TaxTMI 
TaxTMI 
2021 (9) TMI 1572
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....e manner in which the customer could redeem the gold and Chart 3 sets out the manner in which the customer could sell back the gold to Augmont, which may be reproduced thus: CHART 1 Step Process Owner Process Action 1 Customer Customer sees the live price of gold on Paytm Platform 2 Customer Customer confirms the buy quantity of Rs 1 upwards 3 Customer Customer redirected to payment page 4 One97 Customer makes payment through preferred payment options 5 Augmont-Bullion Augmont-Bullion generated invoice details are relayed to One97 system 6 One97 One97 system generates a digital invoice on behalf of AugmontBullion 7 Augmont-Bullion Augmont-Bullion credits the quantity in the customer account. CHART 2 Step Process Owner Process Action 1 Customer Customer selects 'Get Delivery' within Gold section of Paytm Platform and is redirected to product catalogue. Each product has its making + delivery charges indicated 2 Customer Customer selects the product 3 Customer Customer confirms delivery address 4 Customer /One97 Customer pays for making + delivery + taxes on the Paytm Platform 5 One97 One97 system tells Augmont to de....
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....ell the gold at the rate then prevalent. For this, a specific time window would be provided. (e) The customer would confirm the transaction in the said time window. (f) One97 would issue an instantaneous digital receipt of sale, on behalf of Augmont, acknowledging receipt of digital gold from the GAP account of the customer. (g) One97 would then transfer an amount equivalent to the value of the gold which is sold back by the customer to Augmont, on the basis of the blocked gold rate, to the customer's account. (h) On the next date, Augmont would credit the said amount to the account of One97. 6. The dispute between Augmont and One97 essentially arose because, between 5th January, 2019 and 7th January, 2019, there was a glitch in the system as a result of which certain customers repeatedly sold back, to Augmont, gold from their GAP accounts, without the debiting of gold from the accounts. 7. One97 claimed to have paid corresponding amounts to the said customers. This, naturally, resulted in a windfall to such customers, who continued to retain the gold purportedly sold back to Augmont in their GAP accounts and were also paid the value of the said gold by One97. 8. On ....
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....ior appointment on his mobile number being 9717495001. The petition stands disposed of." 14. Subsequently, IA 7080/2020 was filed by Augmont, before this Court, for clarifying the order dated 17th January, 2020, specifically on the issue of whether it was entitled to raise a plea of fraud in its defence to the claims set up by One97. 15. This application was disposed of by this Court, vide the following order dated 22nd October, 2020: "This is an application filed by the respondent with the following prayers: "a. clarify its order dated 17.01.2020, and b. pass such other order(s) in favour of the respondent, as this Hon'ble court deems fit and proper." In effect, by this application, the respondent is seeking clarification of order dated January 17, 2020. The clarification as sought by the respondent is that the respondent is within its right to raise a plea of fraud in its defence. I find that the order dated January 17, 2020 is very clear. That apart, I also find that the learned Arbitrator in his order dated July 29, 2020 has also said in para 3 as under: ***** 3. In the Statement of Defense filed by the respondent, the plea of fraud is also taken. The said p....
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....d thereafter. For the period between 7th January, 2019 and 21st February, 2019, One97 claimed to be entitled to payment, from Augmont, of an amount of Rs. 2, 16, 42, 352/-, as per terms and conditions set out in the agreement. 19. A tabular representation of the manner in which this amount was worked out was provided thus, in the Statement of Claim filed before the learned Arbitral Tribunal: S. No. Particulars Amount to be paid by Respondent to Claimant Amount to be paid by Claimant to Respondent 1. Valuation of sell transactions from .. November, 2018 till 31.01.2020 including commission (excluding 55485 transactions on 5th, 6th and 7th January, 2019) 7, 71, 28, 935 2. Excess received from Respondent against failed orders along with commission. 12, 51, 888 3. Amount recovered by the Claimant. 35, 77, 448 4. Amount held by Claimant for Buy Orders 5, 06, 57, 247 Total 2, 16, 42, 352 20. In view of the aforesaid, One97 claimed, from Augmont, a total amount of Rs. 12, 86, 24, 185/- in three claims, of which Claim No. 1 pertained to the period 5th to 7th January, 2019, Claim No. 2 pertained the period 7th January, 2019 til....
