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2022 Supreme(Online)(DEL) 927
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 03rd January, 2022 Judgment Delivered on : 04th January, 2022 + CM(M) 2/2022 & CM No.176/2022 (for interim relief)
FUTURE RETAIL LTD. ..... Petitioner Through Mr. Harish Salve, Mr. Sandeep Sethi, Mr. Ritin Rai, Senior Advocates with Mr. Raghav Shankar, Ms. Madhu Gadodia, Mr. Harshvardhan Jha, Ms.Ritika Sinha and Ms. Arshiya Sharda, Advocates.
versus AMAZON.COM NV INVESTMENT HOLDINGS LLC & ORS. ..... Respondents Through Mr. Gopal Subramanium, Mr. Rajiv Nayar, Mr. Gourab Banerji, Mr. Amit Sibal, Mr. Nakul Dewan, Senior Advocates with Mr. Anand S Pathak, Mr. Amit K Mishra, Mr. Shashank Gautam, Ms. Sreemoyee Deb, Mr.Vijay Purohit, Mr. Mohit Singh, Mr. Promit Chatterjee, Ms. Anubhuti Mishra, Mr. Shivam Pandey, Ms. Samridhi Hota, Ms. Nikita Bangera, Mr. Pratik Jhaveri, Mr. Faizan Mithaiwala, Ms. Didon Misri, Mr. Chetan Chawla, Mr. Vijayendra Pratap Singh, Mr. Rachit Bahl, Ms. Roopali Singh, Mr. Abhijnan Jha, Mr. Priyank Ladoia, Mr. Tanmay Sharma, Ms. Vanya Chhabra, Mr. Arnab Ray, Mr. Vedant Kapur, Mr. Shaurya Mittal, Mr. Abhisar Vidyarthi, Mr. Kartik Nayar, Mr. Pawan Bhushan, Ms. Hima Lawrence, Ms. Ujwala Uppaluri, Mr. SP Mukherjee, Mr. TS Sundaram, Mr. Vinay Tripathi, Mr. Aishvary Vikram, Mr. Kaustubh Prakash, Ms. Anushka Shah, Ms. Neelu Mohan, Ms. Smriti Kalra and Ms. Manjira Dasgupta, Advocates for respondent No.1.
Mr. Mukul Rohatgi, Mr. Dayan Krishnan, Senior Advocates with Mr.Mahesh Agarwal, Mr. Rishi Agrawala, Mr. Karan Luthra, Mr.Pranjit Bhattacharya, Mr.Sanjeevi Seshadri and Mr. Ankit Banati, Advocates for respondents No.2 to
13.
+ CM(M) 3/2022 & CM No.179/2022 (for stay)
FUTURE COUPONS PVT. LTD. & ORS. ..... Petitioners Through Mr. Mukul Rohatgi, Mr. Dayan Krishnan, Senior Advocates with Mr.Mahesh Agarwal, Mr. Rishi Agrawala, Mr. Karan Luthra, Mr.Pranjit Bhattacharya, Mr.Sanjeevi Seshadri and Mr. Ankit Banati Advocates.
versus AMAZON.COM NV INVESTMENT HOLDINGS LLC & ANR. ..... Respondents Through Mr. Gopal Subramanium, Mr. Rajiv Nayar, Mr. Gourab Banerji, Mr. Amit Sibal, Mr. Nakul Dewan, Senior Advocates with Mr. Anand S Pathak, Mr. Amit K Mishra, Mr. Shashank Gautam, Ms. Sreemoyee Deb, Mr.Vijay Purohit, Mr. Mohit Singh, Mr.Promit Chatterjee, Ms. Anubhuti Mishra, Mr. Shivam Pandey, Ms. Samridhi Hota, Ms. Nikita Bangera, Mr. Pratik Jhaveri, Mr. Faizan Mithaiwala, Ms. Didon Misri, Mr. Chetan Chawla, Mr. Vijayendra Pratap Singh, Mr. Rachit Bahl, Ms. Roopali Singh, Mr. Abhijnan Jha, Mr. Priyank Ladoia, Mr. Tanmay Sharma, Ms. Vanya Chhabra, Mr. Arnab Ray, Mr. Vedant Kapur, Mr. Shaurya Mittal, Mr. Abhisar Vidyarthi, Mr. Kartik Nayar, Mr. Pawan Bhushan, Ms. Hima Lawrence, Ms. Ujwala Uppaluri, Mr. SP Mukherjee, Mr. TS Sundaram, Mr. Vinay Tripathi, Mr. Aishvary Vikram, Mr. Kaustubh Prakash, Ms. Anushka Shah, Ms. Neelu Mohan, Ms. Smriti Kalra and Ms. Manjira Dasgupta, Advocates for respondent No.1.
