Bombay High Court
Ebix Cash Limited vs Ashok Kumar Goel on 26 March, 2025
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
Digitally
signed by
2025:BHC-OS:4893-DB RAMESHWAR
RAMESHWAR LAXMAN
CAAs-32551-2024-35549-2024.doc LAXMAN DILWALE
DILWALE Date:
2025.03.26
Andreza/Dilwale 19:37:30
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION APPEAL (L) NO. 32551 OF 2024
WITH
INTERIM APPLICATION NO. 32629 OF 2024
IN
COMMERCIAL ARBITRATION PETITION (L) NO. 25579 OF 2024
Ebix Cash World Money Limited, A
company within the meaning of the
Companies Act, 2013 and having its
office at 8th Floor, Manek Plaza, Kalina
... Appellant/ Org.
CST Road, Kolekalyan, Santacruz Respondent no. 2
(East), Mumbai 400 098.
Versus
1. Ashok Kumar Goel, Top Floor,
Times Tower, Kamla Mills Compound,
Senapati Bapat Marg, Lower Parel,
Mumbai 400 013.
2. Vyoman India Private Limited,
(Formerly Vyoman Tradelink India ... Respondents/
Private Limited) A company within the Org.Petitioner Nos.1 & 2
meaning of the Companies Act, 2013
and having its registered office at New
Prakash Cinema, N. M. Joshi Marg,
Lower Parel, Mumbai - 400 013.
3. Ebix Cash Limited & Ors.
(Formerly Ebix Cash Private Limited),
A company within the meaning of the
Companies Act, 2013 and having its
registered office at 101, First Floor,
4832/24, Ansari Road, Darya Ganj,
New Delhi - 110 002 and its Corporate
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office at Plot No. 122 & 123, NSEZ,
Phase-II, Noida Gautam Buddha
Nagar, Uttar Pradesh 201 305.
4. Ebix Singapore Private Limited, A
company registered under the laws of
Singapore and having its address at 1
Harbourfront Avenue #14-07, Keppel
Bay Tower, Singapore (098632).
5. Ebix Payment Services Private
Limited, A company within the
meaning of the Companies Act, 2013
and having its registered office at 2 nd ... Respondents/
Floor, Manek Plaza, Kalina CST Road, Org.Petitioner Nos.1, 3 &
Kolekalyan, Santacruz (East), Mumbai 4
- 400 098.
COMMERCIAL ARBITRATION APPEAL (L) NO. 35549 OF 2024
WITH
INTERIM APPLICATION NO. 35612 OF 2024
IN
COMMERCIAL ARBITRATION PETITION (L) NO. 25579 OF 2024
Ebix Cash Limited (Formerly Ebix Cash
Private Limited), A company within the
meaning of the Companies Act, 2013
and having its registered office at 101,
First Floor, 4832/24, Ansari Road, Darya
Ganj, New Delhi - 110 002 and its ... Appellant
Corporate office at Plot No. 122 & 123, Org. Respondent no.1
NSEZ, Phase-II, Noida Gautam Buddha
Nagar, Uttar Pradesh 201 305.
Versus
1. Ashok Kumar Goel, Top Floor, Times
Tower, Kamla Mills Compound, Senapati
Bapat Marg, Lower Parel, Mumbai 400
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013.
2. Vyoman India Private Limited,
(Formerly Vyoman Tradelink India
Private Limited) A company within the ... Respondents/
meaning of the Companies Act, 2013 Org. Petitioner Nos. 1
and having its registered office at New &2
Prakash Cinema, N. M. Joshi Marg,
Lower Parel, Mumbai - 400 013.
3. Ebix Cash World Money Limited, A
company within the meaning of the
Companies Act, 2013 and having its
office at 8th Floor, Manek Plaza, Kalina
CST Road, Kolekalyan, Santacruz (East),
Mumbai 400 098.
4. Ebix Singapore Private Limited, A
company registered under the laws of
Singapore and having its address at 1
Harbourfront Avenue #14-07, Keppel
Bay Tower, Singapore 098632.
... Respondents/
5. Ebix Payment Services Private Org.Petitioner Nos. 2
Limited, A company within the meaning to 4
of the Companies Act, 2013 and having
its registered office at 2nd Floor, Manek
Plaza, Kalina CST Road, Kolekalyan,
Santacruz (East), Mumbai - 400 098.
Mr. Chetan Kapadia, Senior Advocate, with Ms. Vidisha
Rohira, Mr. Vijay Dhingreja and Ms. Vaishnavi Ambadan,
Advocates i/by VJ Juris, for the Appellant in
CARBA(L)/32551/2024 and for Respondent no. 3 in
CARBA(L)/35549/2024.
Mr. Mayur Khandeparkar, Advocate with Mr. Chetan Yadav
and Ms. Pratibha Tiwari, Advocates, i/by R.V. & Co., for the
Appellant in CARBA(L)/35549/2024 and for Respondent No. 3
in CARBA(L)/32551/2024.
Mr. Sharan Jagtiani, Senior Advocate with Mr. Nitesh Jain,
Ms. Juhi Mathur, Mr. Atul Jain, Ms. Sonia Dasgupta, Ms.
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Surbhi Agarwal and Mr. Abhimanyu Chaturvedi, Advocates,
i/by Trilegal, for the Respondent in CARBA(L)/32551/2024.
CORAM: A. S. CHANDURKAR &
RAJESH S. PATIL, JJ.
Date on which the arguments concluded: 20th DECEMBER 2024
Date on which the judgment is pronounced: 26th MARCH 2025
JUDGMENT (Per A. S. Chandurkar, J.)
1. Admit. Both the Commercial Arbitration Appeals are
taken up for final disposal.
