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2021 Supreme(Bom) 1031

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, V.G. Bisht, JJ.
Ratnam Sudesh Iyer - Appellant
Versus
Jackie Kakubhai Shroff - Respondent
Arbitration Appeal (L) No. 4901 of 2020; Arbitration Petition No. 167 of 2015; Interim Application (L) No. 4905 of 2020; Arbitration Appeal L D V C No. 99 of 2020
Decided On : 20-04-2021

Advocates appeared:
Ankita Singhania, Advocate, Vishal Gandhi, Advocate, Anvitaa Rastogi, Advocate, M/S Gandhi & Associates, Advocate, Arif Bookwala, Advocate, Rahul Chitnis, Advocate, Shyam Dewani, Advocate, Chirag Chanani, Advocate, M/S Dewani Associates, Advocate, Anil Harish, Advocate, D.M. Harish & Co, Advocate

Headnote:

The Court set aside the arbitral award and allowed the petition filed by the respondent under Section 34 of the Arbitration and Conciliation Act, 1996 (the Arbitration Act). The Court held that the arbitral award was perverse and patently illegal and that the learned single Judge was right in setting it aside.

Fact of the Case:

The appellant (original respondent before the learned Single Judge and the original claimant before the Arbitral Tribunal) was a citizen of Singapore and resided in Singapore. The respondent (original petitioner) was a shareholder of Atlas Equifin Private Limited, India. The parties entered into a Deed of Settlement on 10th January, 2011 whereby they agreed to settle the dispute raised by the respondent in the complaint dated 19th April, 2010 made with the Economic Offences Wing, Mumbai Police. The Deed of Settlement contained various terms and conditions, including a clause providing for liquidated damages in the event of breach of any of the terms and conditions of the Deed of Settlement.

Finding of the Court:

The Court found that the learned arbitrator had committed a patent illegality by awarding liquidated damages to the claimant without there being any pleading or evidence to support such a claim. The Court also found that the learned arbitrator had erred in holding that the wife of the respondent was his authorized representative or agent, and that the emails sent by her to the claimant constituted a breach of the Deed of Settlement. The Court further found that the learned arbitrator had failed to consider the vital and crucial evidence led by the respondent, and had rendered findings which were ex-facie perverse.

Issues: Whether the arbitral award was perverse and patently illegal.

Ratio Decidendi: The Court held that the arbitral award was perverse and patently illegal on the following grounds: * The learned arbitrator had awarded liquidated damages to the claimant without there being any pleading or evidence to support such a claim. * The learned arbitrator had erred in holding that the wife of the respondent was his authorized representative or agent, and that the emails sent by her to the claimant constituted a breach of the Deed of Settlement. * The learned arbitrator had failed to consider the vital and crucial evidence led by the respondent, and had rendered findings which were ex-facie perverse.

Final Decision: The Court set aside the arbitral award and allowed the petition filed by the respondent under Section 34 of the Arbitration Act.

JUDGMENT

R. D. Dhanuka, J. - By this appeal filed under section 37 of the Arbitration and Conciliation Act, 1996, the appellant (original respondent before the learned Single Judge and the original claimant before the Arbitral Tribunal) has impugned the judgment delivered by the learned Single Judge of this Court allowing the arbitration petition filed by the respondent herein (original petitioner) under section 34 of the Arbitration and Conciliation Act, 1996 (for short the Arbitration Act). Some of the relevant facts for the purpose of deciding this petition are as under :-

2. The parties in this order are described as per their original status in the arbitral proceedings. The appellant herein was the original claimant whereas the respondent herein was the original respondent. The claimant is a citizen of Singapore and resides in Singapore. It was the case of the claimant that the claimant had identified and brought together (i) Mr.Raman Maroo, (ii) Mr.Jayesh Parekh and (iii) and the respondent and offered them an investment opportunity in the said joint venture company known as Ace TV Private Limited. The claimant and the respondent were friends at that time.

3. The claimant thereafter founded Sony Entertainment Television Private Limited (now known as Multi Screen Media Private Limited) along with the world renowned Sony Pictures Entertainment, USA a part of the Sony Group of Japan. The said Sony Entertainment Television Private Limited was created as joint venture company between companies owned by the claimant and the companies owned by the Sony Pictures.

4. It is the case of the claimant that the claimant together with Mr.Raman Maroo negotiated and procured favourable telecasting rights and built a 500 movies library which was then taken as part of the capital contribution to the said joint venture company. The claimant held shares of Multi Screen Media Private Limited through holding companies viz. Atlas Equifin Private Limited, India and Grandway Global Holdings Limited, Mauritius. The claimant was the first chief of television programming of the Sony TV Venture.

5. It was the case of the claimant that in the month of May 2012, the said shareholders whom the claimant brought together had sold their shares equivalent to 32% of Multi Screen Media Private Limited to the Sony Group companies at a valuation of approximately USD 840 million. The claimant had invested and was involved with several industries. According to the claimant, the value of his reputation was worth Rs.282.60 crores on the basis of his achievement relating to the Sony TC Venture alone and was worth Rs.314 crores if his other achievements were considered.

6. As per the claimant, the bare minimum value of the said reputation of the claimant was admitted by the respondent as USD 3.5 million or Indian Rupee 18 crores 78 lakhs. The claimant is a shareholder of Atlas Equifin Private Limited. The respondent was also a shareholder of the said company and holding 1,40,000 equity shares in the said company. The said company is an investment holding company and owns assets including shares of Multi Screen Media Private Limited which shares had recently been sold subject to the government approvals.

7. It was the case of the claimant that Mrs.Ayesha Shroff who is the wife and representative/agent of the respondent had acted as authorized representative of the respondent and had represented the respondent in various dealings with the claimant as well as in various dealings with the company. The respondent had been trying to sell his shares in the said company since the year 2002 by various modes. A placement instruction dated 15th November, 2005 was signed by the claimant and the respondent and other parties, authorizing the Standard Chartered Bank as their agent to identify a purchaser to purchase the shares of the said company.

8. It is the case of the claimant that the respondent thereafter disputed his signature on the Placement Instruction and lodged a false and base

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