Bombay High Court
Jackie Kukubhai Shroff vs Ratnam Sudesh Iyer on 18 January, 2022
Bench: R.D. Dhanuka, S. M. Modak
Digitally signed
by RAJESH
RAJESH VASANT
VASANT CHITTEWAN
CHITTEWAN Date:
2022.01.19 Chittewan
17:45:27 +0530
21. IA 2954-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.2954 OF 2021
IN
APPEAL NO.116 OF 2021
IN
ARBITRATION PETITION NO.167 OF 2015
Jackie Kakubhai Shroff ... Applicant
In the matter between :
Ratnam Sudesh Iyer ... Petitioner
Versus
Jackie Kakubhai Shroff ... Respondent
******
Mr. Arif Bookwala, Senior Advocate a/w Mr. Shyam Dewani and Mr. Chirag
Chainani i/b Ms. Dewani Associates for the Applicant/Respondent.
Mr. Dinyar Madon, Senior Advocate a/w Ms. Ankita Singhania, Ms. Anvitaa
Rastogi and Ms. Minal Jain i/b M/s Gandhi & Associates for the Respondent.
******
CORAM : R. D. DHANUKA &
S. M. MODAK, JJ.
DATE : 18 JANUARY 2022.
(Through Video Conference)
Order :
. By this Interim Application, the Applicant (Original Respondent) in
Appeal No.116 of 2021 seeks permission to withdraw the amount of USD 2
Million lying with the HDFC Bank, Churchgate Branch, Mumbai along with
the accumulated interest thereof. Mr. Bookwala, the learned Senior Counsel
for the Applicant, on the instructions, states that his client is not pressing
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prayers (b) and (c) of the Interim Application. The statement is accepted.
2 The Applicant herein was the original Respondent in the Arbitration
claim filed by the Respondent herein (original claimant). The learned
Arbitrator made an arbitral award allowing the claims made by the
Respondent herein. The learned Single Judge of this Court dismissed the
Arbitration Petition filed by the Respondent Mr. Ratnam Sudesh Iyer. He filed
Appeal No.116 of 2021 before this Court under Section 37 of the Arbitration
& Conciliation Act 1996 ("Act"). By judgment delivered on 20 April 2021, a
Division Bench of this Court dismissed the said Appeal No.116 of 2021. Being
aggrieved by the said judgment, the Respondent herein filed Special Leave
Petition bearing (C) No.11267 of 2021. The said SLP was admitted and was
converted into Civil Appeal No.6112 of 2021. By a judgment delivered by the
Hon'ble Supreme Court on 10 November 2021, the said Civil Appeal came to
be dismissed with costs.
3 While dismissing the said Appeal No.116 of 2021 filed by the
Respondent, this Court in clause -b) of para-104 of the Order dated 20 April
2021 made it clear that the Respondent (original claimant) shall not be
allowed to withdraw a sum of US$ 2 million deposited with the HDFC Bank
Limited, Churchgate Branch, Industry House, Mumbai-400 020 for a period of
eight weeks from the date of the said order. This Court, however, clarified
that the Applicant herein (Respondent in Appeal) would be at liberty to seek
appropriate relief in respect of the said amount by filing appropriate
proceedings. This Court vacated the interim order passed on 1 February 2021.
4 Mr. Bookwala, learned Senior Counsel appearing for the Applicant
invited our attention to the Order dated 27 April 2021 passed by this Court in
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Arbitration Appeal (L) No.4901 of 2020 and more particularly para-6. By the
said Order, this Court made it clear that the Applicant herein (Respondent
therein) shall not apply for withdrawal of the said amount till 31 July 2021, in
view of thus the Respondent herein having decided to impugn the said
judgment of the Division Bench of this Court before the Hon'ble Supreme
Court.
5 The said Order was thereafter continued by this Court on 29 July 2021
till 12 August 2021.
6 The learned Senior Counsel invited our attention to the judgment dated
10 November 2021 in Civil Appeal No.6112 of 2021, para-35 and submitted
that the entitlement of the Applicant to receive the said amount has been
clarified by the Hon'ble Supreme Court in para-35. He submits that the
Hon'ble Supreme Court has already dismissed the Civil Appeal filed by the
Respondent and thus, right of the Applicant to withdraw the said amount
described in prayer-(a) of the Interim Application is upheld.