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....t was worked the Customers of the Respondent continued to sell gold from their GAP accounts and the Claimant instantly made payment to the said customers. Despite there being no dispute for transactions during the period, the Respondent failed to reimburse the due amounts to the Claimant for the period despite there being no dispute. This amount as on date of filing of Section 17 application was a sum of Rs. 2, 61, 22, 319/- and forms part of Prayer (a) of the said application. It is argued on behalf of the claimant that there is no dispute or controversy for this period or the said amount and yet the Respondent has failed to pay the said sum to the Claimant. ***** 20. Thus, prima facie, the claimant is entitled to receive the said amount which has gone from the pocket of the claimant. Thus, the value of said transactions have gone from the pocket of the claimant without any controversy between the parties. The said amount is receivable by the claimant even if denial by the respondent. ***** 22. As per facts in the present case, after 7th January, 2019, till the date of termination of agreement, actually both parties understood that despite of transactions prior to 7th Janu....
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....imant is continuously making payment to the customers instantly as and when sales are made by the respective customer. This shall continue to happen day after day. 28. There is no denial by the Respondent that it held the quantity of gold of customer as referred by the Claimant. It is also not denied that they are mere custodian of the said gold. It is also not denied that the said gold belongs to Customers. In fact, in para (1) on page 51 of the Statement of Defense, the Respondent admits that it is custodian of the gold lying in customer's GAP accounts. There is valid justification or reason of the Respondent to hold or continue to hold the said gold belonging to the customers. 29. It is argued on behalf of the claimant that the respondent by its email dated 4th December, 2019 admitted its liability and agreed to pay Rupees one Crore upfront and the rest in future commission. However, no amount was paid since then. The said e-mail is referred by the counsel. The counsel for the respondent on the other hand submitted that the said admission was without prejudice. Therefore, the prayer is to be considered on merit. 30. The Section 17 Application was filed on the basis of ....
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.... disclose his name, his mobile number and complete verification of One Time Password 'OTP' sent to his disclosed mobile number. For all 'Paytm users', the said process has been undertaken as alleged. The complete list of the said customer is given in Annexure C-9 of the Statement of Claim. ***** 37. The Respondent has also admitted in para (v) on page 64 of the statement of defense that the Respondent is responsible for de biting gold balance from customer's GAP accounts. It is however alleged that the glitch or error was on the Claimant's system and not of the Respondent and that a fraud has been committed. 38. During the course of submissions, the Respondent's counsel has relied upon RBI Master Directions dated 11.10.2017 and 25.02.2016 to allege that as per the said Master Directions the Claimant was also to undertake KYC requirement for its users. Admittedly, the Respondent not take any such plea in its statement of defence in its reply with respect to the said RBI Master Directions. In any case, the said RBI Master Directions applies to entities dealing in Prepaid Payment Instruments (PPIs). The Claimant states and confirms that the Claimant d....
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....g directions:- a) The Respondent shall pay a sum of Rs. 2, 61, 22, 319/- to the Claimant, which is undisputed amount and is payable as per agreement. The Respondent is directed to pay the same to the Claimant within two weeks from the date of receipt of this order. The interim order is passed accordingly. As far as interest component is concerned, the said aspect would be considered at the time of passing the final award. b) The Respondent is directed to furnish the Bank Guarantee for a sum of Rs. 3, 30, 57, 992/- in favour of the Claimant within four weeks from today. c) With regard to prayer (c) is concerned, the plea raised by both the parties will be decided after leading the evidence in view of facts and circumstances of the case. No doubt, the Claimant at this stage is able to make a prima facie case in its favour, but still the Tribunal is not inclined to pass the order of furnishing the bank guarantee. However, the balance is to be strike between the parties to some extent. Under these circumstances, in case the Respondent change its hand/fifty one percent ownership of the Respondent, the Respondent shall secure the amount by opening of open an escrow account before c....
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....ocument to vouchsafe its claim of having paid customers even after 7th January, 2019. Mr. Dayan Krishnan also drew my attention to the relevant pages of the ledger, as filed by One97 before the learned Arbitral Tribunal, to contend that the ledger did not even disclose the names of the payees, to whom payments had been made. Augmont had categorically denied the validity of the ledger. In these circumstances, he submits that the learned Arbitral Tribunal ought not to have treated the ledger as a proof of payment having been made by One97 to customers after 7th January, 2019. 30. Mr. Dayan Krishnan further submits that there was no justification for the learned Arbitral Tribunal to direct furnishing by Augmont of a bank guarantee covering the value of the gold in its possession, after termination of the contract. He points out that, in fact, before the learned Arbitral Tribunal, Augmont had clearly stated that, as and when any customer claimed the gold, Augmont would release the gold to the said customer. No occasion, therefore, arose, according to Mr. Dayan Krishnan, for securing the value of the gold. The prayer for furnishing of a bank guarantee for Rs. 3, 30, 57, 992/- covering ....