Mr. Harish Salve, Mr. Sandeep Sethi, Mr. Ritin Rai, Senior Advocates with Mr. Raghav Shankar, Ms. Madhu Gadodia, Mr. Harshvardhan Jha, Ms.Ritika Sinha and Ms. Arshiya Sharda, Advocates for respondent No.2.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
1. Both the present petitions filed under Article 227 of the Constitution of India arise out of the same arbitration proceedings tilted as Amazon.com NV Investment Holdings LLC v. Future Coupons Private Limited, being SIAC Arbitration No.960 of 2020, involving, inter alia, (i) Amazon.com NV Investment Holdings LLC [hereinafter ‘Amazon’], (ii) Future Coupons Private Limited [hereinafter ‘FCPL’]; and, (iii) Future Retail Limited [hereinafter ‘FRL’].
2. The challenge in CM(M) 3/2022 is to the impugned orders dated 29th December, 2021, 30th December, 2021 and 31st December, 2021 passed by the Arbitral Tribunal, whereas in CM(M) 2/2022, the orders dated 29th December, 2021 and 30th December, 2021 passed by the Arbitral Tribunal have been impugned. In both the petitions, further relief is sought to declare the continuation of the arbitration proceedings as contrary to law and to direct the Arbitral Tribunal to decide the termination applications filed by the petitioners on 23rd December, 2021 before continuing with the arbitration proceedings.
3. The impugned order dated 29th December, 2021 is in relation to the Procedural Order No.6 issued by the Arbitral Tribunal, whereby the Arbitral Tribunal has stated/observed that:
(i) In view of the extensive preparations made for the hearing of the expert witnesses from 05th January to 08th January, 2022, the Arbitral Tribunal does not consider it correct to abandon the said hearing for hearing the termination applications filed on behalf of the petitioners.
(ii) It is not clear whether or not the order dated 17th December, 2021 of the Competition Commission of India (CCI) is appealable and hence, cannot form the basis for termination of the arbitration proceedings.
(iii) In view of the strength of the legal team of the parties and the fact that the aforesaid dates in January, 2022 were fixed long time back, there is no reason to adjourn the said hearings.
(iv) The issue as to when to hear the termination applications is an issue of case management and therefore, the Arbitral Tribunal has the full discretion to decide when to hear the said applications.
4. The second impugned order dated 30th December, 2021 is also stated to be in reference to Procedural Order No.6, whereby the Arbitral Tribunal has stated/observed that:
(i) The Arbitral Tribunal has not taken any decision with regard to implications of the CCI order on the continuation of the said arbitration. What was expressed in the impugned order dated 29th December, 2021 was only the preliminary view of the Arbitral Tribunal so that the parties can address submissions accordingly.
(ii) It was noted that the Arbitral Tribunal will give reasonable opportunity to all the parties to present their submissions on the matter of implication of the CCI order on the arbitration proceedings.
(iii) In view of the parties being asked to file their written submissions in support of their respective contentions in respect of the termination applications, one day for hearing would be sufficient for the oral submission of the parties.
(iv) Dates for hearing of the expert witnesses in January, 2022 were agreed by the parties until just before Christmas i.e., 25th December, 2021.
(v) No prejudice would be caused to the petitioners if the hearing on the termination applications be conducted after the hearing on the parties’
expert witnesses on damages.
(vi) If the petitioners are successful in their request for termination of arbitration, the option to claim costs would also be available for them.
(vii) The Arbitral Tribunal had offered to hear the termination applications on 04th January, 2022 by adding an extra day. However, since the lead counsel of FRL was not available on the said date, the hearing could not be scheduled on 04th January, 2022.
(viii) An endeavour would be made to find dates before May, 2022 for hearing on the termination applications.
5. The impugned order dated 31st December, 2021 is actually an email from the Arbitral Tribun