7 Mr. Madon, learned Senior Counsel appearing for the Respondent
(original Claimant in the Arbitration Proceedings) submits that there was no
counter claim filed by the Applicant before the learned Arbitrator. He submits
that the SLP filed by the Applicant was admitted by the Hon'ble Supreme
Court. By the said judgment, dated 10 November 2021, the Hon'ble Supreme
Court has dismissed the Civil Appeal and thus, the judgment delivered by the
Division Bench of this Court has merged with the judgment of the Supreme
Court in the said Civil Appeal No.6112 of 2021. He further submits that his
client has already filed a Review Petition before the Hon'ble Supreme Court
for recall of the said Judgment dated 10 November 2021.
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8 Learned Senior Counsel invited our attention to para-39 of the said
judgment of the Hon'ble Supreme Court dated 10 November 2021 and would
submit that the Hon'ble Supreme Court has made it clear it has found fault
with the impugned order passed by the learned Single Judge and Division
Bench to the extent it interferes with the award and sets aside the award.
9 It is submitted that his client is entitled to invoke the Arbitration
Agreement between the parties again though the said award has been set
aside by the Single Judge of this Court, affirmed by the Division Bench of this
Court and by the Hon'ble Supreme Court in the said Civil Appeal No.6112 of
2021. He submits that if the Review Petition is allowed by the Hon'ble
Supreme Court, his client would not be able to recover any amount from the
Applicant as he has no assets left according to the Respondent.
10 It is not in dispute that the Arbitration Petition filed by the Applicant
herein impugned in the Arbitral Award was allowed. The arbitral award came
to be set aside by the Single Judge of this Court. The appeal filed under
Section 37 of the Act by the Respondent also came to be dismissed. While
dismissing the appeal filed by the Respondent, this Court has clarified that the
Respondent would not be entitled to withdraw the said amount till the
particular date. The Applicant herein was granted liberty to seek appropriate
relief in respect of the said amount by filing the appropriate proceedings. By
order dated 29th July, 2021 passed by this Court, this Court directed that
applicant shall not withdraw the amount lying with HDFC Bank till 12 th
August 2021.
11 Perusal of the record and particularly para-35 of the judgment makes it
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clear that after interpreting Clause 6 of the agreement entered into between
the parties, the Hon'ble Supreme Court has clarified whether clause 6 would
come into play, so as to deprive the respondent of the benefits which were two
fold, i.e. monetary benefit to cease and desist on complaints and litigations,
and the proceeds from the sale of the shares that were owned by him. Clause
6 provided for the return of the amount of US$ 1.5 million in case the
representations/assurances of the respondent turn out to be false and
incorrect. That was not the case.
12 We are thus not inclined to accept the submissions made by Mr. Madon,
learned Senior Counsel for the Respondent (original Claimant) that the
Applicant would not be entitled to seek withdrawal of the amount deposited
by his client, merely because the Review Petition filed by the Respondent is
pending before the Supreme Court. We are not inclined to adjourn this
Interim Application inter alia praying for withdrawal of the amount, since the
Respondent has not produced any stay order from the Hon'ble Supreme Court
seeking recall of the said Judgmement dated 10 November 2021.
13 There is no substance in the submission made by Mr. Madon, the
learned Senior Counsel appearing for the Respondent that for seeking the
withdrawal of the amount deposited by the Applicant, the Applicant would be
required to file separate Arbitration proceedings. In view of this issue raised
before the learned Arbitrator, the learned Single Judge of this Court, Division
Bench of this Court and finding rendered by the Hon'ble Supreme Court in the
judgment dated 10 November 2021 followed by order dated 29 th July, 2021
passed by this Court regarding the said amount lying with HDFC Bank, there
is no merit in this submission of the learned Senior counsel for the
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Respondent.
14 We accordingly, pass the following order.
:Order:
(i) The Interim Application is made absolute in terms of
prayer clause (a), which reads thus :
"(a) This Hon'ble Court may be pleased to permit the
Applicant/Original Respondent to withdraw the
amount of USD 2 Million lying with the HDFC
Bank, Churchgate Branch, Mumbai along with the
accumulated interest thereon, in the circumstances
stated herein;"
(ii) No order as to costs. The parties to act on an authenticated
copy of this order.
15 Mr. Madon, learned Senior Counsel for the Respondent seeks stay to the
operation of the order passed today by this Court which is strongly opposed by
Mr. Bookwala, learned Senior Counsel for the applicant. Considering the facts
of this case, the oral application for stay of the order passed by this court
today, is rejected.
[S. M. MODAK, J.] [R. D. DHANUKA, J.]
