[Cites 7, Cited by 0]
Delhi High Court
Jlt Energy 9Sas vs Hindustan Cleanenergy Limited & Ors on 15 April, 2026
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:27.01.2026
Judgment pronounced on: 15.04.2026
Judgment uploaded on: 15.04.2026
+ FAO(OS) (COMM) 14/2026, CM APPL. 5068/2026, CM
APPL. 5069/2026, CM APPL. 5070/2026 and CM APPL.
5071/2026
JLT ENERGY 9SAS .....Appellant
Through: Mr. Rajshekhar Rao, Sr. Adv.
with Mr. V.P. Singh, Ms.
Meherunissa Anand, Mr. Asif
Ahmed, Ms. Shailja Rawal, Mr.
Suneel Kumar and Ms. Khushi
Mittal, Advs.
versus
HINDUSTAN CLEANENERGY LIMITED & ORS.
.....Respondents
Through: Mr. Jayant Mehta, Sr. Adv.
with Mr. Atul Shanker Mathur,
Mr. Prabal Mehrotra, Mr.
Shubhankar and Mr. Pallav
Arora, Advs.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
ANIL KSHETARPAL, J.
1. Through the present Appeal under Section 37(1)(b) of the
Arbitration and Conciliation Act, 19961, the Appellant (Petitioner
before the learned Single Judge) assails the correctness of the
Judgment and Order dated 06.01.2026 [hereinafter referred to as
A&C Act
„Impugned Order‟], whereby the learned Single Judge dismissed the
petition filed by the Appellant under Section 92 of the A&C Act
[hereinafter referred to as „Section 9 Petition‟], on the ground that
non-fulfillment of Conditions Precedent („CPs‟) and Pre-Closing
Actions(„PCAs‟) within the Share Purchase Agreements [hereinafter
referred to as „SPAs‟] led to its termination, therefore, leaving no
ground for its specific performance.
2. Herein, the Appellant contends that the learned Single Judge,
dismissed the Section 9 Petition on the ground of termination of the
SPAs. The learned Single Judge held that the Appellant failed to prove
that the CP was successfully converted into Condition Subsequent
(„CS‟), which led to the invocation of the automatic termination
clause.
3. Accordingly, the issue that falls for consideration before this
Court is whether the Appellant is entitled to a prohibitory injunction
restraining the Respondents from creating any third-party rights or
interests in assets and securities except as provided in the SPAs.
FACTUAL MATRIX:
4. In order to comprehend the issues involved in the present case,
relevant facts in brief are required to be noticed.
5. The Appellant, JLT Energy 9 SAS, is a company incorporated
under the laws of France belonging to a multinational group,
Technique Solaire, engaged in the business of developing renewable
Section 9
energy projects. The Respondent Nos.1 and 2 are Hindustan
Cleanenergy Ltd. and Peridot Power Ventures Pvt. Ltd., respectively,
and collectively own 100% shareholding in Respondent Nos.3 and 4
companies, which own and operate ground-mounted solar power
projects in the State of Tamil Nadu and Bihar, respectively.
6. On 31.12.2024, the Appellant executed two SPAs with the
Respondents for the acquisition of two solar power projects in Tamil
Nadu and Bihar [hereinafter referred to as „Tamil Nadu SPA‟ and
„Bihar SPA‟, respectively]. Schedule VII of the Bihar SPA stipulates
that the Closing of the Tamil Nadu SPA constitutes a CP to the
Closing of the Bihar SPA. Therefore, fulfilment of the Tamil Nadu
SPA [hereinafter referred to as „Agreement‟] was critical for this
composite transaction to come to fruition.
7. The parties had mutually agreed to complete their respective
CPs as set out in Clause 5, read with Schedule VII of the SPAs, before
the Closing Long Stop Date („CLSD‟), i.e., 30.04.2025. Clause 11 of
Part A of Schedule VII constitutes the genesis of the dispute, requiring
the Respondents to convert the project land to the non-agricultural
category [hereinafter referred to as „NA Conversion Condition‟]. It is
also agreed as per the terms of the SPAs that should there be anon-
fulfilment of the CPs of the Agreement, Clause 5.6 would come into
effect, leading to termination of the Agreement.