2. The challenge raised in these appeals filed under
Section 37 of the Arbitration and Conciliation Act, 1996, (for
short, 'the Act of 1996') is to the judgment dated 08.10.2024
passed by the learned Single Judge in exercise of jurisdiction
under Section 9 of the Act of 1996. By the said judgment, the
Commercial Arbitration Petition preferred by the respondent
nos. 1 and 2 has been allowed and interim relief in terms of
prayer clauses (b), (e) and (f) have been granted. As a result,
the appellants have been directed to furnish an irrevocable
bank guarantee of nationalized bank or any such other
security in favour of the Prothonary, Bombay High Court, for
a sum of Rs.145 crores being 80 percent of the Enhanced Call
Price redeemable by the respondent nos. 1 to 3. The
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appellants have also been injuncted from dealing and/or
encumbering and/or disposing off and/or creating third party
rights and/or alienating any of the movable or immovable
properties or assets owned by them. The appellants have
also been directed to disclose all their assets on oath
including providing fresh and better particulars along with all
necessary details of such movable and immovable properties.
3. The facts that are relevant for considering the appeals
are that on 12.05.2017, the appellants and the respondent
nos. 1 to 5 entered into a Share Holders Agreement (SHA).
On account of alleged breaches of the SHA being stated to be
committed by the appellants, disputes arose as a result of
which the same were referred to arbitration. The said
proceedings were conducted in accordance with Singapore
International Arbitration Chamber (SIAC). On 01.06.2023,
the Arbitral Tribunal passed its Partial Award upholding the
termination of the SHA and the obligation of the appellants to
purchase the shares of the respondent nos. 1 and 2. The
Arbitral Tribunal however rejected the valuation report that
was submitted by Deloitte on the ground that it lacked
independence. Fresh valuation was accordingly directed to
be undertaken. The Arbitral Tribunal by its Order dated
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01.09.2023, awarded an amount of Rs.9 Crores as costs in
favour of the respondent nos. 1 and 2. The said respondents
therefore filed petitions under Section 49 of the Act of 1996
before the Delhi High Court seeking enforcement of the
Partial Award and the Cost Award. The respondent no. 1 on
30.11.2023 appointed Price Waterhouse and Company LLP
(PwC) as the eligible valuer for determining the Enhanced
Call Price. PwC submitted its valuation report on 02.01.2024
and determined the enhanced call price at the rate of Rs.181
crores. The respondent nos. 1 and 2 called upon the
appellants to make payment of the aforesaid amount. The
same was however refused by the appellants. On 19.01.2024,
the Delhi High Court passed an order of status quo as
regards the assets of the appellants in the proceedings for
enforcement filed by respondent nos. 1 and 2. As the
appellants failed to make payment at the Enhanced Call
Price, the appellants initiated arbitration under Clause 20 of
the SHA under the SIAC Rules. They also applied for
emergency interim relief under Schedule-I of the SIAC Rules.
Thereafter, on 13.03.2024 the Delhi High Court allowed the
petitions filed by the respondent nos. 1 and 2 under Section
49 of the Act of 1996 for enforcement of the Partial Award
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and the Cost Award. These orders not having been
challenged by the appellants, they have attained finality.
4. On 14.03.2024, the Emergency Arbitrator passed an
Emergency Interim Award under Article 20.1 of the SHA and
directed the appellants to furnish an irrevocable bank
guarantee from an internationally recognised financial or
other institution in Singapore or India for the sum of Rs.145
crores within a period of fourteen days. The respondent nos.
1 and 2 sought compliance of the aforesaid decision.
However, according to the appellants, they were unable to
furnish a bank guarantee in view of the order of status quo
dated 19.01.2024 passed by the Delhi High Court. Hence the
appellants on 16.04.2024, moved the Delhi High Court
seeking modification of the order dated 19.01.2024. The said
order was partially modified on 01.05.2024. The appellants
also filed an application on 31.05.2024 under Rule 10 of
Schedule 1 of the SIAC Rules seeking modification of the
Emergency Arbitrator's decision in paragraph 202(d) of the
Emergency Interim Award seeking substitution of the bank
guarantee with some other form of security. On 24.07.2024,
the Arbitral Tribunal rejected this request made on behalf of
the appellants and directed them to provide security in the
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form of bank guarantee for the amount of Rs.145 crores
within a period of fourteen days. As the necessary
compliance was not undertaken, the respondent nos. 1 and 2
filed an Arbitration Petition under Section 9 of the Act of
1996 on 13.08.2024. The Arbitration Petition was heard by
the learned Judge and at the conclusion of the hearing on
26.09.2024, the judgment was reserved. In the meanwhile,
on 02.10.2024 the Final Award came to be passed.
Thereafter, on 08.10.2024 the Arbitration Petition filed under
Section 9 of the Act of 1996 came to be decided. It is the
aforesaid judgment that is subject matter of challenge in
these appeals.
5. Mr. Chetan Kapadia, learned Senior Advocate for the
appellants in Commercial Appeal No. 32551 of 2024 made
the following submissions :
(a) The relief of injunction and directions in the form of
attachment before judgment were granted without
considering as to whether the principles under provisions of
Order XXXVIII and Order XXXIX of the Code of Civil
Procedure, 1908, (for short, 'the Code'), were satisfied -
According to the learned Senior Advocate, before grant of
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relief in the nature of injunction and a direction having the
effect of attachment of the assets of the appellants before the
judgment, it was necessary for the respondent nos. 1 and 2 to
have made out a strong prima facie case and also satisfy the
grounds for attachment before judgment under Order
XXXVIII Rule 5 of the Code. Without considering the effect of
the judgment of the Supreme Court in Sanghi Industries
Limited vs. Ravin Cables Ltd.1 which mandated requirement
of specific allegations with cogent material, such relief had
been granted. It was urged that in the aforesaid decision, it
had been held that unless and until the pre-conditions under
Order XXXVIII Rule 5 of the Code were satisfied and unless
there were specific allegations alongwith cogent material on
record coupled with satisfaction of the Court that the party is
likely to defeat the award that may be passed, there would be
no occasion to consider and grant such relief. It was urged
that this decision of the Supreme Court had been considered
by a Division Bench of the Delhi High Court in Skypower
Solar India Private Limited v Sterling and Wilson
International FZE2. Though this decision was cited before
the learned Judge, the same had been distinguished
erroneously. Reference was also made to the judgment of the
1 2022 INSC 1050
2 2023 SCC OnLine Del. 7240
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Gujarat High Court in Sadbhav Engineering Limited vs.
