Delhi High Court
Ntt Docomo Inc vs Tata Sons Limited on 28 April, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: March 15, 2017
Date of decision: April 28, 2017
O.M.P.(EFA)(COMM.) 7/2016 & IAs 14897/2016, 2585/2017
NTT DOCOMO INC. ..... Petitioner
Through: Mr. Kapil Sibal, Mr. Rajiv Nayar and
Mr. Ciccu Mukhopadhaya, Senior Advocates with
Mr. Sanjeev Kapoor, Mr. Rajat Jariwal, Ms.
Saman Ahsan, Mr. Aayush Jain and Mr. Akshay
Mahajan, Advocates.
versus
TATA SONS LIMITED ..... Respondent
Through: Mr. Darius Khambata, Mr. Sandeep
Sethi, Mr. Mustafa Doctor, Senior Advocates with
Mr. Rajendra Barot, Mr. V.P. Singh, Ms. Anindita
Roychowdhury, Mr. Ratnadeep Roychowdhury,
Ms. Vatsala Rai, Mr Aditya Mehta, Mr. Ashim
Sood, Mr. Abhinav Jha and Mr. Sidharth Sharma,
Advocates.
Mr. C. Mukund, Mr. S.M. Vivek Anandh and Mr.
Shaunak Kashyap, Advocate for Applicant/RBI in
IA No. 14897/2016.
CORAM: JUSTICE S. MURALIDHAR
JUDGMENT
% 28.04.2017
1. NTT Docomo Inc. ('Docomo'), a company incorporated in Japan, has filed
OMP (EFA) (Comm.) No. 7 of 2016 under Sections 44, 46, 47 and 49 of the
Arbitration and Conciliation Act, 1996 („Act‟) and under Order XXI of the
Code of Civil Procedure, 1908 read with Section 151 thereof seeking the
enforcement and execution of the final Award dated 22nd June 2016 passed
by the Arbitral Tribunal („AT‟) in London, United Kingdom in LCIA Case
No. 152896 under the London Court of Arbitration („LCIA‟) Rules.
2. The specific prayer in the petition is for the recognition and enforcement
of the aforementioned Award made in favour of Docomo and against the
Respondent Tata Sons Ltd. ('Tata'), as a decree of this Court, execution of
the decree, and pending such execution and satisfaction of the decree, to
pass appropriate interim orders of injunction.
Background Facts
3. A Shareholder Agreement („SHA‟) was entered into on 25th March 2009
between Docomo, Tata and Tata Teleservices Ltd. („TTSL‟). Clause 5.7 of
the SHA inter alia stated that if TTSL failed to satisfy certain 'Second Key
Performance Indicators' stipulated in the SHA, Tata would be obligated to
find a buyer or buyers for Docomo's shares in TTSL at the Sale Price i.e.,
the higher of (a) the fair value of those shares as of 31st March 2014, or (b)
50% of the price at which Docomo purchased its shares.
4. Since TTSL did not deliver evidence to Docomo of its compliance of the
Second Key Performance Indicator by 30th May 2014, a Trigger Notice was
deemed to have been delivered by Docomo to Tata in terms of Clause 5.7.1
of the SHA.
5. In accordance with Clause 5.7.2 of the SHA, Docomo issued a Sale
Notice to Tata and TTSL on 7th July 2014 calling upon Tata to find a buyer
or buyers to acquire the Sale Shares during the Sale Period in terms of
Clause 5.7.2. The Sale Period terminated on 3rd December 2014.
6. As a result, disputes arose between the parties. In accordance with Clause
12.1.2(a) of the SHA, the disputes were referred to the senior officers duly
designated by Docomo and Tata. However, they failed to reach any
resolution.
7. By letter dated 3rd January 2015, Docomo commenced the arbitration
proceedings by submitting its request for arbitration on 3 rd January 2015 to
the LCIA. By the said letter, Docomo nominated its Arbitrator. On 28th
January 2015, Tata filed its response and counter-claim and also nominated
its Arbitrator. The two Arbitrators jointly nominated the Chairman of the AT
on 18th March 2015. On 23rd March 2015, the LCIA notified the parties that
the LCIA Court had appointed the AT comprising the two respective
nominees of the parties and the Chairman jointly appointed by them.
Issues before the AT
8. Before the AT, the issues submitted by Tata were as under:
"(i) Whether special permission from RBI was required to
perform the Sale Option at a price in excess of the NPR Fair
Value without violating Indian law?
(ii) Whether Tata had an "absolute" obligation to perform the
Sale Option under Clause 5.7.2 of the SHA?
(iii) Whether Tata and Docomo were obliged to make
reasonable endeavours to obtain such special permission of
RBI, and if so whether Tata made reasonable endeavours to
obtain RBI‟s special permission?
(iv) What is the consequence in law, and under the contract, of
the refusal of RBI to grant special permission?
(v) Whether Tata's non-acquisition of the Sale Shares at the
Sale Price paid directly or indirectly constituted a breach of the
SHA by Tata?
(vi) Whether, (payment of any amount in excess of the FEMA
Pricing Guidelines is prohibited, such excess amount can be
indirectly made good by way of an award of damages or
restitution?
(vii) Whether in any event Docomo is entitled to restitution of
50% of its investment?"
9. The issues submitted by Docomo were more or less similar and read as
under:
"1. What were Tata‟s obligations under Clause 5.7.2?
2. Did Tata perform its obligations under Clause 5.7.2?
3. Was Tata excused from performing its obligations under
Clause 5.7.2 on the grounds that such performance was illegal
under Indian law?
In particular,
(a) Were methods of performance available to Tata to which
there was no legal impediment?
(b) Was RBI‟s permission required:
(i) for a sale of the Sale Shares at the Sale Price to a third party?
(ii) in order to allow Tata to make payment by way of
indemnity?
(iii) for a sale of the Sale Shares to a foreign affiliate(s) of Tata?
(c) Even if RBI permission was required for Tata to purchase
the Sale Shares at the Sale Price or to indemnify Docomo up to
the Sale Price following a sale to a third party at any price, is
Tata liable for its failure to perform?
In particular,
(i) did Tata bear the risk of not obtaining any necessary
regulatory permission?
(ii) if the alternative methods of performance could not legally
be performed, did Tata have an absolute obligation to find a
buyer or buyers for the Sale Shares at the Sale Price by 3 rd
December 2014?
(d) Can Tata rely upon the defence of illegality under Clause
2.2.2?
In particular, was Tata reasonably diligent:
(i) if it did not seek permission from RBI in sufficient time to
enable such permission (if required) to be granted by 3 rd
December 2014? and/or
(ii) if it failed to seek a buyer or buyers for the Sale Shares at
any price other than the Sale Price prior to 3rd December 2014?
and/or
(iii) if it limited its application to RBI so as only to encompass a
purchase of the Sale Shares by Tata at the Sale Price and it did
not apply for permission (if required) to pay an indemnity
and/or have its foreign affiliate(s) acquire the Sale Shares?
and/or
(iv) if it did not attempt to use good faith efforts to agree on an
alternative structure to afford Docomo the substantial benefits
intended by Clause 5.7.2?
4. Were the representations given by Tata in Clauses 10.1.1(b)
and/or (d) correct? If not, what are the consequences?