8. Where the parties could not resolve a dispute within a period of
30 business days, then it has to be resolved as per Clause 16.2(b)-(c)
of SPAs for resolution by arbitration. The arbitration was to be
administered by the Singapore International Arbitration Centre
(„SIAC‟) in accordance with the Arbitration Rules of SIAC
[hereinafter referred to as „SIAC Rules‟]. The Appellant invoked the
arbitration clause on 07.08.2025 by filing an Emergency Relief
Application before the SIAC, which ultimately culminated in the order
dated 27.08.2025 and Emergency Award/Order dated 28.08.2025, in
favour of the Appellant. The Emergency Arbitrator issued a
prohibitory injunction restraining the Respondents from, directly or
indirectly, creating any third-party rights or interests in the assets or
securities of the third Respondent or the fourth Respondent, except as
expressly permitted under the SPAs or with Appellant‟s prior written
consent. On 18.12.2025, upon the constitution of the main arbitral
tribunal, the injunction has been continued until further orders.
9. The Appellant filed the Section 9 Petition, bearing O.M.P.(I)
(COMM.) 464/2025, seeking a prohibitory injunction against the
Respondents to enforce the relief granted by the Emergency Arbitrator
effectively. However, the learned Single Judge rendered a finding that
the SPAs stood terminated, and refused to issue an injunction against
the Respondents on the following grounds:
i. The amendment agreement, which sought to convert the NA
Conversion Condition into a CS and extend the CLSD, was non-
binding because the parties did not execute it.
ii. The parties could not have extended the CLSD via e-mail, as
such an extension did not comply with the agreed procedure for
amending the CLSD.
iii. Since the NA Conversion Condition remained a CP and CLSD
was not extended, the Agreement was automatically terminated as
provided under Clause 5.6, and issuing an injunction would have
amounted to reviving the SPAs, contrary to the parties‟ commercial
understanding.
iv. Even if the Agreement were not terminated, a relief of specific
performance would entail implications for the government authorities
rather than the Respondents, who are not privy to the Agreement.
v. The Appellant failed to meet the standard of establishing a
prima facie case in its favour, thus, no injunction can be granted.
10. Aggrieved by the dismissal of the Section 9 Petition, the present
Appeal has been preferred by the Appellant.
CONTENTIONS OF THE PARTIES:
11. Heard learned Senior Counsel for the parties at length and, with
their able assistance, perused the paperbook.
12. Learned Senior Counsel representing the Appellant has
submitted as follows:
i. The SPAs are not inherently determinable under Section 14(d)3
of the Specific Relief Act, 19634, as held by the Supreme Court in
K.S. Manjunath v. Moorasavirappa5.
Section 14(d)
SRA
2025 SCC OnLine SC 2378
ii. Grant of specific performance would not amount to compelling
the local government authority to grant an approval, as held in
Solitaire BTN Private Limited v. The Executive Officer, Gram
Panchayat & Ors.6.
iii. The learned Single Judge, by deciding issues pending before the
Arbitral Tribunal and holding that the SPAs are incapable of specific
performance, has effectively rendered the arbitration infructuous.
iv. The SPAs continue to subsist and have not automatically
terminated. Reliance is placed upon the judgment of a Co-Ordinate
Bench of this Court in Upma Khanna v. Tarun Sawhney7.
v. The Respondents have failed to take best efforts to achieve
fulfillment of CPs, particularly the NA Conversion Condition.
vi. The learned Single Judge ignored the parties‟ contemporaneous
conduct showing conversion of the NA Conversion Condition from a
CP to a CS, and wrongly read Clause 17.5 as mandatory for such
conversion and for extension of the CLSD. Further, it has been
incorrectly concluded that Clause 5.8.3 is inapplicable for the
extension of CLSD without providing any reason.
vii. The learned Single Judge has failed to consider that the
Respondents deliberately delayed the completion of the trigger
automatic termination of the SPAs.