Efftech Infra Engineers3, wherein the decisions of the
Supreme Court in Essar House Private Limited vs. Arcellor
Mittal Nippon Steel India Limited 4 and Sanghi Industries
Limited (supra)had been referred to and satisfaction of the
requirements of Order XXXVIII Rule 5 of the Code had been
insisted upon. Reliance was also placed on the judgment of
learned Single Judge in Philip Mamen vs. Joseph Thomas 5
dated 13.03.2024, wherein similar principles had been
reiterated. It was thus urged that in the absence of the
respondent nos. 1 and 2 satisfying the requirements of Order
XXXVIII Rule 5 of the Code, no relief in the form of
restraining the appellants from dealing with their properties
could have been passed.
(b) The finding recorded that the appellants were
guilty of 'obstructionist conduct', was contrary to settled
legal principles - It was submitted that the learned Judge
erred in coming to the conclusion that on account of
"obstructionist conduct" of the appellants, interim relief was
liable to be granted. There was a distinction between
3 AIR 2024 Guj 40
4 2022 INSC 957
5 Commercial Arbitration Petition (L) No. 20182 of 2023
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contesting proceedings/defending a claim on one hand and
obstructing the conduct of proceedings on the other. The
former could not be treated as "obstructionist conduct' so as
to warrant passing of an order of furnishing a bank guarantee
as granted by the learned Judge vide prayer clause (b). As a
respondent, it was entitled to put up its defence in the best
possible manner and the steps taken in that regard could not
be considered to its disadvantage. The appellants were
entitled to safeguard their financial interest and hence steps
taken during the course of such proceedings could not result
in the appellants being placed at a disadvantageous position.
It could not be said that the conduct of the appellants was
such that it could be treated that the appellants intended to
obstruct the arbitration proceedings in any manner
whatsoever. This aspect had erroneously weighed with the
learned Judge while granting relief in the arbitration petition.
Referring to the various proceedings between the parties, it
was submitted that bonafide steps taken while contesting
such proceedings could not be termed to be "obstructive
conduct". After contesting such proceedings on merits,
various orders had been passed which did not indicate that
the appellants intended to frustrate the arbitration
proceedings or the award that could be passed. It was thus
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submitted that by giving undue importance to this aspect, the
learned Judge proceeded to hold against the appellants.
(c) Reliance placed on the Emergency Award by the
learned Single Judge was erroneous - In this regard, it
was submitted that the Delhi High Court in Raffles Design
International India Private Limited & anr. vs. Educomp
Professional Education Limited & Ors. 6 , had held that an
Emergency Award was not capable of being enforced under
the Act of 1996 and the only mode for enforcing the same
was by filing a civil suit. Notwithstanding the passing of the
Emergency Award, the Court while considering proceedings
under Section 9 of the Act of 1996 was required to consider
the grant of interim relief independent of the orders passed
by the Emergency Arbitrator. The learned Judge however
proceeded to hold that the parties were bound by the
decision of the Emergency Arbitrator and accepted all the
findings recorded in the Emergency Award. In absence of
any independent assessment of the facts of the case, the
Emergency Award could not have been the basis for grant of
any relief to the respondent nos. 1 and 2. The learned Judge
committed an error in giving importance to the observations
6 2016 SCC OnLine Del. 5521
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in the Emergency Award. It was thus urged that even on this
count, the impugned order was liable to be set aside.
(d) The Final Award having been passed, no relief
under Section 9 of the Act of 1996 could have been granted
as the said proceedings were filed before the Final Award
was passed - It was submitted by the learned Senior
Advocate for the appellants that after the Emergency Award
was passed on 14.03.2024, the respondent nos. 1 and 2 filed
the Arbitration Petition under Section 9 of the Act of 1996 on
14.08.2024. The said respondents, therefore, had invoked
the jurisdiction prior to the passing of the final award. After
the Arbitration Petition was heard and was reserved for
passing judgment on 26.09.2024, the Final Award came to be
passed on 02.10.2024. This fact was brought to the notice of
the learned Judge on 07.10.2024 and a copy of the Final
Award was also tendered for perusal. The Arbitration
Petition came to be decided on 08.10.2024. However, the
relevant fact that the Final Award had been passed after
filing of the Arbitration Petition under Section 9 of the Act of
1996 had not been considered. It was urged that the cause of
action for invoking the provisions of Section 9 of the Act of
1996 was available either before or during arbitral
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proceedings or at any time after the making of the arbitral
award and the same would vary from case to case. Though
such jurisdiction was invoked by the respondent nos. 1 and 2
prior to passing of the Final Award, the cause of action for
the same would not survive after the Final Award was passed.
On this premise, the Arbitration Petition ought not to have
been decided on merits as the learned Judge was apprised of
the fact that the Final Award was passed prior to the order
being passed in the Arbitration Petition under Section 9 of
the Act of 1996. Reference in this regard was made to the
decision in Centrient Pharmaceuticals India Private Limited
vs. Hindustan Antibiotics Limited & Ors. 7. This aspect went
to the root of the matter and, on this count also the impugned
judgment was liable to be set aside.
On the aforesaid grounds, it was urged that the
impugned judgment dated 08.10.2024 be set aside and the
Abritration Petiton filed under Section 9 of the Act of 1996,
be dismissed.
7 2019 SCC OnLine Bom 1614
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6. Shri Mayur Khandeparkar, learned Counsel appearing
for the appellants in Commercial Arbitration Appeal no.