5. To what damages or other form of relief including restitution
is Docomo entitled?
6. To what interest is Docomo entitled?
7. What is the correct order as to costs?"
The Award of the AT
10. A unanimous Award was announced by the AT on 22 nd June 2016. The
AT considered the above issues under the following heads:
"(1) The scheme of the SHA
(2) Indian exchange control laws
(3) The claim for breach of Clause 5.7
(4) The claim for breach of Clause 2.2.2
(5) The claim for breach of Clause 10.1.1 (b) and (d)
(6) The restitution claim
(7) Tata's counterclaim
(8) Relief
(9) Interest
(10) Costs"
11. The conclusions reached by the AT in the impugned Award may be
summarised as under:
(i) The object of Clause 5.7.2 was to guarantee Docomo an exit at a
minimum of 50% of the subscription price. This was not seriously
challenged by Tata. It was drafted in the way that it was because "the Parties
knew that exchange control regulations and other considerations might
prevent performance under a simple put." (para 108)
(ii) Under Clause 5.7.2 of the SHA, the primary obligation of Tata was to
find a buyer or buyers of the Sale Shares on the terms that Docomo receives
the Sale Price. That obligation was not qualified in any respect. It was in that
sense an absolute obligation. (para 121)
(iii) "The parties provided for alternative methods of performance because
they knew there might be restrictions on performance; Tata might not find a
buyer at the Sale Price because a 26% holding in an unlisted company is
illiquid; licensing restrictions might prevent Tata from increasing its holding
in TTSL; or there might be a requirement for special permission from RBI."
The parties must have intended that Tata could only avail itself of those
alternatives if it could perform in fact and in law. (para 121 (2))
(iv) The parties had agreed that at least one purpose of the clause was to
provide stop loss protection. It followed that performance might be required
at a time when the market value of the Sale Shares was below the Sale Price,
so that a buyer might not be willing to pay the Sale Price; but the clause did
not expressly relieve Tata from liability in that event. Instead, it provided
Tata with alternative methods of performance.
(v) Tata's „waterfall‟ analogy was rejected. This would have the effect that if
the value of the Sale Shares fell so that Docomo chose to exercise its option
to dispose of the Sale Shares in return for the Sale Price, the first part of the
clause would cease to operate just when it was needed. It was unlikely that
the parties intended such a result in a clause which had this purpose.
Although the second part of the clause began by providing that Tata "shall
acquire or shall procure", this was merely an alternative method by which
Tata could perform its primary obligation under the first part.
(vi) Tata was committed to perform the first part of Clause 5.7.2. "In the
absence of any contrary provision, it bore the risk that at the time of
performance it was unable to find a willing buyer at the Sale Price because
the market value of the Sale Shares had fallen. In that event, Tata might have
been able to avoid a breach of its primary obligation by availing itself of one
of the alternative methods of performance provided for in the second part of
the clause; but if it was not able to do so, it remained in breach and was
liable to pay Docomo damages."
(vii) The background to the SHA established that both parties recognised
that the FEMA Regulations might affect the ability of Tata to perform one
way or another. The parties could have provided that Tata would be obliged
to perform only if it obtained any necessary regulatory approval ("Subject to
RBI consent"), as they did elsewhere in the SHA, but they chose not to. It
was unlikely that the parties intended the obligation in the first part of
Clause 5.7.2 to be discharged because an Indian buyer could not lawfully
pay the Sale Price. There was no basis for implying such a provision.
(viii) Clause 2.2.2 was not intended to relieve Tata of the obligation to
perform if it obtained any necessary regulatory approvals because it was
primarily concerned to safeguard the License Agreements; but it was not
necessary to decide the point in the light of the findings set out above.
Docomo had an unqualified right to a method of performance that
admittedly did not violate applicable law.
12. The AT then discussed the Indian Exchange Control Laws in
considerable detail. It analysed the Foreign Exchange Management Act,
1999 („FEMA‟) and in particular the provisions concerning Current Account
Transactions (Section 5 FEMA) and Capital Account Transactions (Section
6 FEMA) and the penalties (Section 13(1) FEMA). It also discussed the
Foreign Exchange Management (Transfer or Issue of Security by a Person
Resident Outside India) Regulations, 2000 (FEMA 20), RBI Circular No. 16
dated 4th October 2004, („October 2004 Guidelines‟), Circular No. 49 dated
4th May 2010 („the 2010 Circular‟), the Foreign Exchange Management
(Transfer or Issue of Security by a Person Resident Outside India)
(Seventeenth Amendment) Regulations, 2013 („the December 2013
Regulations‟), RBI Notification dated 23rd May 2014 („the new Pricing
Regulations‟) and came to the following conclusions:
(i) The performance of TTSL‟s obligation under Clause 5.7.2 was subject to
a general permission from the Reserve Bank of India („RBI‟) in two
respects. First, a non-resident purchaser was always able to buy the same
share at the sale price in accordance with Regulation 9(2)(i) of FEMA 20;
second, a purchaser resident in India including Tata was also able to buy the
Sale Shares at their fair market value, determined in accordance with the
pricing guidelines in force from time to time, in accordance with Regulation
10(B)(2) of FEMA 20.
(ii) The impediment to performance was therefore factual rather than legal.
The only reason why the aforementioned two methods of performance were
not available to Tata after the delivery of the Trigger Notice in 2014 was
that the market value of the Sale Shares had fallen, so that no non-resident
buyer was willing to pay the Sale Price; and the fair market value was a
fraction of the Sale Price.
(iii) The question whether a contractual obligation remains enforceable if it
is subject to a requirement for special permission under the FEMA
Regulations does not, therefore, arise. Nor was it necessary for the AT to
decide whether special permission was required in order for Tata to make
payment under the indemnity in the second part of Clause 5.7.2, or the effect
in law of RBI's refusal of special permission.
13. The AT then discussed the claim for breach of Clause 5.7.2 of the SHA.
It rejected Tata‟s case on the construction of Clause 5.7.2 and found that:
"(1) Clause 12.3.1 did not qualify the obligations of Tata under
Clause 5.7.2.
(2) The first part of that clause imposed on Tata an unqualified
obligation to find a buyer of the Sale Shares on terms that
Docomo received the Sale Price by 3rd December 2014.
(3) Tata has admittedly failed to perform that obligation.
(4) Tata cannot rely on its purported performance under the
second part of Clause 5.7.2. The alternatives provided for in the
second part were only available to Tata if it was able to perform
in fact and law.
(5) The FEMA Regulations do not excuse non-performance. It
is common ground that there were methods of performance of
the obligation in question which were covered by general
permissions under FEMA 20."
14. The AT rejected Tata‟s argument that under Clause 5.7.2 its obligation
became void pursuant to Section 56 of the Indian Contract Act, 1956
(„ICA‟). It held that "RBI‟s refusal of special permission did not render
performance impossible. There were other methods of performance which
were unaffected by the refusal. Tata might or might not have been in a
position to perform in ways which were the subject of a general permission
in practice, but that is a different matter." It categorically held that "Tata is
liable for breach of contract." There was no question of "invalidity or
unenforceability attaching to the obligations of Tata under the first part of
Clause 5.7.2." As regards Clause 12.10 of the SHA, the AT was of the view
that it had no obligation. Its reasoning was as under:
"The Tribunal has accepted Docomo's case that the alternative
methods of performance in the second part of Clause 5.7.2 are
only available to Tata if it is able to perform as a matter of fact
and law. Assuming, in Tata's favour, that the consequence of
RBI's refusal of special permission in its letter of 20th February
2015 was to render invalid or unenforceable performance under
the second part of Clause 5.7.2, the effect was that that
alternative was not available to Tata. The effect was not to
extinguish Docomo's rights under Clause 5.7.2; the first part
remained valid and enforceable. Clause 12.10 therefore has no
application."
