Madras High Court

Pi Opportunities Fund - I vs Financial Software And Systems Pvt. Ltd on 22 September, 2025

Author: Abdul Quddhose

Bench: Abdul Quddhose

2025:MHC:2248

Arb.O.P. (Com.Div.) Nos.285, 452 & 453 of 2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 29.08.2025

Pronounced on : 22.09.2025

CORAM:

THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

Arb.O.P. (Com.Div.) Nos.285, 452 & 453 of 2024
and
A.Nos.3748, 3749, 3750, 3752, 3754, 4969, 5209, 5211 to 5213, 5215,
5216, 5563, 5565, 5569, 5571, 5607, 6056 & 6059 of 2024, 161, 2563 &
2566 of 2025
and
O.A. Nos.501 to 503, 815 & 816 of 2024

Arb.O.P. (Com.Div.) No.285 of 2024:

PI OPPORTUNITIES FUND - I,
Having its address at #134, Doddakannelli,
Next to Wipro Corporate Office, Sarjapur Road,
Bangalore, Karnataka - 560 035.
Rep. by its autorized signatory
Mr. Vardaan Ahluwalia ... Petitioner

Vs.

1. FINANCIAL SOFTWARE AND SYSTEMS PVT. LTD.,
A Company registered under the Companies Act, 1956,
Having its address at "Saradha",
Ground Floor No.42, Third Main Road,
Gandhi Nagar, Adyar, Chennai, Tamil Nadu - 600 020,
Rep. by its Directors.

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2. NAGARAJ V. MYLANDLA
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

3. SHARADA MYLANDLA,
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

4. RUDHRAAPATHY J
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

5. FSS Employees' Welfare Trust,
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020. ... Respondents

Prayer: This Petitions is filed under Sections 47 to 49 of the Arbitration
and Conciliation Act, seeking for the following reliefs:
a. Declare that the Final Award dated 05.07.2024, passed in SIAC
Arbitration No. 098 of 2022 under the SIAC Rules by the Arbitral
Tribunal comprising Ms Koh Swee Yen SC (Presiding Arbitrator), Mr
David Joseph KC and Mr Ramakrishnan Viraraghavan SC is enforceable
in accordance with Sections 47 and 49 of the Act and deem it to be a
decree of this Hon'ble Court;
b. Direct Respondent Nos. 2 and 3 to jointly and severally pay an
amount of INR 6,614,000,000 as damages, together with interest at
5.33% p.a. from the date of the Final Award until the date of the full and
final payment;
c. Direct respondent Nos.2 and 3 to jointly and severally pay pre-

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award interest on the damages amounting to INR 1.063,373,551 together
with interest at 5.33% p.a. from the date of the Final award until the date
of the full and final payment;
d. Direct Respondent Nos. 2 and 3 to jointly and severally pay the
costs amounting to INR 48,834,947.03 + SGD 757,693.22 equivalent to
INR 46,795,133.3 (converted at the rate of 61.76 per SGD as on 5 July
2024) + GBP 32,044.39 equivalent to INR 3,412,365.56 (converted at the
rate of 106.49 per GBP as on 5 July 2024) + USD 128,418.54 equivalent
to INR 10,723,719 (converted at the rate of 83.50 per USD as on 5 July
2024) together with interest at 5.33% p.a. from the date of the Final
Award until the date of the full and final payment;
e. Direct the Respondents to render full cooperation with respect to
any Strategic Sale to be implemented by the Petitioner;
f. Direct Respondent Nos. 2 to 5 to sell their shares pursuant to a
Strategic Sale as implemented by the Petitioner and to distribute the
proceeds in accordance with Annexure 12 of SASHA;
g. costs for the present petition in favour of the Petitioner.

For Petitioner : Mr.Vijay Narayanan, SC
Assisted by
Anuj Berry
Shalaka Patil
Shilpa Singh Sengar
Harash Khanchandani
For P. Giridharan
H. Siddarth
M. Karthik

For Respondents : Mr T.K Bhaskar

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for Fox Mandal & Associates
Assisted By A Revanth
S. Aravindan
K. Yugantara
Counsel for Respondent 1

Nishanth Kadur
Ashish Kabra
Ansh Desai
For P. Rajkumar Jhabakh
Counsel for Respondent 2

Anirudh Krishnan
Adarsh Subramanian
Anuraag Rajagopalan
S.Nivethithaa
Counsel for Respondent 3

S. Eshwar
M/s Aanchal M Nichani
Counsel for Respondent 4

S.S Rajesh
Counsel for Respondent 5

Arb.O.P. (Com.Div.) No.452 of 2024:

MILLENNA FVCI LTD.
Having its address at Apex House, Bank Street,
28, Cybercity, Ebene 72201, Mauritius,
Rep. by its authorized signatory / Power of Attorney,
Mr. Srinivasan Balaraman ... Petitioner

Vs.
1. FINANCIAL SOFTWARE AND SYSTEMS PVT. LTD.,
A Company registered under the Companies Act, 1956,
Having its address at "Saradha",

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Ground Floor No.42, Third Main Road,
Gandhi Nagar, Adyar, Chennai, Tamil Nadu - 600 020,
Rep. by its Directors.

2. NAGARAJ V. MYLANDLA
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

3. SHARADA MYLANDLA,
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

4. RUDHRAAPATHY J
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

5. FSS Employees' Welfare Trust,
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020. ... Respondents

Prayer: Petitions filed under Sections 47 to 49 of the Arbitration and
Conciliation Act, seeking for the following reliefs:
a. Declare that the Final Award dated 05.07.2024, passed in SIAC
Arbitration No. 098 of 2022 under the SIAC Rules by the Arbitral
Tribunal comprising Ms Koh Swee Yen SC (Presiding Arbitrator), Mr
David Joseph KC and Mr Ramakrishnan Viraraghavan SC is enforceable
in accordance with Sections 47 and 49 of the Act and deem it to be a
decree of this Hon'ble Court;
b. Direct Respondent Nos. 2 and 3 to jointly and severally pay an
amount of INR 2,804,000,000 as damages, together with interest at

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5.33% p.a. from the date of the Final Award until the date of the full and
final payment;
c. Direct respondent Nos.2 and 3 to jointly and severally pay pre-
award interest on the damages amounting to INR 450,816,364.93
together with interest at 5.33% p.a. from the date of the Final award until
the date of the full and final payment;
d. Direct Respondent Nos. 2 and 3 to jointly and severally pay the
costs amounting to INR 130,000 + SGD 300,614.78 + GBP 35,092.94 +
USD 511,154.87 together with interest at 5.33% p.a. from the date of the
Final Award until the date of the full and final payment;
e. Direct the Respondents 1 to 5 to render full cooperation with
respect to any Strategic Sale to be implemented by the Petitioner;
f. Direct Respondent Nos. 2 to 5 to sell their shares pursuant to a
Strategic Sale as implemented by the Petitioner and to distribute the
proceeds in accordance with Annexure 12 of SASHA;
g. costs for the present petition in favour of the Petitioner.
For Petitioner : Mr.Srinath Sridevan, SC
for Suhrith Parthasarathy
Amrutha Sathyajith
G Gayathri
Simran Jalan

For Respondents : Mr T.K Bhaskar
for Fox Mandal & Associates
Assisted By A Revanth
S. Aravindan
K. Yugamtara
Counsel for Respondent 1
Nishanth Kadur
Ashish Kabra
Ansh Desai

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For P. Rajkumar Jhabakh
Counsel for Respondent 2
Anirudh Krishnan
Adarsh Subramanian
Anuraag Rajagopalan
S.Nivethithaa
Counsel for Respondent 3
S. Eshwar
M/s Aanchal M Nichani
Counsel for Respondent 4
S.S Rajesh
Counsel for Respondent 5

Mr.Rahul M.Shankar
for R6 & R7 in A.No.161/25

Arb.O.P. (Com.Div.) No.453 of 2024:

1. NYLIM Jacob Ballas India (FVCI) III LLC,
A Company registered under the laws of Mauritius,
Having its registered address at 4th Floor,
Ebene Heights, 34 Cybercity, Ebene,
Republic of Mauritius - 72201,
Rep. by its Power of Attorney Holder,
Mr. Yogesh Gulati

2. NYLIM Jacob Ballas India Fund III LLC,
A Company registered under the laws of Mauritius,
Having its registered address at 4th Floor,
Ebene Heights, 34 Cybercity, Ebene,
Republic of Mauritius - 72201,
Rep. by its Power of Attorney Holder,
Mr. Yogesh Gulati ... Petitioners

Vs.

1. FINANCIAL SOFTWARE AND SYSTEMS PVT. LTD.,
A Company registered under the Companies Act, 1956,
Having its address at "Saradha",

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Ground Floor No.42, Third Main Road,
Gandhi Nagar, Adyar, Chennai, Tamil Nadu - 600 020,
Rep. by its Directors.

2. NAGARAJ V. MYLANDLA
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

3. SHARADA MYLANDLA,
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.
4. RUDHRAAPATHY J
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020.

5. FSS Employees' Welfare Trust,
Having residence at "Saradha" Ground Floor No.42,
Third Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu - 600 020. ... Respondents
Prayer: Petitions filed under Section 47 to 49 of the Arbitration and
Conciliation Act, seeking for the following reliefs:
a. Declare that the Final Award dated 05.07.2024, passed in SIAC
Arbitration No. 098 of 2022 under the SIAC Rules by the Arbitral
Tribunal comprising Ms Koh Swee Yen SC (Presiding Arbitrator), Mr
David Joseph KC and Mr Ramakrishnan Viraraghavan SC is enforceable
in accordance with Sections 47 and 49 of the Act and deem it to be a
decree of this Hon'ble Court;

b. Direct Respondent Nos. 2 and 3 to jointly and severally pay an
amount of INR 1870,000,000 as damages, together with interest at 5.33%
p.a. from the date of the Final Award until the date of the full and final

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payment;
c. Direct respondent Nos.2 and 3 to jointly and severally pay pre-
award interest on the damages amounting to INR 30,06,51,427.39
together with interest at 5.33% p.a. from the date of the Final award until
the date of the full and final payment;
d. Direct Respondent Nos. 2 and 3 to jointly and severally pay the
costs amounting to INR 3,576,791 + SGD 202,862.297 equivalent to INR
12,528,775.5 (converted at the rate of 61.76 per SGD as on 5 July, 2024)
+ GBP 33,193.456 equivalent to INR 3,534,771.13 (converted at the rate
of 106.49 per GBP as on 5th July, 2024) + USD 323,860 equivalent to
INR 27,042,342.7 (converted at the rate of 83.50 per USD as on 5th July
2024) together with interest at 5.33% p.a. from the date of the Final
Award until the date of the full and final payment;
e. Direct the Respondents to render full cooperation with respect to
any Strategic Sale to be implemented by the Investors;
f. Direct Respondent Nos. 2 to 5 to sell their shares pursuant to a
Strategic Sale as implemented by the Petitioner and to distribute the
proceeds in accordance with Annexure 12 of SASHA;
g. costs for the present petition in favour of the Petitioner.

For Petitioners : Mr.Adarsh Ramanujan

For Respondents : Mr T.K Bhaskar
for Fox Mandal & Associates
Assisted By A Revanth
S. Aravindan
K. Yugamtara
Counsel for Respondent 1

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Nishanth Kadur
Ashish Kabra
Ansh Desai
For P. Rajkumar Jhabakh
Counsel for Respondent 2

Anirudh Krishnan
Adarsh Subramanian
Anuraag Rajagopalan
S.Nivethithaa
Counsel for Respondent 3
S. Eshwar
M/s Aanchal M Nichani
Counsel for Respondent 4
S.S Rajesh
Counsel for Respondent 5

COMMON ORDER

These petitions have been filed by the respective petitioners

seeking for enforcement of the foreign arbitral award dated 05.07.2024

passed in their favour against the respondents 2 & 3.

2. The first respondent/Financial Software and Systems (FSS) is a

digital payment services company and it has two principal business

divisions, namely, CashTech and PayTech. The respondents 2, 3 and 4

are the founders of the Company. The company carries on business of

providing online, real time, electronic transaction processing and

payment systems including Automated Teller Machines (ATMs), Point of

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Sale terminals (PoS), ATM sharing between banks, international and

domestic interchanges such as MasterCard, Visa and others. The

company also provides payment gateway and other value added service,

such as, mobile top-up, etc.

3. The second respondent is an individual residing in India and a

promoter and the Managing Director of the first respondent company.

The third respondent is the wife of the second respondent and is also a

promoter and Director of the first respondent company. The fourth

respondent is also a promoter of the first respondent company together

with the respondents 2 and 3. The respondents 2, 3 and 4 hold 25.98%,

5.95% and 7.81% of the shareholdings respectively in the first respondent

Company. The fifth respondent is the FSS Employees' Welfare Trust, a

Trust incorporated under the provisions of the Indian Trust Act, 1882.

4. The respective petitioners acquired shares in the first respondent

Company (Financial Software and Systems Pvt. Ltd.) through the Share

Acquisition and Shareholder's Agreement dated 10.10.2014, amended on

01.11.2014 and 02.07.2018 (in short “SASHA”). The dispute between

the petitioners and the respondents arose out of the investors' exit from

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the first respondent Company.

5. Clause 19 of the SASHA contains an exit waterfall mechanism

available to the investors, subject to the applicable laws. Under the

SASHA, the following exit methods were made available to the investors:

a) Qualified Initial Public Offering (QIPO): Efforts to complete

QIPO before the cut-off date of 31.03.2016. If QIPO does not occur: Exit

waterfall mechanism is made available to the investors under clause 19 of

the SASHA. The Qualified Initial Public Offering (QIPO) is an exit route,

where investors sell their shares when the Company lists on a public

stock exchange, subject to agreed threshold or conditions;

b) Exit waterfall:

Stage Description Clause 19.1 (Secondary Sale) Investors may issue Secondary Sale Initiation Notice informing the Company and the Promoters of the Investors decision to require them to find a buyer at or above the Exit Price. Process involves

(i) Joint appointment of an investment banker,

(ii) Investment banker identifies the buyer, and

(iii)Upon identification of the buyer, completion of sale.

Clause 19.2 (Buy-back) If Secondary Sale does not take place, Investors can collectively require Company to buy back their shares, subject to applicable law.

Clause 19.3 (IPO) If Secondary Sale and / or Buy-Back does not yield an exit, Investors have the right but not an

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Stage Description obligation to cause an IPO.

Clause 19.6 (Strategic Sale) If Company fails to provide an exit under Clause read with Clause 24.6 (a) 19, or is in Material Breach, Investors may implement a Strategic Sale.

6. The respective petitioners seek two substantive claims; first,

they seek damages for breach of Clause 19.1 of the SASHA; and the

second, they claim for specific performance of Clause 19.6 of the

SASHA. They state that Clause 19.1 imposes an absolute obligation on

the respondents 2 and 3 to procure a secondary sale, however, the

respondents 2 and 3 breached the absolute obligation as the secondary

sale did not happen. On this basis, the respective petitioners claim

damages to be quantified in a sum equivalent to the exit price. In respect

of specific performance, they assert that their rights under Clause 19.6 of

the SASHA to implement a strategic sale pursuant to Clause 19.6(b)(ii) of

the SASHA owing to alleged material breaches of the SASHA.

7. Before the arbitration, which culminated in passing of the award

in favour of the respective petitioners, the contentions of the respective

petitioners were as follows:

a) Despite numerous efforts over several years

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(including secondary sale attempt), the Company and the

promoters failed to provide an exit to the investors;

b) Scope of obligations under clause 19.1 of the

SASHA: It imposes an absolute obligation to procure a

secondary sale at exit price;

c) A valid secondary sale initiation notice was

issued in the year 2020-21;

d) The correct construction of material breach and

permissible remedies under clause 24.6 is that there was

material breach in not procuring the investors an exit.

8. However, the second and third respondents, who are the main

contesting respondents, raised the following objections before the arbitral

Tribunal to the arbitral claim made by the respective petitioners against

the respondents:

a) No absolute obligation existed under clause

19.1 of the SASHA to provide an exit for the investors.

b) No proper secondary sale notice was issued by

the respective petitioners.

c) The investors had waived their rights by

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participating in the agreed split-sale strategy adopted by

the first respondent Company.

d) Only after invocation of clause 19.3 of SASHA

i.e., if secondary sale and / or buy back does not yield an

exit, clause 19.6 (b) viz., implementation of strategic sale

gets attracted;

e) Liability of the respondents was capped under

clause 22 of SASHA;

f) No valid material for breach of affirmative vote

matters occurred to enable the respective petitioners to

make an arbitral claim against the respondents;

g) The remedies provided under clause 24.6 of the

SASHA were altered and could not be pursued

simultaneously.

9. The arbitral award dated 05.07.2024, passed in favour of the

respective petitioners against the respondents, largely accepted the

respective investors claim, by rendering the following findings:

a) clause 19.1 of the SASHA imposed an absolute

obligation;

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b) material breach existed as per clause 24.4 (c),

(d) and (e) of SASHA;

c) awarded damages (exit price) against surrender

of shares;

d) ordered that if damages are not paid within 90

days, strategic sale may be implemented on investors;

e) Through the clarification order dated

22.08.2024, the arbitral Tribunal further clarified that

while the investors have validly exercised their rights

under clause 24.6 (a) and clause 24.6 (c) of the SASHA,

the investors are entitled to only one remedy, as the

remedies under clause 24.6 of the SASHA are alternative

remedies. Consequently, the investors could not get both

reliefs viz.,

(i) Termination of rights under clause 24.6 (c) of

the SASHA; and

(ii) Strategic sale under clause 24.6 (a) of the

SASHA.

10. The respective petitioners (Investors) have filed these petitions

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seeking for enforcement of the foreign arbitral award dated 05.07.2024

before this Court in terms of Sections 47 to 49 of the Arbitration and

Conciliation Act, 1996 (in short “the Act”) and have prayed for

conversion of the foreign arbitral award dated 05.07.2024 into a decree as

per Section 49 of the Act to enable them to execute the foreign arbitral

award dated 05.07.2024.

11. The following objections have been raised by the second and

third respondents, which they claim, will fall under Section 48 of the Act

for challenging the enforcement of the foreign arbitral award dated

05.07.2024;

a) The award is vitiated by fraud and it has been passed in violation

of public policy of India;

b) The award, is in violation of the public policy of India;

i. since it fails to consider the second and third respondents'

submission of buy back;

ii. as it has Granted reliefs, which contravenes the Indian

Companies Act;

c) The arbitral Tribunal's findings that investors did not elect for

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termination of rights under clause 24.6 of the SASHA at the cost of

strategic sale is without notice to parties is contrary to settled principles

of election and underlying facts. The award was made without providing

parties an opportunity to present their case and therefore, it violates the

public policy of India;

d) The arbitral Tribunal failed to consider the material issue that

the alleged unauthorized obligation, power or authority must relate to a

specific affirmative vote matter listed in annexure IV of the SASHA. The

award, hence, violates the public policy of India;

e) The award grants relief contrary to the provisions of the Indian

Specific Relief Act and hence, violates the public policy of India;

f) The arbitral Tribunal failed to consider the material issue of the

investors, waiving their rights to pursue a secondary sale as per clause

19.1 of the SASHA. Hence, the award violates the public policy of India;

g) The arbitral Tribunal failed to consider the material issue of

whether the investors' interpretation of the limitation of liability in Clause

22 of SASHA violates the public policy of India;

h) The arbitral Tribunal failed to consider the material issue of

considering the wholesale payment business to be adopted while

computing the EBITDA of the PayTech Business unit when calculating

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the Company's enterprises value. Hence, the award violates the public

policy of India;

i) The arbitral Tribunal failed to consider the parties' agreed

position that clause 19.6 and clause 24.4(c) of SASHA were to be read

harmoniously and consequentially, the award violates the public policy of

India;

12. Mr. Anirudh Krishnan, learned counsel appearing for the third

respondent in support of the second respondent's objections to the

enforcement of the arbitral award submits that the award grants relief

contravening the provisions of the Indian Company Law and hence, the

award violates the fundamental policy of Indian Law. In support of the

said contention, Mr. Anirudh Krishnan drew the attention of this Court to

the provisions of Sections 66, 67, 68 and 70 of the Indian Companies Act,

2013.

13. Relying upon the aforesaid Sections of the Indian Companies

Act, 2013, Mr.Anirudh Krishnan would submit as follows:

a) Reduction of short term capital is permitted only with the

approval of the National Company Law Tribunal and after notice to

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creditors and regulators;

b) There is an embargo on the Companies from purchasing its own

share except as provided under the Indian Companies Act, 2013;

c) Section 68 of the Indian Companies Act, 2013 allows buy-back

of shares by the Company subject to strict limits - Maximum 25% of paid

up capital and free reserves, use of approved sources, solvency

declaration and compliance with debt -equity ratio;

d) Bars buy back if the Company has defaulted on certain

obligations or non compliance with the accounting standards.

14. Mr.Anirudh Krishnan, learned counsel, after referring to clause

19 of SASHA would submit that it requires both the Company and

Promoters to make best efforts to secure an exit for the investors. He

would submit that clause 19.1 of SASHA provides a mechanism for the

secondary sale of the investors' shares at the exit price and clause 19.2 of

SASHA provides for buy back mechanism. But, it is explicitly "subject to

applicable law".

15. Mr.Anirudh Krishnan, learned counsel, would rely upon the

following decisions in support of the contention that the Company Law

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provisions prohibiting the return of capital / buy back (unless sanctioned

by statute) is linked to public interest of protecting creditors and other

stakeholders:

a) MacDougal Vs. Jersey Imperial Hotel Co. Ltd. reported in

(1864) 2 H & M 568;

b) Barclays Bank plc Vs. British Commonwealth Holdings plc

(1995) B.C.C. 19; and

c) Collector of Moradabad Vs. Equity Insurance Co. Ltd. 1947

SCC Online Oudh CC 87.

16. Mr.Anirudh Krishnan, learned counsel, after drawing the

attention of this Court to the award, would submit that the award

effectively grants for buy back, which is in violation of the provisions of

Sections 66, 67, 68 and 70 of the Indian Companies Act, 2013 and

therefore, the award is opposed to fundamental policy of Indian Law.