35549 of 2024, submitted as under :
(a) Maintainability of the Arbitration Petition under
Section 9 of the Act of 1996 - It was urged that since the
respondent nos. 1 and 2 were seeking enforcement of the
Emergency Arbitrator's decision as well as order passed by
the Arbitral Tribunal, the Arbitration Petition filed under
Section 9 of the Act of 1996, was not maintainable. The said
respondents ought to have filed an Enforcement Petition
under Section 49 of the Act of 1996. The decision of the
Emergency Arbitrator was in fact an Award which was
required to be enforced in the manner as prescribed under
the Act of 1996. Inviting attention to the SIAC Rules and
especially Clauses 1.3, 20.1, 30.2 and 30.3 thereof, it was
submitted that the respondent nos. 1 and 2 ought to take
recourse to the provisions contained in Part-II of the Act of
1996. Reliance in that regard was placed on the decision in
Raffles Design International India Private Limited & anr.
(supra). Further, the application of Part-I of the Act of 1996
to the arbitration proceedings had been excluded by the
parties. Reliance was also further placed on the judgment of
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the Supreme Court in BGS SGS Soma JV vs. NHPC Limited 8.
Though Clause 30.3 of the SIAC Rules permitted
consideration of a request for grant of interim relief, the
same was permissible only in exceptional circumstances. No
such exceptional circumstances had been brought on record
by the respondent nos. 1 and 2.
Alternatively, it was submitted that it was not
permissible for the learned Judge to have considered the
observations made by the Emergency Arbitrator and the
Arbitral Tribunal for granting any relief to the respondent
nos. 1 and 2. The valuation of shares undertaken by PwC
could not have been the basis for grant of interim relief by
the learned Judge. Considering the fact that the list of assets
of the appellants was much more than the value of the claim
made by respondent nos. 1 and 2 coupled with the fact that
the said assets were not encumbered, the learned Judge
erred in granting relief in the Arbitration Petition. The
nature of relief as granted would relate to a direction issued
under the provisions of Order XXXVIII Rule 5 of the Code and
hence without making out a case in that regard, no such
relief could have been granted. It was thus urged that on the
8 2019 INSC 1349
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aforesaid grounds, the impugned judgment dated 08.10.2024
was liable to be set aside.
7. Shri Sharan Jagtiani, learned Senior Advocate for
respondent nos. 1 and 2, supported the impugned order and
opposed the submissions made on behalf of the appellants.
(a) As regards jurisdiction to grant interim relief
under Section 9- It was submitted that the Court exercising
jurisdiction under Section 9 of the Act of 1996, had a wide
power to grant relief in an appropriate case. Referring to
the decisions of the Supreme Court in Essar House Private
Limited (supra) and Sepco Electric Power Construction
Corporation vs. Power Mech Projects Ltd. 9, it was pointed out
that the Supreme Court considered the law laid down by this
Court in its earlier decisions and had held that when an
application seeking interim measures had made out a good
prima facie case coupled with presence of balance of
convenience, the Court had ample powers under Section 9 of
the Act of 1996 to grant such a relief. Seeking to distinguish
the judgment of the Supreme Court in Sanghi Industries
Limited (supra), it was urged that the facts in the said case
9 2022 INSC 981
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clearly indicated that there were serious disputes on the
amount claimed by the rival parties to the said proceedings.
The conduct of parties was found relevant in the aforesaid
decision and when seen from the context of the facts of the
case in hand, it was clear that the conduct of the appellants
was such that it warranted passing of interim directions. In
such situation, the insistence for strict compliance with the
provisions of Order XXXVIII Rule 5 of the Code was not at all
warranted especially when the efficacy of the arbitration
process was required to be supported. It was thus submitted
that the pleadings in the Arbitration Petition filed under
Section 9 of the Act of 1996 as raised were sufficient to
warrant passing of interim directions.
(b) Obstructionist or unreasonable conduct was an
established test for grant of security - It was submitted that
conduct of parties was a relevant consideration under
provisions of Section 9(1) of the Act of 1996. If it was shown
that the opposite party was seeking to defeat and/or delay the
enforcement of orders passed during the course of the
arbitration proceedings, the same could be taken into
consideration under Section 9 of the Act of 1996. Referring
to various hurdles raised at the behest of the appellants, it
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was submitted that the appellants failed to make payment of
the amount awarded under the Cost Award for a period of
more than ten months. Further, the valuation undertaken by
the PwC was also sought to be disregarded by the appellants
without any justifiable reason. The appellants also failed to
furnish the bank guarantee despite orders passed in that
regard. Such conduct indicated that the appellants were in
clear breach of the orders passed in the proceedings and the
same could not be ignored on the ground that the appellants
were merely defending the claim made against them. In this
regard, the learned Senior Advocate placed reliance on the
decisions in Valentine Maritime Ltd. vs. Kreuz Subsea Pte.
Ltd.10, J. P. Parekh & anr. vs. Naseem Qureshi & Ors. 11,
Deccan Chronicle Holdings Limited vs. L & T Finance
Limited12 and Skypower Solar India Private Limited (supra).
It was thus urged that on the aforesaid grounds, the
impugned judgment did not call for any interference.
(c) Award passed by the Emergency Arbitration - It was
submitted that though the decision of the Emergency
Arbitrator was called an "Emergency Interim Award", the
10 (2021) 3 Bom CR 78
11 2022 SCC OnLine Bom 6716
12 2013 SCC OnLine Bom 1005
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reliefs granted were interim in nature which was clear from
reading of Clause 30.3 of the SIAC Rules. The nature of the
decision of an Emergency Arbitrator had been considered by
the Supreme Court in Amazon.com NV Investment Holdings
LLC vs. Future Retail Limited & Ors.13. The decision of the
Emergency Arbitrator therefore could be made the basis for
grant of relief under Section 9 of the Act of 1996. The
learned Judge did not commit any error by referring to the
aforeaid decision and considered the same as a factor for
grant of interim relief.