15. The AT rejected Docomo's claims for breach of Clause 2.2.2 of the
SHA, for breach of Clause 10.1.1(b) and (d), for restitution as well as Tata‟s
counter-claim concerning the validity and enforceability of alternative
methods of performance under Clause 5.7.2.
16. The AT's conclusions in paras 169, 170 and 171 of the Award were as
under:
"169. The Tribunal's conclusions on Tata's arguments are as
follows:
(1) The Tribunal rejects the argument that an award of damages
for breach of Clause 5.7.2 would amount to a circumvention of
the relevant FEMA Regulations.
The essence of the Tribunal's analysis of Clause 5.7.2 is that
Tata was under an unqualified obligation to perform.
Performance did not necessarily require special permission
from RBI because certain methods of performance were already
covered by general permissions.
(2) The Tribunal also rejects the argument based on the use of
the term "indemnity" in Clause 5.7.2. The Tribunal has found
that Docomo is entitled to damages for breach of the primary
obligation in Clause 5.7.2. The measure of damages applicable
to a breach of contract is therefore appropriate. The amount due
under the indemnity is not relevant for present purposes.
(3) The Tribunal also rejects Tata's argument that Docomo
acted in breach of its duty to mitigate. This argument is based
on Tata's offers to pay Docomo the NPR Fair Value in its letters
of 8 August 2014, 24 October 2014 and 23 February 2015. Tata
does not challenge Docomo's citation of authority for the
proposition that a party is not discharged of its contractual
obligations, even when the other party refuses to accept its
performance on the basis of a bona fide dispute concerning the
parties' contractual rights. Tata claims to distinguish these
authorities on the basis that in the present case "it is obvious
that there is not a bona fide dispute as Docomo insists that Tata
perform the Sale Option without RBI's permission". The
Tribunal is satisfied that Docomo was in good faith. It has
found that Docomo was fully entitled to insist on performance
and it acted reasonably in declining to accept the amount on
offer.
170. The Tribunal therefore finds that, upon tendering the Sale
Shares to Tata or its designee, Docomo is entitled to damages in
the amount claimed, namely US$ 1,172,137,717. Tata should
pay Docomo the amount due within 21 days.
171. Tata is liable for its failure to perform obligations which
were the subject of general permissions under FEMA 20. The
FEMA Regulations do not therefore excuse Tata from liability.
The Tribunal expresses no view, however, on the question
whether or not special permission of RBI is required before
Tata can perform its obligation to pay Docomo damages in
satisfaction of this Award."
17. The AT held that interest was payable on the full amount of the Sale
Price i.e., US$ 1,172,137,717. It awarded Docomo compound interest with
quarterly rests and gave detailed reasons therefor. It concluded that Docomo
should receive a rate which is approximately 17 basis points in excess of the
average of the US prime rate during the relevant period. The AT found that
the most appropriate rate which met the justice of the case was 3.5% per
annum. Interest at that rate on the aforementioned sum was awarded to
Docomo from 3rd December 2014 till the date of the Award compounded
with quarterly rests that worked out to US$ 65,276,963. Docomo was further
held entitled to interest at the same rate on the amount outstanding from 21
days after the date of the Award till the date of payment compounded with
quarterly rests.
18. Importantly, in Footnote 259, the AT observed as under:
"As noted above, Tata submits that it may require several
regulatory approvals to comply with any payment obligations
under an award. It should not therefore be penalised with post
award interest accruing in a period where regulatory approval is
pending: see Rejoinder at para 220, Bundle A-6 at page 461.
The Tribunal rejects this submission. The Tribunal considers it
appropriate that, subject to a 21 day grace period, Docomo
should be compensated for being out of its money."
19. As far as costs are concerned, it was held that Tata should pay all the
arbitration costs and also all of Docomo‟s recoverable legal costs. On this
score, Docomo was held entitled to JPY 1,067,670,175.
20. The operative portion of the Award of the AT read as under:
"After consideration of all of the factual and legal submissions
which have been presented to us and for the reasons set out in
full above, we the Tribunal hereby unanimously award, declare
and adjudge as follows:
(1) We order the Respondent to pay the Claimant within 21
days of the date of this Award US$ 1,172,137,717 upon tender
of the Sale Shares.
(2) We order the Respondent to pay the Claimant within 21
days US$ 65,276,963, being interest on the said USS
1,172,137,717 from 3 December 2014 to the date of this
Award, calculated at 3.5% per annum compounded with
quarterly rests.
(3) We order the Respondent to pay the Claimant within 21
days GBP 119,012.59 by way of Arbitration Costs and JPY
1,067,670,175 by way of Legal Costs.
(4) We order the Respondent to pay the Claimant interest at
3.5% per annum compounded with quarterly rests on the
amount outstanding under this Award from 21 days after the
date of this Award until payment.
(5) We dismiss all other claims and counterclaims.
The seat of this arbitration is London, England. This Award is
made on 22nd June 2016."
Present petition
21. Notice was issued in the present petition on 13th July 2016. Tata was
present in Court on that day through its lawyers who accepted notice and
sought one week‟s time for instructions about the deposit of the awarded
amount in Court. On the next date i.e. 26th July 2016, counsel for Tata stated
that without prejudice Tata was prepared to deposit the awarded amount
before the Registrar of this Court in the name of the Registrar General of
this Court. The fixed deposit would be valid for a period of six months and
would be renewed if the situation so arose. The Court then made an order to
that effect. Four weeks‟ time was granted for filing objection, if any, to the
enforcement of the Award.
22. On 30th July 2016, by way of mentioning, Tata informed the Court that it
was ready to deposit the awarded amount by way of fixed deposit receipts
(„FDRs‟) in the name of the Registrar General of the Court as under:
Sr. Bank Amount of deposit Deposit Receipt
No. (Rs.) Numbers.
1. State Bank of 2150,00,00,000.00 3958173725
India
2. ICICI Bank 2000,00,00,000.00 039313003887
3. HDFC Bank 2100,00,00,000.00 50300155315692
4. Axis Bank 1300,00,00,000.00 15012291013
5. Kotak Mahindra 650,00,00,000.00 1411776805
Bank
6. Indus Bank 250,00,00,000.00 300716407545
Total 8450,00,00,000.00
23. On 2nd September 2016, the Respondent filed a reply the details of which
need not be discussed in view of the subsequent developments as may be
noticed hereinafter. Rejoinder was filed to the said reply by the Petitioner on
28th September, 2016.
RBI's intervention application
24. On 30th November 2016, RBI filed IA No. 14897 of 2016 seeking
intervention. By an order dated 5th October 2016, the Court permitted a sur-
rejoinder to be filed by the Respondent. RBI's application was listed before
this Court on 1st December 2016. Tata filed a reply to RBI‟s intervention
application on 15th December 2016. Written note of arguments were also
filed by Tata in relation to the intervention application of RBI on 15th
December 2016.