17. Mr.Anirudh Krishnan, learned counsel further submits that

there is no discretion vested with the National Company Law Tribunal

under the provisions of the Indian Companies Act, 2013, to dispense with

the statutory requirements prescribed under Sections 66, 67, 68 and 70 of

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the Indian Companies Act, 2013. Hence, the award passed without

obtaining permission from the National Company Law Tribunal is

opposed to the Fundamental Policy of the Indian Law.

18. Mr.Anirudh Krishnan, learned counsel, would further submit

that the relief granted under the award viz., buy back of shares / return of

capital is illegal as per provisions of Indian Companies Act, 2013, and he

would further submit that since the award requires the Company to pay

damages to investors against the surrender of shares, it is in substance, a

purchase/ buy back, regardless of the "surrender" label. He would further

submit that the transaction that the award requires to be performed will

effect an illegal buy-back.

19. Mr.Anirudh Krishnan, learned counsel further submits that

enforcement of a statutorily void transaction is illegal, as according to

him, the buyback of shares under Section 68 of the Indian Companies

Act, 2013, without the permission of the National Company Law

Tribunal is illegal.

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20. Mr.Anirudh Krishnan, learned counsel would further submit

that the Singapore High Court could not have adjudicated this issue since

this is a question of Indian public policy. According to him, public policy

is inherently a concept unique to each State and the Indian Company Law

cannot form part of Singapore's public policy.

21. Mr.Anirudh Krishnan, learned counsel would therefore submit

that, the Singapore Courts' finding rendered in the case of challenging

arbitral award has no bearing for the objections raised by the respondents

in these petitions as those objections will have to be tested independently

by this Court as it involves violation of the fundamental policy of the

Indian Law and not Singapore Law. He would submit that this Court will

have to test the award from the lens of Indian public policy, which,

according to him, is beyond the limit of Singapore Courts.

22. Mr.Anirudh Krishnan, learned counsel would further submit

that the failure to consider the material issue by the arbitral Tribunal

amounts to violation of the most basic notions of justice and morality. He

would submit that the Arbitral Tribunal, having failed to consider the

material issue viz., “Whether the putative award of damages against the

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surrender of shares is a buy back or not", the Singapore High Court has,

however, erroneously held in its decision rendered in the challenge made

by the respondents to the arbitral award that the aforesaid issue was

impliedly considered by the arbitral Tribunal and the said finding is

arbitrary and is perverse with no justification.

23. Mr.Anirudh Krishnan, learned counsel, would further submit

that the findings of Singapore Court are irrelevant for this Court. He

would submit that Indian Law explicitly recognizes “two bites at the

cherry”. The two bites are, contesting the award before the seat Court as

well as the enforcement Court. The cherry is the award. He would submit

that transnational issue estoppel does not apply in India. Even the

Singapore Court of Appeals recognizes that public policy is to be

considered from domestic parameters, i.e., this Courts tests the award

from the lens of Indian Public Policy, which is beyond the remit of

Singapore Courts.

24. Mr.Anirudh Krishnan, learned counsel, would further submit

that the investors have sought both strategic sale and termination of rights

simultaneously, which is impermissible under SASHA. Clause 24.6 of

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SASHA makes it clear that the investors could elect only one of the three

disjunctive rights, namely, (a) Strategic sale; or (b) Buy-back/purchase;

or (c) Termination of Rights. Thus, there is no dispute between the parties

that the investors had invoked and were given effect to the termination

under Clause 24.6(c). However, the Arbitral Tribunal under the impugned

arbitral award has erroneously found Clause 24.6 to be disjunctive and

providing for alternative rights in favour of the investors. But, in the

correction and interpretation order, the Arbitral Tribunal has confirmed

that only one remedy can be granted and since both were sought on the

same date, the arbitral Tribunal has erroneously held that Investors did

not elect one to the exclusion of the other. He would further submit that

the investors have consistently given effect to Termination of Rights

severely prejudicing the respondents 2 and 3 and therefore, they have

elected to exercise only the termination of rights given to them. He would

further submit that the investors have been controlling the management

starting from 11.04.2022, when they exercised their Termination of

Rights. They have even obtained interim reliefs before the emergency

arbitrator by exercising Termination of Rights. He would therefore

submit that the arbitral award has been passed contrary to the settled

principles of doctrine of election, which violates fundamental policy of

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Indian Law. He would submit that the investors invoked termination and

acted upon it, while also seeking for strategic sale. Having derived the

benefit of termination, the investors are estopped from being granted the

right of strategic sale. According to him, the respondents 2 and 3 were

denied an opportunity to argue the doctrine of election and display on

facts as how the investors had in fact elected termination of rights and not

strategic sale. According to him, the Arbitral Tribunal gave a finding on

election by itself without any submission in relation thereof by the

investors.

25. Mr.Anirudh Krishnan, learned counsel, would further submit

that Section 16(b) of the Specific Relief Act mandates that a party who

has breached an essential term of the contract, cannot obtain specific

performance. According to him, notwithstanding the breach committed

by the investors, who had invoked termination of rights (example,

excluding respondents from management and board participation), the

Arbitral Tribunal allowed the investors to pursue specific performance in

the form of strategic sale, in direct contravention of Section 16(b) of the

Specific Relief Act. Section 16(b) of the Specific Relief Act makes it

clear that a party approaching this Court must come with clean hands for

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seeking an equitable relief. He would further submit that the Arbitral

Tribunal has arrived at a finding that the investors have elected one relief

over another without the investors having made such a claim and without

giving an opportunity to the respondents. According to him, the Arbitral

Tribunal's action of arriving at a decision that was not based on the

parties' pleaded case is a breach of natural justice and results in denial of

an opportunity of being heard.

26. Mr.Anirudh Krishnan, learned counsel, in support of his

aforementioned submissions, would rely upon the following authorities:

a) Trevor and Another Vs. Whitworth and Another reported in

(1887) 12 App. Cas. 409; House of Lords;

b) Progress Property Co. Ltd. Vs. Moogarth Group Ltd. reported

in (2010) UKSC 55;

c) Vijay Karia Vs. Prysmian Cavi E Sistemi SRL reported in 2020

(11) SCC 1.

27. Mr.Nishanth Kadur, learned counsel appearing for the second

respondent, who adopts the submissions made by Mr.Anirudh Krishnan,

learned counsel appearing for the third respondent, in addition to those

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submissions, would also submit that the respective petitioners have

played fraud on the respondents 2 & 3 by suppressing / concealing the

E&Y (Ernst & Young) report from the respondents 2 & 3. According to

him, as seen from the supporting documents, E&Y report has been

deliberately concealed from the respondents 2 & 3.

28. Mr.Nishanth Kadur, learned counsel appearing for the second

respondent, also drew the attention of this Court to Section l28 of the

Companies Act, 2013. According to him, the first respondent and the

respective petitioners (investors) have refused to provide the respondents

2 & 3 a copy of the E&Y report. Therefore, the provisions of Section 128

of the Companies Act, 2013, which do not impose any such restriction for

inspection of the company's records has been violated by the petitioners

and the first respondent.

29. Learned counsel appearing for the second respondent also

submitted that after the statutory auditor (S.Viswanathan LLP) resigned,

the first respondent identified M/s.G.Sekar Associates (GS) to be the

statutory auditor to the first respondent – Company. Learned counsel for

the second respondent submits that despite a clear conflict of interest,

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since GSA's founder-partner Mr.G.Sekar's son is married to the daughter

of Mr.Sivakumar.G, who was the Head of Finance for the first respondent

– Company till February, 2022, M/s.G.Sekar Associates (GSA) was

appointed as the statutory auditor. Therefore, the exit price determined

by the Arbitral Tribunal cannot be a true assessment, which does not

suffer from any bias.

30. Learned counsel appearing for the second respondent would

also submit that the request made by the respondents 2 & 3 for change of

statutory auditor was also not acceded to by the first respondent.

31. Learned counsel appearing for the second respondent would

also submit that owing to the first respondent as well as the respective

petitioners not providing with E&Y report to the respondents 2 & 3, an

oppression and mismanagement petition came to be filed before the

National Company Law Tribunal requesting inter alia an interim relief

seeking a direction for handing over a copy of the E&Y report to the

respondents 2 & 3. The appointment of the M/s.G.Sekar Associates

(GSA) was also challenged before the National Company Law Tribunal.

Learned counsel appearing for the second respondent would submit that

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the proceeding before the National Company Law Tribunal seeking for

providing of E&Y report is still pending. Therefore, the deliberate

concealing of the E&Y report by the petitioners and the first respondent

would amount to fraud being played upon the respondents 2 & 3 by the

petitioners and the first respondent.

32. According to the learned counsel appearing for the second

respondent, if the E&Y report was not concealed to the respondents 2 & 3

and was taken into consideration by the Arbitral Tribunal, EBITDA of

the first respondent Company would have resulted in a reduction in the

enterprise value and consequently, the total damages. According to him,

this contention has also not been denied by the respective petitioners and

the first respondent – Company.

33. Learned counsel appearing for the second respondent would

also submit that the petitioners (investors) and the fourth respondent have

colluded together to get an arbitral award in petitioners' favour. The

petitioners (investors) did not claim any relief of damages as against the

fourth respondent in the arbitration proceedings. According to him, the

fourth respondent, who is also a Promoter of the first respondent –

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Company alongside the respondents 2 & 3, is also equally responsible.

But, the petitioners have deliberately not made the arbitral claim against

the fourth respondent as they have colluded with the fourth respondent

for the purpose of obtaining a false relief before the Arbitral Tribunal.

34. Learned counsel appearing for the second respondent would

submit that the fourth respondent's remuneration was increased by a

whopping 82% in March 2023 to INR 3.2 crores retrospectively for FY

2022-23, without any discussions or deliberations or reasons. In addition

to the massive increase in his fixed + variable pay, a special cash bonus

of INR 4 Crores was paid to the fourth respondent and INR 5 Crores to

Mr.V.Balasubramanian for their contributions in FY 2023-2024 and FY

2024-2025. According to him, a separate sum of INR 60 Crores was also

sought to be released to the fourth respondent, Mr.V.Balasubramanian,

Mr.Anand Mitkari and other Company personnel, who co-operated with

the investors in achieving their goal of a strategic sale.

35. Learned counsel appearing for the second respondent would

submit that the failure to raise a public policy ground before the seat court

is irrelevant for the proceedings before the enforcement court. He would

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submit that fraud is a public policy ground under Section 48 of the Act.

From various decisions rendered by the constitutional courts, he would

submit that the failure to raise the ground of fraud before the arbitral

proceedings as well as before the Singapore High Court will not in any

manner affect the rights of the parties to raise such a ground before the

enforcement court.

36. Learned counsel appearing for the second respondent would

submit that only based on bald statements, the exit price has been

determined by the Arbitral Tribunal, which is in the form of damages.

37. On the other hand, Mr.Vijay Narayanan, learned Senior

Counsel, appearing for the petitioner in Arb.O.P.(Com.Div) No.285 of

2024, would submit as follows:

(a) The grounds available under Section 48 of the

Act, are watertight. He would submit that no

ground outside Section 48 of the Act, can be

looked into.

(b) The enforcement Court cannot re-appreciate and

re-examine the merits of the foreign arbitral

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award and it cannot have a second look at the

foreign arbitral award under Section 48 of the

Act, by rendering a different contractual

interpretation than the one already given under

the foreign arbitral award.

(c) The grounds available under Section 48 of the

Act, for resisting enforcement of foreign arbitral

award are narrower than the grounds available

for challenging the award before the seat Court.

(d) The power to set aside an award vests only with

the Courts at the seat of arbitration, which

exercises “supervisory or primary jurisdiction

over the award”. The jurisdiction of this Court,

where enforcement is sought, is a secondary

jurisdiction, limited to the question of whether

the award is enforceable in that particular

jurisdiction or not.

(e) The application of “public policy of India”

doctrine for the purpose of Section 48(2)(b) of

the Act, would be more limited than the

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application of the same expression in respect of

the domestic award.

(f) Parties ought not to re-litigate issues, which have

been or ought to have been raised before the seat

court.

(g) The sensible invocation of the doctrine of

transnational issue estoppel can also help to

alleviate the problem of inconsistent judicial

outcomes and limits the extent to which matters

determined by a court of competent jurisdiction

can be re-litigated, thus reducing the wastage of

time, effort and resources.

(h) Mere infraction of the municipal laws of India is

not enough. There must be, inter alia, infraction

of fundamental policy of Indian law including a

law meant to serve public interest or public

good.

(i) Poor reasoning by which a material issue or

claim is rejected can never fall under Section 48

of the Act. If the Foreign Arbitral Award has

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considered the essential issues and has addressed

the same in the award, which, by implication,

would mean that the other issue / issues raised

had been implicitly rejected.

(j) The foreign arbitral award has considered all the

objections raised by the respondents 2 & 3 and

therefore, Section 48 of the Act, does not get

attracted.

(k) The foreign arbitral award is also not induced or

affected by fraud or corruption or is in violation

of Section 75 or Section 81 of the Act and hence,

the foreign arbitral award is enforceable.

(l) The foreign arbitral award is not contrary to the

Public Policy of India, since it has not

contravened with the fundamental policy of the

Indian law.

(m) The foreign arbitral award is also not in conflict

with the most basic notions of morality.

38.In support of his contentions, Mr.Vijay Narayanan, learned

Senior Counsel appearing for the petitioner in Arb.O.P.(Com.Div)

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No.285 of 2024, relied upon the following authorities:

(i) Vijay Karia vs. Prysmian Cavi E Sistemi SRL,

reported in (2020) 11 SCC 1.

(ii) Cruz City 1 Mauritius Holdings v. Unitech

Limited, reported in 2017 SCC OnLine Del

7810.

(iii) Government of India vs. Vedanta Ltd., reported

in (2020) 10 SCC 1.

(iv) Shri Lal Mahal Ltd. vs. Progetto Grano Spa,

reported in (2014) 2 SCC 433.

(v) Gemini Bay Transcription (P) Limited. vs.

Integrated Sales Service Ltd., reported in

(2022) 1 SCC 753.

(vi) Avitel Post. vs. HSBC PI, reported in (2024) 7

SCC 197.

(vii) EIG vs. Mcnally, reported in 2021 SCC OnLine

Cal 2915.

(viii) Mercator Ltd. vs. Dredging Corporation of

India Ltd., reported in 2024 SCC OnLine Del

3075.

                                  (ix)    Banyan Tree Growth Capital LLC vs. Axiom





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Arb.O.P. (Com.Div.) Nos.285, 452 & 453 of 2024

Cordages Limited and others, reported in 2020

SCC OnLine Bom 781.

(x) Nine Rivers Capital Limited vs. Gokul Patnaik

and another, reported in 2025 SCC OnLine Del

2898.

(xi) Carpatsky Petroleum Corporation vs PJSC

Ukrnafta, (2020) EWHC 769 (Comm).

(xii) The Republic of India vs. Deutsche Telekom

AG, reported in (2023) SGCA(I) 10.

(xiii) OPG Power Generation Pvt. Ltd. vs. Enexio

Power Cooling Solutions India Pvt. Ltd.,

reported in (2025) 2 SCC 417.

(xiv) Ssangyong Engg. & Construction Co. Ltd. vs.

NHAI, reported in (2019) 15 SCC 131.

(xv) Avitel Post Studioz Ltd., vs. HSBC PI Holdings

(Mauritius) Ltd., reported in (2021) 4 SCC 713. (xvi) Renusagar Power Co. Ltd. vs. General Electric

Co., reported in 1994 Supp (1) SCC 644.

                                  (xvii) Armada      (Singapore)         Pte.       vs.      Ashapura

                                         Minechem Ltd., reported in 2015 SCC OnLine

                                         Bom 4783.





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Arb.O.P. (Com.Div.) Nos.285, 452 & 453 of 2024

(xviii)Daiichi Sankyo Company Limited vs.

Malvinder Mohan Singh, reported in 2018 SCC

OnLine Del.

(xix) Nobel Resource Ltd., vs. Dharni Sampda

Private Ltd., reported in 2019 SCC OnLine

Bom 4415.

(xx) Aircon Beibars FZE vs. Heligo Charters

Private Limited, reported in 2022 SCC OnLine

Bom 329.

39. Mr.Srinath Sridevan, learned Senior Counsel appearing for the

petitioner in Arb.O.P.(Comm.Div.) No.452 of 2024 has adopted the

arguments advanced by Mr.Vijay Narayanan, learned Senior Counsel

appearing for the petitioner in Arb.O.P. (Com.Div.) No.285 of 2024 and

in addition to those arguments, he would submit as follows:

(a) Section 48(2)(b) of the Act states that

enforcement of a foreign arbitral award may be

refused if “the enforcement of the arbitral award

would be contrary to the public policy of India”,

whereas Section 34(2)(b)(ii) provides that a

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domestic award may be set aside if “the arbitral

award is in conflict with the public policy of

India”. According to the learned Senior Counsel,

the distinction is deliberate and material. He

would submit that in a proceeding under Section

48 of the Act, what is examined is not the

intrinsic validity of the award, but whether its

enforcement would violate the fundamental

public policy or not.

(b) The enforcement is against the respondents 2 &

3, not against the Company (R1). The damages

awarded are to be paid by them. Therefore, there

is no question of the Company (R1) paying

consideration towards the petitioner surrendering

its shares.

petition is primarily the strategic sale, in the

event damages are not paid, which, in any event,

has not been paid within the date prescribed in

the award.

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(d) To fall within the purview of Section 48(2)(b)(ii)

of the act, the foreign arbitral award must

contravene a fundamental and non-derogable

principle or core value for the enforcement to be

refused.

(e) The contention of the respondents 2 & 3 that

reading Clause 19.1 of SASHA is an absolute

obligation would cause a prohibited buyback has

been raised only at a belated stage i.e., in their

post-hearing reply submissions dated 09.02.2024

before the Arbitral Tribunal. Therefore, the

said contention demonstrates that the issue

was neither a foundational plea nor a live

controversy throughout the arbitration, but

rather an afterthought urged at the fag end of

the proceedings.

(f) The Singapore High Court considered the

buyback issue in detail and identified the

following two limbs of the respondents 2 & 3's

case:

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(i) Construing Clause 19.1 of SASHA

was absolute as impermissible,

because it contradicted Clause 19.2

of SASHA and effectively imposed

a buyback obligation, and

(ii) Such interpretation would be

unenforceable under Indian law.

And rejected the aforesaid two limbs and has

held that the Arbitral Tribunal has consciously

adopted the respective petitioner's interpretation

and that awarding damages with a consequential

surrender of shares did not equate to a statutory

buyback.

(g) The petitioners never elected one remedy to the

exclusion of the other. Both remedies under

Clause 24.6 and termination of rights under sub-

clause (c) and strategic sale under sub-clause (a)

of SASHA were invoked simultaneously on

11.04.2022. The Tribunal expressly considered

this issue and after, analysing the notices of

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termination and strategic sale, the notice of

arbitration and the statement of claim, concluded

that it was “difficult to conclude that the

respective petitioners have already made an

election to pursue one remedy and not the other

when both remedies are sought on the same day.

Therefore, the Arbitral Tribunal held that the

remedies are disjunctive in nature that the

petitioners had not made election at the time of

invocation and by granting strategic sale as the

final relief, gave effect to one remedy, while

letting the other lapse. Therefore, the

fundamental policy has not been violated.

(h) The objection with regard to the doctrine of

“Election” was never raised by the respondents 2

& 3 before the Singapore High Court and

therefore, they cannot now be introduced at the

enforcement stage under Section 48 of the Act.

(i) Section 16(b) of the Specific Relief Act bars

specific performance only where the respective

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petitioners had committed a breach of an

essential term of the contract. The Arbitral

Tribunal made no finding, nor was any evidence

led, that the respective petitioners had breached

the SASHA. On the contrary, the Tribunal found

that the respective petitioners were entitled to

enforce their contractual rights, including,

termination and strategic sale.

(j) The Arbitral Tribunal has come to the conclusion

that the respondents 2 & 3 are in material breach

of Clause 13.4(3) of SASHA; in any event, there

has been no failure to identify specific

affirmative vote matter (AVM).

(k) The Arbitral Tribunal addressed the issue and

found that the very act of delegation itself was

contrary to the protections enshrined in Clause

13.4(3) read with Annex 4(aa) of SASHA.

(l) Reopening of contractual interpretation and re-

appreciating evidence is not permissible under

Section 48 of the Act.

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(m) The Arbitral Tribunal has rightly rejected the

split sale plea by holding that the notice of 18th

September, 2020 was validly invoked as Clause

19.1 and that no waiver could be inferred in light

of Clause 29.5 of SASHA, which forecloses

implied waiver without written consent. The

Singapore High Court rejected the argument that

the Tribunal failed to consider the waiver

defence. The Court held that an Arbitral

Tribunal is not obliged to expressly address

every argument; an issue may be resolved

implicitly through factual findings.

(n) Respondents 2 & 3's reliance on Sections 10(b)

and 14(1)(a) of the pre-2018 Specific Relief Act

to argue that specific performance is barred when

damages are adequate, is misplaced. The 2018

amendments, which removed this bar, apply

retrospectively. Consequently, Section 14(1)(a)

no longer bars specific performance where

damages may be adequate. Instead, specific

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performance is now the rule, and damages are

available only in addition, under Section 21 of

the Specific Relief Act.

(o) The respondents 2 & 3 admit to having

knowledge of the existence and findings of the

E&Y report as early as on 30.01.2023 i.e., while

the arbitration was still ongoing and before their

filing of the statement of defence.

(p) At no stage during the arbitration did the

respondents 2 & 3 contest the petitioner's

valuation on the basis of alleged irregularities in

the first respondent's financials. No questions

were also put to the respective petitioners'

witnesses in respect of E&Y report. On the

contrary, the valuations relied upon by the

Tribunal were drawn from the first respondent's

audited financials for FY 2020, which were

common to all parties. The respondents 2 & 3

had also not raised the plea of fraud before the

Singapore High Court. Therefore, the

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allegations of fraud levelled under Section

48(2)(b) of the Act by the respondents 2 & 3 are

unsustainable.

40. The very same authorities relied upon by Mr.Vijay Narayanan,

learned Senior Counsel appearing for the petitioner in Arb.O.P.

(Com.Div.) No.285 of 2024 were also relied upon by Mr.Srinath

Sridevan, learned Senior Counsel appearing for the petitioner in

Arb.O.P.(Comm.Div.) No.452 of 2024.