(d) Passing of Final Award did not affect
maintainability of the Arbitration Petition under Section 9 of
the Act of 1996 - In this regard, it was urged that when the
Arbitration Petition under Section 9 of the Act of 1996 was
filed, the Final Award was yet to be passed. Merely on the
ground that the Final Award was passed on 02.10.2024 after
which the Arbitration Petition came to be decided on
08.10.2024, the said proceedings were not rendered
infructuous. Considering the nature of relief sought by
respondent nos. 1 and 2 in the Arbitration Petition, the
passing of the Final Award would not have any impact on the
said proceedings. Reference was made to the decision of the
13 2021 INSC 385
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Supreme Court in Ultratech Cement Ltd. vs. Rajasthan Rajya
Vidyut Utpadan Nigam Limited. 14 to urge that the prayers
made in the Arbitration Petition would cover the period after
pronouncement of the Award by the Tribunal and prior to it
being enforced. A similar objection was considered by the
Madras High Court in M/s. L & T Finance Limited vs. M/s. J.
K. S. Constructions Private Limited15 and the same was
turned down. Moreover, the Final Award as passed was in
favour of the respondent nos. 1 and 2 and hence that was an
additional factor to support the grant of relief to the
respondent nos. 1 and 2. Hence, no illegality was committed
by the learned Judge by refusing to give much importance to
the passing of the Final Award pending consideration of the
Arbitration Petition filed under Section 9 of the Act of 1996.
(e) Maintainability of the Arbitration Petition filed
under Section 9 of the Act of 1996 - The learned Senior
Advocate for the respondent nos. 1 and 2 submitted that
there was no question of the said respondents seeking to
enforce the Emergency Award or the decision of the Arbitral
Tribunal confirming the Emergency Arbitrator's decision.
Referring to the proviso to Section 2(2) of the Act of 1996, it
was submitted that the provisions of Section 9 were
14 2018 15 SCC 210
15 2014 SCC OnLine Madras 302
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applicable to International Commercial Arbitration even if the
place of Arbitration was outside India. The objection to the
maintainability of the Arbitration Petition as raised by the
appellants was misconceived and the proceedings as filed
were rightly entertained on merits.
(f) Scope for interference under Section 37 of the Act of
1996 - It was urged that the scope for interference in
exercise of jurisdiction under Section 37 of the Act of 1996
was limited. In the absence of any demonstrable error or
failure of justice, there was no reason to interfere with the
exercise of discretion by the learned Judge under Section 9 of
the Act of 1996 only on the ground that another view of the
matter was possible. Since the learned Judge had taken a
reasonable and possible view on the basis of the material on
record, the Appellate Court would not substitute its view for
that of the learned Judge while entertaining an appeal under
Section 37 of the Act of 1996. Even on this count, there was
no case made out to grant any relief to the appellants.
Reliance was placed on the decision in Shyam Sel and Power
Limited and another Vs. Shyam Steel Industries Limited 16 in
this regard.
16 2022 INSC 303
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On the aforesaid contentions, it was urged that both the
appeals preferred by the appellants were liable to be
dismissed.
8. We have heard the learned Counsel for the parties at
length and with their assistance we have perused the
documents on record. We have also gone through the written
submissions placed on record by the learned Counsel for the
parties. We have thereafter given our due consideration to
the submissions as made. In our view, the impugned
judgment of the learned Judge does not call for any
interference in exercise of jurisdiction under Section 37 of
the Act of 1996. We say so for the following reasons:
(a) Scope for interference under Section 37 of the Act
of 1996 -
The contours of jurisdiction under Section 37 of the Act
of 1996 are well settled. If it is found that the view taken by
the learned Judge in proceedings under Section 9 of the Act
of 1996 suffers from a demonstrable error or results in failure
of justice, it would be permissible for the Court to interfere in
exercise of appellate jurisdiction under Section 37 of the Act
of 1996. If, however, the Court in exercise of jurisdiction
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under Section 9 has taken a reasonable and possible view
based on the material on record which does not appear to be
either arbitrary, capricious or perverse, it would not be
permissible for the Appellate Court to substitute that view on
the ground that if it had exercised such jurisdiction, it would
have taken a different view. Similarly, the principle behind
minimal judicial interference in arbitral proceedings coupled
with a leaning in favour of preserving the sanctity of arbitral
proceedings is also required to be borne in mind. Keeping
these aspects in mind, the challenge as raised to the
impugned order would be required to be examined.
(b) Maintainability of the Arbitration Petition under
Section 9 of the Act of 1996 - According to the appellants
in Commercial Appeal No. 35549 of 2024, since the
respondent nos. 1 and 2 were seeking implementation of the
Emergency Award, the proceedings filed under Section 9 of
the Act of 1996 for such purpose would not be maintainable.
The Emergency Award as passed could be executed by filing
a Civil Suit.
In this regard, it may be noted that as per the proviso to
Section 2(2) of the Act of 1996, recourse to the provisions of
Section 9 can be had in the matter of International
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Commercial Arbitration notwithstanding the fact that the
place of arbitration is outside India. In the present case, this
requirement is satisfied as the place of arbitration is outside
India. It is true that enforcement of the decision of the
Emergency Arbitrator by filing proceedings under Section 9
of the Act of 1996 would not be permissible. We, however,
find that the respondent nos. 1 and 2 were not seeking
enforcement of the decision of the Emergency Arbitrator in
the proceedings filed by them. They seek to rely upon the
Emergency Award as a factor in their favour for seeking
interim relief under Section 9 of the Act of 1996. This is clear
from the averments made in the Arbitration Petition filed
under Section 9 of the Act of 1996. The decision in Amazon.
com NV Investment Holdings LLC (supra) emphasises the
importance of party autonomy and the passing of interim
directions by the Emergency Arbitrator sometimes described
as "award". The learned Judge having considered the
aforesaid objection raised to the maintainability of the
proceedings in paragraphs 29A to 29D of the impugned
judgment, we are in agreement with the finding recorded that
since the respondent nos. 1 and 2 were not seeking
enforcement of the Emergency Award but were relying upon
it for seeking interim relief, the said proceedings as filed
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were maintainable and were liable to be entertained on
merits. We, therefore, find that the Arbitration Petition filed
under Section 9 of the Act of 1996 was maintainable and the
same was rightly entertained on merits.