2012 SCC OnLine Del 2716
viii. Lastly, the learned Single Judge has erred in not considering the
findings of the Emergency Award/Order.
13. Per contra, learned Senior Counsel representing the
Respondents has submitted as follows:
i. The scope of interference under Section 37 of the A&C Act8 is
minimal. Even though this Court may find that another view is
possible, the interference is not called for.
ii. The SPAs were conditional upon fulfilment of the CP within the
CLSD and stood automatically terminated under Clause 5.6 upon
failure thereof. No obligation to extend the CLSD was contemplated.
The Appellant‟s prayer for interim relief seeks to rewrite the agreed
commercial bargain.
iii. The edifice of the Appellant‟s case rests on unsubstantiated
allegations of breach on the part of the Respondents, which have been
rightly rejected by the learned Single Judge in the Impugned Order.
iv. The learned Single Judge has correctly held that the Executive
Officer, Gangavarpatti Town Panchayat, was the competent local
authority to be approached for NA conversion.
v. The Appellant‟s allegation that the Respondents acted
dishonestly in pursuing the Tehsildar certificate is untenable. A
perusal of the emails dated 29.01.2025 and 30.01.2025 demonstrates
that the conduct complained of, if anything, reflects adversely on the
Appellant rather than the Respondents.
Section 37
14. No other submissions were advanced by learned Senior Counsel
representing the parties.
ANALYSIS AND FINDINGS
15. It is by now well settled that the jurisdiction exercised by this
Court under Section 37 is narrow and circumscribed. An Appeal under
the said provision does not contemplate a rehearing on merits, nor
does it permit re-appreciation of facts as if this Court were exercising
original jurisdiction. Interference is warranted only where the
discretion exercised by the court below is demonstrated to be
arbitrary, perverse, manifestly illegal, or in disregard of the settled
principles governing the grant or refusal of interim measures.
16. Even where another view is possible on the same set of facts,
that circumstance alone does not justify appellate interference. The
law consistently discourages the substitution of judicial discretion
merely because the appellate court may be inclined to take a different
view. Such restraint is of particular significance in matters arising out
of commercial contracts between sophisticated parties, where
certainty, predictability, and adherence to contractual allocation of risk
form the bedrock of arbitration jurisprudence.
17. The Supreme Court, in Somdatt Builders NCC NEC (JV) v.
National Highway Authority of India9, has reiterated that while
exercising appellate jurisdiction under Section 37, courts must refrain
from undertaking an interpretative exercise of contractual terms,
particularly where the court of first instance has adopted a plausible
and reasoned construction. Though rendered in the context of an
Appeal under Section 37 arising from a Section 34 proceeding, the
principle of appellate restraint applies with equal force to Appeals
emanating from orders under Section 9.
18. Guided by the aforesaid principles, we now proceed to examine
the Impugned Order and the rival contentions of the parties, strictly
within the confines of the limited appellate jurisdiction vested in this
Court.
I. Nature of the Transaction and Interdependence of the SPAs
19. The factual backdrop of the case is largely undisputed. The
SPAs were executed as part of a composite and interlinked
commercial transaction for the acquisition of solar power projects
situated in the States of Tamil Nadu and Bihar.
20. The intrinsic linkage between the two SPAs is evident from the
express stipulation in the SPAs, which provides that the closing of the
Tamil Nadu SPA constitutes a CP to the closing of the Bihar SPA.
The contractual scheme, therefore, leaves no doubt that the
agreements were not intended to operate independently but were
designed as constituent parts of a single, integrated transaction. The
failure of one agreement was contractually contemplated to have a
determinative impact on the other.
21. In such cases, the Courts exercising jurisdiction under the A&C
Act must be slow to dilute or reconfigure such consciously negotiated
commercial structures. The role of the Court is to give effect to the
bargain struck between the parties, and not to remodel the contractual
framework under the guise of interim protection.
II. Contractual Architecture: CPs, CLSD& Consequences
22. Clause 5 of the SPAs, read with Schedule VII, meticulously
enumerates that the CPs and PCAs are required to be fulfilled prior to
CLSD. Clause 11 of Part A of Schedule VII requires conversion of the
project land from agricultural to non-agricultural use, i.e., NA
Conversion Condition.
