TaxTMI 
TaxTMI 
2022 (11) TMI 1539
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.... Ms. Smarika Singh, Mr. Anoop Rawat, Mr. Saurav Panda, Ms. Yashna Mehta, Mr. Saifur Rahman Faridi and Ms. Mohana Nijhawan, Advs. for R-2/Future Retail Ltd. JUDGMENT 1. Both these petitions have been instituted under Article 227 of the Constitution of India, and challenge orders passed by the learned Arbitral Tribunal, functioning under the aegis of the Singapore International Arbitration Centre (SIAC) and in seisin of the disputes between the parties before me. CM (M) 1140/2022 challenges Procedural Order No.10 dated 11th October 2022, which allows an application by Amazon.Com NV Investment Holdings LLC ("Amazon", hereinafter) to supplement the Statement of Claim (SOC) initially filed by it in the arbitral proceedings. CM (M) 1141/2022 assails order dated 28th June 2022, whereby an application, by the petitioners and Respondent 2, seeking termination of the arbitral proceedings under Section 32(2)(c)^1 of the Arbitration and Conciliation Act, 1996 ("the 1996 Act") has been rejected. 2. The memo of parties in both these petitions is identical. The petitioners are Future Coupons Pvt. Ltd. (FCL), Future Coupons Resources Pvt. Ltd. (FRL), Akar Estate and Finance Pvt. Ltd. and ....
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.... have been passed) under Clause 25.2.1 of the FCSHA, on 5th October 2020, under the aegis of the Singapore International Arbitration Centre (SIAC). Though there was no direct contractual relationship between Amazon and FRL, the primary contention of Amazon, in the said arbitral proceedings, were that (i) the FCSHA, FCSSA and FRSHA constituted a single integrated transaction, (ii) Amazon had special protective rights in FRL through FCL and (iii) the prior consent of Amazon had not been obtained before sale or disposal of the retail assets of FRL. Resultantly, Amazon sought, from the learned Arbitral Tribunal, a restraint against FRL from proceeding in terms of the SOA. The prayer clause in the Statement of Claim filed by Amazon before the Learned Arbitral Tribunal reads thus: "For the reasons set out in this Statement of Claim, the Claimant makes the following requests for Relief and asks that the Tribunal issue by way of an Award: (i) A declaration that the board resolution purported to be passed by the FRL Board on 29 August 2020 to approve the Impugned Transaction is in breach of the Agreements; ii) A permanent prohibitory injunction restraining the Res....
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.... breaches of the Agreements committed by the Respondents, which are to be particularised and quantified at a subsequent stage;; (xi) Pre-Award Interest and Post Award Interest, to be particularised and quantified at a subsequent stage; (xii) Costs of the Arbitration, including the Claimant's legal fees and costs; and (xiii) Such other and further relief(s) as the Tribunal may deem just and proper." 12. Simultaneously, an application for emergency reliefs was also filed in the arbitral proceedings. 13. On 25th October 2020, an interim order came be passed by the Emergency Arbitrator. By the said order, the Emergency Arbitrator restrained FCL and FRL from proceeding with the SOA with Reliance. 14. Therefrom, four sets of proceedings emanated. They may be individually noted thus: CS (Comm) 493/2020 15. FRL filed CS (Comm) 493/2020 before this Court to restrain Amazon from interfering with the SOA between FRL and Reliance. 16. On 21st December 2020, a learned Single Judge of this Court (Hon'ble Ms. Justice Mukta Gupta) came to pass an interim order in CS (Comm) 493/2020, whereby the learned Single Judge rejected the application for interim r....
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....l by way IA 14257/2021 and IA 14285/2021 respectively. 26. By order dated 29th October 2021, the learned Single Judge of this Court dismissed IA 14285/2021 and, thereby, declined stay of operation of the order dated 21st October 2021, passed by the learned Arbitral Tribunal. 27. This order dated 29th October 2021 was challenged by the FCL before the Supreme Court by way of SLP (C) 18089/2021 which, consequent to grant of leave, was renumbered CA 864/2022. 28. By the judgment dated 1st February 2022, to which allusion has already been made hereinbefore, the Supreme Court also set aside the order dated 29th October 2021 of the learned Single Judge and remanded IA 14285/2021 to this Court for a decision on merits. 29. As such, IA 14285/2021 as well as IA 14257/2021, filed by FRL and FCL respectively, seeking stay of operation of the order dated 21st October 2021 of the learned Arbitral Tribunal, have to be reheard by this Court. They are also pending. 30. There are, therefore, presently pending, before this Bench (as all matters relating to the proceedings have, consequent to order dated 1st February 2022 passed by the Supreme Court followed by an administrative order d....