41. Mr.Adarsh Ramanujan, learned counsel appearing for the

petitioners in Arb.O.P.(Com.Div.) No.453 of 2024, adopts the arguments

made by Mr.Vijay Narayanan, learned Senior Counsel appearing for the

petitioner in Arb.O.P.(Com.Div) No.285 of 2024. In addition to that, he

would submit as follows:

(a) The respondents 2 & 3 have raised several

additional grounds under Section 48 of the Act,

before this Court. Such additional grounds could

have also been raised before the Singapore High

Court by the respondents 2 & 3.

(b) The UNCITRAL model law on international

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commercial arbitration (UNCITRAL Model

Law) forms the basis for both the Arbitration Act

in India and the Singapore International

Arbitration Act, which applies to arbitrations in

Singapore involving a foreign party.

(c) Particularly, Article 34(2) of the UNCITRAL

Model Law sets out the grounds on which an

award can be set aside and forms the basis for

both Sections 34/48 of the Indian Arbitration Act

and the corresponding Section 24 of the

Singapore International Arbitration Act. It is

self-evident that the grounds in Sections

48(1)(a)-(d), 48(2) are in pari materia with

Section 24 of the Singapore International

Arbitration Act.

(d) Where the grounds are pari materia, it was

always open to the respondents 2 & 3 to have

raised additional grounds before the Singapore

High Court. However, they did not raise such

grounds, despite having the full opportunity and

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evidently did not consider these grounds

adequate for a challenge before the seat court.

They also chose not to appeal the decision of the

Singapore High Court, dated 21.02.2025, before

the court of Appeal in Singapore.

(e) Section 24(a) of the Singapore International

Arbitration Act enables a party to challenge the

award, on the ground of fraud. But, despite the

same, the respondents 2 & 3 failed to raise the

ground of fraud before the Singapore High

Court, while challenging the arbitral award.

Therefore, no special circumstance has been

made out by the respondents 2 & 3 to raise the

ground of fraud for the first time before this

Court under Section 48 of the Act.

(f) The grounds raised by the respondents 2 & 3

resisting enforcement of foreign arbitral award

were either raised or could have been raised

before the Singapore High Court, but were

consciously omitted from the scope of challenge

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to the final arbitral award. It is settled law that

rejection of the material issue or consideration of

certain issue by an arbitral award in a particular

manner, does not render the award's enforcement

open to challenge.

(g) Arbitral Tribunal can draw an inference from the

evidence before it even if that inference has not

specifically been raised by either party. Any

such inference or findings of a material issue

would not fall within the scope of Section 48 of

the Act.

(h) Even on demurrer, the purported grounds of

fraud, no opportunity was given to respondents 2

& 3 to present their case and violation of a law,

do not fall within the scope of Section 48 of the

Act.

42. Apart from the decisions relied upon by Mr.Vijay Narayanan,

learned Senior Counsel appearing for the petitioner in

Arb.O.P.(Com.Div) No.285 of 2024, Mr.Adarsh Ramanujan, learned

counsel appearing for the petitioners in Arb.O.P.(Com.Div.) No.453 of

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2024 also relied upon the following authorities:

(i) Checkpoint Ltd., vs.Strathclyde Pension Fund,

reported in (2003) EWCA Civ 84 (Paragraph

No.34).

(ii) International Air Transport Assn., vs. Spring

Travels (P) Ltd., reported in 2024 SCC OnLine

Del 7540.

(iii) Transtonnelstory – Afcons (JV) and Ors. vs.

Chennai Metro Rail Ltd., reported in 2023 SCC

OnLine Mad 1013 (Paragraph Nos.60 and 61).

43. Mr.T.K.Bhaskar, learned counsel appearing for the first

respondent in all these original petitions, would submit as follows:

(a) The second respondent, who is making

allegations of fraud on the final statements of the

first respondent for financial years 2020-2021

and 2021-2022, has himself approved and signed

the said financial statements.

(b) The first respondent has enabled and facilitated

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the inspections as required under Section 28(3)

of the Companies Act, 2013 to the second

respondent, which was elaborately explained to

the NCLT through multiple pleadings filed by

the first respondent. All issues relating to

inspection demanded by the second respondent

are sub-judice before the NCLT and the NCLT

had reserved its orders on reliefs relating to

inspection on 24.01.2024.

statutory auditor of the first respondent, G.Sekar

Associates is related to a former employee of the

first respondent and therefore, must not be

appointed as the first respondent's statutory

auditor. These are far-fetched arguments which

have been dismissed by the NCLT after

considering all allegations raised by the

respondents 2 & 3 and Mr.Archit Mylandla in

the NCLT proceedings and had passed a well-

reasoned order dated 28.11.2023 allowing the

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appointment of G.Sekar Associates and

therefore, their arguments are meritless and

irrelevant to the present proceedings.

(d) It is pertinent to note that no allegation in the

common counter states that the appointment of

G.Sekar Associates is illegal. The respondents 2

& 3 have also suppressed the fact that they did

not appeal against the said order dated

28.11.2023 of NCLT before NCLAT), but are

raising untenable allegations before this Court.

(e) The allegations relating to the signing of

financial statements of the first respondent by

one director for the financial years 2022-2023

and 2023-2024 are sub-judice before the NCLT.

(f) Section 134 of the Companies Act, 2013 (of

which the respondents 2 & 3 are alleging

violation), governing signing of financial

statements, is procedural and not substantive in

nature. Hence, the allegations on manner of

signing of financial statements are meritless and

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irrelevant to the present proceedings.

(g) Matters relating to remuneration, bonus, or

incentivisation of directors and personnel are

internal affairs of the first respondent and are

within the exclusive domain of the Board of

Directors. The respondents 2 & 3 were provided

due opportunity to raise their views and

objections in Board meetings. The NCLT also

did not grant any relief to the respondents 2 & 3

in any applications filed before the NCLT in this

regard, which is an undisputed fact.

(h) The allegation of special incentive plan being

devised by the first respondent and its

management pertains only to payouts to the

management is false and erroneous. It is

pertinent to note that the incentive plan is being

formulated for a large number of employees /

consultants (and not just the management team),

which is a fact suppressed by the respondents 2

& 3. Hence, the allegations on increase in

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remuneration / providing bonus, incentive to

employees / consultants are meritless and

irrelevant to the present proceedings.

(i) The allegations of quid pro quo are based on the

false predicates that the first respondent and its

officials are furthering the petitioners' intent or

desire to conduct a strategic sale, not providing

inspection, firing of senior employees at the

behest of the petitioners etc., for which the

petitioners are authorising bonus, special

incentive etc., to the first respondents's officials.

This is entirely false.

(j) The second respondent has filed a formal memo

objecting to certain additional documents filed

on behalf of the first respondent. The documents

were filed only to bring out the truth and the

second respondent had opportunity to reply to

the same in the oral submissions as well as in

their notes of submission. Any resistance to the

production of critical documents by the first

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respondent raises suspicion on the conduct of the

second respondent.

44. Mr.S.Eshwar, learned counsel appearing for the fourth

respondent (J.Rudhraapathy) would submit as follows:

(a) The fourth respondent's role and submissions is

limited only to clarify this Court that there has

been no act of fraud and / or collusion and / or

quid pro quo between the fourth respondent and

the petitioners herein.

(b) The Email dated 11.04.2022 sent by the

respondents 2 & 3 will reveal that they

voluntarily withdrew themselves from the

operations of the company upon receipt of the

notice of material breach of the SASHA by the

petitioners in Arb.O.P.(Com.Div) No.453 of

2024. Hence, it is the second respondent, who

jumped ship and abandoned the company of the

fourth respondent, who was left to manage the

company along with certain other company

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personnels during the volatile, turbulent and

uncertain period.

(c) The arbitral award has recorded the contentions

of the fourth respondent denying any breach of

the SASHA. This will clearly reveal that the

fourth respondent has not colluded with the

petitioners.

(d) The arbitrator has given reasons as to why the

petitioners have not claimed damages against

the fourth respondent and therefore, the very

same objections cannot be raised by the

respondents 2 & 3 through this petition filed

under Section 48 of the Act, as this Court is only

an enforcement court.

(e) The frail connection drawn between the increase

in salary/bonus payouts to the fourth respondent

owing to the alleged quid pro quo between the

petitioners and the fourth respondent is

imaginative and false. The said

payouts/increase in salary is very much in line

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with the salary, the second respondent used to

receive when he was at the helm of affairs.

45. Mr.S.S.Rajesh, learned counsel for the fifth respondent, would

submit as follows:

(a) The fifth respondent is constituted by the first

respondent company to promote employees

welfare activities.

(b) The fifth respondent is a signatory to the Share

Acquisition and Shareholders' Agreement dated

10.10.2024 and has been impleaded in the

present arbitration only as a formal / pro-forma

party.

(c) The fifth respondent, therefore, has no

independent or substantive role in the present

arbitration petitions and its participation is

limited to the extent of being a pro-forma party.

(d) While no specific allegations have been levelled

against the fifth respondent, any order enforcing

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the subject arbitral award by this Court would

have a direct bearing on the shares allotted to the

employees, which form an integral component of

their remuneration package.

DISCUSSION:

46. The foreign arbitral award dated 05.07.2024 passed in favour of

the respective petitioners is detailed hereunder:

(a) The respondents 1 to 3 are jointly and severally

directed to pay damages suffered by the

petitioners being the exit price as on 18.09.2020

aggregating to INR 6,614 Million to PI

OPPORTUNITIES FUND-I (Petitioner in

Million to NYLIM Jacob Ballas India (FVCI) III

LLC (first petitioner in Arb.O.P.(Com.Div)

No.453 of 2024); INR1,093 Million to NYLIM

Jacob Ballas India Fund III LLC (second

petitioner in Arb.O.P.(Com.Div) No.453 of 2024

and INR 2,804 Million to the MILLENNA

FVCI LTD. (petitioner in Arb.O.P.(Com.Div)

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No.452 of 2024, which amounts shall stand

reduced to the extent of the net proceeds

received by the respective petitioners from a

Strategic Sale (provided that the sums received

from a Strategic Sale are lower than the damages

awarded by the Arbitral Tribunal.

(b) If the damages in paragraph 804(a) of the award

are paid, the petitioners will cooperate with the

respondents to surrender all their shares in the

first respondent. The petitioners and respondent

are to co-operate with each other in order to

effect such prompt surrender.

(c) If within 90 days from the date of the arbitral

award, the damages in paragraph No.804(a)

above are not paid, then the petitioners are

entitled to proceed towards a strategic sale and

the respondents are not to interfere with the

strategic sale (under Clauses 19.6(b) and 24.6(a)

of the SASHA) to be implemented by the

petitioners.

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(d) The respondents are to render full cooperation

with respect to any strategic sale (under Clause

19.6(b) of the SASHA) to be implemented by

the petitioners.

(e) The respondents 2 to 5 are to sell their shares

pursuant to a strategic sale as implemented by

the petitioners (under Clause 19.6(b) of the

SASHA) and to distribute the proceeds in

accordance with Annexure 12 of SASHA within

a period of six months from the date of the

arbitral award.

(f) Simple interest at the rate of 5.33 from

01.07.2021 until the date of the arbitral award on

the sums awarded in paragraph No.804(a) of the

arbitral award.

(g) Post-award interest at the simple interest at the

rate of 5.33% from the date of the arbitral award

until the date of full repayment on the sums

awarded in paragraph Nos.804(a) and 804(f) of

the arbitral award.

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47. The objections raised by the second and third respondents for

enforcement of the foreign arbitral award passed in favour of the

respective petitioners have been raised under Section 48 (2) (b) of the

Act. The second and third respondents would contend that the

enforcement of the foreign arbitral award as prayed for by the respective

petitioners has to be refused as it would be contrary to the public policy

of India.

48. Before this Court delves into each of the grounds raised by the

second and third respondents, the scope of public policy falling under

Section 48 (2) (b) of the Act, has to be discussed based on the

interpretation of the term "Public Policy" given by Constitutional Courts

in India as well as by foreign Courts.

49. Explanation 1 to Section 48 (2) (b) of the Act has clarified that

an award is in conflict with the public policy of India, only if,—

(a) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or

(b) it is in contravention with the fundamental

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policy of Indian law; or

50. Explanation 2 to Section 48 (2) (b) of the Act also makes it

clear that the test as to whether there is a contravention with the

fundamental policy of Indian law shall not entail a review on the merits

of the dispute.

51. Defining public policy, Sir William Holdsworth stated, “A

body of law like the common law, which has grown up gradually with the

growth of the nation necessarily acquires some fixed principles and if it is

to maintain these principles it must be able, on the ground of public

policy or some other like ground, to suppress practices which, under ever

new disguises, seek to weaken or negative them".

52. In Gherulal Parakh v. Mahadeodas Maiya reported in 1959

AIR SC 781, the Honourable Supreme Court favoured a narrow, non-

evolving view of public policy and stated that, “though the heads are not

closed and though theoretically it may be permissible to evolve a new

head under exceptional circumstances of a changing world, it is

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admissible in the interest of stability of society not to make any attempt to

discover new heads in these days.”

53. In Central Inland Water Transport Corpn. Ltd. v. Brojo Nath

Ganguly reported in 1986 AIR 1571, the Honourable Supreme Court

held, “public policy connotes some matter, which concerns the public

good and the public interest”. The concept of what is for the public good

or in the public interest or what would be injurious or harmful to the

public good or the public interest has varied from time to time.” Thus,

public policy is either subject to a narrow view i.e., fixed principles,

where Courts cannot create new heads of public policy or a broad view;

where Courts can play a role in Judicial law making.

54. Foreign awards operate at the level of Private International

Law involving conflict of laws as opposed to domestic awards. Thus, a

distinction needs to be drawn while applying the rule of public policy

between a matter governed by domestic law and a matter involving

conflict of laws. The application of the doctrine of public policy in the

field of conflict of laws is more limited than that in the domestic law and

the Courts are slower to invoke public policy in cases involving a foreign

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element than, when a purely municipal legal issue is involved. Although

the concept of public policy is the same in nature in these two spheres of

law, its application differs in degree and occasion, corresponding to the

fact that the transactions containing a foreign element may constitute a

less serious threat to municipal institutions than a purely local transaction.

55. The particular rule of public policy may be of an overriding

nature and therefore, could be a ground to resist enforcement or it may be

local in the sense that it represents some feature of internal policy. If it is

the latter, it must be confined to cases governed by the domestic law and

ought not be extended to a case governed by foreign law. In order to

ascertain whether the rule is all pervading or merely local, it must be

examined in the light of its history, the purpose of its adoption, the object

to be accomplished by it and the local conditions.

56. In the Supplementary Report to the 246th Law Commission

Report, the Law Commission of India stated that the legitimacy of

Judicial intervention in the case of a purely domestic award is far more

than in cases, where a Court is examining the correctness of a foreign

award or a domestic award in an international commercial arbitration.

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57. Under the Arbitration and Conciliation Act, public policy

stands as a ground, both for setting aside awards made by India-seated

arbitral tribunals under Section 34, and for resisting enforcement of

foreign arbitral awards under Section 48. Despite the internationally

recognized view that public policy vis-a-vis, foreign awards must be

applied narrowly at a Private International Law level, Indian case laws

witnessed an intermingling of the operative realms of public policy for

domestic and foreign awards. The trajectory of Judicial interpretation

given by the Indian Supreme Court is traced below and it will be useful

for deciding the objections raised by the second and third respondents for

enforcement of the foreign arbitral award passed in favour of the

respective petitioners.

58. In 1993, the Honourable Supreme Court had an opportunity to

determine the contours of public policy in the case of Renusagar Power

Co. Ltd v. General Electric Co. reported in 1994 Supp (1) SCC 644,

involving enforcement of a foreign award under the Foreign Awards Act.

Applying a narrow view of public policy, the Honourable Supreme Court

held that since the Foreign Awards Act is concerned with recognition and

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enforcement of foreign awards, which are governed by the principles of

Private International Law, the expression "public policy" in Section

7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in

the sense the doctrine of public policy as applied in the field of Private

International Law. Applying the said criteria, it was held that the

enforcement of a foreign award would be refused on the ground that it is

contrary to the public policy of India, if such enforcement would be

contrary to

(a) Fundamental policy of Indian law; or

(b) The interests of India; or

(iii) Justice or morality.

59. In relation to the ‘Fundamental Policy of Indian law’, the

Hon'ble Supreme Court held that,

(a) the award must invoke something more than

merely a violation of Indian law to be refused enforcement;

(b) a violation of economic interests of India is

contrary to public policy;

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fundamental principles of law and a disregard for such

orders would be contrary to public policy.

60. Subsequent to the Judgment in Renusagar's case, referred to

supra, the Hon'ble Supreme Court interpreted the meaning of ‘public

policy'. In the case of ONGC Ltd. v. Saw Pipes Ltd. reported in (2003) 5

SCC 705 (now overruled), the Hon'ble Supreme Court held that in

addition to the meaning of public policy, provided in Renusagar's case

(which was in relation to foreign awards), the Hon'ble Supreme Court

introduced the concept of ‘patent illegality’ for setting aside domestic

awards under the head of public policy. Patent illegality, to some extent,

involved a review of the merits of the underlying dispute. Defining patent

illegality, the Hon'ble Supreme Court held that “Illegality must go to the

root of the matter and if the illegality is of trivial nature it cannot be held

that award is against the public policy. Award could also be set aside, if it

is so unfair and unreasonable that it shocks the conscience of the Court.

Such award is opposed to public policy and is required to be adjudged

void.” The Hon'ble Supreme Court followed the dicta of Saw Pipes

(cited supra) in the case of Venture Global Engineering v. Satyam

Computer Services Ltd. & Anr. reported in 2008 (4) SCC 190 (now

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overruled).

61. In the case of Phulchand Exports Ltd. v. O.O.O Patriot

reported in 2011 (10) SCC 300 (now overruled), the Hon'ble Supreme

Court extended the ground of ‘patent illegality’ devised in Saw Pipes

case for setting aside domestic awards in India to resist the enforcement

of foreign awards in India. The Judgment of the Hon'ble Supreme Court

in Phulchand widened the ambit of public policy vis-a-vis, foreign

awards - no longer keeping it narrow and minimal as in Renusagar's case

(cited supra).

62. Thereafter, the Honourable Supreme Court overruled its

decision in Phulchand's case in the case of Shri Lal Mahal Ltd. v.

Progetto Grano SPA reported in (2014) 2 SCC 433 and held that a

foreign award may be refused enforcement under Section 48(2)(b) of the

Act, only if such enforcement would be contrary to:

(a) The fundamental policy of Indian law; or

(b) The interests of India; or

(c) Justice or morality,

thereby returning to the position laid down by the Honourable Supreme

Court in Renusagar's case. The Honourable Supreme Court in Lal

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Mahal's case refused to apply the ground of patent illegality while

assessing foreign awards.

63. In August 2014, the 246th Law Commission Report provided

significant inputs in relation to the definition of public policy. It

acknowledged that Saw Pipes' case (cited supra) had unintended

consequences on international commercial arbitrations and the

enforcement of foreign arbitral awards, which was corrected by the

Honourable Supreme Court in Lal Mahal's case. Additionally, it

recommended,

“(a) addition of Section 34(2A) to the Arbitration and Conciliation Act, 1996, in order to limit the ground of ‘patent illegality’ to purely domestic arbitral awards; and

(b) a suggestion to add that “an award shall not be set aside merely on the ground of erroneous application of the law or by re-appreciating evidence”.

64. The 246th Law Commission Report also proposed to statutorily

include a definition of public policy based on the Honourable Supreme

Court’s dicta in Renusagar's case. Going a step forward, the 246th Law

Commission Report suggested that the definition of public policy should

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not include within it ‘the interests of India’ since the same was capable of

interpretational misuse. Thus, it was proposed that the ambit of public

policy for enforcement of foreign award should be limited to fundamental

policy of Indian law; or basic notions of justice or morality.

65. Before the recommendations of the 246th Law Commission

Report were incorporated into the Arbitration and Conciliation Act, the

Honourable Supreme Court expanded the scope of public policy in

ONGC v. Western Geco International Ltd. reported in (2014) 9 SCC

263 in a case involving challenge to domestic awards. The Honourable

Supreme Court held that ‘fundamental policy of law’ included three

fundamental juristic principles, namely,

(a) Duty to adopt Judicial approach, i.e., to not act in an arbitrary, capricious or whimsical manner. Judicial approach requires Courts to act in a fair, reasonable and objective manner and its decision should not be actuated by any extraneous consideration;

(b) Compliance with principles of natural justice, including audi alterum partem and application of mind to the facts and circumstances; and

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(c) ‘Wednesbury principle’ i.e., an award may be set aside if it is perverse and so irrational that no reasonable person would have arrived at the same. The Honourable Supreme Court held that a Court could set aside a domestic award under the umbrella of fundamental policy of Indian law if the award is perverse or so irrational such as to fall foul of the touchstone of the Wednesbury principle.

66. Public policy was further consolidated by the Honourable

Supreme Court in the case of Associate Builders v. Delhi Development

Authority reported in (2015) 3 SCC 49, while assessing a challenge to

domestic award. The Honourable Supreme Court set out the following

elements of ‘public policy’:

(a) Fundamental Policy of Indian Law:

This includes,

(i) Contravention of the provisions of the Foreign Exchange Regulation Act, 1973 as it is a statute enacted for the national economic interest;

(ii) Disregarding orders of the superior Courts in India;

(iii) Disregarding the binding effect of the Judgment of a superior Court; and

(iv) The principle of adopting a Judicial

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approach, which demands that a decision be fair, reasonable and objective. An arbitrary or whimsical decision would not be a determination that is fair, reasonable or objective; contravention of the principle of audi alteram partem principle also contained in Sections 18 and 34(2)(a)(iii) of the Arbitration and Conciliation Act; a decision, which is so perverse or so irrational that no reasonable person would have arrived at the same. A decision could be deemed perverse if:

(a) The finding is based on no evidence; or

(b) An arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or

(c) Ignores vital evidence in arriving at its decision.;

(b) Contrary to the interest of India: This ground relates to India as a member of the world community in its relations with foreign powers;

(c) Against justice: An award is against Justice, when it shocks the conscience of the Court.