23. The significance of this condition is evident from the fact that
land-use conversion is fundamental to the viability, financing, and
regulatory compliance of a solar power project. The parties
consciously treated it as a CP and tied its fulfillment to the CLSD. The
original CLSD was fixed as 30.04.2025 and was thereafter extended
once, by mutual consent, till 31.05.2025.
24. Clause 5.6 of the SPAs provides that failure to fulfill the CP on
or before the CLSD would result in automatic termination of the
Agreement. The language employed is clear, unambiguous, and self-
operative, leaving no discretion with either party or the Court once the
stipulated event occurs.
III. Alleged Conversion of CP into CS and Extension of CLSD
25. The central plank of the Appellant‟s challenge rests on the
assertion that the NA Conversion Condition, though originally
stipulated as a CP, stood converted into a CS. It is contended that such
conversion arose either from the contemporaneous conduct of the
parties or from a mutual understanding reflected in inter se
correspondence and a draft amendment circulated between them.
26. The aforesaid contention has been examined in detail by the
learned Single Judge and, in the considered view of this Court, rightly
rejected. Clause 17.5 of the SPAs unequivocally mandates that any
amendment or modification of the Agreement must be in writing and
executed by all parties. Clause 17.10 further stipulates that any
waiver, relaxation, or forbearance in respect of contractual obligations
must be express and in writing. These provisions are not procedural
formalities but embody a deliberate commercial choice, consciously
incorporated to exclude informal, implied, or unilateral variations.
27. The material relied upon by the Appellant falls manifestly short
of these contractual requirements. The draft amendment remained
unsigned and was expressly circulated only for discussion purposes.
The email exchanges, even when read cumulatively and in the manner
most favourable to the Appellant, do not evince any concluded
agreement in accordance with the SPAs. To accord binding effect to
such material would be to disregard the express contractual
mechanism agreed upon by the parties.
28. The reliance placed by the Appellant on Clause 5.8.3 to contend
that the CLSD stood extended, or that the CP stood converted into a
CS, through correspondence is equally untenable. Clause 5.8.3 cannot
be read in isolation so as to dilute or override the mandatory
requirements stipulated under Clause 17.5. The SPAs must be
construed as a cohesive whole, and any interpretation which renders
one provision otiose or nugatory is impermissible in law.
29. In this backdrop, the learned Single Judge was justified in
holding that the NA Conversion Condition continued to operate as a
CP and that, in the absence of a validly executed amendment, the
CLSD was never extended beyond 31.05.2025. The said finding is a
plausible and reasoned conclusion drawn from the contractual text and
the material on record and does not warrant interference.
IV. Automatic Termination and the Question of Fault
30. Having held that the NA Conversion Condition was
contractually stipulated as a CP, that it was never validly converted
into a CS, and that it remained unfulfilled within the extended CLSD,
the legal consequence flowing from such non-fulfillment must now be
examined. The SPAs leave no ambiguity in this regard. Clause 5.6
expressly provides that failure to fulfill the CPs on or before the
CLSD would result in automatic termination of the Agreement.
31. The operation of Clause 5.6 is self-executing. Upon non-
fulfillment of the CPs within the stipulated timeline, the Agreement
stood terminated by operation of contract, without requiring any
further act, election, or declaration by either party. Once such
automatic termination is triggered, the contractual relationship
between the parties stands extinguished in all practical respects,
subject only to any consequences that may survive termination.
32. The Appellant has sought to avoid this consequence by
contending that the non-fulfillment of the NA Conversion Condition
was attributable to lack of best efforts, delay, and dishonest conduct
on the part of the Respondents.
33. Firstly, the Appellant‟s allegation that the Respondents failed to
exercise "best efforts" to obtain the NA Conversion is wholly
unsubstantiated. The Agreement does not cast an exclusive or absolute
obligation upon the Respondents to secure such conversion, nor does
it prescribe any fixed timeline or standard beyond reasonable
cooperation. In the absence of a clear contractual breach, a vague
assertion of inadequate effort cannot be sustained.