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....ns which result in a combination as coming into effect, only after they are so notified to the CCI, and CCI either approves the transaction or fails to raise any objection despite expiry of the stipulated time provided in that regard. 37. Amazon applied vide Notice dated 23rd September 2019 to the CCI, under Section 6(2) of the Competition Act, for approval of the Combination comprising the following three transactions (reproduced verbatim from the order of the CCI): "(i) Transaction I: The issue of Nine Million One Hundred and Eighty Three Thousand Seven Hundred and Fifty- Four (9,183,754) Class A voting equity shares of FCPL to Future Coupons Resources Private Limited (FCRPL). Prior to, and immediately post issuance of such equity shares, FCPL will be a wholly owned subsidiary of FCRPL, and (ii) Transaction II: The transfer of Thirteen Million Six Hundred and Sixty Six Thousand Two Hundred and Eighty Seven (13,666,287) shares of FRL held by FCRPL (represented Two decimal five Two Percent (2.52%) of the issued, subscribed and paid-up equity share capital of Future Retail Limited (FRL), on a Fully Diluted Basis) to FCPL; and (iii) Transaction III: The ....
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....(IBC) 42. In the meanwhile, Bank of India, one of FRL's creditors, moved the learned National Company Law Tribunal (NCLT), initiating Corporate Insolvency Proceedings against FRL under Section 7(1)^6 of the IBC. A moratorium, under Section 14(1)^7 of the IBC, came to be put in place, by the NLCT, in the said proceedings, on 20th July 2022, between the passing of the orders 28th June 2022 and 11th October 2022, by the learned Arbitral Tribunal, forming subject matter of challenge in CM (M) 1141/2022 and CM (M) 1140/2022 respectively. Application of the petitioners under Section 32(2)(c) of the 1996 Act 43. In the wake of the aforesaid order dated 17th December 2022 of the CCI, the petitioners applied, to the learned Arbitral Tribunal, under Section 32(2)(c) of the 1996 Act, seeking termination of the arbitral proceedings. Inasmuch as this Court is not entering into the merits of the impugned order dated 28th June 2022, whereby the said application was dismissed by the learned Arbitral Tribunal, it would not be appropriate for this Court to detail the rival contentions of the parties in that regard. Suffice it to state that the petitioners' contention was that, with the approva....
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....o exigencies statutorily envisaged by Section 32(2)(c), in which the arbitral proceedings could be terminated. 48. Paras 164 and 165 of the impugned order dated 28th June 2022 of the learned Arbitral Tribunal, which contains its concluding findings in the above regard, read thus: "164. For the reasons given in [125]-[162] above, the Tribunal finds that the continuation of these proceedings has not been rendered unnecessary or impossible under Section 32(2)(c) of the Arbitration Act. Accordingly, there is no ground for the termination of these proceedings under Section 32 of the Arbitration Act. 165. This Decision does not finally decide and is not dispositive of any issue on the merits of the case. Accordingly, for the avoidance of doubt, this Decision does not constitute an award within the meaning of Section 2(1)(c) of the Arbitration Act." Moratorium introduced vide order dated 20th July 2022 of the learned NCLT 49. On 20th July 2022, the learned NCLT put in place a Moratorium under Section 14(1) of the IBC, in the proceedings initiated against FRL under Section 7 thereof, whereby the learned NCLT prohibited "the institution of suits or continuation of pe....
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.... Claimant for the costs incurred by it and the losses suffered by it in resisting and initiating proceedings in view of the Respondents' breaches of Arbitration Agreement, as quantified in the Supplementary Expert Report of Mr Howard Rosen. f) Grant of Pre-Award Interest pendente lite and Post Award Interest, as set out in the Supplementary Expert Report of Mr Howard Rosen.; g) Costs of the Arbitration, including the Claimant's legal fees and wasted costs; and h) Such other and further relief(s) as the Tribunal may deem just and proper." 52. Before the learned Arbitral Tribunal, the petitioners contended that the Addendum application of Amazon, to supplement the SOC, was not maintainable. It was contended that, by the said Addendum, Amazon was seeking to introduce an entirely new case, which had nothing to do with the case originally set up in the SOC filed before the learned Arbitral Tribunal. This, submitted the petitioners, was impermissible in law, as the learned Arbitral Tribunal was bound by the terms of reference of the arbitration before it. The original reliefs sought by Amazon before the learned Arbitral Tribunal having, even as per the Adden....
