition Act bars the arbitral tribunal from considering the said question and also the supplemental or consequential question is embedded in issue nos. 3(A) to 3(F) which also the CCI is empowered to determine. After adverting to section 61 of the Competition Act and after noticing the admitted facts that the CCI is still investigating the matter and no orders have yet been passed by the CCI under Section 26 or under Section 27, the arbitral tribunal rightly held that that issue will be decid....
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....nsel for the parties also addressed before this court on the issue whether the Competition Commission of India would be empowered to direct the respondent to refund the amount if paid by the petitioner to the respondent under the impugned award in the event of the Competition Commission of India rendering any finding against the respondent and in favour of the petitioner about the validity of the 2015 SLA or not. Section 2(e) defines "Commission" i.e. Commission means the Competition Commission of India established under sub- section(1) of section 7. Section (3) deals with 'anti-competitive agreements.' The said provision prohibits any enterprise or association of enterprises or person or association of persons from entering into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. 242. Section 3(2) provides that any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. Section 7 provides for establishment of commission. Section 19 of the Act empowers the commission ....
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....s no jurisdiction to entertain any such monetary claim made by one party against another party to the SLA under the provisions of the Competition Act or not. 246. A perusal of the record clearly indicates that it is not in dispute that the parties had agreed to amend 2004 SLA after detailed negotiations and fixed a trait value of Rs. 150/- per packet of BG-I cotton seeds costing Rs. 750/- per packet for the period 2006-08 onwards and Rs. 266/- per packet of BG-II cotton seeds costing Rs. 950/- per packet for the period 2007-08 onwards. There are proceedings filed before the different High Courts including MRTPC wherein the State of Andhra Pradesh filed an additional affidavit bringing on record (i) Settlement and Release of Claims Agreement and (ii) Supplementary and Amendment Agreement executed by and between the parties on 25th January, 2007. The second Amendment Agreement was executed between the parties under the trait value for BG-II further reducing the amount to Rs. 225/- per packet for a packet costing upto Rs. 950/- per packet. 247. It is not in dispute that the respondent had issued a notice of termination of SLA 2004 by notice dated 19th November, 2009 and demanded the....
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....Seeds (Regulation pf Supply Distribution, Sale and Fixation of Sale Price) Act, 2007 and Section 10 of the Maharashtra Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Act, 2009 does not empower the respective State Governments to fix trait value but empower to fix maximum sale price of the cotton planting seeds. There is no dispute between the parties that the purpose of such maximum selling price fixation was to secure the interest of farmers only. 252. Mr. Khambata, learned senior counsel for the petitioner did not dispute that one year prior to the claim period, the Bt. cotton seeds business of the petitioner was 69.73% i.e. approximately 70% of their total business. The total revenue of the petitioner for the Financial Year 2015-16 was Rs. 1054 crores as is apparent from the affidavit in reply dated 20th February,2019 filed by the petitioner in the petition filed by the respondent under Section 9 of the Arbitration Act in this Court. The net profit of the petitioner for the Financial Year 2015-16 even according to the petitioner was Rs. 1054 crores as reflected in the said affidavit. 253. Learned senior counsel also did not dispute that unde....
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.... while dealing with Issue No.1 in the impugned arbitral award. Mr. Khambata, learned senior counsel for the petitioner could not dispute the existence of the arbitration agreement recorded in the said 2015 SLA. He also could not dispute that the arbitral tribunal was properly constituted. For deciding the issue of jurisdiction of the arbitral tribunal under Section 16 of the Arbitration Act, the arbitral tribunal has rightly applied the triple test : (1) whether there is in existence a valid arbitration agreement, (2) whether the arbitral tribunal is properly constituted or not and (3) whether the matters submitted to arbitration are submitted within the scope of the arbitration agreement or not. The only question thus remains for consideration of this Court is whether the monetary claims made by the respondent before the arbitral tribunal were arbitrable or not. 256. The submission of the learned senior counsel for the petitioner before this Court is that though CCI has no jurisdiction to award any monetary claim under the provisions of the Competition Act, the monetary claims made by the respondent before the arbitral tribunal however, could not have been granted in violation of....