The joint application of Docomo and Tata
25. On 25th February 2017, a joint application being I.A. No. 2585 of 2017
was filed by Docomo and Tata under Order XXIII Rule 3 read with Section
151 of the CPC seeking to place on record the consent terms agreed between
the parties and seeking disposal of the main petition i.e. OMP (EFA)
(Comm.) 7 of 2016 in terms of the said settlement. This application was
signed by the authorised representatives (ARs‟) of both the parties and also
supported by their respective affidavits. A copy of the consent terms arrived
at between the parties and signed by both of them on 20th/23rd February 2017
was enclosed with the application as Annexure-A.
The consent terms
26. The consent terms arrived at between the parties read as under:
"In the interest of putting an end to a dispute that had arisen
between the Parties and in the public interest of preserving a
fair investment environment in India, the Parties to the above
Petition ("Parties") submit that this Honourable Court be
pleased to pass an order in terms of these Consent Terms so as
to put an end to the issues and differences between the Parties
relating to the arbitration award dated June 22, 2016 passed by
the Arbitral Tribunal in London, United Kingdom in LCIA
Case No. 152896 ("Award"):
1. The Respondent has always been, and remains committed to
performing its contractual obligations under the Shareholders'
Agreement dated March 25, 2009 ("SHA").
2. In these circumstances although the Respondent believes it
had grounds to resist enforcement of the Award as stated in its
affidavit dated September 01 2016 "flied before this Hon'ble
Court, as a gesture of good faith and in accordance with the
Respondent's record of adherence to contractual commitments
that the Respondent has always enjoyed both in India and
abroad, the Respondent withdraws its objections to the
enforcement of the Award in India.
3. The Respondent agrees to the disposition of the amount
awarded in paragraph 202 of the Award (being the sums of (i)
US $ 1,172,137,717, (ii) US $ 65,276,963, (iii) GBP
119,012.59 and JPY 1,067,670,175, and (iv) interest at 3.5%
per annum compounded with quarterly rests on the amounts
specified in the foregoing items (i),(ii) and (iii) from 21 days of
the date of the Award until payment of the said amounts)
("Funds") in the manner set out in paragraph 4 below, and as
per the directions of this Hon'ble Court, for payment to the
Petitioner in satisfaction of the Award in United States Dollars
to a bank account designated by the Petitioner ("Designated
Bank Account"), subject to ruling on the objections raised by
the Reserve Bank of India ("RBI") in its Application for
Intervention in these proceedings after hearing RBI. The
obligations of the Respondent hereunder shall further be subject
to (i) receipt of approval of the Competition Commission of
India and (ii) receipt of the Withholding Tax Certificate (as
defined hereinafter). The Petitioner will apply to the Indian
Income Tax authorities to obtain the withholding tax certificate
("Withholding Tax Certificate") in relation to payments under
the Award based on which Respondent will remit the Funds,
after deduction of taxes, if any, to Designated Bank Account.
The Petitioner agrees that the amount of Rs. 8450,00,00,000
(Rupees Eight Thousand Four Hundred and Fifty Crore Only)
along with accrued interest which amounts to a total of Rs.
8,730,59,83,623 (Rupees Eight Thousand Seven Hundred
Thirty Crore Fifty Nine Lakh Eighty Three Thousand Six
Hundred and Twenty Three Only) as on 30 January 2017 (along
with any further interest which may accrue thereon) ("Deposit")
deposited in this Hon'ble Court shall be released in accordance
with the procedure prescribed in detail in paragraph 4 below. It
is clarified that in case there is any difference between the
Deposit and the Funds as per the Award, then any shortfall
would be made up by the Respondent to the extent of the
shortfall, and in case there is any excess amount then the same
will get remitted back to Respondent, by way of withdrawal or
deposit from/into the Interim Account by the Respondent, and
the deduction of tax, if any, shall be computed and withheld on
such adjusted amount.
4. Subject to the ruling and directions of this Honourable Court,
as provided in paragraph 3 above, the payment of the Funds,
after deduction of taxes, if any, to the Designated Bank Account
and other related actions shall be made in the following manner:
4.1 The Deposit is to be retained by the Registrar of this
Hon'ble Court till requisite clearance from Competition
Commission and the Withholding Tax Certificate as mentioned
in these consent terms have been obtained. Once the requisite
clearances/ certificate have been obtained the Deposit will be
transferred to an account in the name of the Respondent
("Interim Account").
4.2 Petitioner will then nominate an Authorised Dealer ("AD")
for remittance of Funds after deduction of taxes, if any, to the
Designated Bank Account.
4.3 The Petitioner undertakes that it shall, simultaneously with
the receipt of the Funds, after deduction of taxes, if any, in the
Designated Bank Account, complete the process of debiting its
dematerialised accounts of all shares of Tata Teleservices
Limited ("Shares") held by the Petitioner and have the Shares
credited to the dematerialised accounts of the Respondent
and/or its nominees and the Respondent shall co-operate with
the Petitioner for having the Shares credited to the
dematerialised accounts of the Respondent and/or its nominees
and in completing and executing Form FCTRS for this purpose.
4.4 Both Parties will take all actions and provide all documents
and information as requested by the AD to permit remittance of
the Funds, after deduction of taxes, if any, to the Designated
Bank Account and the credit of the Shares to dematerialised
accounts of the Respondent and/or its nominees.‟
5. In light of the withdrawal of the objections of the
Respondent, this Honourable Court may be pleased to declare
that the Award is enforceable in India and shall operate as a
deemed decree and this Honourable Court shall proceed to
execute the same, subject to the ruling on the objections of RBI
as raised in RBI's Application for Intervention in these
proceedings (and for that purpose the Parties agree not to object
to the intervention of RBI).
6. The Petitioner agrees and undertakes that the enforcement of
the Award in India, and this deemed decree, against the Indian
assets of Tata will be limited to the monies deposited (along
with interest accrued thereon) in this Hon'ble Court by the
Respondent only so long as Respondent complies with its
obligation to make up for any difference between the Deposit
and the Funds in terms of paragraph 3 of these consent terms.
7. The Petitioner undertakes to this Honourable Court that it
shall suspend proceedings initiated against the Respondent
which are currently pending in United Kingdom [Claim No.
CL-2016-000428 in the High Court of Justice, Queen's Bench
Division of the Commercial Court] and in the United States of
America [Civil Action No. 1:16-cv-7809, in the United States
District Court, Southern District of New York] for a period 6
months from the date hereof ("Suspension Period"). Upon
receipt of the Funds, after deduction of taxes, if any, by the
Petitioner in the Designated Bank Account any time within the
Suspension Period as per paragraph 4 above, the Petitioner shall
unconditionally withdraw all proceedings initiated against the
Respondent in relation to the SHA and/or the Award, including
aforementioned proceedings in the United Kingdom and
aforementioned proceedings in the United States of America
within one week thereof. In the event of the Petitioner not
receiving payment of the Funds, after deduction of taxes, if
any, in the Designated Bank Account of the Petitioner within
the Suspension Period, the Petitioner shall be free to pursue the
UK and US enforcement actions.