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....ystem sent code of "200" and not "400". The Claimant is liable and has paid to each customer the sale value. Hence, the Respondent's plea is prima facie without any force." 33. Additionally, he relies on the observation, in para 19 of the impugned order, that the liability to reimburse One97, for the payment made in respect of the transactions which took place after 7th January, 2019, was not disputed by Augmont during hearing. Mr. Sethi points out that there is no unequivocal denial, by Augmont, of the payments having been made by One97 after 7th January, 2019. He also submits that his client had, by way of evidence of such payments, produced a ledger, which was accepted by the learned Arbitral Tribunal as prima facie evidence thereof. No substantial ground, for questioning the veracity of the ledger had, he submits, been advanced by Augmont before the learned Arbitral Tribunal. 34. In so far as the direction to furnish a bank guarantee, covering the value of the gold which continued to remain with Augmont after the termination of the agreement, was concerned, Mr. Sethi submits that One97 was continuing to make payments to customers even after the agreement stood terminated,....
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....pinion, in this respect, is mixed. It requires to be examined, therefore, in some detail. 38. Parliamentary statutes are not mere pen and parchment. They are living, breathing entities which pulsate with life. As in the case of any living entity, the intent of a plenary statutory legislative instrument is best discerned from its words, and the manner in which it chooses to express itself. 39. Before adverting to precedents, therefore, let us examine, in the first instance, the provisions. 40. Section 17(1)(ii)(b) and (e) read thus: "17. Interim measure is ordered by arbitral tribunal.- (1) A party may, during the arbitral proceedings, apply to the arbitral tribunal- ***** (ii) for an interim measure of protection in respect of any of the following matters, namely:- ***** (b) securing the amount in dispute in the arbitration; ***** (e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, in the proceedings before it." 41. It is, by now, settled that the power of the Arbitral Tribun....
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....ule 5 of the CPC, observed that the extent to which the said view was correct "requires to be considered in an appropriate case", but that it was not inclined to answer the question finally in the case before it. Even so, the Supreme Court observed that it was "prima facie inclined to the view that exercise of power under Section 9 of the Act must be based on the well- recognised principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a receiver". Following the said decision, and the decision in Firm Ashok Traders v. Gurumukh Das Saluja (2004) 3 SCC 155, a Division Bench of this Court, in Ajay Singh v. Kal Airways Pvt. Ltd. (2018) 209 Comp Cas 154, which arose under the amended Section 17, held thus, in para 27 of the report: "Though apparently, there seem to be two divergent strands of thought, in judicial thinking, this court is of the opinion that the matter is one of the weight to be given to the materials on record, a fact dependent exercise, rather than of principal. That Section 9 grants wide powers to the courts in fashioning an appropriate interim order, is apparent from its text. Nevertheless, what the authoriti....
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....ecree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case. 5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment. 6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself ....
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....re must be additional circumstances to show that the transfer is with an intention to delay or defeat the pltf.'s claim. It is open to the Court to look to the conduct of the parties immediately before suit, & to examine the surrounding circumstances, to draw an inference as to whether the deft. is about to dispose of the property, & if so, with what intention. The Court is entitled to consider the nature of the claim & the defence put forward. (9) The fact that the deft. is in insolvent circumstances or in acute financial embarrassment, is a relevant circumstance, but not by itself sufficient. (10) That in the case of running businesses, the strictest caution is necessary & the mere fact that a business has been closed, or that its turnover has diminished, is not enough. (11) Where however the deft. starts disposing of his properties one by one, immediately upon getting a notice of the pltf.'s claim, &/or where he had transferred the major portion of his properties shortly prior to the institution of the suit & was in an embarrassed financial condition, these were grounds from which an inference could be legitimately drawn that the object of the deft. was to delay an....
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.... may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." 52. A bare reading of Order XXXVIII Rule 5 CPC reveals that the statutory sine qua non, for a direction by the Court, to furnish security under the said provision, is the satisfaction, of the Court, that the defendant, "with intent to obstruct or delay the execution of any decree that may be passed against him", (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. 53. Clearly, therefore, a Court would be acting without jurisdiction if, in the absence of prima facie material to indicate satisfaction of the considerations specified in one of Clauses (a) and (b) of Order XXXVIII Rule 5(1), it directs the defendant to provide security. 54. Section 17(1)(ii)(b) [or Section 9(1)(ii)(b)] does not expressly incorporate the considerations stipulated in Order XXXVIII Rule 5(1). It merely empowers the Arbitra....
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....t principles or on merits, unless the finding of admission of liability on the part of the party who is asked to make the deposit is itself found to suffer from perversity or pa tent illegality. 59. If the finding of admitted liability, as arrived at by the learned Arbitral Tribunal, and which constitutes, inter alia, the basis of the impugned direction to secure the amount, is not found deserving of interference under Section 37, the inexorable sequitur, in my view, would be that the consequential direction, to secure the admitted amount, would be equally impervious to such interference. 60. The learned Arbitral Tribunal has, in fact, placed reliance on the decision of this Court in NHAI v. Jetpur Somnath Tollways 2017 SCC OnLine Del 11312 which has been held, by a Division Bench of this Court NHAI v. Bhubaneswar Expressway Pvt. Ltd. 2021 SCC OnLine Del 2421 to have been rendered in the context of Order XXXIX Rule 10 of the CPC. 61. In Sanjeev Sarin v. Rita Wadhwa 2018 SCC OnLine Del 6658 this Court has held that the exercise of jurisdiction under Order XXXIX Rule 10 of the CPC has to be on principles analogous to those which apply to Order XII Rule 6 of the CPC. This judgment ....
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....0 of Order XXXIX is a power to pass an interim order pending suit. But the power under Rule 6 of Order XII is a drastic power of passing a decree on admission without conducting trial. The standards applicable to a provision conferring power to pass a decree on admission cannot be applied to Rule 10 of Order XXXIX which empowers the Court to pass an interim order. Therefore, in our view, the test applicable for passing the judgment on admission under Rule 6 of Order XII of the said Code cannot be imported in Rule 10 of Order XXXIX. If the conditions provided in Rule 10 of Order XXXIX are satisfied, the Court can exercise the power under Rule 10 by directing the payment of money to the party for whose benefit the same is being held as a trustee or to direct deposit of the money in the Court." In the context of Order XII Rule 6 of the CPC, it is well settled (Refer Uttam Singh Duggal & Co. v. Union Bank of India, (2000) 7 SCC 120, Urmila Devi v. Laxman Singh, 2015 SCC OnLine Del 8487, Delhi Jal Board v. Surendra P. Malik, (2003) 104 DLT 151 and Jasmer Singh Sarna v. Electronics Trade and Technology Development Corp Ltd, ILR (2001) II Delhi 385.) that the admission, on the basis of w....
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....ority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings." 67. At a bare glance, the difference between orders passed under sub-sections (2) and (3) of Section 16, and an order passed under Section 17, is starkly apparent. Orders passed under sub-section (2) and (3) of Section 16 rule on the jurisdiction and authority of the Arbitral Tribunal to deal with the arbitral proceedings. Any orders accepting the objection to the jurisdiction of the Arbitral Tribunal would, therefore, in that sense, be final, as a decision thereon would conclude the issue of whether the Arbitral Tribunal possesses jurisdiction and authority to arbitrate. As against this, an order of interim protection under Section 17 - especially an order under Section 17(1)(ii)(b) such as the order under challenge - is fundamentally discretionary in nature, and does not put an end to the lis. Such orders would abide by the final award, to be passed later in the arbitral proceedings. 68. On the scope of interference with the exercise of discretion by the Arbitral Tribunal under Section 17(1)(ii)(b), I have had occasion to observe thus, in Dines....
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....dkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph AIR 1960 SC 1156: "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton 1942 AC 130, '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'." The appellate judgment does not seem to defer to this principle." That this principle applies to exercise of appellate jurisdiction, over discretionary interlocutory orders, passed by arbitrators, under Section 17 of the 1996 Act, has been reiterated, by this Court, in several decisions, including Bakshi Speedways v. Hindustan Petroleum Corporation 2009 (162) DLT 638, EMAAR MGF Land Ltd. v. Kakade British Realities Pvt. Ltd. 2013 (138) DRJ 507, Reliance Communications Ltd. v. Bharti Infratel Ltd. 2018 SCC OnLine Del 6564, Ascot Hotels and Resorts Pvt. Ltd. v. Connaught Plaza Restaurants Pvt. Ltd. 2018 (249) DRJ 329 and Green Infra Wind Energy Ltd. v. Regen Powertech Pvt. Ltd. 2018 SCC OnLine Del 8273 " 69. I....
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....served hereinabove. While remaining within those constraints, however, the Court, in its appellate avatar, can modify the award; something which is outside the reach of the Section 34 Court. Expressed otherwise, and more simply, having examined the award/order under challenge within the limited scope of Section 34 or 37, if the Court finds that the interests of justice could be met by modifying the decision of the Arbitral Tribunal, it can do so under Section 37, but it cannot do so, under Section 34 Refer N.H.A.I. v. M. Hakeem, 2021 SCC OnLine SC 473. This, in my opinion, is one of the inevitable sequelae of the legislative dispensation in conferring, on Courts, appellate jurisdiction over orders passed under Section 17 by the Arbitral Tribunal, granting or refusing to grant interim protection. Re. impugned direction to Augmont to pay, to One97, Rs. 2, 61, 22, 319/- for transactions between 8th January and 21st February, 2019 75. Returning to Mr. Dayan Krishnan's submission that the impugned order deserves to be set aside, as it does not examine the applicability of Order XXXVIII Rule 5 CPC, the above analysis compels me to disagree with him. The learned Arbitral Tribunal ha....
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.... prima facie, borne out by the record and, in any event, the finding of the learned Arbitral Tribunal in that regard cannot be said to be such as would merit interference in exercise of the appellate jurisdiction vested in this Court. 78. Save and except for a bald denial, there is nothing to indicate that this position changed after 8th January, 2019. Nor has it been Mr. Dayan Krishnan's argument before this Court, that, having paid the customers till 7th January, 2019, One97 suddenly stopped paying the customers thereafter. 79. The learned Arbitral Tribunal also relied on the ledger account of One97, which was placed on record. In this context, Mr. Mehta has invited my attention to para 33 of the Statement of Claim, filed by One97 before the learned Arbitral Tribunal, and to the response by Augmont in the corresponding para ff of its Statement of Defence. Though there is a one line denial of the ledger in the Statement of Defence, no further credible material has been produced on record by Augmont in that regard. Section 34 of the Indian Evidence Act, 1872 makes books of accounts, maintained by a party in the ordinary course of business, relevant in evidence. The learned Ar....
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....o pay the amount to One97. There is substance in Mr. Dayan Krishnan's submission that no direction for such outright payment could have been made in exercise of Section 17 jurisdiction. Mr. Sethi, has, however, no objection to the amount being deposited with the Registrar General of this Court, awaiting the outcome of the arbitral proceedings, instead of being paid to his client. In that view of the matter, I am of the opinion that no case for interference with the direction, to One97, to pay Rs. 2, 61, 22, 319/- can be said to exist, subject to the payment being made, not to One97 but being deposited with the Registrar General of this Court. Re. direction to Augmont to furnish bank guarantee for Rs. 3, 30, 57, 992/- for post-termination transactions 86. The second direction of the learned Arbitral Tribunal, with which Augmont claims to be aggrieved, is the direction to One97 to furnish a bank guarantee covering the value of the gold which continued to remain with Augmont after 21 February, 2019 (hereinafter referred to as "the residual gold"), i.e. the date of termination of the agreement. Mr. Dayan Krishnan submits that there is no justification for such a direction. The co....
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....in their GAP accounts, take delivery of the Customer Redeemable Products and close GAP account, as the case may be 24.3.2 Transfer balance into alternate GAP account as prescribed by One97 24.4 For the Customer(s) who have neither redeemed the product nor transferred to alternative GAP during the Transition Period, Augmont-Bullion will be entitled to repurchase such product at the end of Transition Period at the then prevalent Live Rate of Gold-Sell Back, after deducting applicable charges and Taxes, provided the customer has not called for redemption." 89. On a plain reading, there appears to be some inconsistency between Clause 24.1, on the one hand, and Clauses 24.2 and 24.3 on the other. Clause 24.2 requires Augmont to continue to provide services, for at least four months beyond termination "for effectuating redemption or selling of gold by customers or transfer of balance to an alternate GAP partner of One97". Parallelly, Clause 24.3 requires One97, mandatorily (as is apparent from the use of the word "shall") to, consequent on termination of the agreement, offer the customers either to redeem the gold continuing to remain in their GAP accounts, take delivery of the cust....
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....rned Arbitral Tribunal. 94. One97 had, in its Statement of Claim, specifically claimed the value of the residual gold, as one of its claims before the learned Arbitral Tribunal. The power of the learned Arbitral Tribunal to secure the said claim cannot, therefore, be denied. The only issue, therefore, is whether the said interlocutory direction, as passed by the learned Arbitral Tribunal in the impugned order, calls for interference by this Court in exercise of its appellate jurisdiction under Section 37(2). 95. Unlike the direction for deposit of the monies paid by One97 to the customers, during the period 8th January, 2019 to 21st February, 2019, in respect of which the learned Arbitral Tribunal had found the amount to be admittedly payable to One97 by Augmont, there is, prima facie, no justifiable basis on which it could be said that One97 would be liable to pay the entire value of the residual gold to the customers. 96. Even if there were, the learned Arbitral Tribunal, in directing furnishing of a bank guarantee by Augmont, has not proceeded either on the basis of a prima facie finding of liability of Augmont to pay the entire value of the residual gold, or on the basis of ....