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IN THE HIGH COURT OF DELHI AT NEW DELHI
C. Hari Shankar, J.
Hindustan Cleanenergy Ltd. - Appellant
Versus
Maif Investments India 2 PTE Ltd & Ors. - Respondents
O.M.P.(I) (Comm.) 211/2021 & I.A 7868/2021, I.A.7869/2021, I.A.7870/2021
Decided On : 16-08-2021
ORDER - Arbitration - 1996 Act - Clause 8.12, 8.6, 8.9 - The court granted ad interim protection to the petitioner by restraining the respondents from alienating, disposing, or creating any third-party interest in the Identified Litigation Securities acquired by them under Clause 8.6 of the Framework Agreement. Respondent Nos. 1 and 2 were also restrained from transferring their interest in Respondent Nos. 3 to 11 pending further orders in the present proceedings.
Fact of the Case:
The petitioner filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996, seeking pre-arbitral interim reliefs. The dispute revolved around the acquisition of Identified Litigation Securities by the respondents and the interpretation of various clauses of the Framework Agreement.
Finding of the Court:
The court found that there was a clear arguable case in favor of the petitioner, justifying the grant of ad interim protection. The court restrained the respondents from alienating or disposing of the Identified Litigation Securities and from transferring their interest in other respondents, pending further orders.
Issues: The issues revolved around the interpretation of Clause 8.12, 8.6, and 8.9 of the Framework Agreement, the effect of the COVID-19 pandemic on the contractual obligations, and the applicability of Section 9 of the 1996 Act in the case of foreign-seated arbitrations.
Ratio Decidendi: The court found that the petitioner had a prima facie case in its favor, and the respondents had not adequately answered the submissions of the petitioner on merits. The court also clarified that the order was intended for ad interim protection pending the disposal of the Section 9 petition and would not bind or influence the court in deciding the issue of interim protection pending the arbitral proceedings.
Final Decision: The court granted ad interim protection to the petitioner by restraining the respondents from alienating, disposing, or creating any third-party interest in the Identified Litigation Securities acquired by them under Clause 8.6 of the Framework Agreement. Respondent Nos. 1 and 2 were also restrained from transferring their interest in Respondent Nos. 3 to 11 pending further orders in the present proceedings.
ORDER
LA. 7868/2021 (for exemption from filing typed copies of dim documents)
1. Subject to the petitioner filing legible copies of any illegible or dim documents on which he may seek to place reliance, within four weeks from today, exemption is granted for the present.
2. The application stands disposed of.
LA. 7869/2021 (for permission to file lensthy synopsis and list of dates)
1. For the reasons stated in the application, permission as sought is granted.
2. The application stands disposed of.
LA. 7870/2021 (for exemption from filins attested affidavits)
1. Exemption allowed, subject to all just exceptions
2. The application stands disposed of.
OMP(I)(COMM) 211/2021
1. This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 ("the 1996 Act"), seeking pre-arbitral interim reliefs. The prayer clause in the petition reads as under:
"In light of the above facts and circumstances, it is respectfully prayed that this Hon'ble Court may be pleased to:
(i) pass an order directing the Contesting Respondent to deposit the Claim Amount i.e. the sum of INR 304,82,10,141/- (Indian Rupees Three Hundred and Four Crores Eighty Two Lakhs Ten Thousand One Hundred and Forty One Only) in accordance with Clause 8.12 read with Schedule 12 of the Framework Agreement in the Court's Registry, which shall be released subject to the outcome of the arbitration proceedings;
(ii) alternatively, restrain Respondents No.1 and 2 from, directly or indirectly, selling the SPVs (Respondents No.3-11) or, directly or indirectly, creating any third-party rights in relation to the SPVs (Respondents No.3-11) including their assets in any manner whatsoever until the conclusion of the arbitration proceedings; and
(iii) restrain the Respondents No. 1-11 from, directly or indirectly, taking any steps which may adversely affect the rights of the Petitioner in respect of the Identified Litigations, pending the outcome of the arbitration proceedings; and
(iv) pass an ex-parte ad interim order in terms of prayers (i) to (iii) above;
(v) pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
2. Arguments were advanced, on behalf of the petitioners as well as respondents, by learned Senior Counsel. Mr. Mukul Rohtagi and Dr. Abhishek Manu Singhvi argued on behalf of the petitioners, while Mr. Harish Salve and Mr. Rajiv Nayar argued on behalf of the respondents.
3. Learned Senior Counsel for the respondents submitted that there was no substance, whatsoever, in the petition, which deserves to be dismissed outright. In the alternative, if the court was of the view that the petition merited notice, learned Senior Counsel opposed grant of any ad interim relief pending disposal of the petition.
4. Learned Senior Counsel for the petitioners, per contra, submitted that the petition deserved to be allowed and that, at the very least, deserved notice with grant of ad interim relief as prayed in prayer (iv) supra.
5. Essentially, therefore, arguments revolved around whether the petition deserves notice and if so, whether the petitioners are entitled to ad interim relief.
6. Having heard learned Senior Counsel at length, I am of the view that the petitioners have been able to make out a prima facie case worthy of consideration and that limited ad interim protection deserves to be granted, so that the present proceedings are not frustrated, even while setting down the petition itself for hearing expeditiously.
7. Accordingly, issue notice, returnable on 28th September, 2021, at 2.15 p.m. The matter shall be taken up for final hearing on the said date. Counter-affidavit be filed within 4 weeks, with advance copy to learned Counsel for the petitioners who may file rejoinder, if any, at least 48 hours in advance of the next date of hearing.
8. It is made clear that, subject to the respondents adhering to the time fixed for filing counter-affidavit, default, on the part of the petitioner, in filing rejoinder with
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The court recognized the necessity of interim protection under Section 9 of the Arbitration Act due to the pandemic's impact on judicial timelines and the potential dissipation of assets.
Principle of minimum judicial intervention is one of fundamental tenets of arbitration law.
The court clarified that without an explicit agreement to exclude Section 9 of the Arbitration Act, its applicability cannot be assumed, allowing claims under Section 9 for interim relief despite ong....
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