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2019 Supreme(Del) 2052

IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, J.
Sbs Logistics Singapore Pte Ltd. - Appellant
Vs.
Sbs Transpole Logistics Private Limited - Respondent
Original Miscellaneous Petition (Efa) (Comm) No. 4 of 2018; E.A. No. 8440 of 2018, 17606 of 2018, 2222 of 2019, 2223 of 2019, 6931 of 2019, 6932 of 2019
Decided On : 16-09-2019

Advocates Appeared:
Gautam Narayan, Adv., R.A. Iyer, Adv., Shivare Vij, Adv., Malamaya Chatterjee, Adv., Nakul Dewan, Adv., Sameer Jain, Adv., Angad Sandhu, Adv., Anu Sura, Adv., Nooreen Sama, Adv., Anant Gupta, Adv.

Headnote:

ARBITRATION - Enforcement of Award - Singapore International Arbitration Centre (SIAC) Rules - Violation of principles of natural justice - Violation of public policy of India - Absence of jurisdiction in the arbitral tribunal to pass the final award.

Fact of the Case:

SBS Singapore, the original claimant, entered into a loan agreement with Transpole HK, the borrower, and Transpole India, the guarantor. Transpole HK defaulted on its loan payments, leading to an assignment of the loan agreement to SBS Singapore. Transpole HK and Transpole India raised objections to the enforcement of the final award, alleging violation of principles of natural justice, public policy of India, and lack of jurisdiction.

Finding of the Court:

The court found that the arbitral tribunal did not violate the principles of natural justice by imposing conditions for adjournment, as it was within its discretion to determine its procedure. The court also held that the final award did not violate the public policy of India, as the loan agreement was not in violation of FEMA or the regulations framed thereunder. Furthermore, the court found that the arbitral tribunal had jurisdiction to pass the final award, as the parties had agreed to arbitration under the SIAC Rules.

Issues: 1. Whether the arbitral tribunal violated the principles of natural justice by imposing conditions for adjournment? 2. Whether the final award violated the public policy of India? 3. Whether the arbitral tribunal had jurisdiction to pass the final award?

Ratio Decidendi: 1. The arbitral tribunal did not violate the principles of natural justice by imposing conditions for adjournment, as it was within its discretion to determine its procedure. 2. The final award did not violate the public policy of India, as the loan agreement was not in violation of FEMA or the regulations framed thereunder. 3. The arbitral tribunal had jurisdiction to pass the final award, as the parties had agreed to arbitration under the SIAC Rules.

Final Decision: The court allowed the execution proceedings to proceed further and rejected the objections raised by Transpole HK and Transpole India.

JUDGMENT :

Rajiv Shakdher, J.

This petition is preferred under Section 49 of the Arbitration and Conciliation Act,1996 (in short 'the 1996 Act') read with Order XXI Rule 10 of the Code of Civil Procedure,1908 (in short 'CPC') to seek enforcement of the final award dated 25.10.2017 (in short 'final award').

1.1 The award has been rendered by a three-member arbitral tribunal. The three-member arbitral tribunal comprised nominee-arbitrators of the disputants and the presiding arbitrator who was chosen by the two nominee arbitrators.

1.2 The constitution of the arbitral tribunal was brought about in terms of the arbitration agreement obtaining between the disputants. Both the constitution of the arbitral tribunal and the conduct of the arbitration proceedings was carried out in consonance with the Rules of the Singapore International Arbitration Centre (5th edition, 1 April 2013) (in short 'SIAC Rules').

1.3 The disputants before the arbitral tribunal were SBS Logistics Singapore Pte Ltd, the original claimant (hereafter referred to as 'SBS Singapore'), on the one hand and; SBS Transpole Logistics Holdings Company Limited (Hong Kong) (hereafter referred to as 'Transpole HK'), and SBS Transpole Logistics Private Limited (hereafter referred to as 'Transpole India') on the other.

2. The disputes brought before the arbitral tribunal by SBS Singapore veered around the non-payment of dues under the Loan Agreement dated 31.07.2014 (in short 'Loan Agreement').

2.1 The original lender under the loan agreement was an entity going by the name SBS Logistics Holdings Singapore Pte Ltd (now known as Global Enterprise Logistics Pte Ltd) [hereafter referred to as 'SBS Holdings Singapore']. The borrower under the loan agreement was Transpole HK. The repayment of dues which included both principal and interest accrued thereon was guaranteed by Transpole India. Transpole HK was, at the relevant time, wholly-owned subsidiary of Transpole India.

2.2 Under the loan agreement, SBS Holdings Singapore agreed to lend a principal amount equivalent to Japanese Yen (JPY) 2.5 Billion to Transpole HK. This amount was disbursed on 01.09.2014. Transpole HK as required under the loan agreement made over interest payments on 01.12.2014,01.03.2015,01.06.2015,01.09.2015 and 01.12.2015. Transpole HK, however, committed a default in remitting quarterly instalment amounting to JPY 24,931,507.00 which fell due on 01.03.2016.

2.3 On 11.03.2016, in terms of the right conferred on the lender i.e. SBS Holdings Singapore under Clause 12 of the loan agreement, it executed a deed of assignment (in short 'DOA') in favour of SBS Singapore i.e. the claimant. Notice to the effect that the DOA had been executed was given to Transpole HK and Transpole India by SBS Holdings Singapore via communication dated 11.03.2016.

2.4 In consonance with the rights conferred under the DOA, SBS Singapore served a notice of acceleration dated 22.03.2016 on Transpole HK and Transpole India requiring them to make immediate payment of both the principal as well as the outstanding interest.

2.5 Since, Transpole HK and Transpole India failed to respond, SBS Singapore served a notice of amicable settlement dated 07.04.2016 as required under Clause 15.2(a) of the loan agreement on Transpole HK and Transpole India.

2.6 Furthermore, an email of even date i.e. 07.04.2016 was sent by a director of SBS Singapore to one Mr. Anant Kumar Chaudhary, who was a director on the board of both Transpole HK as well as Transpole India. Via this email, a request was made to participate in a video conference to work out an amicable settlement vis-`-vis disputes obtaining between the parties.

2.7 The video conference which was held on 28.04.2016 between the representatives of the parties did not bear fruit.

2.8 Resultantly, SBS Singapore submitted a Notice of Arbitration ('NOA') dated 13.05.2016. The NOA was also served on Transpole HK and Transpole India. Via the NOA, a request was made that since disputes had arisen between the parties

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