34. Secondly, the plea of delay on the part of the Respondents is
equally misconceived. The material on record does not demonstrate
any deliberate or attributable delay that could be characterised as a
breach of contract. On the contrary, the correspondence indicates that
the process of NA conversion was subject to statutory authorities and
external contingencies, for which the Respondents could not be
faulted.
35. Thirdly, the allegation of dishonest conduct or mala fides on the
part of the Respondents is not only unsupported by evidence but is
also conspicuously absent from the foundational pleadings. Such
serious imputations cannot be sustained on mere inference or
conjecture, particularly in commercial contracts. The learned Single
Judge has rightly observed that no material whatsoever was placed on
record to substantiate this charge.
36. Lastly, the Appellant‟s attempt to attribute the non-fulfillment
of the NA Conversion Condition exclusively to the Respondents,
overlooks its own contractual rights and obligations. Even assuming
that the act of obtaining NA Conversion was ministerial in nature,
nothing prevented the Appellant from itself taking ownership of the
process and proceeding towards closure. The Appellant‟s inaction
cannot be recast as a breach by the Respondents.
37. Further, the allegation that the Respondents deliberately delayed
completion of the CPs by undertaking internal restructuring is an
afterthought. The record shows that such restructuring was carried out
with prior intimation to, and with the knowledge and consent of, the
Appellant.
38. Therefore, the learned Single Judge has correctly found that this
premise is neither contractually nor factually supported. We find no
reason to interfere with the well-reasoned conclusion that the
allegations of breach are an afterthought, raised only to evade the
contractual consequences of non-fulfillment of CPs.
39. Further, at the stage of proceedings under Section 9, this Court is
required neither to undertake a detailed enquiry into disputed
questions of fact nor to record findings on allegations of breach, mala
fides, or fault. More fundamentally, Clause 5.6 does not predicate
termination upon attribution of fault. The contractual scheme clearly
indicates that the parties treated time-bound fulfillment of the CPs as
fundamental to the transaction, and consciously agreed that failure
thereof would bring the Agreement to an end, irrespective of the
reasons for such failure.
40. To accept the Appellant‟s submission would be to read into
Clause 5.6 a fault-based exception which the parties themselves did
not incorporate. Such an approach would amount to rewriting the
contractual bargain and converting a time-bound conditional
transaction into an open-ended arrangement, contrary to the express
terms of the SPAs and the commercial intent underlying them.
41. Furthermore, the judgments relied upon by the Appellant
pertain to agreements for sale of immovable property and proceed on
the settled principle that time is ordinarily not of the essence in such
contracts. Those authorities are clearly distinguishable and have no
application to the present case, which concerns the sale of equity
shares, i.e., movable property, in going concerns, with only an
ancillary CP relating to land-use conversion of immovable property
owned by the Respondents. Moreover, having regard to the structure
of the SPAs, including the Lockbox mechanism and the automatic
termination clause, time was expressly and unequivocally of the
essence for completion of the transaction.
42. The Appellant‟s reliance on Upma Khanna (supra) is
misconceived. The said decision arose at an interlocutory stage, where
injunctive relief was granted on a prima facie finding that the sellers,
despite receipt of confirmation from the competent authority, had
deliberately declined to proceed with the transaction. Significantly, the
said prima facie view did not survive final adjudication, and the suit
for specific performance was ultimately dismissed vide RFA(OS)
34/2019 by this Court. In contrast, the Respondents herein have placed
material on record evidencing bona fide and continuous efforts to
obtain NA Conversion, which has not been granted to date for reasons
beyond their control. The factual and legal premise of Upma Khanna
(supra) is thus wholly absent, and the Appellant has failed to establish
any breach on the part of the Respondents.
43. In the aforesaid backdrop, the learned Single Judge was
justified in holding that, upon non-fulfilment of the NA Conversion
Condition within the extended CLSD, the Agreement stood
automatically terminated by operation of Clause 5.6 of the SPAs. The
rejection of the Appellant‟s fault-based challenge is founded on a
correct appreciation of the contractual scheme, which does not
predicate termination upon attribution of breach or mala fides.