For example, an arbitral award, which awards a relief without any reason or justification;

(d) Against morality: Morality includes within it ‘sexual morality’ so far as Section 23 of

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the Indian Contract Act, 1872 is concerned. If it is to go beyond sexual morality, it would cover agreements, which are not illegal per se but would not be enforced given the prevailing morals of the day. Interference, on this ground, would also be only if it is something, which shocks the Court’s conscience;

(e) Patent illegality: This includes contravention of the substantive law of India, which would result in an illegality, which goes to the root of the matter and cannot be of a trivial nature; contravention of the Arbitration and Conciliation Act itself; contravention of Section 28(3) of the Arbitration and Conciliation Act, which is the ‘Rules applicable to the substance of the dispute’. If two views are possible, Court can’t substitute its view for the view of arbitrator.

67. In the light of the decision in Western Geco case (cited supra)

rendered by the Honourable Supreme Court, the Law Commission issued

a Supplementary Report to the 246th Law Commission Report

specifically on the topic of “Public Policy” in February 2015. It recorded

the ‘chief reason’ for its issuance is the inclusion of the Wednesbury

principle of reasonableness within the phrase of “fundamental policy of

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Indian law” by the Honourable Supreme Court in the Western Geco case.

The Wednesbury principle of reasonableness permitted Courts to look at

an award to understand whether the conclusion would be one which “no

reasonable person would have arrived at”. This test permitted a review of

an arbitral award on its merits. The Law Commission suggested that such

a power to review an award on merits is contrary to the objectives of the

Arbitration and Conciliation Act and international practice, and would

increase Judicial interference in awards. It proposed that another

explanation be added to Section 34 of the Arbitration and Conciliation

Act, viz., “For the avoidance of doubt, the test as to whether there is a

contravention with the fundamental policy of Indian law shall not entail a

review on the merits of the dispute.”

68. In the light of the proposed amendments suggested in the

Supplementary Report to the 246th Law Commission Report, the

Arbitration and Conciliation Act was amended through the Arbitration

and Conciliation (Amendment) Act, 2015. As prescribed by the Law

Commission Report, the ground of ‘patent illegality’ is now restricted

only to domestic arbitrations by way of insertion of Section 34(2A).

Patent illegality is not available as a ground for international commercial

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arbitrations. Additionally, Section 48 of the Arbitration and Conciliation

Act was amended to include the following explanations:

“Explanation 1. —For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, — (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2. —For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.”

69. In the case of Ssangyong Engineering and Construction

Company Ltd. v. NHAI (“Ssangyong Engineering”) reported in 2019

(15) SCC 131, the Honourable Supreme Court set aside a majority

domestic award. The specific factual circumstance involved a Circular

being issued by the Respondent and unilaterally applied as binding on the

other party. This was upheld by the majority arbitral tribunal. The

Honourable Supreme Court held that “This being the case, it is clear that

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the majority award has created a new contract for the parties by applying

the said unilateral circular and by substituting a workable formula under

the agreement by another formula dehors the agreement. This being the

case, a fundamental principle of Justice has been breached, viz., that an

unilateral addition or alteration of a contract can never be foisted upon an

unwilling party, nor can a party to the agreement be liable to perform a

bargain not entered into with the other party. Clearly, such a course of

conduct would be contrary to fundamental principles of justice as

followed in this Country, and shocks the conscience of this Court.”. Thus,

the majority award was set aside on the ground that the award had

unilaterally altered the terms of the underlying contract, which is contrary

to the principles of justice and shocking the conscience of the Court.

However, the minority award was upheld, by invoking the Court’s

inherent powers under Article 142 of the Constitution of India.

70. India is one of the few jurisdictions to statutorily define public

policy through the Arbitration and Conciliation (Amendment) Act, 2015.

While some countries consider public policy to mean international public

policy, Indian Courts have held that there is no workable definition of

international public policy. Thus, it should be construed to be the doctrine

of public policy as applied by Courts in India. Within the definition of

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public policy, India has statutorily included the grounds of fraud,

corruption, fundamental policy of Indian law and basic notions of justice

and morality. While public policy has no definition and its elements have

been identified statutorily in Section 48(2)(b)(ii), additional elements

have been sufficiently postulated by Judicial interpretation.

71. In the case of Cruz City 1 Mauritius Holdings v. Unitech

Limited reported in (2017) 239 DLT 649, the Delhi High Court proposed

a balancing test to determine, when a foreign arbitral award may be

refused enforcement on the ground of public policy. The Court in Cruz

City case considered whether refusing to enforce a foreign award, which

is contrary to public policy may be further opposed to ‘public policy’.

However, the Court further held that while the width of discretion to

refuse the enforcement of an arbitral award is narrow and limited, if

sufficient grounds are established, Courts can accept the contentions to

refuse the enforcement of an arbitral award.

72. Additionally, in the case of Vijay Karia & Ors. v. Prysmian

Cavi E Sistemi SRL reported in 2020 SCC OnLine SC 177, the

Honourable Supreme Court held that while discretion of Courts may be

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employed in some of the grounds for refusing the enforcement of a

foreign award, Courts do not have any discretion regarding the grounds

of fraud, corruption, fundamental policy of Indian law, basic notions of

justice and morality.

73. The expression ‘fundamental policy of Indian law’ calls for a

violation, which is beyond mere statutory violation. In Renusagar's case

(cited supra), the Court held that Article V(2)(b) of the New York

Convention, which is pari materia to Section 48(2)(b) of the Act, had

omitted the reference to “principles of law of the Country in which it is

sought to be relied upon”. While replacing the Geneva Convention of

1927, since the expression "public policy" covers the field not covered by

the words "and the law of India", which followed the said expression, it

was held that contravention of law alone will not attract the bar of public

policy and something more than contravention of law is required.

74. It is important to assess the nature, object and scheme of a

statute to determine, if the violation of such statute would constitute a

violation of the fundamental policy of Indian law. In Vijay Karia's

case(cited supra), the Honourable Supreme Court held that any rectifiable

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breach under the FEMA cannot be said to be in violation of the

fundamental policy of Indian law. It held that the Reserve Bank of India

could step in and direct the parties to comply with the provisions of the

FEMA or even condone the breach. However, the arbitral award would

not be non-enforceable as the award would not become void on this

count. Citing its Judgment in Renusagar's case, the Honourable Supreme

Court held that the fundamental policy of Indian law must pertain to “a

breach of some legal principles or legislation, which is so basic to Indian

law that it is not susceptible of being compromised. “Fundamental

Policy” refers to the core values of India’s public policy as a nation,

which may find expression not only in statutes but also time-honoured,

hallowed principles which are followed by the Courts.”

75. The Honourable Supreme Court has repeatedly held and even

through its decision rendered in the case of Shri Lal Mahal Ltd. v.

Progetto Grano SPA reported in (2014) 2 SCC 433, the scope of enquiry

under Section 48 of the Arbitration and Conciliation Act does not permit

review of a foreign arbitral award on its merits. The Honourable Supreme

Court held that Courts do not have the ability to take a ‘second look’ at

the foreign arbitral award at the enforcement stage. This is now

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incorporated as a statutory rule under Section 48(2)(b) of the Act,

Explanation 2.

76. Further, the Delhi High Court, in the case of Cairn India &

Ors. v. Government of India, recently held that once an arbitral Tribunal

has been vested with jurisdiction by parties, it has the right to make both

right and wrong decisions as these are errors which fall within their

jurisdiction.

77. In Vijay Karia's case (cited supra), the Honourable Supreme

Court, while citing Albert Jan van den Berg in his treatise, “The New

York Arbitration Convention: Towards a Uniform Judicial

Interpretation”, has noted that, “it is generally accepted that the Court,

before which the enforcement of the foreign award is sought may not

review the merits of the award. The main reason is that the exhaustive list

of grounds for refusal of enforcement does not include a mistake of fact

or law by the arbitrator. The control exercised by him is limited to

verifying whether an objection of a respondent on the basis of the

grounds for refusal is justified and whether the enforcement of the award

would violate the public policy of the law of the Country. This limitation

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must be seen in the light of the international commercial arbitration that a

national Court should not interfere with the substance of the arbitration”.

78. Section 48(1)(b) of the Act permits a party to resist

enforcement on grounds relating to violation of natural justice, if a party

is unable to present its case during the arbitration proceedings. However,

a party may also resist the enforcement of an arbitral award on the ground

of natural justice as being against public policy under Section 48(2)(b)(ii)

of the Act. A foreign award can possibly be challenged, if the arbitral

Tribunal had ignored the submissions of the party in totality and the

resulting award was contrary to the principles of natural justice, thereby

violating public policy. This was the finding of the Delhi High Court in

the case of Campos Brothers Farms v. Matru Bhumi Supply Claim Pvt.

Ltd. reported in (2019) 261 DLT 201. An appeal against the Single

Judge’s order in this case is currently pending before the Division Bench

of the Delhi High Court.

79. Under Section 48(2) of the Act, a Court is not permitted to

delve into merits of the award and evaluate the manner in which the

arbitral Tribunal has construed the terms of the underlying contract.

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However, recently, in a rare decision, the Honourable Supreme Court has

declined the enforcement of a foreign arbitral award in the case of

National Agricultural Cooperative Marketing Federation of India v.

Alimenta S.A. In the aforesaid case, the Appellant was allegedly unable

to comply with the contractual terms for the export of groundnuts, since it

was impossible to get government approval. The Honourable Supreme

Court noted that the export required Government approval. However, the

Government did not grant the Appellant the necessary approval to carry

out its contractual obligations. Further, the agreement itself contained a

clause, wherein it was provided that the contract between the parties

would be cancelled, if the shipment is prohibited by an executive or

legislative act by the Government, which would make the shipment

impossible (Contingency Clause). In its award, the arbitral Tribunal

awarded damages upon the petitioners for the breach of contract. Thus,

enforcing an award, which seeks the payment of damages for breach of a

contract, which was rendered void, is contrary to the fundamental policy

of Indian law. The Honourable Supreme Court, relying upon several

judgments, including that of Associate Builders and Ssangyong

Engineering, held that the foreign arbitral award to be unenforceable as

being opposed to the fundamental policy of Indian law and the basic

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notions of Justice, and thereby public policy.

80. While Indian Courts had an opportunity to expand as to what

may constitute the fundamental policy of Indian law and basic notions of

justice and morality, there is minimal jurisprudence on what constitutes

fraud or corruption in the context of refusing the enforcement of a foreign

arbitral award.

81. Resistance to enforcement of foreign awards in a Country must

be approached with circumspection. The question, whether enforcement

of a foreign award violates the public policy of India, must be considered

in the context that India is a signatory to the New York Convention (Cruz

City 1 Mauritius Holdings v. Unitech Limited, (2017) 239 DLT 649.). It

is the sovereign commitment of India to honour foreign awards, except

on the exhaustive grounds provided under Section 48 of the Act. While it

may be tough to construe the term “public policy” without a workable

definition, judicial interpretation offers sufficient guidance, while

maintaining that judicial interference remains minimal. It is essential to

recognize the need for restraint in examining the correctness of a foreign

award or a domestic award tendered in an international commercial

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arbitration, as opposed to a domestic award. As stated in the case of

Fritz Scherk v. Alberto Cuvler, 417 US 506 (1974), we cannot have trade

and commerce in world markets and international seas exclusively on our

terms, governed by our laws and resolved in our Courts. Concerns of

international comity, respect for the capacities of foreign and

transnational Tribunals, and sensitivity to the need of the international

commercial system for predictability in the resolution of disputes require

that we enforce the parties' agreement even assuming that a contrary

result would be forthcoming in a domestic context.

82. As the Delhi High Court in Cruz City case (cited supra) has

aptly stated, a policy to enforce foreign awards itself forms a part of the

public policy of India – and Courts should strive to find the right balance

between the policy of enforcing foreign awards and considering the

grounds for resisting the enforcement of foreign awards. In the light of

judicial guidance and international circumspection over public policy as a

ground for refusal of enforcement of foreign awards, it is clear that

"public policy will not be argued readily, only when all other points fail".

83. From the latest decision of the Honourable Supreme Court in

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Vijay Karia's case, the pro-enforcement stance of Indian Courts with

respect to foreign arbitral awards has become increasingly pronounced.

Vijay Karia's case is not only a re-affirmation of this position, but can

also be seen as an attempt to plainly discourage litigious parties from

seeking to exhaust all possible recourse against enforcement of foreign

awards.

84. The judgment in Vijay Karia's case highlights two significant

aspects:

(a) It delineates the scope of the ‘due process’ objection taken by parties that they have not been able to present their case before the arbitral tribunal; and

(b) Perhaps more importantly, it affirms the Delhi High Court’s judgment in Cruz City (cited supra) and categorically holds that a foreign arbitral award may be enforced even if inconsistent with provisions of the Foreign Exchange Management Act, 1999 (FEMA), inasmuch as an award directing a buyout at a discounted price was held to be enforceable.

85. The Honourable Supreme Court, in Vijay Karia's case,

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expressly noted that the signatories to the New York Convention on

Enforcement of Foreign Arbitral Awards had recognized that a key theme

of the Convention was a pro-enforcement ‘bias’. This entailed that the

burden of proof must lie on the party challenging enforcement and the

extremely limited grounds set out in the Convention ought to be strictly

construed to demonstrate that such grounds were applicable to any given

case. This was because parties had a greater leeway in challenging the

award in the seat of arbitration under the lex situs arbitri and could not be

considered to have a right to raise the same grounds during the time of

enforcement of the award in foreign jurisdictions under the Convention.

86. The Honourable Supreme Court, in Vijay Karia's case, also

dealt with an interesting question of whether a Court could still enforce a

foreign award even if certain grounds in Section 48 of the Act were made

out. The Honourable Supreme Court classified the grounds set out in

Section 48 of the Arbitration and Conciliation Act into three groups:

(a) Grounds, which affect jurisdiction of the

arbitration proceedings;

(b) Grounds, which affect party interest alone; and

(c) Grounds, which go to the public policy of

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India.

87. The Honourable Supreme Court held that Courts could not

have any discretion, if grounds affecting jurisdiction of arbitral

proceedings are made out, as this would make the award a nullity.

Similarly, Courts could not have discretion in cases, where grounds

affecting the public policy of India were made out. However, in terms of

grounds affecting party interest alone, the Honourable Supreme Court

held that Courts did have discretion to enforce such awards even if such

grounds are made out. In essence, the Court held that the word ‘may’ in

Section 48 would be considered to mean ‘shall’ depending on the context

set out above.

88. The Honourable Supreme Court further pointed out the pro-

enforcement ‘bias’ permeating through Section 48 and observed that

Section 48(1)(b) of the Act must be strictly construed. Thus, the

Honourable Supreme Court held that the expression ‘unable to present his

case’ would be ‘a facet of natural justice, which would be breached only

if a fair hearing was not given by the arbitrator to the parties’. Thus, read

along with the first part of Section 48(1)(b) of the Act – a party not being

given proper notice of the appointment of an arbitrator or of the arbitral

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proceedings, the Court held that the objection of being ‘unable to present’

one’s case would be limited to the arbitration proceedings themselves and

would not extend to the award. Examples cited by the Honourable

Supreme Court, which would attract the ground were,

(a) No opportunity given to deal with an argument,

which goes to the root of the case;

(b) Findings based on evidence, which go behind the

back of a party; and

basis of the award and on which a party had no

opportunity to cross-examine.

89. In sum and substance, the Honourable Supreme Court held that

a failure to consider a material issue would not fall within the contours of

Section 48(1)(b) of the Act. However, a failure to consider a material

issue, which went to the root of the matter or failure to decide a claim in

its entirety may shock the conscience of the Court, and could be set aside

under Section 48(2)(b) of the Arbitration and Conciliation Act.

90. The Honourable Supreme Court also clarified that an award

must be read as a whole and if the Tribunal considers a particular issue as

essential and answers it, it meant, by implication, that other issues were

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rejected. The Honourable Supreme Court further held that if an award

had addressed the basic issues raised by the parties and had, in substance,

decided the claims and counterclaims, the award must be enforced.

91. The Honourable Supreme Court had extensively quoted from

the Delhi High Court judgment in Cruz City case, wherein the High Court

had held that contravention of any provision of an enactment would not

be synonymous with contravention of the fundamental policy of Indian

law. The Honourable Supreme Court in Vijay Karia's case (cited supra)

and Cruz City case (cited supra) approved the principle laid down by the

Delhi High Court and recognised that foreign awards would ordinarily be

based on foreign law and such laws might not be in conformity with the

laws of the Country, in which enforcement was being sought. If courts of

the enforcing Country refused enforcement of such awards merely on

account of contravention with local laws, the object and purpose of the

Convention would be defeated. Seen in this context, the Delhi High Court

in Cruz City Judgment had observed that fundamental policy of Indian

law could only mean fundamental and substantive legislative policy,

which forms the bedrock of Indian laws and not a mere provision of any

enactment. The Honourable Supreme Court in Vijay Karia's case

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approved the Delhi High Court's reasoning and its observations in Cruz

City Judgment.

92. In Vijay Karia's case, the Honourable Supreme Court had also

severely castigated the appellants for attempting to argue the matter as a

first appeal, given the limited jurisdiction that the Honourable Supreme

Court had and in such circumstances, the Honourable Supreme Court had

imposed costs of Rs.50,00,000/- on the appellants, to be paid to the

respondents.

93. In Government of India Vs. Vedanta Ltd. reported in 2020

(10) SCC (1), the Honourable Supreme Court held that enforcement

Court cannot reassess the arbitrator's appreciation of evidence or

interpretation of contractual clauses under Section 48 of the Act. The

Honourable Supreme Court clarified that mere disagreement with the

arbitrator's interpretation does not fall within any of the narrowly defined

grounds on which enforcement could be refused. This decision was also

followed by the Honourable Supreme Court in Gemini Bay

Transcription (P) Ltd. V. Integrated Sales Service Ltd. reported in 2022

(1) SCC 753, in which the Honourable Supreme Court reiterated that a

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party is not permitted to impeach the merits of the award before the

enforcing Court. In a recent Judgment rendered by the Honourable

Supreme Court in the case of Avitel Post Studioz Ltd. Vs. HSBC PI

Holdings (Mauritius) Ltd. reported in 2024 (7) SCC 197 the Honourable

Supreme Court once again emphasized minimal interference of Courts at

the enforcement stage. Similarly, in the case of Mercator Ltd. Vs.

Dredging Corporation of India Ltd. reportedin 2024 SCC Online Del

3075, the Honourable Delhi High Court held that a review on the merits

of the dispute does not fall within the jurisdiction of the Court under

Section 48 of the Act.

94. In Cruz City Judgment rendered by the Delhi High Court, it

was held that if a party has taken recourse to assail the award before the

supervisory Court, in normal circumstances, the said party ought not to be

permitted to re-litigate the same issue unless the party is able to establish

certain special circumstances or indicate good reasons. The observations

in Cruz City Judgment of Delhi High Court, referred to supra, were also

approved by the Honourable Supreme Court in Vijay Karia's case. The

decision rendered in Cruz City Judgment by the Delhi High Court was

also endorsed by the Delhi High Court in the case of Nine Rivers Capital

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Ltd. v. Gokul Patnaik reported in 2025 SCC Online Del 2898, which

stated that the principles of res judicata and issue estoppel apply to

enforcement proceedings as well.

95. In the case of Carpatsky Petroleum Corporation vs. JPSC

Ukrnafta reported in 2020 EWHC 769 (Comm), the England and

Wales High Court held that enforcement Court, which is dealing with a

party's objections to the enforcement of an award, can hold that such

objections are an abuse of process since such party is raising objections,

which it ought to have raised before the Curial / seat Court, but failed to

do so. The Court held that unless special circumstances exist, a party

ought to be precluded from bringing a fresh challenge before the

enforcement Court, when it has failed to raise such ground before the

Curial Court.

96. In Devas Employees Mauritious Pvt. Ltd. v. Antrix

Corporation Ltd. and Others reported in 2023 SCC Online Del 1608,

the Division Bench of the Delhi High Court has held that to countenance

an allegation of fraud for the purpose of resisting enforcement, there

should be substantial evidence, which should be tested on the basis of

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admitted documents.

97. As a sequitur to the decisions rendered by the Constitutional

Courts with regard to enforcement of foreign arbitral awards and the

objections that can be raised under Section 48 of the Act, the following

principles emerge:

                           i)           The Honourable Supreme Court favoured a

                                        narrow, non-evolving view of public policy.

                           ii)          Public policy connotes some matter, which

concerns the public good and public interest.

iii) Foreign awards operate at the level of private

international law involving conflict of laws, as

opposed to domestic awards. The application of

the doctrine of public policy in the field of conflict

of laws is more limited than that in the domestic

law and the Courts have to be slow to invoke

public policy in cases involving a foreign element

than when a purely municipal legal issue is

involved.

iv) The principle of minimal judicial intervention in

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enforcement of foreign awards as distinguished

from domestic awards is to be adopted.

v) Patent illegality is not available as a ground to

resist enforcement of a foreign arbitral award.

(vi) The test as to whether there is a contravention with

the fundamental policy of Indian Law shall not

entail a review on the merits of the dispute.

(vii) The discretion of the Courts to refuse

enforcement of foreign arbitral awards may be

employed in some of the grounds but the Courts

do not have any discretion regarding the grounds

of fraud, corruption, fundamental policy of Indian

Law, basic notions of justice and morality.

(viii) The expression "Fundamental policy of Indian

Law" calls for a violation that is beyond mere

statutory violation since the expression "Public

Policy" covers the field not covered by the word

"and the law of India", which follow the said

expression, contravention of law alone will not

attract the bar of public policy and something more

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than contravention of law is required.

(ix) Fundamental policy of Indian Law must pertain

to "a breach of some legal principles or

legislation which is so basic to Indian Law that

it is not susceptible of being compromised.

"Fundamental Policy" refers to the core values of

Indian public policy as a nation, which may find

expression not only in statutes but also time-

honoured, hallowed principles, which are followed

by the Courts".

(x) When it comes to the public policy of India, the

argument based upon most basic notions of justice,

this ground can be attracted only in very

exceptional circumstances when an award

shocks the conscience of the Courts.

(xi) Section 48 of the Act does not permit review of a

foreign arbitral award on its merits. Courts do not

have the ability to take a ‘second look’ at the

foreign arbitral award at the enforcement stage.

This limitation of the enforcement Court must be

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seen in the light of the principles of international

commercial arbitration that a national Court should

not interfere with the substance of the arbitration.