8. The Petitioner undertakes to this Honourable Court that it
shall not initiate any further proceedings in relation to the SHA
and/or the Award during the Suspension Period, or thereafter, if
the Funds, after deduction of taxes, if any, are received during
the Suspension Period.
9. The Parties agree that upon receipt of the Funds, after
deduction of taxes, if any, in the Designated Bank Account by
the Petitioner, and the credit of the Shares to dematerialised
accounts of the Respondent and/or its nominees, as per
paragraphs 3 and 4 above, the Award shall stand fully and
finally satisfied and discharged and that the Parties shall have
no outstanding claims against each other.
10. The Parties agree that the Consent Terms as set out
hereinabove are exhaustive and conclusive, as between the
Parties hereto, with respect to the issues dealt hereinabove.
11. The Parties shall co-operate with each other and provide all
necessary assistance in completing and filing all forms and
completing all other formalities necessary for completing the
payment of the Funds, after deduction of taxes, if any, and the
credit of the Shares to dematerialised accounts of the
Respondent and/or its nominees as set out in this order.
12. The parties shall bear their respective costs in connection
with these proceedings."
Submissions on behalf of RBI
27. Mr. C. Mukund, learned counsel appearing for RBI was first asked by
the Court about the locus standi of RBI to file such an application in this
Court. He was asked about the provision under the Act which permitted such
an intervention application by an entity which was not a party to the Award
sought to be enforced. While Mr. Mukund was unable to dispute that there
was no provision in the Act which permitted such intervention, he referred
to Order XXIII Rule 3 CPC and submitted that the Court was not bound to
take on record a compromise seeking to give effect to an Award in terms of
a contract that was per se hit by Section 23 of the Indian Contract Act 1872
(ICA). He referred to the Explanation to Order XXIII Rule 3 which stated
that an agreement/compromise which was void or voidable under the ICA
was not deemed to be lawful within the said Rule. According to him, the
compromise under Order XXIII Rule 3 CPC envisaged a lawful compromise
or agreement to be brought into effect. He pointed out that Rule 4 of Order
XXIII CPC stated that the said provision would not apply in proceedings in
the execution of a decree or an order. He referred to the decisions in State of
Punjab v. Amar Singh & Anr. (1974) 2 SCC 70; Union Carbide
Corporation v. Union of India (1991) 4 SCC 584 and an order dated 9th
February 2017 of this Court in OMP (Comm.) 154/2016 (Shakti Nath v.
Alpha Tiger Cyprus Investments No. 3 Ltd.)
28. Mr Mukund submitted that inasmuch as the impugned Award requires
remission of money to an entity outside India, RBI‟s role cannot be negated
"for any reason whatsoever." He submitted that the impugned Award
inasmuch as it concluded that the FEMA Regulations need not be looked
into was illegal and contrary to the public policy of India. Therefore,
notwithstanding that Tata may have no objection to the enforceability of the
Award, the Court should refuse to act on the consent terms on the ground
that the Award sought to be enforced was opposed to the public policy of
India.
29. Mr Mukund referred to the consent terms which acknowledged the
present application by RBI seeking intervention. He pointed out that under
para 3 of the consent terms, it was agreed that the payment of the amounts to
Docomo in satisfaction of the Award would be subject to the order of this
Court on RBI's application seeking intervention. Therefore, as far as the
parties themselves were concerned, they could not be heard to object to the
locus standi of RBI or to the maintainability of the present application.
30. Mr. Mukund further submitted that even after the pronouncement of the
Award, Tata had applied to RBI on 1st July 2016 for permission to enforce
the Award. This was opposed by Docomo by its letter dated 11 th July 2016.
By its communication dated 25th July 2016, RBI had rejected the request.
That rejection had attained finality since neither of the parties challenged it.
31. According to Mr. Mukund, RBI was of the consistent view that Clause
5.7.2 of the SHA was in violation of Regulation 9 of the FEMA 20 which
provided that the transfer should be at a price not exceeding the price arrived
at, as per any internationally accepted pricing methodology for valuation of
shares on a rational basis duly supported by a Chartered Accountant („CA‟)
or a SEBI-registered Merchant Banker. It was also in violation of Section
6(3) of FEMA which empowered RBI to prohibit, restrict or regulate the
transfer of any security by a person outside India. The Foreign Investment
Promotion Board („FIPB‟) by a communication dated 14th March 2009,
approved Docomo‟s acquisition of shares in TTSL and stated that
"Issues/valuation/transfer of shares shall be as per SEBI/RBI guidelines."
Therefore, the Award in question which dispensed with the obtaining of any
permission from RBI for transmission of the damages granted to Docomo
was contrary to the fundamental policy of India and could not be enforced.
Submissions on behalf of Docomo
32. Mr. Kapil Sibal, learned Senior counsel appearing for Docomo,
submitted that under Section 41(1) of the Act it is only a party to the Award
which can object to its enforcement, and that too on extremely limited
grounds set out in Section 48 of the Act. The relief granted by the AT in the
impugned Award was not in the form of a put option but only the already
envisaged damages under Clause 5.7.2 of the SHA. Mr Sibal was categorical
that RBI had no locus standi to intervene or object to the enforcement of the
Award in question. He submitted that entertaining such an objection at the
instance of an entity which was not a party to the Award would itself be
opposed to the fundamental policy of Indian law.
Submissions on behalf of Tata
33. Mr. Darius Khambata, learned Senior counsel appearing for Tata, at the
outset clarified that the stand taken by Tata in its letter dated 1st July 2016
seeking permission of RBI stood withdrawn since Tata's objection to the
enforcement of the Award itself stood withdrawn. He submitted that RBI's
submission that it had consistently opposed Clause 5.7.2 of the SHA was
factually incorrect. Referring to Sections 3 and 6 of the FEMA he submitted
that there was no blanket prohibition against the repatriation of monies to an
entity outside India at a price not exceeding that arrived at as per
internationally accepted price methodology. That provision itself envisaged
such transfer being allowed by a special permission of RBI. Likewise, none
of the FEMA Regulations spoke of a total prohibition. Even if such
restriction existed at the time of the enforcement of an Award, it could be
overcome by the special permission of RBI.
34. Analysing Clause 5.7.2 of the SHA, Mr. Khambata pointed out that there
were three distinct possible scenarios emerging as a result of the inability to
work out Clause 5.7.2. That clause was, therefore, not inherently void. Even
a post-facto RBI permission could be obtained as was pointed out in Life
Insurance Corporation of India v. Escorts Ltd. (1986) 1 SCC 264. He
referred to the internal notings on file of RBI, the letter dated 22nd December
2014 from RBI to the Ministry of Finance (MoF) and the response thereto
all of which revealed a position contrary to what was being projected before
the Court.
Locus standi of RBI
35. The Court first takes up the question of the locus standi of RBI to seek
intervention in the present proceedings. There is no provision in the Act
which envisages an entity, not a party to an Award, seeking to intervene in
proceedings for the enforcement of such Award. Who can oppose the
enforcement has been clearly indicated in Section 48 itself. The beginning of
Section 48(1) reads: "1. Enforcement of a foreign award may be refused, at
the request of the party against whom it is invoked, only if that party
furnishes to the court proof that..." Section 2(h) of the Act defined 'party' to
mean a party to an arbitration agreement. Clearly, therefore, in terms of
Section 48(1) of the Act, RBI not being a 'party' cannot seek to intervene in
order to object to the enforcement of the Award in question.