(c) Requirement of pleadings/satisfaction of the ingredients
of Order XXXVIII Rule 5 of the Code -
(i) We have perused the averments in the
Arbitration Petition filed under Section 9 by the
respondent nos.1 and 2. After referring to the passing
of the Partial Award, Cost Award, the decision of the
Emergency Arbitrator and the Review order, it is stated
that there was a strong likelihood of the said
respondents succeeding in the SIAC arbitration. The
financial position of each appellant has been referred to
coupled with the delay caused in complying with the
Partial Award and the Cost Award without furnishing
any cogent explanation. On the premise that the
liability to make payment of the enhanced Call Price
was already crystallised and admitted, the respondent
nos.1 and 2 have stated that if the appellants were not
directed to provide security as prayed for, they would
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not be able to obtain the fruits of the SIAC arbitration
or the adjudication prior to the Final Award.
In the affidavit in reply filed by the appellants
and the original respondent no.4, an objection to the
maintainability of the arbitration petition under Section
9 was raised. Without prejudice, it was stated that the
parent company, Ebix Inc had come out of bankruptcy
proceedings and that the Plan in that regard had been
accepted. It was also stated that the value of its
unencumbered assets exceeded the amount of Rs.145
Crores. It was further stated that the arbitral
proceedings had concluded and that the final award
was likely to be passed shortly.
(ii) At the outset, it may be stated that the decision
of the Supreme Court in Essar House Private Limited
(supra) was referred to by the learned Judge to hold
that in exercise of the power to grant interim relief
under Section 9 of the Act of 1996, the Court was not
strictly bound by the provisions of the Code. The
decision in the case of Sanghi Industries Limited
(supra) was however not cited before the learned Judge
to contend that strict compliance with the requirements
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of Order XXXVIII Rule 5 of the Code ought to be
insisted before granting any interim measures under
Section 9 of the Act of 1996. Since the latter decision
had not been cited by the present appellants, we do not
find it expedient to examine the challenge to the
impugned judgment on the premise that the ratio of the
decision of the Supreme Court in Sanghi Industries
Limited (supra) had not been considered by the learned
Judge. Having said that, we find that the ratio of the
decisions in Essar House Private Limited and Sepco
Electric Power Construction Corporation (supra) can be
made applicable to the case in hand. In the aforesaid
decisions, it has been held that though power under
Section 9 of the Act of 1996 should not ordinarily be
exercised ignoring the basic principles of procedural
law, the technicalities of the Code cannot prevent the
Court from securing the ends of justice. All that the
Court was required to see was whether the applicant
seeking interim measures had a good prima facie case,
whether the balance of convenience was in favour of
interim relief as prayed for and whether the applicant
had approached the Court with reasonable expedition.
If these aspects are satisfied, the Court exercising
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power under Section 9 of the Act of 1996 ought not to
withhold relief merely on the technicality of absence of
averments incorporating the grounds for attachment
before judgment under Order XXXVIII Rule 5 of the
Code.
(iii) It is no doubt true that in Sanghi Industries
Limited (supra), the Supreme Court has held that if in a
given case all the conditions of Order XXXVIII Rule 5 of
the Code are satisfied and that the Commercial Court is
satisfied on the conduct of the opposite party that it is
trying to sell its properties to defeat the Award that may
be passed and/or any other conduct on the part of the
opposite party which may tantamount to any attempt on
its part to defeat the Award that may be passed in the
Arbitral proceedings, the Commercial Court could pass
an appropriate order including a restraint order to
secure the interest of the parties. It may be noted that
the Supreme Court in the said case however noticed that
there were serious disputes on the amount claimed by
the parties before it which were yet to be adjudicated in
the proceedings before the Arbitral Tribunal. We may
also note that in Sepco Electric Power Construction
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Corporation (supra), the Supreme Court considered the
decisions of this Court in Jagdish Ahuja Vs. Cupino
Limited17, Valentine Maritime Limited (supra) and the
judgment of the Delhi High Court in Ajay Singh vs. Kal
Airways Private Limited.18 It specifically approved the
view taken in the aforesaid decisions and thereafter held
that the presence of a good prima facie case, balance of
convenience and approaching the Court with reasonable
expedition were relevant factors.
(iv) Thus, following the ratio laid down in Essar House
Private Limited and Sepco Electric Power Construction
Corporation (supra), we find that the learned Judge on
being satisfied of a prima facie case being made out by
the respondent nos. 1 and 2 coupled with the balance of
convenience having tilted in their favour proceeded to
grant interim relief. Viewed from this aspect, the ratio of
the decision in Sadbhav Engineering Limited (supra)
does not assist the case of the appellants. The facts in the
said case indicate that the outstanding dues of the
respondent were admitted by the appellant-Sadbhav
Engineering Limited. Its financial position was not found
17 2020 4 Bom CR 1
18 2017 4 ArbLR 186
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to be very sound. The learned Judge in proceedings
under Section 9 directed the appellant to furnish bank
guarantee for the outstanding amount. In appeal, it was
urged on behalf of the appellant that unless the pre-
conditions of Order XXXVIII Rule 5 of the Code were
satisfied, the furnishing of bank guarantee could not have
been directed. The Division Bench of the Gujarat High
Court held that in the light of the facts on record, the
ratio of the decision in Sanghi Industries Limited (supra)
could not be applied. While dismissing the appeal filed
under Section 37 of the Act of 1996 it was observed that
refusal of interim appeal could result in a situation that
the respondent would not be able to enjoy the fruits of
success in the arbitration proceedings.
Thus, far from supporting the case of the
appellants, the impugned judgment of the learned Judge
is in tune with the observations in Sadbhav Engineering
Limited (supra). On the ground that these requirements
were satisfied by respondent nos. 1 and 2, interim relief
has been granted. Given the facts of the present case
including the interim directions of the Emergency
Arbitrator, the ratio of the decision of the Supreme Court
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in Sanghi Industries Limited (supra) and the judgment of
learned Single Judge of this Court in Philip Mamen
(supra) cannot be applied to the present case.