(xii) Natural justice forms a part of the fundamental

policy of Indian Law. But, only in cases, where

the foreign award had ignored the submissions

of the party in totality and the resulting award

was contrary to the principles of natural justice,

thereby violating the public policy, the Court

may refuse enforcement of the foreign award.

(xiii) If the contract itself is void, then enforcement of

foreign award passed arising out of the void

contract may be refused.

(xiv) It is the sovereign commitment of India to

honour foreign awards, except on the exhaustive

grounds provided under Article V of the New York

Convention. It is essential to recognize the need

for restraint in examining the correctness of a

foreign award or a domestic award tendered in an

international commercial arbitration, as opposed to

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a domestic award.


                           (xv)     The enforcement Court cannot re-assess the

                                    arbitrator's      appreciation            of      evidence   or

interpretation of contractual clauses. Mere

disagreement with the arbitrator's interpretation

does not fall within any of the narrowly defined

grounds on which enforcement could be refused.

(xvi) The challenge procedure in the primary

jurisdiction gives more leeway to Courts to

interfere with an award than the narrow

restrictive grounds contained in Section 48 of

the Act when a foreign award enforcement is

resisted.

(xvii) A party is not permitted to impeach the merits

of the award before the enforcing Court.

(xviii) Parties ought not to re-litigate issues, which

have been or ought to have been raised before

the seat Court.

(xix) In order to resist enforcement of a foreign

award, the fraud alleged should be of egregious

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nature and should be proved beyond any

reasonable doubt.

(xx) Breach that is procedural or rectifiable, such a

technical violation of regulatory laws, does not

amount to breach of fundamental policy.

(xxi) A party who is objecting to the enforcement of

the foreign arbitral award cannot argue the

matter just like a first appeal, given the limited

jurisdiction available under Section 48 of the

Act, and costs can be imposed, if such an

attempt is made.

(xxii) The Arbitral Tribunal is not required to deal

with every contention made by the parties nor

are they obligated to set out step-by-step

justification akin to a judicial order. What is

required is a reasoned award, that reflects the

Tribunal's understanding of the issues and its

basis for the conclusions reached.

(xxiii) The arbitral award must invoke something

more than merely a violation of Indian law to

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be refused enforcement.

(xxiv) Disregarding orders of the superior court in

India will amount to violation of the

fundamental policy of Indian law.

(xxv) The exhaustive list of grounds available under

Section 48 of the Act for refusing enforcement

does not include a mistake of fact or law by the

Arbitral Tribunal.

(xxvi) If the award had addressed the basic issues

raised by the parties and had in substance

decided the claims and counter claims, the

award must be enforced.

(xxvii) The fundamental policy of Indian law could

only mean fundamental and substantive

legislative policy, which forms the bedrock of

Indian laws and not a mere provision of any

enactment.

(xxviii) To resist enforcement of a foreign award on the

ground of fraud, there should be substantial

evidence, which should be tested on the basis of

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admitted documents.

98. This Court, after giving due consideration to the contentions of

the respondents 2 and 3, in the forthcoming paragraphs will deal with

every objection raised by the respondents 2 & 3 and thereafter decide as

to whether these objections are sustainable under Section 48 of the Act:

99. The objections raised by the respondents 2 & 3 for granting

enforcement of foreign arbitral award by this Court in favour of the

respective petitioners are as follows:

(a) Buyback of shares by the first respondent as

directed under the foreign arbitral award violates

Sections 66 to 69 of the Indian Companies Act,

2013 and hence, the award contravenes Indian

Company law and consequently, violates the

Fundamental Policy of India.

(b) The foreign arbitral award is contrary to the

fundamental policy of the Indian Law, as the

doctrine of election does not permit the

respective petitioners to seek both termination of

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rights as well as strategic sale under Clause 24.6

read with Clause 19.6 of the SASHA.

(c) The respective petitioners having pursued for

split sale have waived their rights to pursue the

secondary sale. Hence, the foreign arbitral

award is contrary to the doctrine of waiver, as

the respective petitioners have waived their

rights for strategic sale.

(d) The foreign arbitral award failed to consider the

material issue that the alleged unauthorized

obligation/power or the authority must relate to

the specific affirmative vote matter listed in

annexure 4 of the SASHA.

(e) The foreign arbitral award grants relief contrary

to the provisions of the Indian Specific Relief

Act and hence, it violates the fundamental policy

of the Indian Law.

(f) The foreign arbitral award failed to consider the

material issue of whether the investors'

interpretation of the limitation of liability in

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Clause 22 of SASHA violates the fundamental

policy of the Indian Law.

(g) The foreign arbitral award has failed to consider

the material issue of considering the wholesale

payment business to be adopted while computing

the EBITDA of the PAYTECH Business unit

when calculating the Company's enterprises

value. Hence, the award violates public policy.

(h) Enforcement of the foreign arbitral award will

amount to fraud as it ignores the findings of the

Ernst & Young (EY) report, which was not

known to the respondents 2 & 3. Despite several

requests, the respective petitioners did not

furnish a copy of the EY report to the

respondents 2 & 3 deliberately. The respective

petitioners have played fraud on the respondents

2 & 3 for the purpose of assessing the value of

the shares of the first respondent Company at a

higher value.

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Buy Back Objection:

100. The first objection of the respondents 2 and 3 that arises for

consideration is whether the foreign arbitral award amounts to “buyback

of shares”.

101. The respective petitioners contend that the award has not

directed “buyback of shares” by the first respondent company, whereas

the respondents 2 and 3 contend that the award directs “buyback of

shares”, which according to the respondents 2 and 3, amounts to violation

of fundamental policy of Indian Law, since it violates Sections 66 to 68

of the Indian Companies Act, 2013. The relevant portion of the foreign

arbitral award pertaining to the said issue as to whether the award has

directed “buyback of shares” or not, is reproduced hereunder:-

a. The 1st to 3rd Respondents are jointly and severally, to pay damages suffered by the Claimants being the Exit Price as at 18 September 2020 aggregating to INR 6,614 million (for the first Claimant), INR 777 million (for the second Claimant), INR 1,093 million (for the third Claimant) and INR 2,804 million (for the fourth Claimant), which amount shall stand reduced to the

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extent of the net proceeds received by the Claimants from a Strategic Sale (provided that the sums received from a Strategic Sale are lower than the damages awarded by the Tribunal);

b. If the damages in paragraph 804(a) are paid, the Claimants will cooperate with the Respondents to surrender all their shares in the first Respondent. The Claimants and Respondents are to co-operate with each other in order to effect such prompt surrender.

c. If within 90 days from the date of this Award, the damages in paragraph 804(a) above are not paid, then the Claimants are entitled to proceed towards a Strategic Sale and the Respondents are not to interfere with the Strategic Sale (under Clauses 19.6(b) and 24.6(a) of the SASHA) to be implemented by the Claimants;

d. The Respondents are to render full cooperation with respect to any Strategic Sale (under Clause 19.6(b) of the SASHA) to be implemented by the Claimants;

102. To have clarity, this Court deems it fit to point out the

difference between “buyback of shares” and “surrender of shares”. Only

in cases of “buyback of shares”, Section 68 of the Indian Companies Act,

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2013, gets attracted, whereas it will not get attracted in respect of

“surrender of shares”. A buyback is a company's active decision to

repurchase its own shares from the market to reduce the number of

outstanding shares, while a surrender is a shareholder's voluntary act of

returning shares to the company, often to avoid forfeiture due to non-

payment of calls or to exit an investment. The company initiates a

buyback to increase shareholder value, but, a surrender is usually a

response to a shareholder's financial hardship or desire to exit their

investment. Therefore, it is clear that the concept of “buyback of shares”

and “surrender of shares” are completely different.

103. As seen from the relevant portion of the award, which is

relevant to the buyback issue, as extracted supra, it is clear that the award

does not direct any “buyback of shares” by the first respondent company,

and the award only directs that on payment of damages by the

respondents 1 to 3, the respective petitioners shall surrender all their

respective shares without specifying the entity/persons to whom such

surrender is to be made.

104. The foreign award has also recognized the distinction between

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a share buyback contemplated under Clause 19.2 of the SASHA and a

right to seek damages along with strategic sale on breach of Clause 19.1

of the SASHA. Clause 19.1 of the SASHA deals with “secondary sale”,

whereas Clause 19.2 of the SASHA deals with an actual “buyback”. The

Arbitral Tribunal has interpreted both the Clauses and has rendered a

finding in paragraph No.348 of the award, which reads as follows:-

“348.............. While it is correct that investors cannot force an immediate buyback, Clause 19.2 applies in the event of secondary sale as contemplated in Clause 19.1 does not take place, that does not mean that the options have to be exercised in sequence. To the contrary, the express language of Clause 19 gives that option to the investors.”

105. In Paragraph Nos.370 and 372 of the award, the Arbitral

Tribunal held that awarding damages for breach of the obligation did not

equate to a buyback of shares by the first respondent company (as

contemplated under Clause 19.2 of the SASHA), thereby preserving the

distinction between Clause 19.1 (damages) and Clause 19.2 (buyback) of

the SASHA. Paragraph Nos.370 and 372 of the award are re-produced

hereunder:-

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370. The Respondents' argument that the non-provision of a Secondary Sale under Clause 19.1 does not give rise to a claim for damages, but instead merely takes you to the next step of the waterfall does not work when the language of Clause 19 is looked at in any detail. Crucially, the Investors are not required to invoke either or both Clause 19.2 or 19.3 after Clause 19.1 has been invoked, and indeed they cannot do so individually but only in unison and at their option. So to take the simplest argument of all. Assume Clause 19.2 was invoked by all the Claimants and a Buy-Back did not take place, the Claimants would then have a clear right of damages for breach against the Company. The same applies under Clause 19.1 albeit this time against the Promoters and the Company. In other words, there is no true waterfall of rights and obligations which apply to the Investors as a whole when looking for an exit.

Under Clause 19.1, the Investors need not act as a collective, but can do so individually and each Investor who triggers Clause 19.1 and requires to be bought out has a secondary right to damages.

Moreover, any Investor who does trigger the Clause 19.1 right is not then obliged to proceed under Clause 19.2 if no exit is provided.

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372. This does appear to be a further argument in favour of the Claimants' construction. It should be recalled that under Clause 19.6, Clauses 19.2 and 19.3 are referred to in terms "if applicable". All these yet again suggest that Clauses 19.1, 19.2 and 19.3 are not part of a waterfall that has to be exhausted in sequence but instead a series of alternative options provided to the Investors.

106. Only based on the aforesaid reasoning, the Arbitral Tribunal

has rendered a finding in the award that the respective petitioners had a

right to get the relief of damages and also strategic sale, and that the

contractual framework provided a series of alternative exit options rather

than a single, mandatory buyback mechanism.

107. The direction issued under the award to surrender shares on

payment of damages was to avoid any possibility of double recovery by

the respective petitioners. This Court finds that such a direction given by

the Arbitral Tribunal is only in accordance with Clause 19 of the SASHA

for the following reasons:-

(a) The primary relief sought by the respective petitioners was

damages and a right to implement a strategic sale of the first respondent

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company to satisfy such damages.

(b) Having sought such relief, to avoid any allegation of double

dipping or double recovery, the respective petitioners had volunteered to

return the shares held by them in the first respondent company, upon

receipt of damages.

(c) The aforesaid intent of the respective petitioners finds extensive

discussion in the award, which are captured in paragraph Nos.243 and

677 of the award. Paragraph Nos.243 and 677 of the award are re-

produced hereunder:-

243. The Claimants submit that having suffered non-performance of Clause 19.1, the Claimants are entitled to, and have sought damages.

Having suffered a violation of inter alia various provisions of Clause 24.4 of the SASHA, the Claimants are entitled to seek performance of Clause 24.6(a) of the SASHA. To avoid allegations of "double-dipping", the Claimants have moulded their relief such that the damages be reduced pursuant to the proceeds from the Strategic Sale, if these proceeds are lower than the sum of damages. The Claimants submit that it is unclear how this could lead to an inference that Clause 19.1 is not an absolute obligation.

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677. Finally, the Claimants accept that in seeking both specific performance (a Strategic Sale) and damages, they cannot obtain double recovery. The Claimants submit that to the extent they receive the full Exit Price awarded by the Tribunal, then they will undertake to return the shares to the Company, and further that the amount of damages awarded shall be reduced by any amounts recovered from a Strategic Sale and that if the Strategic Sale results in a higher sum being realised than awarded, then the Claimants will not seek to recover those amounts.

(d) The decision of the Delhi High Court in the case of NTT

Docomo Inc. Vs. Tata Sons Ltd. [2017 SCC Online Del 8078] also

premised surrender of shares on payment of damages. The same is re-

produced hereunder:-

“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.”

(e) In the same lines, under the foreign arbitral award, the Arbitral

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Tribunal has directed payment of damages and upon payment of

damages, it was made clear that the respective petitioners and other

investors shall cooperate with the first respondent company and the

promoters to surrender all their shares in the first respondent company.

(f) The Arbitral Tribunal also does not contemplate the

entity/persons to whom such surrender of shares is to be made on

payment of damages.

(g) Further, as observed earlier, the concept of buyback and

surrender of shares are entirely different and the same has been analyzed

by this Court in detail supra.

108. The construction given by the respondents 2 and 3

presupposes; (a) there will no strategic sale; (b) full damages will be paid;

shares will be “bought back” by the first respondent company and no

other form of structuring of the transaction will be employed. Even

assuming this is a buyback by the first respondent company after

fulfillment of all the steps, there is no blanket embargo on a buyback

under Sections 66 to 68 of the Indian Companies Act, 2013. It simply

calculates thresholds for every year and the first respondent can very well

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comply with those thresholds. Infact, Clause 19.2 of the SASHA

contemplates an actual buyback, which is not the scenario in Clause 19.1.

Only in accordance with Clause 19.1 of the SASHA, the directions have

been issued by the Arbitral Tribunal under the award.

109. Further, it is to be noted that the respective petitioners are

seeking enforcement of the award only as against the respondents 2 and 3

and not the first respondent company to keep the first respondent

company as a going concern. In such a scenario as well, there would be

no question of buyback of shares.

110. Moreover, by resisting the enforcement of the foreign award

on this untenable ground, the respondents 2 and 3 are essentially inviting

this Court to unravel the binding terms of the SASHA, which were

confirmed by the Arbitral Tribunal, which will lead to a re-writing and re-

assessment of the award, which is never permitted in the enforcement

proceedings under Section 48 of the Act.

111. Surrender of shares through capital reduction under Section

66 of the Indian Companies Act, 2013, is lawful and distinct from

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buyback. The direction to surrender shares upon payment of damages

can also be effected by way of undertaking a capital reduction in

accordance with Section 66 of the Indian Companies Act, 2013. Capital

reduction is the process of decreasing a company's shareholder equity by

cancelling and extinguishing its shares and paying off any paid-up share

capital.

112. The fallacy of the second and third respondents' argument is

borne out from the judgment of the Hon'ble Supreme Court in the case of

Renusagar Power Co. Ltd. Vs. General Electrict Co. [1994 Supp (1) SCC

644], where the core allegation was that the enforcement of a foreign

arbitral award would amount to a violation of Section 47(3) of the

Foreign Exchange Regulation Act, 1973 (FERA), as it involved payment

obligations in foreign exchange that had been previously denied approval

by the Indian Government. The Hon'ble Supreme Court, while

emphasizing on the economic and regulatory objective of FERA, rejected

the argument that prior refusal of approval by the Government made

subsequent enforcement impermissible, explaining that the Government

remains free to re-evaluate its decision based on new developments.

Ultimately, the Hon'ble Supreme Court held that none of the grounds

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raised by Renusagar including those invoking FERA were sufficient to

deny enforcement of the arbitral award as there was no violation of a law

or public policy.

113. The reliance of the respondents 2 and 3 on Trevor and

another Vs. Whitwork and another [1887 (12) App.Cas.409] and Ramesh

B. Desai and Ords Vs. Bipin Vadilal Mehta and others [2006 (5) SCC

638] to contend that there is a prohibition against return of capital arising

from a buyback is incorrect and misleading as, in Trevor, it was held that

such return of capital should be in consonance with statutory restrictions

and be carried out with Court sanction.

114. It is a settled proposition that when a statute imposes a penalty

to deter or regulate specific conduct such as prohibiting or restricting

certain transactions, such statutory consequence, even if attracted, does

not by itself constitute a breach of the fundamental policy of Indian Law.

The mere existence of a penal or regulatory provision is indicative of

legislative intent to discipline, not to void the underlying transaction as

repugnant to the foundational tenets of the legal system. Enforcement of

a foreign arbitral award cannot be restricted merely on the ground that a

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statutory penalty might hypothetically arise.

115. In Mercator Vs. Dredging Corporation of India [2024 SCC

Online Del 3075], a decision rendered by the Delhi High Court which

view this Court agrees, it has been held that unless the statute itself states

that violation of a penal provision will render a contract void or illegal,

mere violation of such provision will not invalidate a contract. The

decision rendered by the Hon'ble Supreme Court in Asha John

Diviananthan Vs. Vikram Malhotra [2021 (19) SCC 629] relied upon by

the respondents 2 and 3 has no applicability to the facts of the instant

case. In Asha John Diviananthan (cited supra), the Hon'ble Supreme

Court analyzed Section 31 of FERA to hold that a gift deed executed

without obtaining an approval from RBI would render such transfer of

property unenforceable in law as clear title in the property would not pass

to the donee. Similarly, the reliance on Imax Corporation Vs. E-City

Entertainment [2024 SCC Online Bom 3555] by the respondents 2 and 3

is also totally misplaced. Unless the statute itself states that violation of a

penal provision will render a contract void or illegal, mere violation of

such provision will not invalidate a contract. Therefore, Sections 66 to

68 of the Indian Companies Act, 2013, relied upon by the respondents 2

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and 3 for objecting to the enforcement of the foreign arbitral award has

no applicability to the case on hand.

116. In OPG Power General Pvt Ltd Vs. Enexio Power cooling

Solutions India Pvt Ltd [2025 (2) SCC 417], the Hon'ble Supreme Court

has held as follows:-

“37. What is clear from the above is that for an

award to be against public policy of India a mere

infraction of the municipal laws of India is not

enough. There must be, inter alia, infraction of

fundamental policy of Indian law including a law

meant to serve public interest or public good.”

117. Therefore, it is clear that a breach that is procedural or

rectifiable, such as a technical violation of regulatory laws, does not

amount to a breach of fundamental policy. Infact, even non-rectifiable

breaches have been held to be not in violation of fundamental policy of

India. Section 48 of the Act deals with the enforcement of an award, not

its validity, and the scope for factual investigation is limited. This

distinction underscores the narrow approach to deny enforcement on the

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basis of public policy and restricts it to violations that are unquestionably

contrary to the basic tenets of Indian Law.

118. The reliance of the second and third respondents' on

Macdougal vs. Jersey Imperial Hotel Co Ltd [1864 (2) H&M 568] and

Barclays Bank Plc Vs. British Commonwealth Holdings Plc [1995 BCC

19] to assert that return of capital/buyback is linked to public interest of

protecting creditors and other stakeholders is erroneous as both these

judgments pertain to return of capital of a listed company/joint stock

company, which is not the case on hand, and therefore, the said decisions

have no bearing for deciding these petitions.

119. In OPG Power Generation's case (cited supra), the Hon'ble

Supreme Court has reiterated the well established principles that the

Arbitral Tribunals are not required to deal with every single contention

made by the parties, nor are they obligated to set out a step-by-step

justification akin to a judicial order. What is required is a reasoned award

that reflects the tribunal's understanding of the issues and its basis for the

conclusion reached. If the award indicates the path of reasoning,

identifies the evidentiary foundation and explains the key findings, it will

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be sufficient to meet the requirement of being a reasoned award and

enforcement must therefore follow.

120. The issue of buyback raised by the respondents 2 and 3 was

also raised by them before the Singapore High Court while challenging

the award. The objections raised by the respondents 2 and 3 were

conclusively rejected by the Singapore High Court in its judgment dated

21.02.2025. The Singapore High Court held that the Arbitral Tribunal

had duly applied its mind to the respondents' buyback argument and

found no justification to interfere with the Arbitral Tribunal's conclusion.

The Singapore High Court dealt with the buyback objection in the

following manner:-

(a) The Singapore High Court examined the structure of the

buyback defence, which consists of two limbs; (i) the interpretation limb;

and (ii) the unenforceability limb. The Singapore High Court held that

the unenforceability limb is contingent upon the prior establishment of

the interpretation limb. If the interpretation limb is rejected, the

unenforceability limb collapses.

(b) The promoters contended that awarding damages for the breach

of Clause 19.1 would be equivalent to a buyback since the investors

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would have to return their shares upon receiving damages. The Court

noted that this argument was based on the assumption that damages paid

for breach of Clause 19.1 would necessarily lead to share surrender and

held as follows:-

"However, the question of the permissibility of the Company buying back the Investors' shares (and whether that might affect the interpretation of cl 19. 1) would not even arise if an order for the Company to pay damages to the Investors (coupled with the Investors returning their shares to the Company upon receipt of such payment) does not "effectively amount" to the Company buying back the Investors' shares to begin with.”

(c) The Singapore High Court noted that the Arbitral Tribunal also

summarized and acknowledged the promoters' objections, particularly in

regard to Clause 19.1 of the SASHA and if treated as an absolute

obligation, the same would render the buyback provision in Clause 19.2

of the SASHA as redundant.

(d) The Singapore High Court held that since the interpretation

limb was rejected, the Arbitral Tribunal was not required to separately

address the unenforceability limb.

(e) The Singapore High Court noted that the promoters' failure to

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raise the unenforceability limb earlier further weakened their position.

121. Therefore, the Singapore High Court, which is the supervisory

court, having rejected the objection with regard to buyback, the

respondents 2 and 3 have once again raised the very same issue before

this Court, which is the enforcement Court under Section 48 of the Act.

The observation of the Delhi High Court in Cruz City Vs Unitech Limited

[2017 SCC Online Del 7810], which has been approved by the Hon'ble

Supreme Court in Vijay Karia (cited supra) and also followed in

Mercator's case (cited supra) is that a party is not permitted to re-litigate

the same issue before the foreign award enforcement court. In the case

on hand as well, since the issue with regard to buyback has already been

decided by the Singapore High Court, the respondents 2 and 3 cannot

argue the very same issue in the enforcement proceedings under Section

48 of the Act.