V. The Alleged Infructuousness of Arbitration
44. The Appellant has contended that the refusal of interim
protection under Section 9 renders the arbitration infructuous and
amounts to a pre-judging of issues pending before the arbitral tribunal.
The submission proceeds on the premise that unless interim protection
is granted, the arbitral proceedings would be reduced to a mere
academic exercise.
45. The jurisdiction conferred upon the Court under Section 9 is
well recognised to be protective and ancillary in nature. The object of
Section 9 is to preserve the subject matter of arbitration and to
safeguard the rights of parties pending adjudication. Pertinently, the
aforesaid provision does not operate in a vacuum; rather, it proceeds
on the foundational requirement that a subsisting and enforceable right
exists which is capable of protection by way of interim measures.
46. Where, upon a prima facie examination of the contractual
framework and the material placed on record, the Court arrives at the
conclusion that the underlying Agreement has ceased to subsist, the
jurisdiction under Section 9 cannot be invoked to grant interim relief
so as to resurrect or revive a terminated contract. Grant of interim
protection in such circumstances would amount to granting final relief
in the guise of an interim measure and would run contrary to the
settled principles governing Section 9.
47. In the present case, the learned Single Judge, after a careful
examination of the SPAs and the material on record, found that the
Agreement stood automatically terminated upon non-fulfilment of the
CPs within the CLSD. Once such a prima facie finding was returned,
the refusal to grant interim protection was a natural and logical
consequence. The contention that the Court ought nevertheless to have
granted interim relief would require the Court to proceed on the
assumption that the Agreement continued to subsist, despite a contrary
prima facie finding.
48. We also find no merit in the submission that the learned Single
Judge has pre-judged or foreclosed the issues pending before the
arbitral tribunal. The Court has not rendered any final or conclusive
determination on the merits of the disputes between the parties. The
examination undertaken was limited to ascertaining whether, as on the
date of filing of the Section 9 Petition, there existed a subsisting
Agreement capable of enforcement. Such an enquiry is inherent in the
exercise of jurisdiction under Section 9 and does not trench upon the
adjudicatory domain of the arbitral tribunal.
49. It bears emphasis that the arbitral tribunal remains free to
adjudicate upon all disputes raised by the parties in accordance with
law, including issues relating to breach, fault, and consequences
thereof. The refusal of interim protection under Section 9, founded on
a prima facie view as to non-subsistence of the Agreement, does not
denude the arbitral tribunal of its jurisdiction nor render the arbitral
proceedings infructuous.
50. In this backdrop, this Court is of the opinion that the learned
Single Judge was justified in holding that no case for the grant of
interim protection under Section 9 was made out. The conclusion that
interim relief could not be granted in the absence of a subsisting
Agreement is a reasoned and legally sustainable view, consistent with
the limited and ancillary nature of Section 9 jurisdiction.
VI. Allegations of Approaching Incorrect Authorities
51. The contention that the Respondents approached the wrong
authority for NA Conversion is untenable. The learned Single Judge
has rightly held that the Executive Officer, Gangavarpatti Town
Panchayat was the competent authority, a position reinforced by the
Madras High Court‟s judgment directing the very same authority to
issue the NA Conversion. The Respondents‟ repeated representations
to the said authority during the subsistence of the SPAs and the agreed
extension establish bona fide and diligent efforts.
52. Further, the allegation that approaching the Tehsildar was
dishonest is equally misconceived. The contemporaneous
correspondence shows that such steps were taken with the Appellant‟s
knowledge and were even suggested as an interim measure to
facilitate closing. The Appellant‟s shifting and contradictory positions
render the allegation wholly unsustainable.
VII. Specific Performance and Statutory Approvals
53. Further, the learned Single Judge has rightly held that even
assuming the SPAs had subsisted, the relief sought by the Appellant
would, in effect, amount to enforcing contractual obligations
contingent upon the grant of statutory approval. The NA Conversion
Condition was dependent upon the discretion of the competent
authority, namely the Executive Officer, Gangavarpatti Town
Panchayat, and was not within the control of either party. Despite
persistent efforts and repeated communications by the Respondents
over several months, the NA Conversion was not granted,
demonstrating that such approval was not a matter of course.