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....gs on the ground that none of the party paid his share in respect of his claim or counter claim, as the case may be, is found in Section 38(2) of the Arbitration Act. The legislative intent is thus clear that where the powers for suspension was to be provided, it was specifically inserted in the Act. No other provision for termination or suspension of the arbitral proceedings due to the situation contemplated therein, can be exercised. 260. In so far as reliance placed by the learned senior counsel on Section 9 of the Arbitration Act in support of the submission that the Court has ample power to suspend the arbitral proceedings under the said provision is concerned, under the said provision, the arbitral tribunal empowers to grant interim measures on various grounds and circumstances specifically set out therein. None of those grounds and circumstances set out therein would include the power to suspend the arbitral proceedings by the Court under Section 9. There is thus no merit in this submission of the learned senior counsel for the petitioner. 261. Reliance placed on Section 17 of the Arbitration Act in support of the submission that the arbitral tribunal is empowered to suspe....
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....plication made under sub-section (1), pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as realisable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II having been committed by such enterprise: Provided that the Appellate Tribunal may obtain the recommendations of the Commission before passing an order of compensation. (4) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Appellate Tribunal, make an application under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the Appellate Tribunal and the order of the Appellate Tribunal thereon. Explanation. - For the removal of doubts, it is hereby declared th....
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....e Competition Act, 2002, based on such finding of the CCI or the order of the Appellate Tribunal in an appeal against any finding of the CCI or under Section 42 A or Section 53Q (2) of the Act, the petitioner in that event, would entitled to seek claim for compensation against the respondent including the amount paid, if any, by the petitioner by implementing the impugned arbitral award. 266. Mr. Khambata, learned senior counsel for the petitioner in Commercial Arbitration Petition No.737 of 2019, Mr. Seervai, learned senior counsel for the petitioner in Commercial Arbitration Petition No.892 of 2019 and Mr. Rohan Kadam, learned counsel for the petitioner in Commercial Arbitration Petition No.738 of 2019 could not demonstrate before this Court that even if the amount awarded by the arbitral tribunal if paid by the petitioner to the respondent and if the petitioner ultimately succeeds in the proceedings before the CCI, the petitioner would not be able to seek any compensation by filing an application under Sections 53N(3) and 53N(4) of the Competition Act read with explanation thereto. 267. In my view, there is no substance in the submission made by the learned senior counsel for ....
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....n Act or not and deserves to be declared as void or required modification but has power to award monetary claim under such agreement. 270. The powers of the arbitral tribunal and the powers of the CCI are different and are not overlapping. In this case, the arbitral tribunal has not decided the issue as to whether the said 2015 SLA entered into between the parties was anti-competitive or not or whether the said 2015 SLA is in breach of any of the provision of the Competition Act or not or the respondent was in a dominant position or had committed the abuse of dominant position contemplated under Section 27 of the Competition Act. The arbitral tribunal in the impugned award has recorded a finding that the arbitral tribunal has jurisdiction in the matter, Subject-Agreement is neither void nor voidable under the Contract Act, 1872 and on the facts of the case, the respondent had not avoided the agreement. It is held that the petitioner was not entitled to withhold or refuse payment of the trait value payable under the Subject-Agreement and was liable to make such payment. The respondent was entitled to demand the trait value from the petitioner. 271. While dealing with issue nos.3(a....
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....jurisdictional facts. The arbitral tribunal is empowered to exercise powers in view of the existence of arbitration agreement and to find out whether the claims made before it are arbitrable or not. Such exercise would not amount to assuming the existence of the jurisdiction facts. 274. Reliance placed by the learned senior counsel on Section 10 of the Specific Relief Act, 1963 in support of the submission that the said 2015 SLA itself being not enforceable in law could not have been relied upon by the respondent for seeking enforcement thereof while seeking monetary claim is misplaced in the facts of this case. The issue as to whether any part of 2015 SLA is void or not or is contrary to any of the provisions of the Competition Act or not, is the issue pending before the CCI. The petitioner will have a remedy under Section 53N of the Competition Act, if the petitioner succeeds in those proceedings before the CCI to seek adequate compensation based on such findings if rendered by the CCI or the Appellate Tribunal, as the case may be. 275. In so far as the submission of Mr. Khambata, learned senior counsel for the petitioner that the arbitral tribunal has decided the issue nos.2 a....