122. Further, in the case on hand, the transnational issue estoppel

applies and therefore, the respondents 2 and 3 are estopped from raising

the defence of buyback once again before the foreign award enforcement

court, which, in the instant case, is this Court.

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123. The respondents 2 and 3 are also attempting to raise new legal

issues, which could have been raised by them even before the Singapore

High court, which is the supervisory Court. It is for the first time before

this Court, the respondents 2 and 3 have raised a plea that the award is in

contravention of Sections 66 to 68 of the Indian Companies Act, 2013.

Infact, as seen from the award, the respondents 2 and 3 in the arbitration

have never raised the issue of violation of the Indian Companies Act,

2013, and it is only in their post hearing reply submissions and cost

submissions dated 09.02.2024, where, for the first time, the respondents 2

and 3 have raised a new plea that the arbitral claim made by the

respective petitioners if awarded will be in violation of Section 67(1) of

the Indian Companies Act, 2013.

124. The respondents 2 and 3 have attempted to contend that this

Court must appreciate the substance of the transaction over its form to

argue that any surrender of shares by the respective petitioners will result

in a buyback. Such a contention is flawed and misplaced, as any

surrender of shares cannot and does not automatically result in a buyback

and in any event, it will not violate any provisions of the Indian

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Companies Act, 2013. Therefore, the reliance of the judgments in

Progress Property Co ltd (cited supra); Barclays Bank Plc (cited supra);

and Trevor (cited supra) by the respondents 2 and 3 to contend that

courts have appreciated substance over form is not applicable to the case

on hand.

For the foregoing reasons, the buyback issue raised by the

respondents 2 and 3 once again before the enforcement Court, i.e., this

Court, has to be summarily rejected.

Doctrine of Election Objections:

125. The second objection raised by the respondents 2 and 3 is that

the foreign arbitral award is contrary to the fundamental policy of the

Indian Law, since the doctrine of election does not permit the respective

petitioners to seek both termination of rights as well as strategic sale

under Clause 24.6 read with Clause 19.6 of the SASHA.

126. At the outset, it must be noted that this objection was never

raised before the Singapore High Court by the respondents 2 and 3. A

proper understanding of this objection reveals that it is, in substance, an

impermissible attempt to reopen the merits of the dispute under the guise

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of a natural justice claim. The contention of the respondents 2 and 3 that

the Arbitral Tribunal applied its own reasoning and the principles to

conclude that the strategic sale right was validly exercised without

affording them an opportunity to respond fails to acknowledge the well

settled position that it is entirely within the domain of an Arbitral

Tribunal to evaluate and draw inferences from the evidence/arguments

placed/presented before it, even if such reasoning does not mirror the

exact articulation of either party. The Arbitral Tribunal has not relied

upon any new evidence or denied the respondents 2 and 3 an opportunity

to meet an argument going to the root of the matter. In the absence of

such breach, the threshold under Section 48(1)(b) of the Act is not met.

127. The claim of the respondents 2 and 3 with regard to non-

consideration of the doctrine of election is incorrect and is in any event

will amount to re-appreciation on merits. Under Section 48 of the Act, as

held in the decisions of the Hon'ble Supreme Court in Vedanta Ltd; Vijay

Karia; Shri Lal Mahal Ltd; and Gemini Bay Transcription (cited supra),

reconsideration of the merits of the dispute and reinterpretation of the

SASHA is not permissible.

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128. In the ratio laid down in Checkpoint Ltd Vs. Strathclyde

Pension Fund [2003 EWCA Civ 84], which has been upheld by the

Madras High Court in Transtonnelstroy – Afcons (JV) Vs. Chennai Metro

Rail Ltd.[2023 SCC Online Mad 1013], the United Kingdom High Court

drew a distinction between the arbitrator supplying new evidence by

using his own knowledge and him using that knowledge to evaluate and

adjudicate upon the evidence before him. In relation to the latter, the

arbitrator is fully entitled to make use of his own experience and

knowledge in evaluating the evidence before him and in reaching his

conclusion, provided that it is of a kind and in the range of knowledge

that one would reasonably expect the arbitrator to have, and provided he

uses it to evaluate the evidence called and not to introduce new and

different evidence.

129. It is commonplace in judicial decisions on points of

construction that a judge may fashion his or her reasoning and analysis

from the material upon which argument has been addressed without it

necessarily being in terms which reflect those fully expressed by the

winning party. Therefore, the reliance placed by the respondents 2 and 3

on Interbulk Ltd. v. Aiden Shipping Co. Ltd. Lloyd's Law Reports [1984]

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Vol. 2; OAO Northern Shipping Company v. Remol Cadores De Marin

SL [2007] EWHC 1821 (Comm); Lorand Shipping Ltd. v. Davof Trading

(Africa) BV (The Ocean Glory) [2014] EWHC 3521 (Comm); Cameroon

Airlines v. Transnet Limited [2004] EWHC 1829 (Comm); and Vee

Networks Limited v. Econet Wireless International Limited [2004]

EWHC 2909 (COMM), to contend that the Arbitral Tribunal ought to

have provided an opportunity to the parties before deciding an issue that

was not before it, is incorrect, misconceived and has to be rejected.

130. The Hon'ble Supreme Court has made it clear in Vijay Karia

(cited supra) that the expression “or was otherwise unable to present his

case” under Section 48(1)(b) of the Act must be interpreted narrowly.

The Hon'ble Supreme Court observed that this standard is considerably

more restrictive than the broader tests adopted under the English and

Singapore arbitration regimes. Therefore, a mere failure to consider a

material issue does not, by itself, fall within the ambit of Section 48(1)(b)

of the Act. Further, the Hon'ble Supreme Court in Vijay Karia (cited

supra) clarified that violation of Section 48(1)(b) of the Act, which arises

only under limited circumstances, such as, where a party is denied the

opportunity to meet an argument that goes to the root of the matter; or

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whether the findings are based on evidence introduced behind the party's

back; or where the award relies on new or additional evidence without

affording the other side a chance to rebut it. Therefore, the respondents 2

and 3 cannot raise this objection under Section 48(1)(b) of the Act by

placing reliance on Bachhaj Nahar Vs. Nilima Mandal and others

[MANU/SC/8199/2008]; and Organizing Committee Commonwealth

Games Vs. Pico Deepali Overlays Consortium [2016 SCC Online Del

1582], to contend that natural justice dictates that reliefs ought not to be

granted without pleadings/opportunity to the counter-party, in view of

very narrow and limited scope of Section 48 of the Act.

131. The respondents 2 and 3 raised the ground of election during

the arbitration, which was refuted by the respective petitioners, and

considered by the Arbitral Tribunal and rejected. Therefore, the

respondents 2 and 3 cannot contend that they were not awarded ample

opportunity by the Arbitral Tribunal to be heard on this issue. The

Arbitral Tribunal only based on the pleadings and evidence available on

record in the award found that (a) the respective petitioners had validly

exercised the right of termination and the right of strategic sale under

Clause 24.6 of the SASHA; (b) there was no exclusion of the right of

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strategic sale or already an election made of the exercise of one remedy

(termination) to the exclusion of another (strategic sale) on the basis of

the April 11, 2022 notices -- the notices of arbitration and the

consolidated statement of claim, since both rights had been invoked; and

relief sought by the respective petitioners and by granting so, it is held

that the termination right under Clause 24.6(c) fell away since the final

award determinatively granted the relief of strategic sale. Therefore, it is

clear that there was no question of denial of an opportunity for the

respondents 2 and 3 to be heard on this issue by the Arbitral Tribunal.

132. On 11.04.2022, the respective petitioners had issued a notice

of material breach pursuant to Clause 24.4 of the SASHA on the

respondents' failure to provide an exit under Clause 19 of the SASHA. In

the said notice, the respective petitioners had given the respondents

written notice of termination of their rights (not obligation) under Clause

24.6(c) of the SASHA. On the same date, the petitioners had also issued

a separate notice of strategic sale under Clause 19.6 of the SASHA

pursuant to the material breach. In response, the respondents and

Mr.Archit Mylandla issued an email dated 11.04.2022 denying the

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contents of the notice of material breach and notice of strategic sale and

they have also stated that the respondents and Mr.Archit Mylandla have

“temporarily immediately withdrawn voluntarily” from the first

respondent company (Ex.C-3, Emergency arbitration application). The

Emergency Arbitral Tribunal, after considering the above response given

by the respondents 2 and 3, held that the petitioners have established a

prima-facie case that they are contractually entitled to terminate the rights

of the respondents 2 and 3 under the SASHA, which includes the second

respondent's right to manage the first respondent company under Clause

10.1 of the SASHA. It has further observed that since the respondents 2

and 3 continue to interfere in the operations of the first respondent

company, it would be difficult to quantify the impact of such interference

to the operations and value of the first respondent company. This is

especially so, since any of the interference and influence that the

respondents 2 and 3 may seek to exert in the affairs of the first respondent

company would not always be direct or obvious. Hence, the

Management Orders would simply ensure the neutral management of the

first respondent company while the dispute between the respective

petitioners and the respondents 2 and 3 is in progress. Only under the

aforesaid circumstances and only to prevent the respondents 2 and 3 from

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engaging any activities jeopardizing the operations of the first respondent

company, it is evident from the outset that the right to seek specific

performance of the strategic sale need to be preserved. Therefore, it is

clear that the core relief sought by the respective petitioners was only the

enforcement of the strategic sale. The Arbitral Tribunal has also

elaborately discussed in its award as to whether the respective petitioners

have elected to terminate the promoters under the SASHA to the

exclusion of any right to invoke the strategic sale, by giving the following

reasons:-

(a) As seen from the notices issued by the

petitioners in April, 2022; and the notice of

arbitration, the petitioners had invoked both the

rights of strategic sale and termination of rights of

the respondents.

(b) In the statement of claim, the petitioners

had invoked both of these remedies.

(c) One of the primary relief sought by the

petitioners is damages and if the respondents fail to

pay such damages within 90 days, the petitioners

can implement a strategic sale.

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(d) The notice of strategic sale was not

abandoned and formed a part of the reliefs sought in

the arbitration; and

(d) The petitioners have not exercised any

option to seek termination of the rights of the

respondents at the expense of enforcement of a

strategic sale, which has been the core relief sought

in the arbitration.

133. Therefore, it is clear that at no point in the past the petitioners

exercised their rights under Clause 24.6 of the SASHA to elect or give up

one right over the other. Therefore, the conclusion of the Arbitral

Tribunal that the petitioners had invoked both rights and based on the fact

that they did not make an election as both rights were invoked on the

same date, cannot be found fault with. The Arbitral Tribunal has also

come to the right conclusion that the respective petitioners have claimed

both reliefs, i.e., strategic sale and termination, but, they have not

exercised any option to seek termination of the promoters' right at the

expense of the right to force a strategic sale, which has been the core

relief sought by the respective petitioners in the arbitration.

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134. Concurring with the respective petitioners, the Arbitral

Tribunal in its Memorandum of Correction and Interpretation of the Final

Award dated 22.08.2024 concluded that the rights under Clause 24.6 of

the SASHA are disjunctive and that the core relief sought by the

respective petitioners is that of a right to implement strategic sale; and

that the termination of the rights (and not the obligations) of the

respondents cannot be at the expense of the right to force a strategic sale.

The respondents 2 and 3 were also reinstated in the management of the

first respondent company, post the correction award.

135. It is also to be noted that the ground of election was never

raised by the respondents 2 and 3 in their challenge to the award before

the Singapore High Court. If the respondents 2 and 3 genuinely believed

that the Arbitral Tribunal had failed to consider the issue of election

properly or violated the principles of natural justice, such a challenge

ought to have been raised before the Singapore High Court, which is the

Curial Court. Notably, the doctrine of election, which is the time-

honored principle of Indian Law and their central aspect of argument,

was not even alluded in the correction proceedings, indicating the belated

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and opportunistic nature of the present objection. By resisting the

enforcement of the award on the ground of non-consideration of the

doctrine of election, the respondents 2 and 3 are essentially seeking a

reconsideration of the merits of the dispute, which cannot be permitted

under Section 48 of the Act.

Award disregards the prohibition under Section 16(b) of the Specific

Relief Act:

136. There is no violation of the fundamental policy of India as

contended by the respondents 2 and 3. They have contended that the

Arbitral Tribunal had disregarded the prohibition under Section 16(b) of

the Specific Relief Act, 1963, which states that a party that has breached

an essential term of the contract cannot obtain specific performance. The

breach of the essential term of the SASHA, as per the respondents, is in

contravention of Clauses 10.1 and 10.3 of the SASHA by terminating the

rights of the respondents under Clause 24.6(c) of the SASHA. This

argument however fails as it is based on a premise that is not only

unproven but directly contradicting by the findings of the Arbitral

Tribunal. There is no determination by the Arbitral Tribunal that the

respective petitioners were in breach of any essential term of the SASHA.

On the other hand, the Arbitral Tribunal found that the respective

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petitioners were entitled to enforce their rights and did not commit any

breach that would attract the bar under Section 16(b) of the SASHA. In

the absence of such a finding, the argument that the award violates the

fundamental policy of Indian Law cannot be sustained. The test under

Section 48(2)(b) of the Act is narrow and hence, no such objection can be

upheld by this Court. That apart, the respondents 2 and 3 did not assert

such a contention throughout the arbitration proceedings and therefore,

they are barred from introducing such new grounds at the stage of

enforcement proceedings under Section 48 of the Act.

137. The respondents 2 and 3, in their arguments, have incorrectly

and fallaciously contended that the second respondent was ousted as the

Chairman of the Board of Directors of the first respondent company by

the petitioners, when infact the Minutes of the Meeting dated 09.02.2024

records to the contrary as under:-

“ It is a matter of record that Mr.Nagaraj Mylandla, in the past, has chaired the meetings as well and it is also a matter of record that he willingly gave up his position as the Chairman and has requested Mr.Rudhraapathy J to chair.”

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138. Therefore, it is clear that Mr.Nagaraj Mylandla was never

ousted as the Chairman of the Board of Directors by the petitioners, but,

had voluntarily given up the chair to Mr.Rudhraapathy J/fourth

respondent.

For the foregoing reasons, the objections raised by the respondents

2 and 3 that the Arbitral Tribunal did not consider the doctrine of

election, which, according to the respondents 2 and 3, is a core issue, has

to be rejected by this Court.

Waiver Issue:

139. The fourth objection raised by the respondents 2 and 3 for

resisting the enforcement of the foreign arbitral award is that the

respective petitioners having pursued the split sale have waived their

rights for strategic sale.

140. According to the respondents 2 and 3, the respective

petitioners having participated in the split sale process of CashTech

business and PayTech business of the first respondent company, had

waived their rights for a secondary sale under Clause 19.1 of the SASHA.

According to the respondents 2 and 3, the Arbitral Tribunal had failed to

consider this issue of waiver, which, according to them, is a material and

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core issue, and therefore, according to them, the award is contrary to

Section 63 of the Indian Contract Act, 1872. The respondents 2 and 3

have relied upon a judgment of the Hon'ble Supreme Court in All India

Power Engineer Federation and others Vs. Sasan Power Limited and

others [2017 (1) SCC 487] in support of their objection of waiver. The

objection of waiver will amount to reassessment and re-examination of

the merits of the dispute and will amount to re-look of the evidence

presented before the Arbitral Tribunal. It would also reopen the

interpretation of the SASHA as rendered by the Arbitral Tribunal and

therefore, the said objection travels far beyond the grounds available to

the respondents 2 and 3 under Section 48 of the Act. The Arbitral

Tribunal has rendered a categorical finding that the respective petitioners

had never waived their rights to pursue for a secondary sale under Clause

19.1 of the SASHA and in any event, any waiver would have to be

explicitly in writing in terms of Clause 29.5 of the SASHA. Clause 29.5

of the SASHA reads as follows:-

29.5. Waiver Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach of default under this Agreement or any waiver on the part of the Party of any provisions or

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conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. No forbearance, indulgence or relaxation of any Party at any time to require performance of any provision of this Agreement shall in any way affect, diminish or prejudice the right of such Party to require performance of the same provision and any waiver or acquiescence by any Party of any breach of any provision of this Agreement shall not be construed as a waiver or acquiescence of any continuing or succeeding breach of such provisions, a waiver of any right under or arising out of this Agreement or acquiescence to or recognition of rights and/or position other than as expressly stipulated in this Agreement.

141. The Arbitral Tribunal has comprehensively analyzed and

interpreted the terms of the SASHA including the absolute obligation of

the respondents 2 and 3 to provide the petitioner an exit under Clauses

19.1 and 29.5 of the SASHA. The Arbitral Tribunal, only after analyzing

the contemporaneous correspondence between the respective petitioners

and the respondents, has concluded that the respective petitioners had

validly invoked their rights under Clause 19.1 and all the parties had

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agreed to pursue a secondary sale under Clause 19.1 of the SASHA.

142. The respondents 2 and 3 had once again raised this objection

of waiver before the Singapore High Court in their challenge made to the

award, where it was once again comprehensively dealt with and rightly

rejected. Any attempt to reintroduce such objection at the stage of

enforcement proceedings under the limited and narrow grounds available

under Section 48 of the Act constitutes an impermissible re-litigation of

issues already adjudicated by the Arbitral Tribunal as well as by the

Singapore High Court. Moreover, the respondents 2 and 3, for the first

time, alleged that the award violates Section 63 of the Indian Contract

Act by placing reliance on Sasan's case (cited supra), which is not even

pleaded by them in their counter affidavit dated 19.03.2025. Therefore,

without a pleading in respect of waiver objection raised by the

respondents 2 and 3, the said objection has to be summarily rejected, as

the scope of interference by this Court under Section 48 of the Act is very

narrow and limited. It is settled law that if a case has not been pleaded, it

cannot be introduced for the first time in oral arguments.

143. The testimony of the second respondent before the Arbitral

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Tribunal will also confirm that the respective petitioners did not waive

their rights for a strategic sale. The second respondent in his deposition

during the arbitration has deposed as follows:-

(a) He understood the notices sent by the

petitioners in 2016 to be a valid secondary sale

notices.

(b) He also understood that the petitioners

wanted to participate in the secondary sale process in

2017.

(c) In response to a question as to whether by

2018 the exit process was taking longer than

everyone would have liked, he confirmed by

deposing that yes, by 2018, the exit process was

taking time.

(d) The second respondent then confirmed that

an exit via a secondary sale of all the petitioners'

shares was being discussed in early 2020.

(e) When asked whether the second

respondent understood the notices dated 18.09.2020

in which it is stated that the petitioners wanted to

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proceed with the secondary sale, he said, yes agreed.

(f) He then confirmed that Credit Suisse was

engaged to assist with this very secondary sale

process.

144. The Arbitral Tribunal has relied on the cross-examination of

the second respondent to arrive at its finding on this waiver issue, i.e., the

petitioners were pursuing a secondary sale. Therefore, any reliance

placed by the respondents 2 and 3 on documents/evidence that was placed

before the Arbitral Tribunal to contend that the parties had, by pursuing a

split sale, waived their rights to a secondary sale, has to be rejected

outright.

145. The respondents 2 and 3 incorrectly highlighted paragraph

No.38 of the Singapore High Court judgment and drew the attention of

the Court to a selective reading of the Minutes of the Board Meeting

dated 26.03.2021 to assert that the Singapore High Court agreed that the

Tribunal was mistaken in construing that the parties were trying to

proceed with a secondary sale when a split sale was being discussed at

the said meeting. In the said meeting, under the agenda “Any other

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business”, it was specifically recorded that “the Chairman confirmed that

the Company is fully committed to provide 100% exit to the existing

investors and will immediately initiate a fund raise process.” The

Chairman of the said meeting was the second respondent and it is clear

that an exit of the Investors was being discussed at the meeting and

therefore, it is incorrect for the respondents 2 and 3 to say that the split

sale was discussed in the meeting.

146. Following a detailed analysis, the Arbitral Tribunal in

paragraph No.413 of the award held as follows:-

“413. Further, on 26 March 2021 at a further

meeting of the board of the company, the 2nd Respondent confirmed that he was fully committed to providing a 100% exit to the existing shareholders and will immediately initiate a fund raise process. Caution needs to be expressed when crossing a line and relying upon subjective understanding as it is clear that Mannai test is an objective one. Nevertheless, it is noticeable that there is not one single document contemporaneous with 18 September 2020 letters that expresses anything other than a unified resolve on all sides to try proceed towards bringing about a Secondary Sale

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so as to provide the contractual exit to all the

Investors. Indeed, this is the 1st Respondents’ positive pleaded case. This is also apparent from the Board Meeting minutes and the presentations made by Credit Suisse. Moreover, there is no response

from the 2nd and 3rd Respondents (or any other

Respondent, for that matter) to the 18th September 2020 notices expressing that they did not understand what was being required.”

147. Based on the aforesaid reasoning, the Arbitral Tribunal found

that the conduct of the investors including any participation in split sale

discussions or Credit Suisse presentations, pointed out to the consistent

pursuit of the petitioners' rights under Clause 19.1 of the SASHA.

148. The waiver objection was also rightly rejected by the

Singapore High Court. The Singapore High Court held that waiver

defence was a live issue, but, had been implicitly rejected based on

factual findings. Hence, the Singapore High Court ruled that an Arbitral

Tribunal is not required to explicitly address every argument and the

respondents failed to show any prejudice. The Singapore High Court

held that even if the Arbitral Tribunal had explicitly considered the

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waiver defence, it would not have changed the outcome. The Singapore

High Court noted that the findings of the Arbitral Tribunal confirmed that

the parties acted with common goal of effecting a secondary sale under

Clause 19.1 of the SASHA. The fact that the petitioners participated in

Credit Suisse presentations or other sale discussions did not imply a

waiver of their right to secondary sale. The Singapore High Court

dismissed the waiver objection stating that even if the Arbitral Tribunal

has misunderstood the evidence, such a mistake would be an error of fact

and not a breach of fair hearing rule.

149. In the case on hand, the Arbitral Tribunal took note of Clause

29.5 of the SASHA, extracted supra, and undertook a detailed analysis of

the conduct of the parties as also the contemporaneous correspondence to

conclude that the petitioners were always seeking a secondary sale under

Clause 19.1 of the SASHA and just by participating in a split sale, they

had in fact not waived their rights to seek an exit under Clause 19.1 of the

SASHA.

