Delhi High Court
Reliance Communications Ltd. vs Atc Telecom Infrastructure Pvt. ... on 2 February, 2018
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 2nd February, 2018
+ FAO(OS) (COMM) 19/2018
RELIANCE COMMUNICATIONS LTD. ..... Appellant
Through Mr. Ravindra Srivastava, Senior
Advocate with Mr. Shally Bhasin, Mr.
Chaitanya Sahay and Mr. Raghav
Pandey, Advocates
versus
ATC TELECOM INFRASTRUCTURE PVT. LTD. & ANR.
..... Respondents
Through Mr. Sandeep Sethi, Senior Advocate
with Mr. Rajshekhar Rao, Mr. Rishad
A. Chowdhury, Mr. Krishnayan Sen
and Mr. Ankit Jain, Advocates for
respondent no.1.
Mr. Akhil Sibal, Senior Advocate with
Mr. Shivek Trehan, Ms. Fareha
Ahmad Khan and Ms. Jhanavi Mitra,
Advocates for respondent no.2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
CAV.PET.89/2018
1. Mr. Sethi, learned Senior Counsel, on instructions, appears on behalf
of the caveator.
2. Accordingly, the Caveat Petition stands disposed of.
CM.APPL 4053-4054/2018(Exemption)
3. Exemption allowed, subject to all just exceptions.
4. The applications stand disposed of.
FAO(OS) (COMM) 19/2018
5. This is an appeal under Section 37 of the Arbitration and Conciliation
Act, 1996 filed by the appellant. The appellant, being aggrieved by an
interim order passed by the learned Single Judge dated 06.12.2017,
had filed an appeal being FAO(OS)(COMM) 225/2017 which was
heard and disposed of by this Court by an order dated 21.12.2017. In
the order, it was noticed as under:
"Mr.Ravindra Srivastav, learned Senior Counsel appearing
for the appellant, submits that reading of the interim order
would show that in fact the learned Single Judge has finally
decided the matter without granting an opportunity to the
appellant herein to file reply and place relevant documents on
record. Learned Senior Counsel further submits that the
learned Single Judge has not ruled on the preliminary
objection raised by the appellant herein with regard to the
maintainability of the petition filed under Section 9 of the
Arbitration Act as there is no arbitration agreement between
the appellant and respondent no.1. Mr.Srivastava, learned
Senior Counsel has also contended that the appellant did not
have any opportunity to bring to the notice of the learned
Single Judge that the appellant is undergoing a Strategic Debt
Restructuring in terms of the guidelines issued by the RBI in
order to revive the company and in view thereof a direction to
give an undertaking not to alienate the assets till the pendency
of this petition would cause serious prejudice to the rights of
the appellant. Moreover, the moveable and immoveable
properties of the appellant are either mortgaged or a subject
matter of a charge to the financial institutions.
After some hearing, it is agreed that the first part of the
directions as far as it relates to filing of an affidavit disclosing
the assets i.e. moveable and immoveable properties are
concerned, the same would be filed and with respect to the
second direction the appellant would seek variation of the
impugned order. The learned Senior Counsel also prays that
this Court should clarify that the order dated 06.12.2017 is
only an interim order and only a prima facie view was taken
by the Court and the Section 9 petition would be heard
uninfluenced by the observations made in the order dated
06.12.2017 and parties would be free to raise all grounds
including legal objections at the time of final hearing.
Mr.Sandeep Sethi and Mr.Akhil Sibal, learned Senior
Counsels appearing for respondents no.1 and 2 respectively,
on instructions, submit that the order dated 06.12.2017 is an
interim order and only a prima facie view has been taken
which is also reflected in the impugned order and they would
have no objection if both the parties are heard on all grounds
available to them at the time of hearing.
Mr.Srivastava, learned Senior Counsel appearing for the
appellant submits that in view of the above observations, he
does not wish to press the present appeal, however, he prays
that liberty be granted to the appellant to approach the learned
Single Judge seeking early hearing in the matter and also for
modification of the order dated 06.12.2017."
6. The appellant herein, post the passing of the aforesaid order, filed an
application being I.A.864/2018 seeking modifications/variation of the
order dated 06.12.2017.
7. Mr. Srivastava, learned Senior Counsel appearing for the appellant
submits that the aforesaid application was listed on 19.01.2018 and
has been adjourned for 05.02.2018 without any opportunity of hearing
to the appellant. The apprehension of the appellant is that since part of
the order dated 06.12.2017 has not been complied with, the learned
Single Judge may not hear I.A.864/2018. Moreover, the respondent
has issued a notice informing the appellant that non-compliance of the
order would amount to contempt of Court.
8. Mr. Sethi, learned Senior Counsel who appears for the caveator
submits that no appeal is maintainable and the apprehension of the
appellant is unfounded as the respondents had not filed any application
under Order XXXIX Rule 2A CPC. Mr. Sethi also submits that the
application is listed for hearing on 05.02.2018 and thus, there would
be no reason for this Court to interfere with the order passed by the
learned Single Judge.
9. We have heard the learned Senior Counsels for the parties. The
reading of the order dated 19.01.2018 leaves no room for doubt that
the learned Single Judge was conscious of the order passed by this
Court on 21.12.2017 which is evident from the fact that the learned
Single Judge has fixed I.A.864/2018 on 05.02.2018, although the main
petition was is listed for 10.04.2018, which date has been cancelled by
the learned Single Judge.
10. At this stage, both the parties submit that they would not seek an
adjournment on 05.02.2018 when the matter is listed before the
learned Single Judge.
11. Accordingly, with the consent of both the parties, the present appeal is
disposed of with the following agreed directions:
(i) Parties would not seek an adjournment before the learned
Single Judge when the matter is listed on 05.02.2018 for
hearing;
(ii) Parties would be at liberty to raise all legal objections as
available to them, in accordance with law.
12. The appeal stands disposed of in above terms.
CM.APPL 4051/2018(stay)
13. The applications stand disposed of in view of the order passed in the
appeal.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
FEBRUARY 02, 2018
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