54. Grant of interim protection in such circumstances would
necessarily require the Court to presume that the statutory approval
would be forthcoming, or to indirectly compel steps leading to such
approval. Such an approach is impermissible. As held by the Supreme
Court in Nand Kishore Lalbhai Mehta v. New Era Fabrics10, where
(2015) 9 SCC 755
performance of a contract is subject to grant of permission by a
statutory authority and such permission is not obtained, the contract
cannot be specifically enforced and the purchaser‟s remedy, if any,
lies elsewhere. The principle applies a fortiori in the present case,
where no consideration has been paid and the SPAs contain an
automatic termination clause which has admittedly taken effect.
55. The position is further reinforced by the decision of the
Supreme Court in Puravankara Projects Ltd. v. Hotel Venus
International Ltd.11, which holds that where an agreement is subject
to governmental permission, failure to obtain such permission renders
the agreement unenforceable. This is also consistent with the settled
principle noted in Chitty on Contracts that an obligation subject to a
CP not within the control of the parties will not be specifically
enforced before the condition occurs.
56. Further, Solitaire BTN Solar (supra) does not establish that NA
Conversion is automatic or inevitable, as borne out by the admitted
fact that permission has not been granted in the present case despite
sustained efforts. Nirmala Anand (supra) turned on a change in law
and the express willingness of the statutory authority to grant
approval, neither of which exists here. Furthermore, that case did not
involve an automatic termination clause. K.S. Manjunath (supra)
deals with contracts that are inherently determinable within the
meaning of Section 14(d). The present case, however, does not turn on
inherent determinability but on an express contractual stipulation
providing for automatic termination upon the occurrence of specified
(2007) 10 SCC 33
contingencies. The ratio of the aforesaid decisions, therefore, has no
application to the facts at hand.
57. The SPAs expressly provided for automatic termination upon
non-fulfillment of CP within the agreed timelines. The contracts thus
came to an end by operation of their own terms, and not on account of
any breach or bad faith attributable to the Respondents. In the absence
of any breach, the question of reviving a self-terminated contract or
granting specific performance, even at a prima facie stage, does not
arise.
58. In this backdrop, the learned Single Judge was justified in
holding that no interim relief in the nature of specific performance
could be granted in respect of obligations contingent upon uncertain
statutory approvals.
VIII. Consideration of Emergency Award/Order and its findings
59. The Appellant has urged that the learned Single Judge erred in
not according due weight to the Emergency Award/Order. At the
outset, it is necessary to delineate the source and scope of such an
Award/Order. The Emergency Award/Order in the present case
emanates from the parties‟ agreement to arbitrate under the SIAC
Rules and derives its authority from the contractual adoption of those
rules. The powers exercised by an Emergency Arbitrator are,
therefore, procedural in nature and traceable to the institutional
framework agreed between the parties, and not to the A&C Act.
60. Significantly, Clause 16.1 of the SPAs expressly provides that
the Agreement shall be governed by Indian law and that the courts at
New Delhi shall have exclusive jurisdiction, subject to arbitration. The
legal consequence of this stipulation is that questions relating to the
subsistence, enforceability, or termination of the SPAs, as also the
grant of interim measures, must necessarily be examined in
accordance with Indian substantive law and the statutory framework
under the A&C Act. The SIAC Rules, including the standards applied
by an Emergency Arbitrator, cannot displace or dilute the jurisdiction
of Indian courts exercising powers under Section 9.
61. It is in this backdrop that the role of the Emergency
Award/Order falls to be considered. As recorded in the Impugned
Order and fairly acknowledged by learned Senior Counsel for the
Appellant, the entitlement to interim relief under Section 9 must be
independently established before the Court, irrespective of any interim
order passed by the arbitral tribunal. A Co-Ordinate Bench of this
Court in Raffles Design International (India) (P) Ltd. v. Educomp
Professional Education Ltd12 has authoritatively held that an
Emergency Award/Order does not bind the Court under Section 9,
which is required to apply its own mind to the material on record and
assess the prayer for interim relief in accordance with Indian law.
