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2021 Supreme(Mad) 1549

IN THE HIGH COURT OF MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
ETA Mauritius Limited and Others – Appellants
Versus
PUEBLO Holdings Limited and Others – Respondents
O.S.A. Nos. 156, 157, 160, 161, 162 of 2020, C.M.P. Nos. 7808, 7810, 7811, 7814, 7815, 7816, 9019 of 2020
Decided On : 24-03-2021

Advocates:
Advocate Appeared:
For the Appellants : A.R.L. Sundaresan, J. Sivanandaraj, Aditya Bhat, K. Mahendran, P. Giridharan, S. Santhosh, V. Chandra Prabhu, M.S. Krishnan, Priyanka Shetty, Vijay Narayan for Srinath Sridevan.
For the Respondents: Ratnako Banerjee, Mukund Rao for Karthik Sundaram.

Headnote:

Companies Act, 2013 - Section 89 - Arbitration and Conciliation Act, 1996 - Sections 46, 47 , 48 to 49 - Indian Trusts Act - Section 5 - RPA, 1951 - Section 83(1)(a) - Indian Evidence Act, 1872 - Section 57 (1) – Civil Procedure Code,1908 - Section 60 - Award - Suspension Agreement - Award-debtor -Award-holder (decree-holder-Pueblo Holdings Limited) is a Company incorporated under the Marshal Islands and it is a wholly owned subsidiary of Navios Maritime Holdings Inc. which specialises in world wide carriage, trading, storage and related logistics of international bulk cargos and got listed in the New York Stock Exchange. The award-debtor-Emirates Trading Agency (ETA)-LLC is a Company incorporated in United Arab Emirates, whose shares are allegedly held beneficially in four of appellants in O.S.A. and other Garnishee companies - Claiming that the 'situs' of the shares of second respondent/award debtor these Garnishee Companies, are within territorial jurisdiction of this Court, the award-holder has filed the said Execution Petition before learned Single Judge of this Court - Held, Court and not by this Court. The garnishees/respondents 2 to 17 as well as the award-debtor, must be given an opportunity to prove their defence that they are not holding the shares or assets for beneficial interest of the award-debtor. Similarly, the award-debtor must be given an opportunity to prove as to whether the respondents 2 to 17 having a share in Indian companies, since they are disputing the said fact. For this purpose, evidence has to be let in, during which documentary evidence can be marked - Executing Court can go into question of beneficial interest of the assets held by the respondents 2 to 17-garnishees, afford opportunity to all the parties and then pass orders on merits and in accordance with law - O.S. dismissed

JUDGMENT :

R. SUBBIAH, J.

1. All these appeals are filed against the order dated 03.06.2020 passed by the learned Single Judge of this Court in Execution Petition No. 55 of 2019. The Execution Petition was filed by the award holder/first respondent in these appeals, namely Pueblo Holdings Limited to execute two foreign awards dated 09.04.2017 and 06.08.2017 passed against the second respondent namely Emirates Trading Agents LLC in which 16 companies were shown as garnishees and they were arrayed as respondent Nos. 2 to 17 in the Execution Petition.

2. O.S.A. No. 156 of 2020 had been filed by ETA Mauritius limited, a company incorporated under the Laws of Mauritius.

3. O.S.A. No. 157 of 2020 has been filed by Real Value Investment Limited, a company registered in Mauritius.

4. O.S.A. No. 160 of 2020 has been filed by Electro-mechanical Technical Associates Limited, a company incorporated as per the Laws of Mauritius.

5. The ETA Indian Companies group, joined together, have preferred a common appeal in O.S.A. No. 161 of 2020. They are Respondent Nos. 6 to 17 in E.P. No. 55 of 2019.

6. O.S.A. No. 162 of 2020 has been filed by ASCON Constructions Limited, Mauritius, a company incorporated and registered in Mauritius.

7. For the sake of convenience, the parties to these appeals are referred to as per their ranking in the Execution Petition filed before the learned Single Judge, i.e. petitioner in the Execution Petition is Pueblo Holdings Limited, which is the award-holder (decree-holder), the first respondent in the Execution Petition is Emirates Trading Agency LLC (ETA-LLC), which is the award-debtor and the respondents 2 to 17 in the Execution Petition are the Garnishee-Companies.

8. We shall first narrate facts and circumstances, which led to the filing of the Execution Petition No. 55 of 2019 before the Court.

9. The award-holder (decree-holder-Pueblo Holdings Limited) is a Company incorporated under the Marshal Islands and it is a wholly owned subsidiary of Navios Maritime Holdings Inc. which specialises in world wide carriage, trading, storage and related logistics of international bulk cargos and got listed in the New York Stock Exchange. The award-debtor-Emirates Trading Agency (ETA)-LLC is a Company incorporated in the United Arab Emirates, whose shares are allegedly held beneficially in four of the appellants in O.S.A. Nos. 156, 157, 160 and 162 of 2020 and the other Garnishee companies, which are the appellants in O.S.A. No. 161 of 2019. Claiming that the 'situs' of the shares of the second respondent/award debtor (ETC-LLC) in these Garnishee Companies, are within the territorial jurisdiction of this Court, the award-holder has filed the said Execution Petition before the learned Single Judge of this Court. Both before the learned Single Judge in E.P. No. 55 of 2019 and also in all the present O.S.As. the award debtor-ETA-LLC remained absent.

10. It is the specific case of the award-holder that the award-debtor was a chronic defaulter and is liable for several claims across the world. The ETA Group was originally established by Al Ghurair Group and Salaudin and Buhari families, having its head quarters at Dubai. Salaudin and Buhari families are Indian groups. The award-debtor had engaged the award-holder under a Charter Party, in respect of which, there were dues. The award-holder therefore appointed a sole arbitrator on 23.09.2019 in terms of Clause 17 of the Charter Party, dated 09.04.2008 and filed a claim petition on 21.12.2016 with respect to the said Charter Party and a Suspension Agreement, dated 30.12.2012 being the owner of the Vessel "Navios Lumen" seeking certain amount from the award-debtor, owned a Charter by way of debt and/or damages, with interest. The award-debtor preferred not to appear before the sole arbitrator. The Arbitrator passed a partial final award on 09.04.2017 and the second partial final award on 06.08.2017. Therefore, the Execution Petition has been filed before the learned Single Judge to execute the

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