36. It is not RBI‟s case that it can maintain the present application under any
provision of the CPC. Order XXIII Rule 3 CPC reads as under:
"3. Compromise of suit.- Where it is proved to the satisfaction
of the court that a suit has been adjusted wholly or in part by
any lawful agreement or compromise in writing and signed by
the parties, or where the defendant satisfies the plaintiff in
respect of the whole or any part of the subject matter of the suit,
the court shall order such agreement, compromise or
satisfaction to be recorded, and shall pass a decree in
accordance therewith so far as it relates to the parties to the suit,
whether or not the subject matter of the agreement, compromise
or satisfaction is the same as the subject matter of the suit: -
Provided that where it is alleged by one party and denied by the
other than an adjustment or satisfaction has been arrived at, the
court shall decide the question; but no adjournment shall be
granted for the purpose of deciding the question, unless the
court, for reasons to be recorded, thinks fit to grant such
adjournment.
Explanation: An agreement or compromise which is void or
voidable under the Indian Contract Act, 1872 (9 of 1872), shall
not be deemed to be lawful within the meaning of this rule."
37. While the proviso to Rule 3 envisages one party alleging and the other
party denying that an adjustment or satisfaction has been arrived at, and in
which event the Court decides such question, it does not contemplate any
third party i.e., an entity which is not a party to the suit, coming forward to
object to an application under Order XXIII Rule 3 of the CPC. The
Explanation emphasises that the compromise must be lawful. It elaborates
this by stating that a compromise that is void or voidable under the ICA
shall not be deemed to be lawful. This, too, does not recognise a third party
coming forward to oppose a compromise on that ground.
38. Interestingly, Rule 4 states that nothing in the order would apply to
proceedings in execution of decree or order. That does not mean that there
can never be a compromise in an execution proceeding. In the interests of
justice, in exercise of the power under Section 151 CPC, a civil Court which
is an executing Court can certainly take on record a settlement arrived at
between the parties as far as the execution is concerned even de hors Order
XXIII Rule 3 CPC. When parties have agreed to bring an end to the disputes
between them which form the subject matter of the decree which is sought to
be enforced, the Court cannot and should not come in the way of taking on
record such compromise. It is true, however, that where the Court feels that
the agreement is void or voidable under the ICA, it need not act on it and
pass an order in terms thereof.
39. All of the above still does not recognise the locus standi of an entity
which is not a party to the suit, or as in this case, an Award, to oppose the
compromise.
40. The Court is unable to accept the submission made on behalf of RBI that
since the Award discusses the provisions of the FEMA and the Regulations
thereunder in extenso and comes to a definite conclusion as to their
applicability, hearing RBI by the execution Court is imperative. There may
be arbitral Awards (as there may be for that matter judgments of the Court)
in private disputes to which RBI is not a party where its powers and
functions under the statute that governs it or the rules and regulations
thereunder may be discussed. That would not mean that either during the
course of the arbitral proceedings or in the consequential execution RBI
would have to be joined as a party or intervener and heard. There is no
provision under the Act or the CPC that requires this.
41. The fact that the legislature did not intend this is evident when a
comparison is made with the provisions for mergers and amalgamations
under the Companies Act, 1956 (as it stood prior to its amendment in 2015).
Section 394 thereof envisaged notice being issued to the Central
Government by the Company Court in order to give it an opportunity to be
heard in those proceedings. There is no such statutory requirement that
where the enforcement of an arbitral Award might result in remitting money
to an non-Indian entity outside India, or to an account of a party outside
India, RBI has to necessarily be heard on the validity of the Award. The
mere fact that a statutory body‟s power and jurisdiction might be discussed
in an adjudication order or an Award will not confer locus standi on such
body or entity to intervene in those proceedings.
42. At the same time, RBI will, just as any other entity, be bound by an
Award interpreting the scope of its powers or any of its regulations subject
to it being upheld by a Court when challenged by a party to the Award. If,
for example, there is a judgment by a civil Court, within India or outside
India, taking a particular interpretation of the powers of RBI under the
FEMA and that judgment is either not challenged or is upheld on challenge
by the superior judicial body, then as far as the two parties to the judgment
are concerned, RBI will be bound by the decision of the Court. There may
be instances where the executing Court might direct that the payment of
monies under an Award to a non-Indian entity outside India would be
subject to the permission of the RBI since the regulations under the FEMA
require it. That determination, too, subject to being altered in appeal, will be
binding on the parties as well as RBI. However, even in that situation, RBI
cannot intervene in those proceedings and demand to be heard. As of date,
this may be viewed as a gap in the Act, particularly, in the context of Indian
courts being frequently approached for the enforcement of international
Awards. But in the absence of a provision that expressly provides for it, the
question of permitting RBI to intervene in such proceedings to oppose
enforcement does not arise.
43. The very stand that RBI is now taking in this Court that without its
special permission there cannot be a transfer of monies by Tata to Docomo,
was taken by Tata before the AT and was expressly negatived by the AT by
a unanimous Award. The AT decided that since the sum awarded to
Docomo was in the nature of damages and not the Sale Price of the shares,
the question of having to seek the special permission of RBI did not arise. If,
as in this case, neither of the parties maintains any objection to the
enforcement of the Award, and the Court finds no impediment to its
enforcement, then the Award which takes a view on the requirement of
RBI's permission will be enforceable as such. RBI will be bound by such
determination and cannot refuse permission.
44. To repeat, the AT has come to a definite conclusion that what has been
awarded to Docomo is damages. It has given effect to the alternative
mechanism envisaged by the parties under Clause 5.7.2 of the SHA. It is not
even RBI‟s stand that any general or special permission of RBI would be
required if what is being paid by Tata to Docomo is in the nature of
damages. In this context the Court would refer to RBI‟s own stand at various
stages of the proceedings. In the internal notings on file of RBI (which was
provided to Tata by RBI under the Right to Information Act, 2005), while
processing the application of Tata for permission it was noted as under:
"I would take a different view. The assured return applies
where the overseas investor gets his entire principal PLUS a
certain return. Here both the parties agreed to protect the
downside loss at 50% of the invested value. This is according to
me a fair agreement/contract and we should facilitate honouring
this commitment. We may approve.
DG(HRK)
Although strictly as far as wordings of the regulation this may
not be allowed. From the point of view of equity & the
intention behind the regulation (that there would be no assured
return) the foreign investor has a merit in this claim. The larger
of issue of fair commitment to reasonable contracts in relation
to FDI inflows also have to be kept in view. Our strategic
relationship with Japan has also become very significant in
relation to FDI inflows.
In the circumstances, we may propose to accept the plea of the
foreign investors & in future, in all such cases similar principle
could be applied.
ED (G))
PGM FED
GM (HSM)
As per DGs order we have written to GOI. Company has been
pressing for a decision. Discussed with DG over telephone. He
is agreeable to approving this case and informing Govt. that in
view of urgency we approved and propose to adopt this
principle in future also. In any case, the policy permitting
downward protection is under formulation (expected to be
completed in 2 weeks).
DG-DL (Discussed)
Governor for Info."
