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2024 Supreme(Online)(SC) 11483
SUPREME COURT OF INDIA
HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE J.B. PARDIWALA, HON'BLE MR. JUSTICE MANOJ MISRA
ASLAM ISMAIL KHAN DESHMUKH – Appellant
Versus
ASAP FLUIDS PVT LTD. – Respondent
ARBIT.PETITON No.-000020 - 2019
Important Points
Subject
Arbitration - Appointment of Arbitrator
Act Referred
Headnote
(B) Limitation - The court noted that the claims must be examined for limitation but emphasized that substantive issues should be left to the arbitral tribunal. The court retains limited jurisdiction to assess if claims are ex facie time-barred. (Paras 31, 42)
(C) Dispute Resolution - The court reiterated that the referral court should only verify the existence of a prima facie arbitration agreement and not delve into the merits of the claims at the Section 11 stage. (Paras 44, 46)
Facts of the case:
The petitioner, a Non-Resident Indian, sought arbitration for disputes regarding 4,00,000 and 2,00,010 equity shares in respondent companies under a Shareholders Agreement. The respondents disputed the claims, citing time-bar issues and the petitioner’s resignation before the expiry of a lock-in period.
Findings of Court:
The court found that the arbitration agreement exists and that any time-bar issues should be determined by the arbitral tribunal.
Issues: The main issues addressed were whether the claims are ex facie time-barred and whether the arbitration agreement exists.
Ratio Decidendi: The court ruled that the existence of the arbitration agreement is undisputed and that the determination of time-bar issues should be left to the arbitral tribunal.
Result: Petitions allowed.
Petitioner's Advocate: KUNAL CHEEMA
Respondent's Advocate: JASMINE DAMKEWALA
Digitally signed by SANJAY KUMAR Date: 2024.11.07 Reason:
Signature Not Verified J. B. PARDIWALA, J.:
1. Since the captioned petitions raise analogous issues between the same parties, those were taken up together and are being disposed of by this common judgment and order.
2. The petitioner has filed the present two petitions in terms of Section 11(6) read with Section 11(12)(a) of the Arbitration & Conciliation Act, 1996 (for short “the Act, 1996” ), seeking appointment of an arbitrator for the adjudication of disputes and claims in terms of Clause 13.10 of the Shareholders Agreement dated 25.07.2011 entered into between the petitioner and the respondents.
I. FACTUAL MATRIX 3. Aslam Ismail Khan Deshmukh (hereinafter referred to as the “petitioner” ) is a Non-Resident Indian, who is currently residing and working in Dubai, UAE, having experience and expertise in the drilling fluid industry.
4. ASAP Fluids Pvt. Ltd. (hereinafter referred to as the “respondent no.1” ) is an Indian private limited company engaged in providing drilling fluids services to the oil and gas industry, whereas Gumpro Drilling Fluids Pvt. Ltd. (hereinafter referred to as the “respondent no. 2” ) is a private limited company that specializes in oil field services and offers mud services.
5. A Shareholders Agreement dated 25.07.2011 (hereinafter referred to as “Shareholders Agreement” ) was executed by and among the petitioner, respondent no.1, respondent no.2, Mr. Robert Wayne Pantermuehl, and Mr.
Sunil B. Shitole. In terms of the said Shareholders Agreement, the petitioner was to hold 4,00,000 equity shares of respondent no. 1 and also participate in the management of respondent no.1 company. The relevant clauses from the same are reproduced hereinbelow:
“4. RIGHT OF PRE-EMPTION FOR ISSUE OF NEW DILUTION INSTRUMENTS OR DILUTION OF SHAREHOLDING Present issued, subscribed and paid up share capital of the Company is Rs.2,64,00.000/- divided into 26,40,000 equity shares of INR 10 each which is held by the members as mentioned below:
a. Gumpro holding 18,00,000 equity shares of Rs. 10/- each in the Company.
b. Bob currently holding only 40,000 equity shares of Rs. 10/- each and shall be allotted additional 360,000 equity shares subject to getting the approval of Foreign Investment Promotion Board (FIPB).
Ministry of' Finance and Reserve Bank of India or such other approval as may be required as per Indian Law.
c. Aslam Khan holding 400,000 equity shares of Rs. 10/-
each in the Company and d. Sunil Shitole holding 400,000 equity shares of Rs. 10/- each in the Company.
On allotment of further 360,000 equity shares to Bob, the issued, subscribed and paid up share capital of the Company will be Rs. 3 Crores divided into 30,00,000 equity shares of Rs. 10/- each which will be held as follow:
a. Gumpro 18,00,000 equity shares of Rs. 10/- each in the Company b. Bob 400,000 equity shares of Rs. 10/- each in the Company c. Aslam Khan 400,000 equity shares of Rs. 10/- each in the Company and d. Sunil Shitole 400,000 equity shares of Rs. 10/- each in the Company· Gumpro has provided Rs.4,58,39,200 Crores as unsecured Loan (as on 31st March 2011) and Gumpro will additionally raise Rs.6.6 Crores for the Company from private equity fund or venture capital fund and advance it to the Company as secured loan against the security of equipments of the Company.
General. Subject to the terms and conditions specified in Section 4.3, the affirmative approval provisions contained in Section 9 and applicable Indian law, in the event that the Company proposes to issue any Dilution Instruments, the Company shall first offer such Dilution Instruments to all the Shareholders on rights basis, in proportion to their shareholding ratio in the Company on the date immediately prior to such further issue, in accordance with the procedure set forth in Section 4.2. It is clarified that the shareholding pattern of the Company as stated in Clause 4.1 shall be maintained at all times, save and except in th
