2019 Supreme(Bom) 58
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. COLABAWALLA, J.
Shailendra Bhadauria – Petitioner
Versus
Matrix Partners India Investment – Respondent
Commercial Arbitration Petition Nos. 913, 939 of 2018
Decided On : 03-01-2019
Mr. S.U. Kamdar, Mr. Zal Andhyarujina, Mr. Samsher Garud, Bijjal Gandhi, Jayakar and Partners for the Petitioners in CARBP No. 913/2018 and for Respondent in CARBP No. 939/2018.
Mr. Pravin K. Samdani, Mr. Sanjay Jain, Mr. Ashwin Bhadang, Mr. Nivit Shrivastava, Ms. Sneha Patil, Ms. Khushboo Rupan, Maniar Srivastava Associates for the Petitioners in CARBP No. 939/2018 and for Respondent in CARBP No. 918/2018.
Mr. Sharan Jagtiani, Mr. Nitesh Jain, Ms. Juhi Mathur, Mr. Aditya Malhotra, Ms. Atika Vaz, Shardul Amarchand Mangaldas and Co. for Respondent in both Petitions.
Headnote:
Arbitration and Conciliation Act, 1996 - Sections 37, 37(2)(a), 34, 17 and 9 - Companies Act, 2013 – Sections 101, 241, 242 and 430 – Civil Procedure Code,1908 - Order 38 and Order 39 - Relief was also granted - Investors are governed by Share Holders - Petitions filed under Section 37 of the Arbitration and Conciliation Act, 1996 - Petitioners challenge order passed by the Arbitral Tribunal under Section 17 of Arbitration Act pending the hearing and final disposal of arbitration proceedings, and as an interim measure - Arbitral Tribunal directed the Petitioners in both Petitions to jointly and severally deposit an amount or in alternative to provide a bank guarantee for the said amount and deposit same with Tribunal within a period of four weeks impugned order - Petitioners in Arbitration Petition from selling, transferring, alienating, disposing of and/or encumbering their interests – Held, Arbitral Tribunal that it had no jurisdiction and hence no relief could be granted - Tribunal recorded in paragraph 44 that no attempt was made - Respondents to refute serious allegations made against them - Considering was stated in forensic report of PWC and the Balance Sheets of Respondent Tribunal came to the conclusion the Claimants were entitled to the reliefs as sought for – Court find Tribunal correctly applied tests laid down under Order 38 and Order 39 of the CPC before granting reliefs that it did – Court find reliance placed on all the aforesaid decisions listed by me earlier can be of no assistance to the Respondents – Petitions is dismissed
B.P. COLABAWALLA, J.
1. By these two Arbitration Petitions filed under Section 37 of the Arbitration and Conciliation Act, 1996 (for short the “Arbitration Act”), the Petitioners challenge the order dated 4th July, 2018 passed by the Arbitral Tribunal under Section 17 of the Arbitration Act (for short the “impugned order”). By the impugned order, pending the hearing and final disposal of the arbitration proceedings, and as an interim measure, the Arbitral Tribunal directed the Petitioners in both Petitions to jointly and severally deposit an amount of Rs. 190 Crores, or in the alternative to provide a bank guarantee for the said amount and deposit the same with the Tribunal within a period of four weeks from the date of the impugned order. In addition to the aforesaid direction, the Arbitral Tribunal also restrained the Petitioners in Arbitration Petition No. 913 of 2018 (Respondent Nos. 1 to 4 before the Arbitral Tribunal) from selling, transferring, alienating, disposing of and/or encumbering their interests (legal, beneficial and/or economic) in any and all the properties of the Petitioners (Respondent Nos. 1 to 4 before the Arbitral Tribunal) where ever located in India or outside, other than in the ordinary course of business, including the properties as listed in Schedule-I to the section 17 application. A similar relief was also granted against the Petitioners in Arbitration Petition No. 939 of 2018 (Respondent Nos. 5, 6 and 7 before the Arbitral Tribunal). It is being aggrieved by this order, that the present Petitions have been filed.
2. Since both the Arbitration Petitions challenge the same order, they are being disposed of by this common judgment. Respondent Nos. 1, 2 and 3 in both these Petitions were the Claimants before the Arbitral Tribunal. The Petitioners in Arbitration Petition No. 913 of 2018 were Respondent Nos. 1, 2, 3 and 4 before the Arbitral Tribunal. The Petitioners in Arbitration Petition No. 939 of 2018 were Respondent Nos. 5, 6 and 7 before the Arbitral Tribunal. For the sake of convenience and ease of reference, I shall hereafter refer to the parties as they were arrayed before the Arbitral Tribunal.
3. Before setting out and dealing with the legal submissions of the parties, it would be necessary to set out a few facts. The Claimants are investors in the Respondent No. 3 company (Maharana Infrastructure and Professional Services Limited) with the aggregate value of their investment being about Rs. 190 Crores. This investment was in the form of the Claimants holding equity shares of the Respondent No. 3 company to the extent of Rs. 41.37%. The rest of the shares of Respondent No. 3 are held by Respondent Nos. 1 and 2 (who are the promoters) and two others.
4. This investment of Rs. 190 Crores was made by the Claimants in different tranches and at different points of time. The inter-se terms of this investment and the rules of the investors are governed by the Share Holders Agreement dated 27th December, 2012 and thereafter supplemented by a supplementary Share Holders Agreement dated 30th July, 2014 and thereafter further amended by the amendment Agreements dated 29th August, 2014 and 13th November, 2014 respectively. For the sake of convenience, all these agreements shall hereafter be collectively referred to as the SHA.
5. Clause 17.3 of the SHA dated 27th December, 2012 contains an arbitration clause. Clause 17.2 provides that in case of any dispute arising between the parties with regard to the subject matter of the agreement, the disputing parties shall in the first instance attempt to resolve it, failing which any disputing party may submit a claim to be settled by arbitration.
6. Pursuant to Clause 17.3 of the said Agreement, the Claimants by their notice dated 2nd August, 2017 invoked arbitration against the Respondents. I must mention here that Respondent Nos. 1 to 3 are signatories to the arbitration agreement whereas Respondent Nos. 4 to 7 are not signatories. Before the Arbitral Tr