For the forgoing reasons, the objection raised by the respondents 2

and 3 that the petitioner had waived their rights to pursue a secondary

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sale by participating in the split sale process, has to necessarily fail.

Accordingly, the objection raised by the respondents 2 and 3 with regard

to waiver is rejected by this Court.

The affirmative vote matter issue:

150. The next objection raised by the respondents 2 and 3 for

resisting enforcement of the foreign award is that the Arbitral Tribunal

failed to consider the material issue that the unauthorized delegation of

power must relate to a specific Affirmative Vote Matter (AVM) listed in

annexure IV of the SASHA.

151. The crux of the respondents 2 and 3's argument in this

objection is that while holding the respondents 2 and 3 in material breach

of Clause 13.4 (Affirmative Voting Matters) read with Clause 24.4(e)

(Material Breach of Affirmative Voting Matters) of the SASHA, the

Arbitral Tribunal had failed to consider the material issue that the

unauthorized delegation of power to Mr.Archit Mylandla must relate to a

specific Affirmative Vote Matter listed in Annexure 4 of the SASHA.

The reasoning given by the Arbitral Tribunal while holding the

respondents 2 and 3 in material breach of Clause 13.4 read with Clause

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24.4(e) was that the first respondent company had not replaced its

statutory auditor. The respondents 2 and 3 have contended that the

breach being material issue due to the statutory auditors not being

replaced was not pleaded by any party and such an alleged finding is

therefore a breach of natural justice.

152. This objection is wholly without any merit. The Arbitral

Tribunal has held that the respondents 2 and 3 are in material breach of

Clause 19.1 of the SASHA, since they failed to provide the petitioners

with an exit, which resulted in passing of the award of damages and a

direction for a strategic sale to recover such damages in favour of the

respective petitioners. The contention of the petitioners that the

respondents 2 and 3 are to be held in material breach of Clause 24.4(e) is

in addition to the material breach that the respondents 2 and 3 failed to

provide an exit under Clause 19 of the SASHA. Therefore, any objection

raised by the respondents 2 and 3 with respect to the observation of the

Arbitral Tribunal on this issue will not come in the way of this Court

refusing enforcement of the award.

153. It is also to be noted that the respondents 2 and 3 had failed to

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raise this objection before the Singapore High Court. In Mercator's case

(cited supra), the Delhi High Court has held that the Court can take into

consideration the fact that a challenge on the ground in question was not

raised before the seat Court. This Court is in agreement with the view

taken by the Delhi High Court in Mercator's case (cited supra).

Therefore, the objection raised by the respondents 2 and 3 that the

Arbitral Tribunal failed to consider a material issue that the unauthorized

delegation of power must relate to a specific Affirmative Vote Matter has

to be rejected by this Court.

154. The Arbitral Tribunal has given a categorical finding on the

material breach of Clause 13.4 read with Clause 24.4(e) of the SASHA,

which is reproduced hereunder:-

630. This state of affairs was of itself extremely serious because it involved a material departure from the protection of rights contained in the SASHA. It is correct as the Respondents contend that no Affirmative Vote Matter resolution was passed without notice or consent. Instead, the 2nd Respondent appears to have by-passed the SASHA in a material manner by delegating authority for day-

to-day management onto Archit who repeatedly

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carried out this authority in the teeth of express opposition from the Claimants.... [Emphasis supplied]

631. The Tribunal agrees with the Claimants that Clause 13.4(e) of the SASHA does not require the Claimants to first identify the resolution that was passed without the consent of each of the Claimants and thereafter to establish that the resolution or decision was an Affirmative Vote Matter. Not only is such a requirement not expressly stated in Clause 13.4(e), it cannot be the case that any unauthorised action made without the proper approval from the Board is not prohibited under Clause 13.4(e)."

155. Therefore, the Arbitral Tribunal concluded that even if the

petitioners had not identified any resolution and that such a resolution

was contrary to an Affirmative Vote Matter, there was no requirement to

do so under Clause 13.4(e) and an unauthorized action made without

proper board approval was also prohibited by Clause 13.4(e) of the

SASHA.

156. This Court being an enforcement Court under Section 48 of

the Act, cannot re-appreciate and re-examine the merits of the award. It

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is therefore not open to the respondents 2 and 3 now to resist the

enforcement of the award by reopening the assessment of the merits of

the dispute under the guise that the Arbitral Tribunal did not consider the

material issue. The Arbitral Tribunal has appropriately interpreted

Clause 13.4, Clause 24.4(e) along with Annexure 4(aa) of the SASHA,

and also arrived at a correct finding that the breach of Clause 13.4(e) in

itself is the material breach while also relying on documents and evidence

placed before it to find the improper delegation of authority and to render

a finding that the respondents are in material breach of Clause 13.4, in

particular Clause 13.4(e) read with Clause 24.4(e) of the SASHA. By

raising this objection, the respondents 2 and 3 are essentially seeking a

complete reassessment of the interpretation of the SASHA as rendered by

the Arbitral Tribunal and a re-appreciation of the evidence under the

guise of a breach of natural justice and failure to consider a material

issue, while there was no such denial of natural justice, cannot be

permitted by this Court under Section 48 of the Act. Therefore, the

Arbitral Tribunal has not failed to consider any material issue and has

rendered a detailed award considering all contentions, hence, there is no

justification for the respondents 2 and 3 to raise this objection under

Section 48 of the Act.

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Award is contrary to Section 10(b), Section 14(1)(a) and

Section 20 of the Specific Relief Act:

157. The next objection raised by the respondents 2 and 3 is that

the foreign award has granted the relief contrary to the provisions of the

Indian Specific Relief Act, 1963, and hence, it violates the fundamental

policy of the Indian Law.

158. The crux of the respondents 2 and 3's objection is that

granting a relief of damages, and granting the right to a strategic sale

upon non-payment of the damages within 90 days, allegedly contravenes

Sections 10(b), Section 14(1)(a) and Section 21 of the Specific Relief

Act. This argument is fundamentally flawed as the relief granted under

the award does not fall under any of the provisions of the Specific Relief

Act. The Arbitral Tribunal has comprehensively considered the

contentions of the respondents 2 and 3 in this respect and rejected the

same, by granting damages in favour of the respective petitioners besides

granting strategic sale as a mode to recover the damages. The

respondents 2 and 3 have admitted this position at paragraph No.112(3)

of their statement of defence before the Arbitral Tribunal. Moreover,

SASHA itself contemplated that both reliefs of damages and also

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strategic sale were available to the petitioners on breach of the

respondents 2 and 3's obligation to provide an exit and therefore, the

Arbitral Tribunal is within its power to interpret the terms of the SASHA

and grant reliefs in furtherance of the same.

159. The relief of damages granted by the award is intrinsically

connected to the relief of strategic sale. Grant of such relief does in no

way contravene any provisions of the Specific Relief Act. Therefore, the

contention of the respondents 2 and 3 that the Tribunal could not have

granted damages as a primary relief and specific performance as a

secondary relief under Sections 10(b), 14(1)(a) and 21 of the Specific

Relief Act is fundamentally flawed, incorrect and has to be rejected.

160. This objection having been already considered and rejected by

the Arbitral Tribunal does not survive strict test of Section 48 of the Act,

since it once again like other objections invites this Court to reconsider

the merits of the dispute and reopen the interpretation of the SASHA as

rendered by the Arbitral Tribunal and therefore, it travels far beyond the

grounds available to the respondents 2 and 3 under Section 48 of the Act.

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161. It is also to be noted that the respondents 2 and 3 have failed

to raise this objection before the Singapore High Court and therefore, in

view of the decision of the Delhi High Court in Mercator's case (cited

supra), which view this Court agrees, the objection of the respondents 2

and 3 that the relief granted under the award is contrary to the Specific

Relief Act, without raising such a relief before the seat Court, i.e.,

Singapore High Court, cannot be sustained. In any event, the award is

not in violation of the fundamental policy of India and any contention of

the respondents 2 and 3 in this regard is entirely baseless.

162. The Specific Relief Act has been amended retrospectively and

therefore, the respondents cannot now contend that specific performance

cannot be granted where damages are an adequate relief. It is well settled

law by a number of judgments that a statute which merely affects

procedure is presumed to be retrospective in its application. In Adhunik

Steels Ltd Vs. Orrisa Manganese and Minerals P Ltd. [2007 SCC Online

SC 882], the Hon'ble Supreme Court held in paragraph No.16 that the law

of Specific Relief Act is said to be, in its essence, a part of the law of

procedure, for, specific relief is a form of judicial redress. It is therefore

clear that the 2018 Specific Relief Act is retrospective in nature. The

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respondents 2 and 3 have contended that the Hon'ble Supreme Court in

Katta Sujatha Reddy and another Vs. Siddamsetty Infra Projects (P) ltd

[2023 (1) SCC 355] held that the 2018 Specific Relief Act does not apply

retrospectively and will only apply to transactions post 01.10.2018. The

respondents 2 and 3 further submitted that Katta Sujatha Reddy (cited

supra) was reviewed by the Hon'ble Supreme Court in Siddamsetty Infra

Projects P Ltd. Vs. Katta Sujatha Reddy [2024 SCC Online SC 3214].

According to the respondents 2 and 3, such a review was only on merits

and did not disturb the finding of the prospective applicability of the 2018

Specific Relief Act. Such a contention is incorrect. On review in

Siddamsetty (cited supra), the Hon'ble Supreme Court recalled the

judgment in Katta Sujhatha Reddy (cited supra) and reinstated the

judgment of the High Court, which was impugned therein being

Hyderabad Potteries P Ltd. Vs. Debbad Viweswara Rao [2021 SCC

Online TS 3590], wherein it was held by the High Court that the 2018

Specific Relief Act would apply retrospectively. The said position of law

is also fortified by the Delhi High Court judgment in National Highways

Authority of India (NHAI) Vs. HK Toll Road Private Limited [2025 SCC

Online Del 2376]. Though an SLP is pending from the decision of the

Delhi High Court in NHAI (cited supra), the review order passed by the

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Hon'ble Supreme Court in Siddamsetty (cited supra) settles the matter,

which makes it clear that the provisions of the 2018 Specific Relief Act

would apply retrospectively as well. Therefore, the reliance placed by the

respondents 2 and 3 in Katta Sujatha Reddy (cited supra) rendered by the

Hon'ble Supreme Court is untenable.

163. In view of the above discussion, the submissions of the

respondents 2 and 3 with respect to the applicability of the 2018 Specific

Relief Act are incorrect and their contentions that specific performance

cannot be granted where damages is an adequate relief are entirely

irrelevant as the 2018 Specific Relief Act, which is applicable, has

entirely done way with such requirement. Further, under Section 21 of

the 2018 Act, specific performance and damages are permitted to be

granted simultaneously and go hand in hand as stated in the judgment of

the Hon'ble Supreme Court in Life Insurance Corporation of India Vs.

Sanjeev Builders Pvt Ltd [2022 SCC Online SC 1128].

164. By resisting enforcement of the award on the ground of

violation of the provisions of the Specific Relief Act, the respondents 2

and 3 are essentially seeking a reconsideration of the merits of the dispute

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and a re-interpretation of the SASHA which cannot be permitted by this

Court under Section 48 of the Act, as per the various decisions of the

Hon'ble Supreme Court, cited supra. The Arbitral Tribunal, only after

holistic construction of the SASHA, has concluded that on a breach of

Clause 19.1 of the SASHA, the respective petitioners are entitled to

damages and in addition to damages, they are also entitled to seek

strategic sale in case of failure to pay damages.

165. The respondents 2 and 3 have contended that the Arbitral

Tribunal has by granting damages and by directing strategic sale

performed the role of an execution Court. Such contention is incorrect

and inconsistent with a plain reading of the reliefs granted in the award.

Grant of such a relief is not without precedent. The Singapore Court of

Appeal in Bloomberry Resorts and Hotesl Inc and Anr. Vs. Global

Gaming Philippines LLC [2021 SGCA 94], while adjudicating a second

appeal upheld an award which granted constructive remedy by directing

payment of damages and on failure to pay such damages within 30 days,

granted the right to sell shares to recover such damages. In doing so, the

Court rejected the contention of the award debtors.

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166. As is evident from the above decision, grant of damages and a

mode of recovery of damages is merely a compensatory methodology

adopted by the tribunals to compensate parties and the same does not

amount to execution of the order. In the case on hand, the Arbitral

Tribunal ascertained the right of the petitioners to effect a strategic sale

from an interpretation of the SASHA and granted such relief to recover

the damages awarded. The judgments relied upon by the respondents 2

and 3, namely, Jawahar Lal Wadhva & Ors. v. Haripada Chakroberty

AIR 1989 SC 606; Roop Chand Chaudhari v. Ranjit Kumari AIR 1991

P&H 212l; M/s Trans Freight Shipping Services v. N.K. Shashikumar

2018 SCC OnLin Mad 2980 and Kochukunjan Pillai v. Sathiadas 2010

(2) MWN (Civil); Ramchandra Tanwar v. M/s. Ram Rakhmal Amichand

1970 RLW 61; and Divvanshi Saxena v. Shri Ram School ILR (2006) 1

Delhi 447, have no bearing for the facts of the instant case.

167. In addition to the above, the respondents 2 and 3 have also

relied on the report of the Expert committee on Specific Relief Act, 1963,

to demonstrate the reasons for amendment of the Specific Relief Act.

This is of no assistance to the respondents 2 and 3. As stated above, the

2018 Specific Relief Act makes specific performance the norm as

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opposed to an exception and does away with the requirement of

establishing damages as an inadequate remedy to obtain specific

performance.

For the foregoing reasons, this objection raised by the respondents

2 and 3 as stated supra, has also got to be rejected by this Court.

Limitation of liability issue:

168. The next objection raised by the respondents 2 and 3 for

enforcement of the foreign arbitral award is that the Arbitral Tribunal

failed to consider the material issue of whether the investors'

interpretation of the limitation of liability in Clause 22 of the SASHA

contradicted their own case.

169. During the hearing on 09.07.2025, the learned counsel for the

third respondent submitted that the limitation of liability issue raised by

the respondents 2 and 3 is not pressed. However, in the written

submission filed by the third respondent before this court on 29.08.2025,

the third respondent has asserted this objection.

170. In the statement of claim, the respective petitioners had sought

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a relief of indemnity under Clause 22 of the SASHA in the alternative to

damages. The respondents 2 and 3, in their statement of defence, argued

that the limitation of liability cap, under Clause 22 applies. The

petitioners, in their opening submission, argued that the cap only applies

to breach of representations, warranties and covenants. The contention of

the respondents 2 and 3 that the petitioners' interpretation of Clause 22 is

contrary to their own claim has been categorically recorded in para 473 of

the award and in para 504 of the award, the Arbitral Tribunal agreed with

the interpretation of the petitioners and rendered a categorical finding on

this issue and held as follows:-

"The Tribunal also finds that the cap in the Company and the Promoters' liability under Clause 22 of the SASHA does not apply to the Claimants' claims for damages, and specifically does not apply to the Claimants' claims for breach of Clause 19.1. The 2nd and 3rd Respondents argue that Clause 22 should be read broadly and applies to all representations, warranties and covenants in the SASHA. However, the Tribunal notes that Clause 9 of the SASHA specifically refers to "Representations and warranties" and Clause 14 of the SASHA specifically refers to "Covenants". The Tribunal agrees with the Claimants that it is unlikely

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that the Claimants would have agreed to a generic liability cap at the sum of their investment, and on the contrary, it is commercially sensible for the Company and the Promoters' liability to be capped for a breach of Clauses 9 and 14 as they concern matters that if untrue or breached, are not sufficiently serious and at most would lead to the investment being unwound."

171. From the above, it is clear that the Arbitral Tribunal had

considered the contention of the respondents 2 and 3 and rightly rejected

the same. Therefore, there is no non-consideration of an issue, let alone a

material issue, as contended by the respondents 2 and 3. This objection

seeks a re-interpretation of the SASHA and it is settled law that this

ground is not permitted in a petition filed under Section 48 of the Act.

Fraud Issue:

172. The last and final objection raised by the respondents 2 and 3

is that the award is vitiated by fraud purportedly committed by the

respective petitioners based on the purported concealment of (i) the

findings of a report prepared by Ernst & Young dated 15.12.2022 (in

short “EY report”); and (ii) certain email correspondences between the

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employees of the first respondent company where the petitioners are not

copied.

173. The respondents 2 and 3 allege that the petitioners concealed

the aforesaid documents which allegedly show (a) fraudulent accounting

practices in the first respondent company; and (b) the employees of the

first respondent company were allegedly manipulating the finance of the

first respondent company and that these factors allegedly impacted the

EBITDA of the first respondent company. They also alleged that the

petitioners had a quid pro quo arrangement with certain employees of the

first respondent company to secure a favourable award.

174. The aforesaid allegations of fraud are made by the

respondents 2 and 3 for the first time in this enforcement proceedings,

despite the respondents 2 and 3 having knowledge of the findings of the

EY report since 30.01.2023. This statement is confirmed by the letter

dated 30.01.2023 addressed by the petitioner to the Board and copied to

the respondents 2 and 3. On 30.01.2023, the second respondent was the

Managing Director and Chairman of the first respondent company and

therefore, he was aware of the EY report. Even otherwise, none of these

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documents including the EY report were placed on record before the

Arbitral Tribunal. The various statements made by the respondents 2 and

3 alleging fraud for the first time in this enforcement proceedings would

require a trial and a finding, and therefore, the same cannot be assumed to

be true or proved. The respondents 2 and 3 in a malafide manner and to

scuttle the enforcement proceedings are attempting to resort to an

unsubstantiated and threadbare allegation of fraud for the first time in this

proceeding under Section 48 of the Act, which is wholly unsubstantiated.

The respondents 2 and 3 did not also choose to raise the argument with

regard to fraud before the Singapore High Court, that shows that the said

objection has been raised only as an afterthought to scuttle the

enforcement proceedings before this Court under Section 48 of the Act.

175. Timeline of events and deliberate failure of the respondents 2

and 3 in seeking the EY report are detailed hereunder:-

a) November 28, 2022- The Statement of Claim was filed by the Petitioner in the SIAC arbitration proceedings.

b) December 15, 2022- The EY Report was prepared by Ernst & Young, at the behest of the Petitioner, Nylim and Millenna, with respect to the financial years FY 2021 and FY 2022 (financial statements of which period have no bearing on the

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Award).

c) December 20, 2022- It is an admitted position [in the NCLT proceedings and in the Objections filed by the 2nd Respondent at paragraph 95(c)] that a copy of the EY Report was provided to Respondent No. 1, which fact the 2nd Respondent was aware of.

d) December 30, 2022 - A meeting of the Board of Directors and Audit Committee of the 1st Respondent was held and the financials for FY 2022 were approved and signed by the 2nd Respondent. The 2nd Respondent was quite clearly himself responsible for confirming the financials of the 1ª Respondent.

e) January 30, 2023 - A letter was addressed by

the advocates for the Petitioner to the 1st Respondent (copied to the Board of Directors of the 1ª Respondent), informing them of the findings of the EY Report as also the period of review (being April 1,

2020 to March 31, 2022) and requesting the 1st Respondent to take appropriate action. The 2nd Respondent was made aware of the findings of the EY Report by this communication as admitted in the Objections at paragraph 92(d) being "Shocked by the 30 January Letter. I repeatedly sought that a copy of the E&Y Report be shared with me."

1) March 21, 2023 - The Statement of Defence was filed by the Respondents in the SIAC arbitration

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("SOD"). However, the Statement of Defence made no mention whatsoever of any purported financial irregularities in the 1st Respondent, let alone the existence of the EY Report and/or any impact of this report on the calculation of the Exit Price as on September 18, 2020, despite the Respondents being completely aware of the findings and existence of the EY Report. At this stage the Respondents could have argued in respect of the impact of the EY Report and/or the impact of any alleged concealment on part of the Petitioners.

g) March 21, 2023 - Along with the SOD, the 2nd Respondent also filed his witness statement in the arbitration proceedings. The witness statement again does not raise any questions with respect to the calculation of the Exit Price as on September 18, 2020

basis any alleged financial irregularities in the 1st Respondent, despite being aware of the findings and existence of the EY Report.

h) March 21, 2023 - Along with the SOD, the Respondents filed a valuation expert report of Shailesh Haribhakti & Associates ("SHA"), in response to the valuation report of Secretariat Advisors LLC (the Petitioner's damages and valuation expert in the arbitration proceedings) dated November 28, 2022 ("Secretariat First Report"). Interestingly, this report of

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the Respondents' expert does not question the valuation done by Secretariat and/or the calculations carried out to arrive at the Exit Price as on September 18, 2020 nor does it make any reference of any alleged financial irregularities, let alone the EY Report or its possible impact. In fact, the timeline of events charted in this report of SHA, the Respondents' own valuation expert confirms that "SVLLP completed the Statutory Audit for the FY 2020-21 issued a clean audit report without any qualifications" and "Nov 2022, Statutory Audit of FY 2021-22 was also completed and a clean audit report without any qualifications was issued.", thereby confirming that the financial statements of Respondent No. 1 for FY 2021 and FY 2022 have been duly closed without qualifications. The Respondents own expert confirmed the financials for FY 2021 and FY 2022 during the arbitration despite the Respondents being aware of the findings of the EY Report.

i) April/May 2023 - Parties exchanged requests for production of documents in the arbitration proceedings before SIAC. The Respondents also made elaborate requests for discovery of documents, however, no request was made by the Respondents to seek a copy of the EY Report.

j) May 31, 2023 - The Tribunal passed an Order

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adjudicating the disputed requests for documents, including the documents requested by the Respondents, the discovery of which was contested by the Petitioner. While assessing the materiality of such requests, the Tribunal allowed / disallowed such requests. Had the Respondents considered the EY Report to be so material to the arbitration proceedings as they now claim, a simple discovery request for the same ought to have been made. Even assuming the Petitioner had contested such request, the Tribunal had the power to permit discovery, if it was found to be material to the arbitration proceedings.

k) March 26, 2023 - The Respondents filed an application seeking vacation of the Order dated June 7, 2022 passed by the Emergency Arbitrator wherein the Respondents referenced the existence and findings of the EY Report and PIOF's letter dated January 30, 2023 as below:

"61. An Audit Committee Meeting was held on 30 December 2022 for approval of the accounts. Prior to this meeting, the Claimants Nominee Directors, Rudhraa and Anand were already in possession of the E&Y Report. At this meeting the statutory auditor was also present. At the meeting, Srinivas and Bala assured NVM that his concerns would be investigated. When NVM raised concerns about fictitious entries in

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financials and misrepresentations in cash flows, Rudhraa and Rahul confirmed that no issues were reported in the inspection by E&Y. Further, it was noted that the issues related to incorrect entries in financials do not impact the financials/audit for the financial year 2021-22. However, PIOF's letter dated 30 January 2023 clearly shows that the Claimants Nominee Directors. Rudhraa and Anand falsely approved the accounts. Such conduct is clearly against the interests of the Company....