(d) "Obstructionist conduct" of the appellants -
(i) There was considerable debate as to whether
prosecuting proceedings with a view to safeguard one's
legal interest could amount to such party being guilty of
"obstructionist conduct". As a broad principle, it may be
stated that a party to a litigation is entitled to defend
itself in accordance with law by objecting to the
proceedings initiated against it. Steps taken in that
regard during the course of such proceedings may not, in
a given case, per se be considered as "obstructionist
conduct". If, however, it is found that the conduct of a
party is such that it lacks in bonafides or that its actions
are of such nature that would result in frustration of the
arbitration proceedings itself or if false contentions are
raised, it may amount to such party being guilty of
obstructive conduct. The conclusion in this regard would
have to be drawn based on the facts of a given case and
there cannot be any general parameter or yardstick on
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the basis of which the conduct of a party can be termed
as "obstructionist".
(ii) According to the appellants, in the Partial Award
dated 01.06.2023, the valuation report submitted by
Deloitte had not been accepted by the Arbitral Tribunal
on the ground that it was not found to be independent.
This resulted in appointment of another valuer namely,
PwC. The valuation undertaken by PwC was questioned
by the appellants on justifiable grounds. Further, the
order of status quo that was initially granted by the Delhi
High Court, came to be vacated on 01.05.2024 accepting
the stand of the appellants that its assets had far more
worth than the last instalment of amounts payable by
them. The appellants were also justified in seeking
modification of the Emergency Award and it being
unsuccessful in that regard, would not result in treating
their conduct as "obstructive".
On the other hand, according to the respondent
nos. 1 and 2, the appellants failed to pay the amount of
costs of Rs.9 crores despite the Cost Award requiring the
respondent nos. 1 and 2 to seek enforcement of the
same. The appellants did not co-operate in the matter of
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undertaking valuation by PwC, which aspect was noted
by the Emergency Arbitrator. The failure to comply with
the Emergency Arbitrator's decision as well as the
Review decision also indicated the obstructive conduct of
the appellants. The respondent nos. 1 and 2 sought to
distinguish the defence of claims as raised by the
appellants from clear breaches and non-compliance by
them.
(iii) We may note that the aspect of obstructionist
stand/conduct of the appellants has been treated by the
learned Judge as one more factor for grant of interim
relief to the respondent nos. 1 and 2. It has been
observed in paragraph 29-G that even without relying
upon the decision of the Emergency Arbitrator, a very
strong case for grant of interim relief had been made out
by the respondent nos. 1 and 2 in view of the
obstructionist stand/conduct of the respondents. The
grant of interim relief is not based merely on the
"obstructionist stand" of the appellants. Various other
factors such as the decision of the Emergency Arbitrator
on merits and/or the fairness of procedure of the
Emergency Arbitrator not being questioned has also
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weighed with the learned Judge. It has also been
observed that there was no reason not to accept the
findings recorded in the Emergency Arbitrator's decision
as such approach would support arbitration and ensure
its effectiveness. After relying on the decision in
Amazon.com NV Investment Holdings LLC (supra), it was
found that the appellants were bound by the Emergency
Arbitrator's Award and thus ought to comply with the
same. These findings also form the basis for grant of
relief to the respondent nos. 1 and 2. On a reading of the
impugned order as a whole, it cannot be said that it is
only in view of the "obstructionist stand" of the
appellants that relief has been granted to the
respondent nos. 1 and 2.
(iv) In paragraph 29G of the impugned judgment, what
has been commented upon is the conduct of the
appellants. In our view, if the overall conduct of the
appellants is taken note of, coupled with various other
factors referred to by the learned Judge for arriving at a
conclusion that the respondent nos. 1 and 2 had made
out a prima facie case based on the decision of the
Emergency Arbitrator, the conclusion recorded in the
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impugned judgment that the appellants were trying to
delay the enforcement of the orders passed in the
arbitration proceedings appear to be justified in view of
the material on record. Suffice it to observe that the
aspect of "obstructionist conduct" is not the only ground
relied upon by the learned Judge for granting relief to the
respondent nos. 1 and 2 in the Arbitration Petition filed
under Section 9 of the Act of 1996. Since it is found that
the factors that are required to be satisfied for grant of
interim measures as held in Essar House Private Limited
and Sepco Electric Power Construction Corporation
(supra), stand satisfied and that the overall conduct of
the appellants as noted is a factor in favour of
respondent nos. 1 and 2. The reasons assigned in
paragraph 29 A to F are sufficient to sustain the
impugned judgment. At the highest, even if the
observations made in paragraph 29G of the impugned
judgment are eschewed from consideration, the
respondent nos. 1 and 2 have been rightly found entitled
to relief. The conclusions recorded by the learned Judge
while granting relief to the respondent nos. 1 and 2
therefore does not call for any interference.
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(e) Effect of passing of the Final Award during
pendency of the proceedings under Section 9 of the Act of
1996 -
(i) According to the appellants with the passing of the
Final Award prior to the Arbitration Petition filed under
Section 9 being decided, the cause of action for seeking
interim relief at the pre-adjudication stage would be
extinguished. This contention is raised in view of the fact
that the hearing of the Arbitration Petition under Section
9 of the Act of 1996 was concluded on 26.09.2024 and
the judgment was reserved. In the interregnum, on
02.10.2024, the Final Award was passed. The appellants
placed a praecipe before the learned Judge on
07.10.2024 along with copy of the Final Award. The
judgment in the Arbitration Petition was pronounced on
the next day being 08.10.2024.
(ii) At the outset, it may be noted that except for filing
a praecipe along with the copy of the Final Award, the
appellants did not raise any contention before the
learned Judge that with the passing of the Final Award,
the Arbitration Petition under Section 9 of the Act of
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1996 did not survive thereafter. The mere act of placing
a praecipe with a copy of the Final Award before the
learned Judge without anything further would not enable
the appellants to contend that the learned Judge did not
advert to the subsequent development in the form of
passing of the Final Award during pendency of the
proceedings under Section 9 of the Act of 1996. The
appellants ought to have sought consideration of this
aspect by making a motion in that regard with a request
to the learned Judge to consider the effect of the
subsequent event. Such request was not made and
hence no fault can be found in the learned Judge not
taking into consideration this subsequent event. Suffice
it to observe that the subsequent event relied upon by
the appellants was not brought on record by moving any
interim application or by urging the learned Judge to
take the said aspect into consideration as a subsequent
event.