45. The above stand was reiterated by RBI in its letter dated 22nd December
2014 to the MoF where it said:
"Taking into consideration the above provisions, we observe that the
proposed structure is not in line with the extant provisions, as the fair
value of the shares is Rs 23.34 per share. However, the larger issue
here is of a fair commitment in the contracts in relation to an
investment and a downside protection of an investment, rather than an
assured return. Besides our strategic relationship with Japan in recent
times in relation to FDI flows is also a matter to be kept in view. In
view of this, we are inclined to accept the proposal and in future, in all
such case, similar principle shall be applied."
46. RBI did not contend that the SHA was void or illegal. Instead, it drew
attention to the fact that the fair value of the shares was less than the Sale
Price and that the transfer of the Sale Shares by Docomo to Tata at the Sale
Price was not within the ambit of the general permission.
47. The MoF responded by its letter dated 6th February 2015 to RBI as
under:
"The proposal needs to be examined by RBI as per its extant
regulations. An individual proposal cannot be considered in
exception of such regulations. In case, RBI is of the opinion
that the existing regulations need modification, a detailed
proposal on the subject along with justification and rationale
may be forwarded in the Government for taking a view in the
matter."
48. RBI's refusal of permission prior to the Award was perhaps on account
of the above stand of the MoF. RBI wrote to Tata on 20th February 2015
rejecting its application for special permission, stating:
"You are advised that in terms of Regulation 9 of Foreign Exchange
Management Transfer or Issue of Security by a Person resident
outside India) Regulations, 2000, as amended from time to time, a
person resident outside India may transfer the shares or debentures
held in an Indian company at a price not exceeding that arrived at as
per any internationally accepted pricing methodology for valuation of
shares on arm's length basis, duly certified by a Chartered Accountant
or a SEBI registered Merchant Banker. The guiding principle being
that the nonresident investor is not guaranteed any assured exit price
at the time of making such investment/agreements and shall exit at the
price prevailing at the time of exit. Accordingly your request to
purchase shares of Tata Teleservices Limited from NTT Docomo Inc.
at any pre-determined price cannot be acceded to. You may ensure
that the transaction complies with the provisions cited above."
49. Significantly, therefore, even at this stage, RBI did not refuse the special
permission on the ground that the SHA was illegal or void. It is not
understood why RBI had to seek advice from the MoF in this regard. Its
refusal to grant permission after the Award stems from its understanding that
notwithstanding that the Award grants damages to Docomo, the remittance
is by way of payment of Sale Price by Tata to Docomo for the shares. This
was because the Award required Docomo to return the share scrips to Tata
upon receiving the amount.
50. The Award is very clear on this issue. What was awarded to Docomo
were damages and not the price of the shares. The order that the share scrips
must be returned to Tata was only incidental and, in fact, Docomo itself was
not interested in retaining the share scrips. It could be seen as an
acknowledgment of Docomo volunteering to return the share scrips as they
were of no particular use to it. It is not open to RBI to re-characterise the
nature of the payment in terms of the Award to which there is no longer any
opposition from Tata, the only party which could possibly oppose its
enforcement. RBI has not placed before the Court any requirement for any
permission of RBI having to be obtained for Docomo to receive the money
as damages in terms of the Award.
51. As regards the refusal of permission by RBI for the second time, after
the Award, the seeking of such permission by Tata was based on its earlier
opposition to the Award which was similar to the one raised now by RBI.
With Tata having accepted the Award as such, it has withdrawn its
objections thereto and consequently its stand in the application made to RBI
on 1st July 2013 seeking permission. As long as the Award stands, there is
no need for any special permission of RBI for remission by Tata of the
amount awarded thereunder to Docomo as damages. The refusal by RBI of
such permission which is not required in the first place, or the fact that such
refusal has not been challenged, would therefore not affect the enforceability
of the Award.
52. The upshot of the above analysis is that there is no provision in law
which permits RBI to intervene in a petition seeking enforcement of an
arbitral Award to which RBI is not a party. Its prayer for permission to
intervene is rejected.
Validity of the SHA and the Award
53. Therefore, there is as such no opposition whatsoever to the
enforceability of the Award. The Court nevertheless proposes to examine if
the SHA and the Award that recognise and enforce its clauses are valid.
54. The SHA was entered into between Docomo, Tata and TTSL on 25th
March 2009. The regulatory regime in force at the time was provided under
the FEMA. In terms of Section 3 FEMA, dealings in foreign exchange were
prohibited unless permitted by a general permission or special permission of
RBI. Regulation 3 of FEMA 20 read with Sections 6(2) and 6(3) FEMA
prohibited a non-resident from transferring shares of an Indian company to a
resident unless permitted by a general permission or special permission of
RBI. The general permission had to be obtained under Regulations 9(2) &
10B(2) of FEMA 20 subject to the conditions set out in Circular No. 16
dated 4th October 2004. In the event that such transfer of shares was not in
conformity with the above Circular (including the pricing guidelines), the
special permission of RBI would be required to complete such a transfer.
55. Clause 2.2.2 of the SHA prohibited the parties from acting in violation
of any applicable law. It read as under:
"2.2.2 The Parties have agreed that the provisions of this Agreement
shall be subject to the provisions of the License Agreements, and in
the event of any inconsistency between the provisions of this
Agreement and the License Agreements, the provisions of the License
Agreements shall prevail. Further, no Party shall take any action or
have any right that would violate applicable Law or cause a loss of
any License Agreement. Each provision of this Agreement shall be
interpreted so as not to cause such violation of Law or loss of any
License Agreement, and in the event of such violation or potential
loss the Parties shall use good faith efforts to agree on an alternative
structure that will afford the Parties the substantial benefits intended
by such provision."
56. Sub-regulation 5(1) of FEMA 20 allowed a non-resident to purchase
shares or convertible debentures of an Indian company under the Foreign
Direct Investment (FDI) Scheme which was set out in Schedule 1 thereto.
As of the date of the SHA, the FDI Scheme did not mention "options".
Paragraph 2(1) of Schedule 1 required Indian companies issuing securities to
comply with the provisions of the Industrial Policy and Procedures as
notified by the Secretariat for Industrial Assistance („SIA‟) in the Ministry
of Commerce and Industry, Govt. of India. Pursuant thereto, Docomo
subscribed to and purchased equity shares of TTSL by investing US$ 2.5
billion. There has been no suggestion that at the time of such investment any
binding legal provision was violated.
57. The main bone of contention was Clause 5.7.2 which provided inter alia
that if Tata was "unable to find a willing buyer or buyers to purchase the
Sale Shares at the Sale Price or if the sale of the Sale Shares is not closed
during the Sale Period" Tata "shall acquire, or shall procure the acquisition
of, the Sale Shares at any price not later than the end of the Sale Period."
The further condition was that Tata "shall have the obligation to indemnify
and reimburse" Docomo "for the difference between the Sale Price and the
price at which the Sale Shares are actually sold, which payment shall be
made at the time of closing of the Sale/Sales."
58. The case of both Tata and Docomo is that Clause 5.7.2 of the SHA
protected Docomo from not losing more than 50% of its investment. Even
RBI appears to have accepted that this was in the nature of a downside
protection and was not in the nature of an assured return on its investment.
