IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
DAIICHI SANKYO COMPANY LIMITED - Petitioner
Versus
MALVINDER MOHAN SINGH AND ORS. - Respondents
O.M.P.(EFA)(COMM.) 6 of 2016
Decided On : 31-01-2018
Arbitration and Conciliation Act, 1996 - Section 9, 48 - Damages - Assessment - Arbitral Tribunal - Arbitral Tribunal can assess damages - Award has given various reasons for having rejected the suggested formula by the respondent - Respondent received Rs. 9,576.1 crores for sale of their shares - Damages have been assessed at Rs. 2,562 crores plus interest and costs - Plea of the respondents cannot be accepted - Held, computation done by the Arbitral Tribunal is not contrary to fundamental policy of Indian Law.
Civil Procedure Code, 1908 - Order 32 Rule 3 - Arbitration and Conciliation Act - Section 9 - Guardian - Non-appointment - Misrepresented information - Scope of - Arbitration proceedings were held in Singapore - Minor respondents were represented by counsels - Natural guardians have been taking steps to defend the litigation on behalf of the minors - Petitioners took no steps in terms of Order 32 Rule 3 CPC or Section 9 of the Arbitration and Conciliation Act - It would not be a ground for not enforcing the Award passed in favour of the petitioner - There is reasonable doubt that the respondents through Malvinder, Deshmukh and Mr.Kaul have fraudulently misrepresented information from the petitioner.
Hindu Minority and Guardianship Act, 1956 - Section 8 - Civil Procedure Code, 1908 - Order 32 - Indian Partnership Act - Section 30 - Minor - Award - Disproportionate - Minor respondents have fraudulently misrepresented - Minors acting through their guardian have received a total sale consideration of only Rs.14 lacs - On account of the fraud played by the guardian, the estate of the minor gained four to five lacs of rupees - For this act they have been saddled with a liability of Rs.3,500/- crores approximately - If any fraud was committed by their natural guardian, the petitioners were free to commence proceedings against him - Guardian who is alleged to have committed fraud is a party to these proceedings and also has suffered award against himself - Held, objections against the award on behalf of respondents No.5 and 9 to 12 are accepted.
JAYANT NATH, J.
1. This petition has been filed under Part II of The Arbitration and Conciliation Act,1996 by the petitioner M/s.Daiichi Sankyo Company Limited seeking enforcement and execution of the Foreign Award dated 29th April 2016 passed by the Majority Arbitral Tribunal comprising of Mr.Karyl Nairn QC and Professor Lawrence G.Boo (a dissenting award being given by Justice (Retd.) A.M.Ahmadi). By the present judgment, I will decide the objections under section 48 of The Arbitration and Conciliation Act, 1996 filed by the respective respondents to enforcement of the Award. Separate objections have been filed by Respondents No.1 to 3, Respondent No.4, Respondents No.6 and 7, Respondent No.8, Respondents No.5 and 9 to 12 (minors) and by Respondents No.14 to 19 and Respondent No.20 respectively.
2. The controversy revolves around a Share Purchase and Share Subscription Agreement (hereinafter referred to as SPSSA) dated 11.6.2008 whereby the petitioner agreed to purchase from the respondents their total stake in Ranbaxy Laboratories Limited (hereinafter referred to as “Ranbaxy”) for a transaction valued at INR 198 billion (approximately 4.6 billion US dollars).
3. Disputes having arisen between the parties, in terms of SPSSA, the petitioner invoked the arbitration clause. In terms of the said arbitration agreement the disputes were to be resolved by Arbitration to be administered by the International Chamber of Commerce (hereinafter referred to as ICC).
The place of arbitration was to be Singapore. Each disputing side was to appoint one Arbitrator and the two Arbitrators so appointed were to consult and appoint a third Arbitrator. In case of failure to appoint respective Arbitrators or two party Arbitrators or even to appoint the Chairperson, the ICC was to appoint such Arbitrator or Chairperson, as the case may be. The arbitration proceedings were to be conducted in English.
4. The petitioner nominated Ms.Karyl Nairn QC. Respondents nominated Justice A.M.Ahmadi (Rtd.), former Chief Justice of India. ICC appointed Professor Lawrence, G.S.Boo of The Arbitration Chambers, Singapore as the President of the Arbitral Tribunal. The applicable procedural law of arbitration was to be the International Arbitration Act of Singapore. The governing law was to be the laws of Republic of India.
5. Some of the brief facts as urged by the claimant/petitioner are as follows:-
6. The petitioner by a Share Purchase and Share Subscription Agreement dated 11.6.2008 purchased the respondent’s total stake in the company Ranbaxy Laboratories Limited (Ranbaxy) for a value of over INR 198 billion (approximately US Dollar 4.6 billion at the relevant exchange rates). In terms of the SPSSA the respondents received total amount of Rs.9,576.1 crores. In discharge of statutory duty under Security and Exchange Board of India Act the petitioner had to purchase shares from the public. Hence, it spent a total amount of Rs19,804/- crores approximately to complete the transaction. The first installment of the payment was received by the respondents on 20.10.2008 and the final payment was received on 7.11.2008. On 19.12.2008 Dr.Une and Mr.Takshi Shoda were nominated on the Board on behalf of the petitioners. Mr.Malvinder Singh/respondent No.1 continued to be the CEO of Ranbaxy. Subsequently, on account of differences he resigned on 24.5.2009. The claim of the petitioner arises out of the said SPSSA. It is the case of the petitioner that during the acquisition process of the respondent’s shares in Ranbaxy Mr. Malvinder (respondent No.1) and his business associates Mr. Vinay Kaul and Mr.Jay Deshmukh made false representations to the petitioner by concealing a document known as Self Assessment Report (hereinafter referred to as SAR) and also about the genesis, nature and severity of pending investigations by the US Food and Drug Administration (hereinafter referred to as FDA) and Department of Justice (hereinafter referred to as DOJ) against Ranbaxy thereby fraudu
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