(iii) Notwithstanding the aforesaid, we are of the
considered opinion that in the facts of the present case,
the passing of the Final Award shortly prior to the
proceedings under Section 9 of the Act of 1996 being
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decided would not have the effect of rendering the
proceedings under Section 9 infructuous. Jurisdiction
under Section 9 of the Act of 1996 can be invoked either
before, during pendency of the arbitratral proceedings
and even after the Award is passed till it is enforced.
When the respondent nos. 1 and 2 filed the Arbitration
Petition under Section 9, the Final Award was yet to be
passed. In the said proceedings, the relief sought under
Section 9 of the Act of 1996 was as under :
"In the light of the above facts and
circumstances, the petitioners respectfully
pray that pending the commencement and
of 2024 and making an enforcement of the
Award therein, this Hon'ble Court be pleased
to......"
It thus becomes clear that respondent nos. 1 and 2
sought relief under Section 9 pending the arbitration
proceedings and the passing of the Award until its
enforcement. When the judgment was pronounced in
the Arbitration Petition, the Final Award was yet to be
enforced. Thus, it is clear that relief was sought by the
respondent nos. 1 and 2 till the Final Award was
enforced. We may note that a similar prayer as made in
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the Arbitration Petition herein was considered by the
Supreme Court in Ultratech Cement Limited (supra) and
it was held that the proceedings under Section 9 of the
Act of 1996 did not become infructous with the passing
of the award. It therefore, cannot be said that with the
passing of the Final Award and prior to its enforcement,
the Arbitration Petition filed under Section 9 of the Act
of 1996 had become infructuous. The ratio of the
decision in Centrient Pharmaceuticals India Private
Limited (supra) cannot be applied to the facts of the
present case.
(iv) The learned Senior Advocate for the respondent
nos. 1 and 2 relied upon the decision of the Madras High
Court in M/s. L & T Finance Limited (supra) to contend
that passing of the Final Award during the pendency of
the Arbitration Petition under Section 9 of the Act of
1996 would not result in the said proceedings being
rendered infructuous. In the said decision, it was held
that in view of the provisions of Section 9(1)(ii)(b) of the
Act of 1996, a direction to furnish security for the claim
amount could not be treated to be equivalent to the
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enforcement of the award. Any remedy sought to secure
the award or a prohibitory order to secure the award
cannot be treated as a step in aid of execution. It was
further observed that where an interlocutory proceeding
in the form of a petition under Section 9 of the Act of
1996 is pending before a different forum which is not
seized of the main proceedings, the interlocutory
proceeding can continue as having been made on a
stand-alone basis and it need not be necessarily made
co-terminus with the main proceedings. We are inclined
to agree with the aforesaid position. Accordingly we
find that in the facts of the present case, the passing of
the Final Award did not have the effect of rendering the
proceedings filed under Section 9 as infructuous.
(f) Response of the appellants to the averments made in
the Arbitration Petition filed under Section 9 of the Act of
1996 -
(i) The learned Judge in paragraph 29E has recorded
a specific finding that the appellants failed to raise any
dispute and/or grievance in the reply filed by them in
the Arbitration Petition as regards the decision of the
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Emergency Arbitrator and/or the fairness of procedure
adopted by the Emergency Arbitrator. It has been
observed that the only ground raised in the affidavit in
reply was as regards the maintainability of the
Arbitration Petition.
(ii) We have perused the averments made by the
respondent nos. 1 and 2 in the Arbitration Petition as
well as the affidavit in reply filed to the same. The
averments made with regard reduction of the profits of
the appellant no.1 herein, the overall value of the assets
of the appellant no. 2 herein being reduced to almost
half and correspondingly increase of its liabilities, the
reference to the net loss as well as net current liabilities
of the appellant no.3 herein have not been specifically
disputed or denied by them. The financial position of
the appellants also finds mention in the decision of the
Emergency Arbitrator in paragraphs 133 and 134
thereof.
(iii) We, therefore, find that this aspect would be
relevant while considering the question as to whether
the respondent nos. 1 and 2 had made out a case for
grant of relief under Section 9 of the Act of 1996. The
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finding as recorded by the learned Judge in paragraph
29E of the impugned judgment not having been
specifically challenged, there would be no reason to
disregard said finding which is also the basis for
granting relief to the respondents. As observed in J. P.
Parekh and another (supra), the Court is also entitled to
consider whether denial of a protective order would
result in great prejudice to the party seeking a
protective order. Viewed from this context, the learned
Judge rightly exercised discretion in favour of
respondent nos.1 and 2 by granting relief. Prejudice
would be caused to the said respondents if such relief is
denied to them.
9. We may note that the Court while deciding an
application under Section 9 ought to bear in mind the
fundamental principles underlying the provisions of the Code
and also have the discretion to mould the relief in appropriate
cases to secure the ends of justice and to preserve the
sanctity of the arbitral process as held in Deccan Chronicle
Holdings Limited (supra). Thus taking an overall view of the
matter, we do not find that the learned Judge committed any
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error while granting relief under Section 9 of the Act of 1996.
In the given facts, the view as taken is more than a possible
view, rather the only view possible in exercise of jurisdiction
under Section 9 of the Act of 1996. The discretion exercised
by the learned Judge can hardly be said to be arbitrary,
capricious or perverse warranting any interference. In
exercise of appellate jurisdiction under Section 37 of the Act
of 1996 are not inclined to upset that view.
10. Thus, both the Commercial Arbitration Appeals stand
dismissed leaving the parties to bear their own costs.
Consequently, the pending Interim Applications are also
disposed of.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
11. At this stage, the learned counsel for appellants seeks
time to comply with the directions issued by the learned
Judge under the impugned order. This request is opposed by
learned counsel for the respondent nos.1 and 2. Considering
the view as taken, we do not deem it appropriate to continue
the arrangement.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
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