62. In the present case, the Emergency Arbitrator granted relief at a
preliminary stage on the basis of a "reasonably arguable" case, while
expressly recording that the determination was based on a limited
evidentiary record and that the merits of the dispute would be
(2016) SCC OnLine Del 5521
examined by the regular arbitral tribunal. The Emergency
Award/Order thus proceeded on a lower threshold, tailored to the
exigencies of emergency relief under the SIAC framework, and was
accompanied by explicit caveats as to its tentative nature.
63. When the Appellant‟s prayer is examined on the touchstone of
the settled principles governing grant of injunctions under Indian law,
it becomes evident that the essential requirements are not satisfied.
First, in view of the prima facie finding that the SPAs stood
automatically terminated upon non-fulfillment of the CPs within the
CLSD, no subsisting contractual right capable of protection by way of
interim injunction has been demonstrated. Section 9 jurisdiction
cannot be invoked to preserve or enforce rights arising from a contract
which has, prima facie, ceased to subsist.
64. Secondly, the balance of convenience does not lie in favour of
the Appellant. The interim relief sought would continue wide-ranging
restraints over assets and securities valued at approximately USD 12
million, notwithstanding that no consideration has been paid and the
transaction itself failed to close within the agreed timelines. Grant of
such relief would impose disproportionate commercial and operational
burdens upon the Respondents, while effectively conferring upon the
Appellant the benefits of the transaction without performance of its
reciprocal obligations.
65. Thirdly, the Appellant has failed to demonstrate any irreparable
injury warranting interim protection. The SPAs contemplate monetary
consequences upon termination, and any alleged loss suffered by the
Appellant is capable of being adequately compensated in damages. As
emphasised by the Supreme Court in Colgate Palmolive Ltd. v.
Hindustan Lever Ltd.13, interlocutory injunctions are not to be granted
merely on assertions of apprehended injury, but only where the
cumulative requirements of prima facie case, balance of convenience,
and irreparable harm are satisfied.
66. In these circumstances, the Emergency Award/Order, founded
on a lower and provisional standard and rendered without the benefit
of the complete evidentiary record available before the Court in the
Section 9 proceedings, could not govern or dictate the outcome of the
Appellant‟s case. The learned Single Judge rightly proceeded on a
fuller record, applied the correct statutory and equitable principles,
and declined interim relief.
CONCLUSION:
67. In view of the foregoing discussion, this Court finds no
perversity, illegality, or jurisdictional infirmity in the Impugned
Order. The SPAs stood automatically terminated upon non-fulfillment
of the CP within the CLSD, and the Appellant has failed to establish
any subsisting right warranting protection by way of an interim
injunction.
68. The interim relief sought would, in effect, extend contractual
restraints, originally limited to a defined period, throughout the
pendency of the arbitral proceedings, without payment of any
consideration, in respect of assets valued at approximately USD 12
(1997) 7 SCC 1
million. Grant of such relief would impose disproportionate and
irreparable commercial burdens upon the Respondents, wholly
unwarranted in the facts of the present case.
69. At the same time, the learned Single Judge has adequately
balanced equities by directing the Respondents to deposit a sum of
INR 3 crores, a direction with which the Respondents have duly
complied.
70. Having considered the rival submissions and bearing in mind
the limited scope of appellate interference under Section 37, this Court
finds that the present Appeal is devoid of merit.
71. The learned Single Judge has undertaken a detailed and careful
examination of the facts of the case in the light of the applicable legal
principles while passing the Impugned Order. The analysis of the
terms of the SPAs is thorough and well-reasoned.
72. The Impugned Order is accordingly upheld, and the Appeal
stands dismissed. All pending applications also stand disposed of.
73. It is clarified that the observations contained in this judgment
are confined to the adjudication of the present proceedings and shall
not influence the determination of the disputes on merits by the
arbitral tribunal.
ANIL KSHETARPAL, J.
AMIT MAHAJAN, J.
APRIL 15, 2026/sp/sh