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.... is that the "jurisdiction" mentioned in Section 16 refers to three things (i) as to whether there is an existence of a valid arbitration agreement, (ii) whether the arbitral tribunal is properly constituted and (iii) matters submitted to arbitration should be in accordance with the arbitration agreement. In the said judgment, Supreme Court held that the Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong, and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had jurisdiction over the subject matter, it had the jurisdiction over the party and therefore merely because it made an error in deciding a vital issue in the suit, it cannot be said that it had acted beyond its jurisdiction. It is held that the Courts have jurisdiction to decide right or to decide wrong even tough they decide wrong, the decree is rendered by them cannot be treated as nullities. 279. Supreme Court has adverted to the judgment of privy council in case of Maqbul Ahmad v/s. Onkar Pratap Narain Singh, AIR 1935 PC 85 which did not say that where the Court fails to perform it....
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....e plaintiffs had filed a suit giving rise to the appeal treating the defendants as tresspassers as they had denied the title of the plaintiff. It is held that a suit against the tresspasser would lie only in the Civil Court and not in the Revenue Court. In paragraph 7 of the said judgment, it is held that on the allegations made in the plaint the suit was cognizable by the Civil Court and that the High Court had erred in law in non-suiting the plaintiffs on the ground that the Civil Court had no jurisdiction. 282. A full Bench of Andhra Pradesh High Court in case of Sangnbhotla Venkatramaiah (supra) has held that where the subject matter of the suit falls outside the exclusive jurisdiction of the special tribunal or where the reliefs sought in the suit is one which the special tribunal is incapable of granting, the jurisdiction of the Civil Court is not ousted merely because the question which has to be incidentally but necessarily decided is a question within the competence of the special tribunal. The forum has to be determined by the plaint. If the allegations in the plaint and the reliefs sought did not bring the action within the jurisdiction of the special tribunal, there is....
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.... Court in case of M/s. Shoes East Limited (supra) while dealing with the provisions of Securities and Exchange Board of India Act, 1992 held that there was no question of bar of jurisdiction of Civil Court in a suit for recovery where the company seeks to invoke a contractual obligation against the person who promises to bring a particular amount of subscription but fails to do so. It is held that there is no provision in the SEBI Act or its regulation for an adjudicating officer of the board or the Appellate Court to pass a decree for recovery in case at hand before the Delhi High Court. Delhi High Court rejected the contention of the respondent that there was bar under the provisions of SEBI Act against the Civil Court from dealing with a monetary claim by enforcing a contractual obligation. The principles laid down by the Delhi High Court in case of M/s. Shoes East Limited (supra) apply to the facts of this case. I am in respectful agreement with the views expressed by the Delhi High Court in the said judgment. 286. In this case also since the respondent had filed the claim before the arbitral tribunal for recovery of monetary claim by seeking enforcement of contractual obligat....
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....ing relief under a contract. The purpose of the proceedings filed by the parties before the CCI is different and distinct from the recovery proceedings filed by a party to agreement for seeking enforcement of a contractual obligation. The CCI cannot decide the monetary claim made by the respondent and at the same time, the arbitral tribunal cannot decide the issue whether the 2015 SLA was void being allegedly violative of Section 3 and other provisions of the Competition Act. Both the proceedings can be conducted parallelly and does not oust the jurisdiction of each other in respect of the issues which can be exclusively decided by each of this forum. 289. In that context, in my view, Mr. Chagla, learned senior counsel for the respondent is right in his submission that the Competition Act is not a self-contained code. Supreme Court in case of Saurabh Prakash (supra) dealt with the issue of jurisdiction of Monopolies and Restrictive Trade Practices Commission and held that the power of MRTP Commission to award compensation is restricted to a case where a loss or damage had been caused as a result of the monopolistic or unfair trade practices. It had no jurisdiction where damages wa....
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....s enacted. The provisions of the enactment in question should provide for a complete machinery to deal with various promises that may arise during its execution. Sufficient powers should be vested in the authority/forum created under the Act to ensure effectual and complete implementation of the Act. There should be complete and coherent scheme of the statutory provisions for attainment of the object and purpose of the Act. It essentially should also provide for adjucatory scheme to deal with the grievance/claims of the persons affected by enforcement of the provisions of the Act, preferably, including an appellate forum within the frame work of the Act. In another words, the Act in itself should be a panacea to all facets arising from the implementation of the Act itself. The principles of law laid down by the Supreme Court in case of Girnar Traders (supra) applies to the facts of this case. 293. Learned senior counsel for the petitioner could not point out any provision under the Competition Act providing for a remedy to recover monetary claim arising out of a contractual obligation under an agreement. Thus, the provisions of the Competition Act cannot be considered as a self-co....