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....l order No. 10 dated 11th October 2022 passed by the learned Arbitral Tribunal on Amazon's application under Section 23(3) of the 1996 Act. Rival Contentions 55. Inasmuch as, in my opinion, the present petitions are not maintainable, any detail allusion to the rival contentions as advanced before me would be a mere superfluity. A brief reference thereto would, therefore, suffice. Submissions of petitioners and FRL 56. Mr. Mukul Rohatgi and Mr. Dayan Krishnan, learned Senior Counsel for the petitioners submitted that, having acknowledged, in so many words, that specific performance of the FCSHA, as was sought in the SOC filed before the learned Arbitral Tribunal could no longer be granted, Amazon now sought to urge a completely new case of repudiatory breach and consequent repudiatory damages. They submit that the law did not permit such a wholesale substitution of the case originally urged before the learned Arbitral Tribunal by an entirely new case. Once Amazon admitted that, by reason of supervening developments, its original claim in the arbitral proceedings stood frustrated, learned Senior Counsel would submit that, under Section 32(2)(c) of the 1996 Act, the procee....
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....NCLT on 20th July 2022 under Section 14 of the IBC. The observation, of the learned Arbitral Tribunal, that the said moratorium applied only against FRL and not against the Biyanis, submit learned Senior Counsel, went against the very grain of the case that Amazon had sought to set up before the learned Arbitral Tribunal, and accepting which the learned Emergency Arbitrator had, vide order dated 25th October 2020, put injunctive directions against the petitioners in place. Learned Senior Counsel points out that the learned Emergency Arbitrator had proceeded on the premise that all transactions were integrated. Once such a concept of "integrated transactions" had been invoked - and that too, at the instance of Amazon - then, when it came to examining the consequences of the moratorium put in place by the learned NCLT, learned Senior Counsel submit that the learned Arbitral Tribunal could not treat the Biyanis and FRL as independent for that purpose. Even otherwise, submit learned Senior Counsel, once the learned Arbitral Tribunal had accepted that the moratorium at least applied in the case of FRL, there could be no question of continuing with the arbitral proceedings, as that would....
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....ot to defer the decision to a later stage. As such, by deferring the decision on the question of termination of arbitral proceedings, under Section 32(2)(c) of the 1996 Act, to a later stage, learned Senior Counsel would submit that the learned Arbitral Tribunal was acting in defiance of the order passed by the Supreme Court. 61. In support of their submissions, learned Senior Counsel placed reliance on the judgement of the Supreme Court in Indian Oil Corporation Ltd v. S.P.S. Engineering Ltd (2011) 3 SCC 507 and of this Court in U.O.I. v Indian Agro Marketing Cooperative Ltd (2022) 3 HCC 279 (Del), Telecommunications Consultants India ltd v B.R. Sukale Construction 2021 SCC OnLine Del 4863 and Raghuvir Buildcon Pvt Ltd v. Ircon International Ltd 2021 SCC OnLine Del 2491. Submissions of Amazon 62. Responding to the aforesaid submissions of the learned Senior Counsel for the petitioners, Mr. Subramanium and Mr. Nayar, learned Senior Counsel for Amazon, submit that CCI had not, by its order dated 17th December 2021, annulled the agreements between the parties, but had, rather, clarified that it was not concerned with the pending arbitral proceedings. Mr. Subramanium co....
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....rings and publish an award." Thereafter, having perused the aforesaid joint memo of terms filed before it, the Supreme Court disposed of the aforesaid appeals by order dated 6th April 2022 which reads thus: "ORDER Leave granted. 2. Heard Mr. Gopal Subramanium and Mr. Ranjit Kumar, learned Senior counsel appearing on behalf of the petitioner as well as Mr. K.V. Viswanathan and Mr. Mukul Rohatgi, learned Senior counsel appearing on behalf of the respondents. 3. It is agreed to by the learned counsel for the parties that since the proceedings are going on before the learned Single Judge of the Delhi High Court, I.A.No.40429/2022 in SLP(C)Nos.1669- 1670/2022 may be transmitted to the learned Single Judge. 4. We, accordingly, transmit I.A.No.40429/2022 in SLP(C)Nos.1669-1670/2022 to the learned Single Judge of the Delhi High Court to decide the same in accordance with law after hearing learned counsel for the parties. 5. I.A.No.40429/2022 in SLP(C)Nos.1669-1670/2022 stands disposed of accordingly. 6. Vide order dated 04.04.2022, both the parties were directed to file a Joint Memo of Consent Terms by 05.04.2022. 7. In c....