FN 57: Respondent No. 1, ie., the Company was in receipt of a letter issued by PIOF'S counsel referring to a report filed by E&Y on 15 December 2022. It appears that the report was prepared pursuant to an inspection for a review period from 1 April 2020 to 31 March 2022. As per PIOF's letter, the findings in E&Y's report have raised serious cause for concern and evidences a plethora of bad-practices, accounting discrepancies and potentially illegal activities, including: (a) Recycling of invoices impacting the ageing of debtors; (b) Recording sale transactions without GST: (c) Inadequate provision for bad and doubtful debts; (d) Discrepancies in fixed assets register; (e) Use of short terms funds to purchase fixed assets."

Despite the Respondents being aware of the existence

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and findings of the EY Report, no questions were raised on the calculation of the Exit Price owing to the same, in the arbitration proceedings. Further, it is evident that the Respondents have made false statements in the Objections by feigning ignorance of the findings of the EY Report until August 2024. Interestingly, despite referencing the EY Report, the Respondents did not seek discovery of the same during the arbitration nor-did-they-plead-in their pleadings its impact.

1) April 17, 2023- The Petitioners filed a response to this application of the Respondents on April 17, 2023 appropriately dealing with the contentions of the Respondents; and an Order was passed by the Tribunal on June 19, 2023 slightly modifying the Order of the Emergency Arbitrator.

m) October 18, 2023 - During the arbitration process, the Respondents chose to withdraw the report of SHA and engage a different valuation expert being HKA Global (Singapore) Pte Ltd ("HKA"), who also filed their expert report and the same did not raise a whisper about or question the valuation process/calculation carried out in the Secretariat First Report nor did they allege any financial discrepancies / irregularities in the 1st Respondent or the EY Report.

n) November 22-27, 2023 - The evidentiary

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hearings commenced and were concluded before the SIAC.

o) November 23, 2023 - While the evidentiary hearings were proceeding before SIAC, the Respondents opportunistically filed an oppression and mismanagement petition before the National Company Law Tribunal, Chennai being C.P No. 129 of 2023 ("NCLT Petition") inter alia alleging financial irregularities in Respondent No. 1 and seeking an injunction on the appointment of statutory auditors being M/s. G. Sekhar Associates (on grounds of an

alleged conflict), inspection of the records of the 1st Respondent and a copy of the EY Report. It is relevant to note that in the NCLT Petition the Respondents emphasize on the findings of the EY Report and state that "..the extremely conspicuous behaviour of Respondent No. 1 around the E&Y Report only supports Petitioner No. 1's previously stated apprehensions that there may be further wrongdoings that the Company Team is concealing”. It is surprising that as far back as November 23, 2023 the Respondents had alleged apprehensions around the

financials of the 1st Respondent, however, failed to raise the same before the Tribunal or in the Singapore High Court.

p) November 28, 2023 - Order passed by the

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NCLT rejecting the request of the Respondents to injunct the appointment of M/s. G. Sekar Associates as the statutory auditor of the 1st Respondent. The NCLT held that the Respondents' apprehension of conflict is ill founded".

q) December 15, 2023 - A joint expert report was filed by Secretariat and HKA (a report of the aspects both experts agree on), which again did not allege any financial discrepancies/irregularities in Respondent No. 1, which would impact the calculation of the Exit Price as on September 18, 2020, in any manner whatsoever.

r) January 8, 2024 - HKA filed its response to certain supplemental calculations done by Secretariat, at the direction of the Tribunal. Again, no concerns /queries were raised owing to any purported financial irregularity in the 1st Respondent nor did they make any mention of the EY Report.

s) February 9, 2024 - The Respondents filed their Post Hearing Reply Submissions, however, did not allege any discrepancies in the financials of the 1st Respondent nor did they make a whisper about the EY Report.

t) June 3, 2024 - Pursuant to submissions made by experts on supplemental calculations and cost submissions made by the parties, the Tribunal declared

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the SIAC proceedings closed.

u) July 5, 2024-The Award was passed by the Tribunal.

v) July 20, 2024 - The present enforcement Petition was filed before this Court and an ad-interim protective Order was passed on July 25, 2024.

w) August 22, 2024 - The Correction Memorandum was issued by the Tribunal.

x) October 5, 2024 - The Singapore HC proceedings were filed by the Respondents.

Interestingly, the said challenge to the Award was limited to the grounds of "waiver and buy back and there was no whisper of any alleged fraud and/or the EY Report and /or its purported denial to be found in the same. Had there been any merit in such objections, the Respondents would have agitated the same at the first instance at least before the Singapore High Court (which permits fraud as a ground for setting aside of an award), after consciously not doing so during the entire arbitration proceedings. The Respondents knew fully well that such meritless objections would be dismissed by the Singapore High Court at the threshold and knowingly chose to not raise the same.

y) February 21, 2025 - The Singapore HC dismissed the proceedings and upheld the Award. Further, the Respondents have been directed to pay

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costs of USD 25,000 to the Petitioner, Nylim and Millenna.

176. It is clear from the above narration of the dates and events

that,

a) the Respondents 2 and 3, despite being aware of

the existence of the EY Report back in December

2022 and the findings of the EY Report as early as

January 30, 2023 i.e., even prior to the filing of

their statement of defence, did not allege any

impact of purported financial irregularities on the

valuation of 1st Respondent/determination of the

Exit Price as on September 18, 2020 during the

entire course of the arbitration proceedings.

b) Both the experts engaged by the Respondents i.e.,

SHA and HKA, did not question the valuation

exercise conducted by Secretariat to arrive at the

Exit Price as on September 18, 2020, on the basis

of any alleged financial irregularities/discrepancies

in the 1st Respondent/purported impact of the EY

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Report, during the course of the entire arbitration.

c) The Respondents 2 and 3, despite being aware of

the existence and findings of the EY Report, never

made any attempt to seek production/discovery of

the same during the SIAC arbitration, despite

making lengthy requests for production of 23

documents from the Petitioner.

d) While the NCLT Petition was filed to, inter alia,

seek a copy of the EY Report on November 23,

2023, no such request/mention was made during

the arbitration proceedings. It is relevant to note

that the Respondents 2 and 3's request for the EY

Report has not been allowed till date. The NCLT

had reserved Orders on January 24, 2024, however,

till date no order has been passed.

e) The Respondents 2 and 3 did not even challenge

the Exit Price determined in the Award, in the

Singapore HC proceedings by alleging any

financial irregularities/discrepancies in the 1st

Respondent company.

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177. The respondents 2 and 3 have miserably failed to answer the

reason for not pleading any irregularities in the financials of the first

respondent company and/or pleadings in respect of implication of the EY

report at any stage. The respondents have placed reliance on Devas' case

(cited supra) to contend that despite prior knowledge of an alleged fraud

and without pleading the same before the tribunal, the award debtor can

seek to set aside an award at the stage of Section 34 of the Act. The

factual conspectus of Devas (cited supra) shows that the award holder

was wound up and found to be formed for fraudulent and unlawful

purpose as rendered by the NCLT, which judgment was upheld by the

NCLAT and the Hon'ble Supreme Court. Infact, the CBI had also

registered an FIR and a charge sheet was filed against the award holder

and its officers. Only on that ground, the award was set aside under

Section 34 of the Act, which was upheld in the Section 37 proceedings.

These facts are incomparable with the facts of the instant case.

Therefore, Devas case (cited supra) has no applicability to the facts of the

instant case. Further, the instant case is an enforcement proceeding

seeking to enforce the foreign arbitral award, whereas Devas case (cited

supra) was a case filed under Section 34 of the Act.

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178. Infact, the respondents 2 and 3 have even failed to

demonstrate how an alleged concealment of the EY report has any impact

on the passing of the award, particularly, when the review period of the

EY report (FY 2020-21 and 2021-22) was not even the subject matter of

the analysis before the Tribunal. The respondents 2 and 3 are far from

establishing any casual nexus of the EY report to the determination of the

exit price by the Arbitral Tribunal. The respondents 2 and 3 have only

alleged an inflation of EBITDA in the financials of the first respondent

company with no proof, no evidence and no trial whatsoever. The

enforcement of the award cannot be resisted on a mere apprehension and

speculation, which the respondents are attempting to do. This is not the

purport of Section 48 of the Act.

179. The respondents 2 and 3 are barred by law from introducing

evidence at this stage, which they could have produced with reasonable

diligence during the arbitration. It is settled law in India that enforcement

of a foreign award under Section 48 of the Act is not a de novo trial

on merits, and the party resisting enforcement cannot rely on evidence

not placed before the Arbitral Tribunal. This settled proposition is

supported by the decision of the Hon'ble Supreme Court in Vedanta Ltd

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(cited supra).

180. The objection of fraud made by the respondents 2 and 3 for

the first time fails to meet the strict legal threshold under Section

48(2)(b)(i) of the Act. The onus rests on the respondents 2 and 3 to

establish that the alleged fraud is of such a nature that it goes to the root

of the award and has a nexus with the arbitral process or outcome. Mere

allegations, innuendos, or after-the-fact discovery, do not suffice. The

allegation that certain employees including the fourth respondent were

compensated to secure a favourable award is entirely unsubstantiated and

that the contention of quid pro quo arrangement among the respective

petitioners, first respondent and the fourth respondent by the respondents

2 and 3, is also false. The payouts/bonuses/incentives extended to certain

personnel including the fourth respondent may be on account of due

recognition of their services to the first respondent company. In any

event, the contention of the respondents 2 and 3 that these

payments/incentives are against the interests of the first respondent

company is completely baseless. Infact, the respondents 2 and 3 have

already challenged these payments before the NCLT and having failed to

obtain any relief, they are seeking to re-litigate the issue under the guise

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of alleging fraud and resisting enforcement of the award.

181. The respective petitioners are not privy to the internal emails

between the employees of the first respondent company and the same has

to be disregarded. These communications were never produced in

arbitration or the proceedings before the Singapore High Court and were

allegedly retrieved only in August, 2024.

For the foregoing reasons, the objection of fraud raised by the

respondents 2 and 3 has to be summarily rejected by this Court.

182. Therefore, it is clear that the narrow limits of judicial

interference on the grounds of public policy of the enforcement State are

well settled in international arbitration. To sum up, enforcement of a

foreign award may be refused only if it violates the enforcement State’s

most basic notions of morality and justice, which has been interpreted to

mean that there should be great hesitation in refusing enforcement, unless

it is obtained through “corruption or fraud, or undue means”.

183. In the instant case, the respondents 2 & 3 have not made out a

case for conflict with the basic notions of justice or violation of the

substantive public policy of India. This Court also does not find any

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infirmity with the contractual interpretation given by the Foreign Arbitral

Tribunal under the foreign arbitral award as the view taken by the

Foreign Arbitral Tribunal is a plausible one. Even assuming that an

erroneous interpretation of the contractual terms has been given by the

Foreign Arbitral Tribunal, this Court cannot interfere with the same as

this Court is only an enforcement Court exercising the limited powers for

the purpose of refusing enforcement and if erroneous interpretation of

contract by the Foreign Arbitral Tribunal is allowed to be interfered with

by this Court, it would amount to impeaching the foreign arbitral award

on its merits.

184. The doctrine of transnational issue estoppel is grounded in the

principle of finality of litigation. In other words, if a party was able to

reopen issues that had already been fully argued and finally dealt with by

a court in a later fresh action, this would open the door for an abuse of

process. When applying the issue of estoppel in a transnational setting,

this Court being the enforcement court has to give due consideration with

balancing competing considerations of comity (due respect and deference

for decisions of foreign courts) and the court's constitutional role as the

guardian of the rule of law within its own jurisdiction.

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185. In a Judgment rendered by the Singapore Court of Appeal

between Devas Multimedia Private Limited (Devas) and Indian state-

owned entity Antrix Corporation Limited (Antrix), the Singapore Court

endorsed the application of transnational issue estoppel in the context of

international arbitration. In doing so, it considered that applying the

doctrine of transnational estoppel:

(a) respects the parties' choice of seat, giving

"primacy" to the jurisdiction and system of law

chosen by the parties in relation to many matters

concerning the arbitration;

(b) coheres with the notion that courts co-exist as

part of an international legal order, within which

they should so far as possible avoid duplication,

repetition and inconsistency in decision-making;

(c) avoids the risk of having enforcement courts

approach a seat court's decision in a manner that

is at odds with general trends in private

international law towards the recognition of

court judgments; and

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(d) limits the extent to which matters determined by

a court of competent jurisdiction can be re-

litigated, thus reducing the wastage of time,

effort and resources.

186. Therefore, as per the court of appeal's decision, where a seat

court has decided on the validity of an arbitral award, a Singapore

enforcement court should apply the doctrine of transnational issue

estoppel when determining whether to afford preclusive effect to the seat

court's decision. The Court did, however, clarify that no question of

issue estoppel can arise where the public policy of the enforcement

court's jurisdiction or the arbitrability of a dispute is in issue, because the

question of public policy in the enforcement jurisdiction will not have

previously been considered by the seat court.

187. Section 48 of the Act also does not preclude this Court from

exercising the doctrine of transnational issue estoppel. The doctrine of

transnational issue estoppel is grounded in the principle of finality of

litigation. In other words, if a party was able to reopen the issues that

had already been fully argued and finally dealt with by a court in a later

fresh action, this would open the door for an abuse of process. The

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intention of arbitration is for speedy resolution of disputes. Therefore,

the doctrine of transnational issue estoppel can be applied by this Court,

which is an enforcement court with regard to the objections that have

already been raised by the respondents 2 & 3 before the Singapore High

Court and the Singapore High Court had also rejected those objections.

188. The fundamental policy of Indian Law is not a single

principle, but a broad concept, particularly, in the context of arbitration,

comprising core legal tenets. It signifies violations of principles so basic

to Indian law that they are considered non-negotiable rather than just

mere errors of law or fact. Courts use this concept to determine if an

arbitral award is so perverse or irrational that it shocks the conscious of

the court thereby preventing these foundational legal principles.

189. The respondents 2 & 3 have raised objections, which are in

the nature of the objections that can be raised only in a regular first

appeal. This Court is only an enforcement Court exercising powers under

Section 48 of the Act, and given the limited jurisdiction available to it,

the objections raised by the respondents 2 & 3 for enforcement of the

foreign arbitral award has to be summarily rejected.

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190. The respondents 2 & 3 ought not to have raised objections,

which have been raised in these petitions, which if at all can be raised

only in a regular first appeal, not under Section 48 of the Act. Only to

delay the inevitable ie., execution of the foreign arbitral award against

them, the untenable and reckless objections have been raised by

respondents 2 & 3, which do not fall under any of the objections available

under Section 48 of the Act. If entertained, it would amount to this Court

having a re-look at the arbitral award, which is not legally permissible

under Section 48 of the Act. Having failed in their attempt in the

challenge proceedings seeking to set aside the arbitral award before the

Singapore High Court, the respondents 2 & 3 have made a last-ditch

effort to thwart the enforcement of the foreign arbitral award by raising

untenable grounds. Parties objecting to the enforcement of the foreign

arbitral award cannot argue the matter just like a first appeal, considering

the limited jurisdiction available to this Court under Section 48 of the

Act. Since the respondents 2 & 3 have raised untenable objections,

which will not fall under Section 48 of the Act, this Court will have to

necessarily impose costs on the respondents 2 & 3.

191. Further, the conduct of the respondents 2 and 3 in not paying

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the arbitrators' fees has to be deprecated. Having agreed to go for

arbitration, the respondents 2 and 3 are fully aware of the fact that they

will have to pay the arbitrators' fees in accordance with the Arbitration

Rules of the Singapore International Arbitration Centre. But, despite the

same, they have chosen not to pay the arbitrators' fees. They have raised

defence before the Arbitral Tribunal, which has been duly considered by

the Arbitral Tribunal spending enormous amount of time and effort. Due

to non-payment of the arbitrators' fees by the respondents 2 and 3, the

respective petitioners were directed to pay the respondents 2 and 3's share

of the arbitrators' fees for no fault of theirs. The respondents 2 and 3

though have stated that it is not affordable for them to pay the arbitrators'

fees, they have not till date expressed their regret for non-payment of the

arbitrators' fees and they have also not undertaken that once they are in a

position to pay they will reimburse the same to the respective petitioners,

who have paid their share of the arbitrators' fees.

192. The respondents 2 & 3 are individuals against whom the

arbitral award has been passed, which runs to more 1400 Crores of Indian

Rupees. Since the award amount is a huge one and the award has been

passed against two individuals, this Court had to give a patient hearing

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running to several days only to ensure that the respondents 2 & 3's

objections were given utmost consideration by this Court in the ends of

justice. But, despite giving the utmost consideration for the objections

raised by the respondents 2 & 3 resisting the enforcement of the foreign

award, this Court has come to the conclusion that the objections raised by

the respondent 2 & 3 are untenable objections, which do not deserve any

merit.

193. Before parting with this case, this Court recollects the

profound words of the Honourable Sandra Day O’Connor, respectable

Former Associate Justice of the Supreme Court of the United States, who

has said “The courts of this country should not be places where resolution

of disputes begins. They should be the places where the disputes end after

alternative methods of resolving disputes have been considered and

tried.” Therefore, the foreign arbitral award having attained finality and

the objections raised before this Court by the respondents 2 & 3 for

resisting enforcement of the arbitral award are untenable, as an

enforcement court, it is the responsibility of this Court to see that the

fruits of the foreign arbitral award passed in favour of the respective

petitioners is enjoyed by them. Therefore, as expeditiously as possible,

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the foreign arbitral award has to be enforced and has to be executed

against the respondents 2 & 3 to enable the respective petitioners to enjoy

the fruits of the foreign arbitral award, which indeed will set high

standard that India, being a signatory to the New York convention, is

maintaining its international commitment for the expeditious enforcement

of foreign awards. If the objections, as raised by the respondents 2 & 3 in

these petitions, which do not fall under Section 48 of the Act, are

entertained, it would amount to violating the New York convention to

which India is a signatory. The International Comity of Nations will also

be broken, if the objections raised by the respondents 2 & 3 are

entertained by this Court.

194. Since the respondents 2 & 3 have raised untenable objections,

which do not fall under Section 48 of the Act and they have deliberately

delayed the execution of the foreign arbitral award in favour of the

respective petitioners, who have invested huge sums of money on the first

respondent, the respondents 2 & 3 will necessarily have to be imposed

costs for their reckless conduct of delaying the inevitable. They have

treated this Court as a regular First Appeal Court knowing fully well that

their objections will not fall under Section 48 of the Act, which amounts

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to abuse of process. Since the award amount passed in favour of the

respective petitioners is a huge one, this Court, in the ends of justice, is

imposing costs of Rs.25,00,000/- (Rupees twenty five lakhs only) to be

paid by the respondents 2 & 3 jointly and severally to each of the

petitioners for deliberately delaying the inevitable by raising untenable

objections, which will not fall under Section 48 of the Act.

195. For the foregoing reasons, the respondents 2 & 3 have not

satisfied the requirements of Section 48 of the Act by raising objections,

which enables this Court to refuse enforcement of the foreign arbitral

award.

196. In the result,

(a) The foreign arbitral award dated 05.07.2024 read

with the clarification order dated 22.08.2024

passed by the Arbitral Tribunal is declared to be

enforceable by this Court against the respondents

2 & 3 as per the provisions of Sections 47 to 49 of

the Act.

(b) The foreign arbitral award dated 05.07.2024 read

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with the clarification order dated 22.08.2024

passed by the Arbitral Tribunal in favour of the

respective petitioners against the respondents 2 &

3 is deemed to be a decree passed by this Court as

per the provisions of Section 49 of the Act.

foreign arbitral award dated 05.07.2024 read with

the clarification order dated 22.08.2024 passed by

the Arbitral Tribunal in favour of the respective

petitioners against the respondents 2 & 3.

(d) Connected interlocutory applications, namely,

A.Nos.3748, 3749, 3750, 3752, 3754, 4969,

5209, 5211 to 5213, 5215, 5216, 5563, 5565,

5569, 5571, 5607, 6056 & 6059 of 2024, 161,

2563 & 2566 of 2025 and O.A.Nos.501 to 503,

815 & 816 of 2024 are kept pending, since those

applications were not heard by this Court during

the final hearing of the main arbitration original

petitions, namely, Arb.O.P. (Com.Div.)

Nos.285, 452 & 453 of 2024.

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(e) Liberty is granted to the respective petitioners to

execute the foreign arbitral award dated

05.07.2024 read with the clarification order

dated 22.08.2024 passed by the Arbitral Tribunal

against the respondents 1 to 3, which is now

deemed to be decree by this order by filing a

separate execution petition before this Court and

the said execution petitions shall also be heard

by this Court.

(f) The respondents 2 & 3 are directed to pay jointly

and severally Rs.25,00,000/- (Rupees twenty

five lakhs only) as costs to each of the respective

petitioners for resisting the enforcement of the

foreign arbitral award dated 05.07.2024 before

this Court under Section 48 of the Act, by

raising untenable grounds to unlawfully delay

the enforcement of the foreign arbitral award.

(g) The undertaking given by the respondents 6 & 7

before this Court in A.No.161 of 2025 shall

stand extended until further orders.

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(h) Post the aforementioned connected interlocutory

applications for further hearing before the

regular Court on 27.10.2025.

22.09.2025

Index: Yes Speaking order Neutral citation : Yes ab/rkm

ABDUL QUDDHOSE, J.

ab/rkm

common order in Arb.O.P. (Com.Div.) Nos.285, 452 & 453 of 2024

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22.09.2025

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