On its part, the AT has accepted the explanation offered that the right
granted to Docomo under Clause 5.7.2 was not an issue of any "security"
that would fall within the ambit of Regulations 4 and 5 of FEMA 20. The
AT held that Clause 5.7.2 of the SHA was a contractual promise by Tata to
find a buyer for Docomo's shares which could always have been performed
using general permissions of RBI under FEMA 20. It was held that the
promise was valid and enforceable because sub-regulation 9(2)(i) of FEMA
20 permitted a transfer of shares from one non-resident to another non-
resident at any price. The AT held that Tata could have lawfully performed
its obligation to find a buyer at any price, including at a price above the
shares' market value, through finding a non-resident buyer. Its failure to do
so was, according to the AT, a breach entitling Docomo to damages.
59. The SHA, therefore, could not be said to be void or opposed to any
Indian law including the FEMA, much less the ICA. FEMA contains no
absolute prohibition on contractual obligations. It envisages grant of special
permission by RBI. As rightly held by the AT, Clause 5.7.2 of the SHA
always was legally capable of performance without the special permission of
RBI, using the general permission under sub-regulation 9(2) of FEMA 20.
60. As far as the Award itself is concerned, the interpretation placed by the
AT on the clauses of the SHA was consistent with the intention of the
contracting parties and not opposed to any provision of Indian law. There is
nothing in the SHA as interpreted by the Award that renders it void or
voidable under the ICA or opposed to either the public policy of India or the
fundamental policy of Indian law. The AT's interpretation of the various
provisions of the FEMA and the regulations thereunder have also not been
shown to be improbable or perverse. What was invested by Docomo was US
$ 2.5 billion and what it will receive in terms of the Award is only 50% of
that amount. The Court finds that no ground under Section 48 of the Act is
attracted to deny the enforcement of the Award.
Is the compromise valid?
61. The Court next proposes to examine if the compromise/consent terms
arrived at between the parties are lawful or whether they are void or
voidable under the ICA. The Consent Terms were entered into between
Docomo and Tata on 20th/23rd February 2017. They begin by noting that it is
with a view to putting an end to their disputes and "in the public interest of
preserving a fair investment environment in India" that the parties have
decided to enter into the said consent terms. Further, it is noted that "as a
gesture of good faith and in accordance with the Respondent's record of
adherence to contractual commitments that the Respondent has always
enjoyed both in India and abroad, the Respondent withdraws its objections
to the enforcement of the Award in India."
62. A perusal of paras 3 to 6 of the consent terms shows that the parties have
undertaken to abide by the directions of this Court and obtain all the
requisite statutory permissions and clearances. Another important aspect is
that Docomo has in para 7 of the consent terms undertaken that for a period
of six months pending compliance with the consent terms, all other
enforcement actions instituted in Courts abroad shall stand suspended and
after compliance shall stand withdrawn.
63. The Court is unable to find anything in the Consent Terms which can be
said to be contrary to any provision of Indian law much less opposed to
public policy or void or voidable under the ICA. The issue of an Indian
entity honouring its commitment under a contract with a foreign entity
which was not entered into under any duress or coercion will have a bearing
on its goodwill and reputation in the international arena. It will indubitably
have an impact on the foreign direct investment inflows and the strategic
relationship between the countries where the parties to a contract are
located. These too are factors that have to be kept in view when examining
whether the enforcement of the Award would be consistent with the public
policy of India.
64. It appears to be a well settled legal position that parties to a suit, or as in
this case, an Award, may enter into a settlement even at the stage of
execution of the decree or Award. In The Oudh Commercial Bank Ltd. v.
Thakurain Bind Basni Kuer (1939) 41 Bom LR 708, the Privy Council
held that independent of Order XXIII Rule 3 CPC, the provisions of Order
XXI Rule 2 and Section 47 CPC would enable the executing Court to record
and enforce a compromise. This was reiterated by the Supreme Court of
India in Moti Lal Banker v. Mahraj Kumar Mahmood Hasan Khan AIR
1968 SC 1087. In N.K. Rajgarhia v. Mahavir Plantation Ltd. & Ors.
(2006) 1 SCC 502, it was observed that "the court's freedom to act to further
the ends of justice would surely not stand curtailed." The Court came to the
conclusion that the compromise entered into between the parties during the
execution proceedings was valid in law.
Conclusion
65. The result is that:
(i) IA No. 14897/2016 filed by RBI is dismissed.
(ii) IA No. 2585 of 2017 is allowed and the Consent Terms enclosed
therewith are taken on record.
(iii) The Award dated 22nd June 2016 passed by the AT in London in LCIA
Case No. 152896 under the LCIA Rules is declared as enforceable in India
and shall operate as a deemed decree of this Court.
(iii) The parties are bound by the Consent Terms and will proceed to take
steps in terms thereof.
(iv) The monies deposited in this Court by Tata by way of the FDRs referred
to in para 22 of this order together with the interest accrued thereon ('the
Deposit') shall be retained by the Registrar of this Court till requisite
clearance from the Competition Commission of India and the Withholding
Tax Certificate as mentioned in the Consent Terms have been obtained.
(v) Once the requisite clearances/certificate has been obtained, the Deposit
will be transferred to an account in the name of Tata („Interim Account‟).
For this purpose, the parties are at liberty to mention the matter before the
Registrar General of this Court who will from that point onwards either
himself deal with the matter or designate a Registrar of this Court for the
purpose of the completion of the further steps in terms of this judgment.
(vi) Docomo will nominate an Authorised Dealer („AD‟) for remittance of
Funds after deduction of taxes, if any, to the Designated Bank Account as
stated in the Consent Terms.
(vii) As undertaken by it in the Consent Terms, Tata shall, simultaneously
with the receipt of the Funds, after deduction of taxes, if any, in the
Designated Bank Account, complete the process of debiting its
dematerialised accounts of all shares of TTSL held by Docomo and have the
Shares credited to the dematerialised accounts of Tata and/or its nominees
and Tata shall co-operate with Docomo for having the Shares credited to the
dematerialised accounts of Tata and/or its nominees and in completing and
executing Form FCTRS for this purpose.
(viii) Both, Tata and Docomo will take all actions and provide all documents
and information as requested by the AD to permit remittance of the Funds,
after deduction of taxes, if any, to the Designated Bank Account and the
credit of the Shares to dematerialised accounts of Tata and/or its nominees.
(ix) Docomo is bound by its undertaking as recorded in para 7 of the
Consent Terms regarding keeping the other enforcement proceedings
instituted by it against Tata elsewhere under suspension and to ultimately
withdraw them subject to compliance by Tata with its obligations under the
Consent Terms. Docomo is also bound by its undertaking that it shall not
initiate any further proceedings in relation to the SHA and/or the Award
during the Suspension Period, or thereafter, if the Funds, after deduction of
taxes, if any, are received during the Suspension Period.
(x) Upon receipt of the Funds, after deduction of taxes, if any, in the
Designated Bank Account by Docomo, and the credit of the Shares to
dematerialised accounts of Tata and/or its nominees, as per paragraphs 3 and
4 of the Consent Terms, the Award shall stand fully and finally satisfied and
discharged and that the Parties shall have no outstanding claims against each
other.
66. Liberty is granted to both Tata and Docomo to apply to the Court in the
event of any difficulty in complying with any of the directions.
67. The petition is disposed of in the above terms.
S. MURALIDHAR, J
APRIL 28, 2017
dn