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....e judgment of Supreme Court in case of CCI v/s. SAIL, (supra) and the judgment of this Court in case of Vision Millenium Exports Private Limited (supra) would clearly assist the case of the respondent. The principles of law laid down by the Supreme Court and this court in these cases are applicable to the facts of this case. I am respectfully bound by the said judgments. 297. In my view the order dated 13th April, 2016 passed by the CCI even otherwise cannot be given effect in view of the order dated 29th February, 2016 passed by the Delhi High Court and is even otherwise an interim order and did not determine the rights of the parties and would not operate as res-judicata or issue estopple in the matter. Supreme Court in case of Amrish Tewari (supra) has held that interim orders were passed before any order or statements had been recorded and were passed only on the basis of the contentions of the parties. It is held that the interim orders even though they may have been confirmed by the higher Courts, never bind and do not prevent passing of contrary order at the stage of final hearing. In my view, the principles laid down by the Supreme Court in the said case clearly applies to....
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....o be exclusively adjudicated upon by the CCI. Similar ground is also raised by the petitioner in ground (F) of the petition. In my view, the petitioner thus cannot be allowed to now urge across the bar that the arbitral tribunal ought to have rendered decision/conclusion of those issues framed under paragraphs 3(A) to 3(F). This submission made by the learned senior counsel for the petitioner across the bar is contrary to the grounds raised by the petitioner itself in the arbitration petition. 301. The Supreme Court in case of Harsha Constructions (supra) has held that if a non-arbitrable dispute is referred to an arbitrator and even if an issue is framed by the arbitrator in relation to such a dispute, there cannot be a presumption or a conclusion to the effect that the parties had agreed to refer the issue to the arbitrator. In that matter, the respondent had raised an objection relating to the arbitrability of the issue before the arbitrator and yet the arbitrator has rendered his decision on the said "excepted" dispute. It is held by the Supreme Court that the arbitrator could not have decided the said "excepted" dispute. It was not open to the arbitrator to decide the issues ....
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....respondent is made and thus the principles of res-judicata cannot stand in this situation. The arbitral tribunal has determined all the issues which could be exclusively determined only by the arbitral tribunal and within its jurisdiction and rightly did not determine the issues under the Competition Act and has kept all those issues and rights and remedies available to the petitioner under the Competition Act open. The judgment of Supreme Court in case of Piloo Dhuinshaw Sidhwa (supra) which deals with the right of the party to claim compensation in case of breach of the contract under section 70 of the Contract Act applies to the fats of this case. 304. In my view, there is no substance in the submission of the learned senior counsel for the petitioner that the parties to the arbitral proceedings also could have sought an indefinite extension of time under section 29A of the Arbitration Act during the pendency of the complaint filed by the Central Government and the information filed by the petitioner before the CCI. The legislative intent for inserting section 29A clearly mandates that the arbitral proceedings have to be disposed of expeditiously and if for any reason set out i....
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....ration Act clearly indicates the legislative intent that the arbitral tribunal may suspend or terminate the arbitral proceedings if one party does not pay the share of deposit of the other party with the arbitral tribunal in respect of the claim or the counter claim as the case may be. It is clear that only in the specific circumstances set out under the provisions of the said Act, the legislature wanted to empower the arbitral tribunal to terminate the proceedings or to suspend the proceedings. The powers are specifically prescribed under one of those provisions set out aforesaid. 308. In view of the limited judicial intervention prescribed under section 5 of the Arbitration Act, the arbitral tribunal or this Court could not have either terminate or suspend the arbitral proceedings in view of there being no such power available or prescribed under the Arbitration Act for either termination of the arbitral proceedings or for suspension thereof in view of the pendency of the complaint filed by the Central Government or the information filed by the petitioner before the CCI. 309. Insofar as the submission of the learned senior counsel for the petitioner that the arbitral tribunal d....