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.... defeat Amazon's additional claims. In view of the repudiatory breaches committed by FRL, Amazon submitted that, by its additional claims, it was essentially seeking return of the amount of Rs. 1,431 crores, which was by way of continuation of the original claim and could not be treated as a new cause of action. Learned Senior Counsel submit that, so long as the power of the learned Arbitral Tribunal to allow amendment of the claim could not be disputed, and the claim was itself within the arbitration clause in the agreement, the learned Arbitral Tribunal was possessed of the jurisdiction to adjudicate on it. That jurisdiction, submits learned Senior Counsel, stood vested by Section 23(3) of the 1996 Act. 66. The learned Arbitral Tribunal had, submits learned Senior Counsel, examined all the contentions of the petitioners, as well as the scope and ambit of the expression "unnecessary" and "impossible" as implied in Section 32(2)(c) of the 1996 Act. No scope for interference with such a decision, under Article 227 of the Constitution of India, they submit, exists. In this context, learned Senior Counsel have invited my attention to the use of the phrase "disputes which have arise....
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....e dispute between the parties. Repudiatory breach of the agreements was something which the original SOC also envisaged. All that had happened, was that because of such repudiatory breach, some of the reliefs sought in the original SOC, had become impossible parties have otherwise agreed as to the required elements of those statements. to grant. The commission of repudiatory breach by the petitioners, they submit, entitled Amazon to repudiatory damages on that score. In claiming the said damages by way of addendum, therefore, they had not travelled outside the scope of original SOC or the terms of reference of the learned Arbitral Tribunal. In this context, learned Senior Counsel have invited my attention to paras 301 to 307 of the original SOC, which read thus: "301. In addition to specific performance in the form of permanent injunctive relief under Section 38 read with Section 10 of the SRA, the Claimant seeks compensation under Section 21(1) read with Section 21(3) of the SRA on account of the wilful and material breaches of the Agreements committed by the Respondents. 302. The factual matrix, as set out in section VIII above, conclusively establishes that the....
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....307. In light of the above, the Claimant seeks compensation arising out of the material and wilful breaches of the Respondents, which have resulted in the total failure of consideration and resulted in the loss of the entire bargain set out in the Agreements. The Claimant submits that such compensation, which is not limited to liquidated damages, ought to account for the loss resulting from the unraveling of the transaction, including but not limited to (i) loss of investment; (ii) loss of Retail Assets; (iii) loss of call option; and (iv) loss of synergistic profits." 71. In these circumstances, learned Senior Counsel submit that the present petitions are not maintainable and cannot be allowed. Analysis 72. The present petitions, in my considered opinion, do not lie under Article 227 of the Constitution of India. The pronouncements of the Supreme Court in SBP^19 and Bhaven Constructions v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd. (2022) 1 SCC 75 are clear and unequivocal in that regard. 73. SBP^19, rendered by a Bench of seven Hon'ble Judges of the Supreme Court, declared the law thus: "45. It is seen that some High Courts have proceeded on the ba....
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....where a prayer for grant of interim measure under Section 17(1)^26 is allowed or refused. In the first case, the appeal would lie under Section 37(2)(a), whereas in the second, the appeal would lie under Section 37(2)(b). 75. An interlocutory order of an Arbitral Tribunal would also be susceptible to challenge, under the 1996 Act, where it is an "interim award", as the definition of "arbitral award", in Section 2(c)^27 of the 1996 Act, includes an "interim award". The 1996 Act does not, however, define the expression "interim award" and, to comprehend the concept, one has to turn to the decision in Indian Farmers Fertilizers Coop. Ltd. v. Bhadra Products (2018) 2 SCC 534. Paras 7 and 8 of the report in Bhadra Products^27 demystify the concept thus: "7. As can be seen from Section 2(c) and Section 31(6), except for stating that an arbitral award includes an interim award, the Act is silent and does not define what an interim award is. We are, therefore, left with Section 31(6) which delineates the scope of interim arbitral awards and states that the Arbitral Tribunal may make an interim arbitral award on any matter with respect to which it may make a final arbitral award....
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.... of cases - Bhaven Constructions^23 reinforces the law enunciated in SBP^19, by holding that Article 227 of the Constitution of India would be available to a litigant aggrieved by an interlocutory arbitral order only where, but for Article 227, the aggrieved litigant is remediless. Dealing with a contention, advanced before it, that the 1996 Act, being an instrument of parliamentary legislation, could not curtail the constitutional remedy envisaged by Article 227, Bhaven Constructions^23 clarified the position thus: "18. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India (2011) 14 SCC 337, this Court referred to several judgments and held: "11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation - L. ....