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....the said PPVFR Act prior to the date of termination of the said 2015 SLA which is a mandatory precondition for invoking section 26 of the said Act. In my view, since the provision of the said PPVFR Act is not triggered, the submission of the learned senior counsel for the petitioner is academic and thus deserves to be rejected on that ground itself. 312. Be that as it may, it is an undisputed position that the petitioner is a commercial breeder with revenue over Rs. 1,000 crores and is not a farmer. Learned senior counsel for the petitioner also could not dispute before this court that the entire amount claimed by the respondent before the arbitral tribunal for recovery of trait fees which amount was part of the maximum sales price was already recovered by the petitioner from the farmers who were sold the seeds and other items. The finding rendered by the arbitral tribunal on this issue in paragraph 212 of the arbitral award being not perverse and not showing any patent illegality, cannot be interferred with by this court. Similar findings rendered by the arbitral tribunal in paragraphs 204, 210, 211, 213 and 215 also being not perverse and do not disclose any patent illegality, c....
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....eriod 1st April, 2015 to 14th November, 2015 and received an aggregate amount of Rs. 740 crores approximately from the farmers/consumers. The arbitral tribunal however has allowed only the claim of Rs. 117.46 crores with interest which the petitioner had contractually agreed to pay to the respondent under the said 2015 SLA. In my view, Mr. Chagla, learned senior counsel for the respondent is right in his submission the retention of the unjust and undisputed amount was rightly not permitted by the arbitral tribunal. 315. In my view, the judgment of Delhi High Court in case of Jindal Steel & Power Ltd. (supra) would not assist the case of the petitioner on the ground that the MOU which was challenged before the Delhi High Court in the writ petition was executed before the Competition Act came into force. The said party had also filed a parallel proceedings before the CCI after the said Competition Act came into force for the same relief. Delhi High Court accordingly adjourned the writ proceedings awaiting the decision of the CCI on the basis that the writ petitioner could achieve full relief before the CCI. It is clear that however in this case, the proceedings filed before the arbi....
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....Ltd. (supra) relied upon by the learned senior counsel for the petitioner is concerned, a perusal of the said judgment clearly indicates that the Supreme Court in the said judgment did not hold that the consumer disputes are non-arbitrable. It is held by the Supreme Court in the said judgment that Section 3(2) of the Consumer Protection Act does not contain any definition but contain a general provision which clarifies that "this part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration." It is held that complaints filed under Consumer Protection Act can also be proceeded with despite there being an arbitration agreement between the parties. 319. The judgment of this Court in case of Dinesh Jaya Poojary (supra) also would not assist the case of the petitioner on the ground that the CCI before whom a complaint filed by the Central Government and the information filed by the petitioner is pending, is not empowered to adjudicate upon the contractual claims made by the respondent for unpaid trait value. In my view, the disputes raised by the respondent in the statement of claim before the arbitral tribunal w....
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.... The judgment of Supreme Court in case of Arun Kumar and Ors. (supra) relied upon by the learned senior counsel for the petitioner is distinguishable on the ground that the facts before the Supreme Court in the said judgment were totally different and are not applicable to the facts of this case at all. In my view, the issue of the alleged invalidity of a contract or violation of Competition Act is not a jurisdictional fact for the arbitral tribunal under Section 16 of the Arbitration Act. Invalidity of a contract is an arbitrable dispute by itself on merits and is not a jurisdictional fact. The question as to whether a contract is void or not is not a jurisdictional fact. 324. The judgment of Supreme Court in case of Competition Commissioner of India (supra) relied upon by the learned senior counsel for the petitioner is clearly distinguishable in the facts of this case on the ground that in that judgment an order under Section 26(1) of the Competition Act was held akin to a departmental function and did not affect the rights and liabilities of parties. The interim order passed by the CCI under Section 33 of the Competition Act cannot be converted into an order of a final nature ....
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..... It is also not held by the CCI till date that the said 2015 SLA is forbidden by any law. It is also not the case of the petitioner before the said CCI that the said 2015 SLA is forbidden by law. 329. The judgment of this Court in case of M3NERGY SDN. BHD. (supra) relied upon by the learned senior counsel for the petitioner has been already set aside by a Division Bench of this Court in a judgment reported in 2019 SCC OnLine Bom 2915. Learned senior counsel for the petitioner did not dispute that the Special Leave Petition filed against the said judgment of Division Bench of this Court has been already dismissed. Judgment of Delhi High Court in case of Telefonaktiebola get LM Ericsson (supra) is also distinguishable on the ground that in this case the respondent had applied for recovery of monetary claim and such dispute did not involve enforcement of right or obligation under the Patents Act. Delhi High Court in the said judgment has clearly held that the Competition Act does not oust the jurisdiction of other forum/body on other matters relegated to other forum/body even if the issues are related. The view taken by the Delhi High Court about the jurisdiction of CCI and the juri....
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....r enforcement of contractual dues. In so far as the judgment of Supreme Court in case of Vallabhdas (supra) relied upon by the Mr. Khambata, learned senior counsel for the petitioner in his rejoinder arguments is concerned, learned senior counsel could not demonstrate even before this Court as to how there was no jural relationship between the petitioner and the respondent which has not been allegedly considered by the arbitral tribunal before granting any relief in favour of the respondent. 333. The judgment of Supreme Court in case of Prabhakaran and Ors. (supra) relied upon by the learned senior counsel for the petitioner is distinguishable on the ground that the facts before the Supreme Court in the said judgment were totally different. No such plea of lack of jural relationship between the parties was raised by the petitioner before the arbitral tribunal nor was demonstrated by the petitioner either before the arbitral tribunal even before this Court. The learned senior counsel could not dispute the existence of the arbitration agreement, existence of the said 2015 SLA between the parties and the fact that under the same agreement substantial amount of the payment of trait fe....
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.... judgment of Supreme Court in case of Indian Farmers Fertiziler Cooperative Limited (supra). The principles laid down by the Supreme Court in the said judgment applies to the facts of this case. 337. In so far as the reliance placed by the learned senior counsel for the petitioner on the judgment of Supreme Court in case of Garware Wall Ropes Ltd. (supra) is concerned, Supreme Court in the said judgment has held that if the documents which requires payment of stamp duty compulsorily is not stamped, such document comprising of arbitral agreement would not be enforceable in law. In my view, this judgment of the Supreme Court would not apply to the facts of this case at all. The arbitral tribunal has not decided any issue which were exclusively within the domain of the CCI. 338. In so far as the reliance placed by the learned senior counsel on Section 3(2) and Section 27 of the Competition Act is concerned, there is no dispute that in appropriate cases, the CCI has power to modify the agreement and that under Section 3(2) of the Competition Act, an agreement would be void falling under the said provisions unless saved by modification. It is however not in dispute that so far the sai....
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....e judgment of Supreme Court in case of Hansraj Gupta & Co. (supra) has held that Section 70 of the Contract Act enables the person who actually supplies goods or renders some services, not intending to do so gratuitously, to claim compensation from the person who enjoys the benefit of supply made or services rendered. It is a liability which arises on equitable ground even though express agreement on a contract may not be proved. In my view, the principles laid down by the Supreme Court in the said judgment would squarely apply to the facts of this case. The petitioner had availed of various benefits under the said 2015 SLA and had recovered the amount from its customers i.e. farmers for supply of seeds. The arbitral tribunal rightly rejected the counter claims made by the petitioner for refund of various amounts. Mr. Khambata, learned senior counsel for the petitioner could not distinguish the said judgment in case of Hansraj Gupta & Co. (supra). 343. In so far as the judgment of this Court in case of Maharashtra State Electricity Board (supra) relied upon by the learned senior counsel for the petitioner in support of the submission that the Court has ample power under Section 9 ....
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....en the respondent and the another party was pending before another arbitrator and the criminal investigation that had been lodged against the petitioner was disposed off. In my view, the principles laid down by the Delhi High Court in the said judgment which has considered the amendment to Section 17 inserted by Arbitration and Conciliation (Amendment) Act, 2015 applies to the facts of this case. I am in respectful agreement with the view expressed by the Delhi High Court in the said judgment in case of Shree Tirupathi Udyog (supra). 346. In so far as the issue raised by the learned senior counsel for the petitioner that the claims made by the respondent before the arbitral tribunal was based on the patent rights of the respondent or that such facts are allegedly admitted by the respondent in the pleading filed before the arbitral tribunal is concerned, there is no merit in this submission of the learned senior counsel. A perusal of the pleadings filed by the respondent before the arbitral tribunal clearly indicates that the respondent had not filed a monetary claim for enforcement of any patent rights. The respondent has already filed a separate proceedings before Delhi High Cour....
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....dent rightly placed reliance on the judgment of Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. (supra), in case of McDermott International Inc (supra) in support of his submission that the scope of challenge of an arbitral award under Section 34 of the Arbitration Act is limited. The principles of law laid down by the Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. (supra) and in case of McDermott International Inc (supra) applies to the facts of this case. I am respectfully bound by the said judgments. In my view, no case is thus made out by the petitioner for intervention with the impugned award in Commercial Arbitration Petition No. 737 of 2019 and thus the said petition deserves to be dismissed. REASONS AND CONCLUSIONS IN COMMERCIAL ARBITRATION PETITION NO. 738 OF 2019 :- 350. The facts and the legal submissions made by the parties in this0 case are identical to the facts to the facts and submission in Commercial Arbitration Petition No. 737 of 2019. Mr. Rohan Kadam, learned counsel for the petitioner adopted all the submissions made by Mr. Khambata, learned senior counsel for the petitioner in Commercial Arbitration Petition No....
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....he Commercial Arbitration Petition No. 738 of 2019 thus deserves to be dismissed. REASONS AND CONCLUSIONS IN COMMERCIAL ARBITRATION PETITION NO. 892 OF 2019 :- 354. The facts and the legal submissions made by the parties in this case are also identical to the facts and legal submissions in Commercial Arbitration Petition No. 737 of 2019 except few additional legal submissions advanced by Mr. Seervai, learned senior counsel for the petitioner which are being dealt with in the later part of this judgment. The issue as to whether the said 2015 SLA was void under Sections 3 and 4 of the Competition Act or not or that whether the said agreement contravened the provisions of the Competition Act or not is pending before the CCI. In this case, the arbitral award is rendered by the sole arbitrator. 355. The claim made by the respondent was for an amount of Rs. 13,20,79,537/- towards trait value for sales between 1st April, 2015 and 31st October, 2015 and the sum of Rs. 2,89,688/- for the period between 1st Novembers, 2015 and 14th November, 2015 under the said 2015 SLA. The arbitral tribunal has awarded a sum of Rs. 13,23,39,225/- in favour of the respondent with interest @ 18% p.a. fro....
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.... which has ultimate no barring on the outcome of the impugned award has to be ignored. 359. The learned arbitrator in this case also has rightly held that he was not considering or adjudicating any dispute relating to competition laws, all disputes relating to rights in personam are amenable to arbitration while all disputes relating to right in rem can only be adjudicated by Courts or statutorily constituted Fora. In my view, the learned arbitrator rightly held that the claims made by the respondent emanated from a commercial contract between the two parties and concerning rights in personam and not in rem and thus arbitrable. Section 61 does not prohibit an arbitral tribunal from determining contractual disputes under an arbitration agreement. In my view, learned arbitrator rightly held that in any event the disputes fell for determination by the arbitral tribunal and the CCI were distinct and did not overlap. The respondent had made its claims based on the contract in the arbitral proceedings whereas the petitioner has alleged abuse of dominance against the respondent before the CCI. 360. In the operative part of the award, the learned arbitrator clarified that in the event th....
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....sdiction to award monetary claims as made by the respondent before the arbitral tribunal for enforcement of the contractual obligation under 2015 SLA also has to be kept in mind. In so far as the submission of the learned senior counsel for the petitioner that the cause of action could not be bifurcated in two parts is concerned, there is no dispute about this proposition of law However, in this case, the arbitral tribunal has decided only the monetary claims which were within its jurisdiction exclusively and has not decided any issues which would fall exclusively within the domain of the CCI. 363. In so far as the judgment of Supreme Court in case of Competition Commission of India v/s. Bharti Airtel Ltd. (supra) relied upon by the learned senior counsel for the petitioner is concerned, the said judgment is clearly distinguishable in the facts of this case. The petitioner in this case had already raised an issue of arbitrability even in the correspondence at the stage of the respondent invoking arbitration agreement. It is not the case of the petitioner that the learned arbitrator has decided the issues which would exclusively fall within the domain of the CCI in the impugned awa....