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....ended - as has also been contended before me in the present case - that, as the 1996 Act does not contain any provision whereunder the impugned interlocutory order could be challenged, the party is, in fact, remediless. The mere fact that there is no statutory provision under which, at that stage, the aggrieved litigant could challenge the interim Award of the Arbitral Tribunal, is not sufficient to regard the litigant as remediless against the said order. SBP^19 and Bhaven Construction^23, read conjointly, make it clear that, even if the challenge to the impugned order can be made one of the grounds of challenge to the final Award which may come to be passed, that suffices as a remedy for the aggrieved litigant. In such a case, the litigant has to wait till the final Award is passed and, only thereafter, can vent his grievances, both against the interlocutory as well as against the final Award. 82. Mr Rohatgi sought to contend that, while Section 16(6) of the 1996 Act provided for a remedy, under Section 34, against an order passed under Section 16, there is no remedy available, under the 1996 Act, against an order passed under Section 32(2)(c). Against an order rejecting an ap....
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....e learned Arbitral Tribunal. In that case, as the arbitral proceedings did not survive any further, and the order under challenge brought the proceedings to an end, I had entertained a petition under Article 227 of the Constitution of India. 87. Mr Rohatgi also cited my decision in MS Vag Educational Services v. Aakash Educational Services Ltd 2022 SCC OnLine Del 3401. That, again, was an extreme case, clearly distinguishable on facts and in law. In the said case, after terminating the arbitral proceedings, the learned arbitrator, suo motu, recalled his order and revived the proceedings. It was in these circumstances that I held that, as the arbitral proceedings stood terminated by the arbitrator himself, and as he had no powers to recall such an order of termination, the case merited interference under Article 227 of the Constitution of India. 88. In the present case, the learned Arbitral Tribunal has not terminated the arbitral proceedings; rather, it has dismissed the petitioners' application for terminating the proceedings. Vag Educational Services31, therefore, does not help the petitioners. 89. In fact, I had, at the very outset of proceedings, queried of learned Sen....
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....rd, on the ground that the award dealt with a dispute outside the terms of reference to arbitration. The precise argument that Mr Rohatgi and Mr Krishnan have sought to canvass before me is, therefore, available, to them, as a specific ground to challenge the final award which may come to passed in the arbitral proceedings; assuming, of course, that it is prejudicial to their clients. Mr Subramanium, needless to say, staunchly defends the proceedings as continuing well within the scope of the jurisdiction vested in the learned Arbitral Tribunal. In view of Section 34(2)(a)(iv), however, these are matters which would have to be deferred to a later stage, should occasion so arise. Orders dated 4th April 2022 and 6th April 2022 passed by the Supreme Court 93. The reliance, by Mr. Subramanium, on the orders dated 4th April 2022 and 6th April 2022, passed by the Supreme Court in SLP(C) 1705-1706/2022, as reproduced in para 63 supra, is also, in my view, apt. Consequent to the direction issued on 4th April 2022, a Joint Memo had been filed by the parties before the Supreme Court, one of the terms of consent being that, in the event of dismissal, by the learned Arbitral Tribunal, of....
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....t to the provisions contained in sub-section (1), any person or enterprise, who or which proposes to enter into a combination, shall give notice to the Commission, in the form as may be specified, and the fee which may be determined, by regulations, disclosing the details of the proposed combination, within thirty days of - (a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of Section 5, by the board of directors of the enterprises concerned with such merger or amalgamation, as the case may be; (b) execution of any agreement or other document for acquisition referred to in clause (a) of Section 5 or acquiring of control referred to in clause (b) of that section. ^49. Obligation to file the notice. - (1) In case of an acquisition or acquiring of control of enterprise(s), the acquirer shall file the notice in Form I or Form II, as the case may be, which shall be duly signed by the person(s) as specified under Regulation 11 of the Competition Commission of India (General) Regulations, 2009. ^5(2-A) No combination shall come into effect until two hundred and ten days have passed from the day on which the notice has been given to th....
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....unal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. ^823. Statements of claim and defence. - ***** (3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it. ^920.5 A party may amend its claim, counterclaim or other submissions unless the Tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstances. Ho....
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....th the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation 2. - For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute. (2-A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence. ^1116. Competence of arbitral tribunal to rule on its jurisdiction. - (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34. ^16 73. Compensation for loss or damage caused by breach of contract. - When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby....