Bombay High Court
Gute Reise India Pvt Ltd vs Victorinox India Private Limited on 6 May, 2025
2025:BHC-OS:7578
CARBPL.7296.2025 - FINAL(1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMM. ARBITRATION PETITION (L) NO. 7296 OF 2025
Gute Reise India Pvt. Ltd. ...Petitioner
Versus
Victorinox India Private Limited and Ors. ...Respondents
Mr. Venkatesh Dhond, Senior Advocate a/w Mr. Samarth
Jaidev, Ms. Kavisha Shah, Ms. Shweta More i/b India Law
Alliance, for Petitioner.
Mr. Samudra Sarangi a/w Mr. Joran Diwan, Ms. Riya Kalra and
Ms.Panya Gupta i/b Diwan Law Associates for Respondent
No.1.
Mr. Mutahhar Khan i/b Mr. Jayesh Bhosale for Respondent
No.5.
CORAM : SOMASEKHAR SUNDARESAN, J.
RESERVED ON : April 15, 2025
PRONOUNCED ON : May 06, 2025
JUDGEMENT :
Context and Background:
1. This Petition has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 ("the Act") seeking in the pleadings, a direction to the Respondent Nos.1 to 3 to continue to supply goods and Digitally signed AARTI by AARTI GAJANAN GAJANAN PALKAR products under the brand name of Swiss Army Knife and related PALKAR Date:
2025.05.06 14:27:47 +0530 Page 1 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc brands covered by a dealership agreement dated June 1, 2016 ("Agreement") for a short period to enable the Petitioner to tide over a financial crisis caused by Respondents No. 1 to 3.
2. Another prayer is for a direction to these Respondents to deposit a sum of Rs. 190.22 crores pending arbitration. Other prayers in the Petition relate to return of data, control over certain software and production of a side letter executed among the parties by which Respondents No. 1 to 3 have assured certain reimbursement with 12% interest, which is said to have been handed over to them by Respondent No. 4.
3. However, during submissions, Learned Senior Counsel for the Petitioner has essentially moulded the prayers to seek a short-term continued supply of products covered by the Agreement for a period of 90 days, to enable the Petitioner to phase out the relationship under the Agreement, and enable the Petitioner to gradually shift from selling these Respondents' products. In this manner, it is submitted that the Petitioner would be able to honour multiple commercial obligations owed to multiple counterparties and stakeholders, which is entirely dependent on the ability of the Petitioner to be able to run its business Page 2 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc through the several stores opened by the Petitioner only at the behest of and under the oversight of these Respondents.
4. The Petitioner is said to be left high and dry by these Respondents in the teeth of the arrangement entered into among them to cope with restrictions imposed under exchange control regulations on foreign direct investment ("FDI") in multi-brand retail activity in India.
5. At the threshold, it would be appropriate to set out the array of parties. Gute Reise India Pvt. Ltd. (" Gute Reise"), the Petitioner is a company owned and promoted by relatives of one Colonel Chandhoke, Respondent No.4 ("Chandhoke"). Victorinox India Pvt. Ltd., Respondent No.1 ("Victorinox India") is a wholly-owned Indian subsidiary of Respondent No.2 Victorinox AG (" Victorinox AG"), a Swiss multinational company that is said to be in control of all decisions of Victorinox India under the Agreement. The Petitioner contends that it entered into the Agreement with Victorinox India only on the assurances from Victorinox AG.
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6. Mr. Carl Elsener, Respondent No. 3 ("Elsener") is said to be the controlling human mind over all actions of Victorinox India under the Agreement. The Petitioner submits that Elsener is not only on the Board of Directors of Victorinox India but is also the individual under whose directions Victorinox India is accustomed to act. Mr. Hemant Yeram, Respondent No. 5 ("Yeram") is the Chief Financial Officer of Victorinox India and is said to have control over the financial records and software systems containing the financial data relevant to the Agreement. Yeram is said to report to Elsener, Victorinox AG and Victorinox India in his professional capacity.
7. At the heart of the controversy is the termination of the Agreement by a 30-day notice dated October 25, 2024 (" Termination Notice"), taking effect on November 23, 2024. The Termination Notice was premised on the contention that Gute Reise was obligated under the Agreement to remit proceeds of sale of products to Victorinox India within a period of one 90 days in respect of turnover from stores in operation for more than one year, and within six months for new stores that are yet to complete one year. Interest at 10% per annum was also payable, Victorinox India asserted. Between December 31, 2017 and October 25, 2024, a total of 5,161 invoices for an aggregate of Rs. ~40.12 crores are said to have been raised, on which amounts Page 4 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc aggregating to Rs. ~39.72 crores were said to be payable by Gute Reise to Victorinox India. The Termination Notice called on Gute Reise to pay outstanding amount in 30 days, return all products, not open any new stores, and communicate only with the designated lawyers.
8. The Termination Notice met with a holding response dated November 14, 2024 and a detailed reply dated December 31, 2024. Gute Reise responded stating that the Agreement was structured in the wake of an earlier relationship between Victorinox AG and another company called Basecamp India Pvt. Ltd. ("Basecamp") which had been promoted by a 10% owner, Mr. Anish Goel, who was the former managing director of Victorinox India. That relationship is said to have commenced in 2006 and was terminated in seven to eight years. At that stage, Chandhoke is said to have entered the scene and became the managing director of Victorinox India, and under Elsener's insistence, his family is said have incorporated Gute Reise to be the retailing arm of Victorinox India, over which Victorinox AG would have full control as a 100% owner. According to Gute Reise, supplies of Victorinox AG products was to be made with a 50% margin, with the proceeds of the sales being used to first pay for the overheads of running the stores, and then towards capital expenditure towards more stores and only the balance being payable to Victorinox India.
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9. This arrangement was stated by Gute Reise to be an open-ended line of credit without being meant to be returned unless there was any surplus after discharging the overheads and capital expenditure. According to Gute Reise every expenditure of every rupee was under
the control of Victorinox AG, Victorinox India and Elsener. Gute Reise is said to have availed of borrowings to the knowledge and with the approval of Victorinox AG to the tune of Rs. 26.65 crores. It is Gute Reise's claim that it could not move a muscle without the approval of Victorinox AG. Put differently, it is Gute Reise's case that it was merely a front for conduct of the retail operations of Victorinox AG in India and although the instrumentality of the operations was Gute Reise, its operations were entirely controlled and managed by Victorinox India. It is in this context that it is stated that data relating to no facet of the operations is available with Gute Reise and they are all controlled by and in the custody of Victorinox India.
10. The parties have traded correspondence with each other since then, and a prolix iteration of the same would not be necessary for purposes of this judgement. Essentially, supply of products was cut off by Victorinox and Gute Reise has not been able to keep enough cash flowing through the tills in its stores for its business to be kept running. Gute Reise contends that this has choked its ability to remain afloat, Page 6 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc and store after store is having to shut shop and its obligations owed to bankers, employees and other stakeholders are being defaulted upon. Towards this end, the moulded relief sought by Gute Reise is that Victorinox AG and Victorinox India must continue supply of products over a 90-day period that will help Gute Reise tide over the crisis generated by the termination and it can gradually shift to selling other brands in its stores and re-arrange its affairs, since after all, Gute Reise was merely a front for Victorinox products being sold through its retail network in India.
11. I have heard at length, primarily, Mr. Ventatesh Dhond, Learned Senior Counsel on behalf of Gute Reise and Mr. Samudra Sarangi, Learned Counsel on behalf of Victorinox India, Victorinox AG and Elsener. Mr. Rohaan Cama represented Chandhoke, whose interests are aligned with Gute Reise. Mr. Mutahhar Khan represented Yeram, who has a reporting relationship with the clients of Mr. Sarangi.
12. Essentially, the question before me is whether in exercise of jurisdiction under Section 9 of the Act, it would be open to direct that supplies under the Agreement purported to be terminated be continued for a specified period of 90 days as prayed, or to make any other Page 7 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc arrangement for tiding over the financial cash crunch experienced by Gute Reise.
Contentions of Gute Reise:
13. Gute Reise has annexed to the Petition, a letter dated March 17, 2016 ("Side Letter") under which Chandhoke has assured and confirmed on the letterhead of Gute Reise that immediately upon Victorinox India becoming entitled to operate multi-brand retail stores in India to retail products imported by Victorinox India, the entire retail stores business of Gute Reise would be transferred to Victorinox India or to such entity as designated by Victorinox India. This was followed by the Agreement executed on June 1, 2016.
14. It is also asserted that Chandhoke had also been made to execute another letter during one of his visits to Switzerland to the headquarters of Victorinox AG that Gute Reise would be reimbursed for the expenses it incurs and the investments it makes in building the retail business of Victorinox India with interest at the rate of 12% per annum. This letter is said to be in the possession of Victorinox AG and Elsener. Gute Reise has sought a direction for such letter to be produced in this Court.
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15. Mr. Dhond would submit that the entire structure was a subterfuge for giving full control over retail operations of Victorinox AG's products in India without having to comply with restrictions imposed on FDI in multi-brand retail activities in India. Mr. Dhond would submit that by this transaction structure, the Agreement ostensibly provided for payment of proceeds of the retailing by Gute Reise to Victorinox India, but it was well understood commercially that the monies were not meant to be repaid as purportedly contracted. Instead, according to Mr. Dhond, the money was meant to be utilised for growing the business in much the same way an equity investment would be made in India and the proceeds would be used to grow the business and open more stores and generate wider activity, all of which would enure to the benefit of expanding the Victorinox and Swiss Army Knife brand presence in India.
16. Mr. Dhond would contend that every liability of Gute Reise was well known to and incurred under the watch of Elsener, Victorinox AG and Victorinox India. Therefore, the Termination Letter on the premise of monies owed under the Agreement not having been repaid is a pretence of a reaction to non-payment. This is why for all these years, there has not been any bid to terminate the Agreement - only because the ability or inability to pay for the products purchased was but under Page 9 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc the control and watch of Victorinox India. The pleadings and material enclosed in the Petition shows an assertion by Gute Reise that the dealings between Victorinox India and Gute Reise are shown as related party transactions in the books of accounts.
17. The upshot of the submissions by Mr. Dhond is that Gute Reise was a front entity on behalf of Victorinox AG to conduct retail activity in India. Victorinox India would import from Victorinox AG and supply the products to Gute Reise but it was never intended that the value for such products should be paid out to Victorinox India. The business of Gute Reise was meant to be built through this structure, with the obligation to transfer the business as recorded in the Side Letter, as and when it became permissible for Victorinox AG to legitimately effect FDI in multi-brand retail activity in India. The amounts owed for purchase of the products from Victorinox India were not meant to be repaid since this was meant to be the value of a soft line of credit that would eventually be factored in when the transfer of business from Gute Reise to Victorinox India or Victorinox AG would become legally permissible.
18. Mr. Dhond would contest that this very structure had been pursued by Victorinox AG in the past - initially with a company called Sasana Enterprises Pvt. Ltd. ("Sasana") and then with Basecamp, both Page 10 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc of which were companies promoted by one Mr. Anish Goel, a former managing director of Victorinox India and his wife, much akin to Gute Reise being a company promoted by relatives of Chandhoke, who replaced Mr. Goel as the managing director of Victorinox India. Eventually, the amounts owed by Sasana and Basecamp were written off and the equity stakes of Mr. Goel and his wife were acquired. The same business model is meant to be applied to Gute Reise too, he would contend.
19. According to Mr. Dhond, out of the total turnover of nearly Rs. 100 crores since the commencement of this relationship, about Rs. 60 crores has been paid to Victorinox India. It is the balance amount of Rs. ~39.72 crores that remain and these can only be paid when there is any surplus in any given year. In all, 22 retail stores have been opened under this arrangement, Mr. Dhond would contend, spread across India including at New Delhi, Mumbai, Bengaluru and Chennai. At all these inaugurations, Victorinox India representatives were present. Daily sales reports would be sent to Victorinox AG. The arrangement worked well when Chandhoke was also the managing director of Victorinox India, Gute Reise has pleaded, adding that in October 2024, Chandhoke was sacked from Victorinox India cutting off his access to information and data which are all under the control of Victorinox Page 11 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc India and Victorinox AG and out of the control of Gute Reise. The ERP (enterprise resource planning) software of Gute Reise is hosted on the server of Victorinox India and backed upon Victorinox AG servers. Contentions of Victorinox:
20. Mr. Sarangi on behalf of Victorinox AG, Victorinox India and Elsener would submit that the entire narrative of Gute Reise about the circumvention of FDI in multi-brand retail is a fanciful counter-
narrative that is not borne out by the executed documents and is a reckless allegation that would in any case not lend itself to acceptance in the limited jurisdiction under Section 9 of the Act. Mr. Sarangi would point to the contentions in the affidavit-in-reply (" Reply Affidavit") filed on behalf of Victorinox India (which also seeks to mount a robust defence of Victorinox AG and of Elsener) and point out that there is nothing in the Agreement to bear out the theory propzunded by Mr. Dhond.
21. Mr. Sarangi would point to the Agreement being terminable at will without cause although with a notice period of six months, and a termination for cause with a notice of 30 days. According to him, the Termination Notice calls for a remedy within 30 days and terminates the relationship upon expiry of such period, during which time, the Page 12 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc breach had indeed not been remedied. The termination has taken effect in November 2024 and it would not fall within the scope of protective measures under Section 9 of the Act, Mr. Sarangi would submit, to direct the continued supply of products under a terminated contract, and that too when on the face of the record, there is nothing to show even a prima facie validity to the fanciful theory being propounded on behalf of Gute Reise.
22. In a nutshell, Victorinox counters the contentions of Gute Reise by pointing to the executed documents to state that the Agreement made it clear that Gute Reise had autonomy in running its business and indeed had to pay Victorinox India within six months for new stores with an age of less than a year and in 90 days in relation to revenues from stores in operation for more than one year. The presence of Victorinox India or Victorinox AG executives at the store inaugurations would not turn the needle in favour of showing that they controlled the management of Gute Reise. It is also contended that a 50% margin was provided in the supply of products and therefore, it is inexplicable that there should be a need to take loans from banks to the tune of over Rs. 26 crores.
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23. To a specific question posed to Mr. Sarangi if his clients would consider the proposition of providing supplies with deferment of amounts payable for them, without prejudice to the contractual rights and examine if the dispute can be resolved, he indicated that he had instructions to submit that such a request from Gute Reise would have to be a commercial request and not one made after having moved Court seeking to assert a right, making allegations of violation of Indian law on FDI.
24. The Reply Affidavit of Victorinox India asserts that it is "internally assessing certain practices that were being followed by certain employees and business partners", thereby reserving the right to file a further factual affidavit on conclusion of such internal assessment.
Analysis and Findings:
25. The scope of jurisdiction under Section 9 of the Act is very specific - it is aimed at protecting the subject matter of the arbitration agreement. It is an equitable jurisdiction enabling the Court to adjust equities between the parties and making provision of such measures as would protect the subject matter of the arbitration agreement. Essentially, the jurisdiction enables the Court to make arrangements to Page 14 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc ensure that the arbitration proceedings are not rendered an academic exercise, with the arbitral award being written on water.
26. Towards this end, it is vital to examine what provisions were contracted by the parties in respect of termination of the Agreement. Clause 7 of the Agreement governs that subject. Its essential features are that Agreement does not have a fixed tenure and would continue until termination (Clause 7.1). The Agreement may be terminated by Victorinox India at its sweet will by giving notice of six months (Clause 7.2). However, either party could terminate the Agreement with a notice of just 30 days to cure the breach committed by the other party (Clause 7.3). Since the Termination Notice does not purport to invoke any specific sub-provision of Clause 7, I felt it necessary to examine Clause 7 to see whether any protective measure would be feasible as a matter of contract.
27. Indeed, the Agreement is terminable and has been terminated. Perhaps conscious of the position under whether specific relief can be granted in such a situation, Gute Reise is not asking for a stay on the termination of the Agreement but is asking for an equitable intervention of directing that supplies be made for 90 days consistent Page 15 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc with past practice and volumes to that Gute Reise could tide over its cash crunch and use its stores to stock them with other products and thereby phase out the relationship with Victorinox and survive the transition. Evidently, the Agreement contains a contractual obligation that the stores would exclusively sell Victorinox branded products and cannot sell other competing brands. Therefore, the relief sought would necessitate negotiation between the parties to rewrite and amend their contract rather than be provided interim relief as a matter of right under Section 9 of the Act.
28. That apart, I have given my anxious consideration to the gravamen of the accusation by Gute Reise. The crux is that the Agreement and the construct of the attendant documentation is nothing but a contrivance and a device to circumvent the regulatory requirements governing FDI in multi-brand retail activity in India. To deal with this, judicial notice has to be taken of the broad nature and context of the regulatory framework governing FDI in multi-brand retail activity in India. Multiple restrictions apply as a matter of law on FDI in multi-brand retail activity in India. A manufacturer in India owned by a foreign investor may float multiple brands and that may be sold in the retail markets, but such foreign investment is in primarily in the Indian manufacturer entity and the retailing of the products sold Page 16 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc under the multiple brands is a logical extension of such manufacture. When it comes to trading and purely retailing, FDI is restricted to 51%, and is permitted subject to special approval by the Government of India. Multiple other restrictions are involved including minimum investment requirements, back-end infrastructure building requirements, local sourcing of manufacture of certain minimum specified thresholds, state-level approvals etc.
29. The Side Letter is a pointer to the parties having applied their mind to the contingency of Victorinox India being legally eligible to conduct multi-brand retail activity in India. Such a position could potentially be reached in multiple ways. The law governing FDI in retail could undergo a change. Alternately, Victorinox AG could take a view that it would bring down its stake to 51% or to such level as the law requires it at the relevant time it decides to pare its equity stake in Victorinox India. Victorinox AG could take a view on sourcing the stipulated percentage of manufactured content locally and building the local back-end infrastructure. These are all in the realm of speculation. If and when this position is reached, the existing business of Gute Reise would have to be transferred to Victorinox India or to such entity as designated by Victorinox India.
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30. This position may indeed be a commercial pointer to the current arrangement being one structured and conceived to operate within (or around) the restrictions on FDI in retail activity. It is also strongly submitted that by way of control over management information systems, accounting systems and even physical oversight over every store through closed circuit television cameras, Victorinox India controls the operations of Gute Reise. However, whether such facts actually evidence a subterfuge or only resembles one is a matter of evidence that would necessarily entail examining evidence and answering mixed questions of fact and law. This would fall in the domain of the Learned Arbitral Tribunal as and when it is constituted. The Section 9 Court cannot pronounce upon the same, which would in fact undermine the subject matter of arbitration.
31. At this stage, this Court can form a prima facie view on what the parties had contracted and look to the appropriate means of protecting the subject matter of arbitration. This Court would not be capable of forcing one of the parties to the Agreement to amend the terms of the Agreement and enable retailing of competing brands or other non- competing brands as a means of helping Gute Reise survive or tide over its cash crunch and the aftermath of the termination. Page 18 of 24
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32. It should be noted that the Agreement is a product of the autonomous sovereign exercise of will by the parties to it. For purposes of exercise of discretion under Section 9 of the Act, even if one were to take what Gute Reise verily and solemnly submits to be correct i.e. that the Agreement is a written façade and a subterfuge for the wider arrangement to violate exchange controls governing FDI in multi-brand retailing in India, it would follow that Gute Reise and Chandhoke too were eminently conscious parties to the same subterfuge in much the same manner as they accuse Victorinox AG, Victorinox India and Elsener. If these allegations are right and are borne out by investigations, it would have consequences for all of them. It would still not enable this Court to lend its discretionary judicial power to further the subterfuge or use it as a valid contractual arrangement on which a direction could be issued to continue supply of products for three more months to create further dues under the Agreement. The Court would then be lending its judicial power to further a commercially expedient modification of a subterfuge such that one of the parties to the alleged subterfuge can tide over a financial crisis. Such an intervention would then be against public policy and this Court cannot be requested for the intervention as sought. That Sasana and Basecamp too had followed the same model too, therefore, is not no Page 19 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc value in the circumstances, in the exercise of powers under Section 9 of the Act.
33. The forum for agitating that the Agreement and its unspoken and undocumented (or secretly documented) attendant arrangements are violative of Indian exchange controls is not the Section 9 Court when what is sought from the Section 9 Court is a modification and variation of the alleged subterfuge. Whether it is a subterfuge at all would be a matter of investigation, for which, evidence would need to be gathered, and for which there are other appropriate authorities and enforcement agencies who may examine the matter.
34. If the potential intention was to scare Victorinox India, Victorinox AG, Elsener and Yeram into engaging with Gute Reise to come up with some commercial alternative, it has apparently not worked since these Respondents have dug their heels in and have solemnly indicated their resolve to defend such allegations. Indeed, the Learned Arbitral Tribunal can go into these facets too upon recording evidence and examining it. At this stage, with the material on hand, while the features of the arrangement may point to the ability to weave the theory propounded by Gute Reise and Chandhoke, in my opinion, Page 20 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc they have not been able to make a case that can indicate a strong prima facie view in their favour.
35. It is in this context that I considered whether any payments had at all been made by Gute Reise to Victorinox India. Had no payments at all been made, it would have been a valid pointer to the Agreement being a mere ruse and in fact the parties having acted in a manner that did not make substantive commercial sense - one party providing unlimited supply of well-branded products with no payment having been made for years, and that leading to no enforcement measures. However, the Petition itself pleads that the total turnover since the inception of the Agreement is in the region of Rs. 100 crores and about Rs. 60 crores has indeed been paid. If the theory is that nothing was at all required to be paid and all amounts due for purchase of the products covered by the Agreement was all meant to a soft loan, never to be paid for unless there was surplus, it would stand to reason that nothing would have been paid until now by Gute Reise, and nothing would have been claimed until now by Victorinox India.
36. It is also pleaded that Chandhoke has secured borrowings at heavy interest from banks. It is inexplicable that a business literate Page 21 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc person would borrow from banks to invest in incurring expenses and expanding the business (all under the instructions of Victorinox India and Victorinox AG) but would not take care to secure a fall-back option about the personal exposure he was contracting (if such borrowings were at the bidding of Victorinox India and Victorinox AG). What perhaps seems more likely is that Chandhoke and Gute Reise took a conscious business decision to strike the bargain contained in the Agreement and that business call went wrong. A normal employee managing director would not incur personal leverage for expanding his employer company's business structure. Business failure is an integral feature of enterprise. Indeed, these are all facets left open to the Learned Arbitral Tribunal to consider as and when it is constituted. The comments made here are solely to consider whether at this stage, the nature of intervention sought under Section 9 of the Act by Gute Reise, commends itself to acceptance. In my opinion, it does not.
37. Mr. Dhond fairly indicated that the prayers for deposit of the amount is not being pressed and therefore I am not even commenting on whether a case has been made out for such prayer. The specific moulded relief sought was to enable continued supply of products consistent with past practice for three more months to help Gute Reise tide over its cash flows and save its stores from eviction from various Page 22 of 24 May 06, 2025 Aarti Palkar ::: Uploaded on - 06/05/2025 ::: Downloaded on - 06/05/2025 22:28:17 ::: CARBPL.7296.2025 - FINAL(1).doc prime locations by also selling other products of other manufacturers to transition the relationship and tide over the crisis. That, I am afraid, does not fall within my domain, for the reasons already explained above.
Conclusion:
38. To conclude, in these circumstances, I have no option but to grant no relief under Section 9 of the Act, whether as pleaded or as moulded in submissions made in Court.
39. It is would be totally open to the parties to pursue such remedies as they perceive they are entitled to, against one another. They may seek such relief as advised to pursue under Section 17 of the Act, before the Learned Arbitral Tribunal as and when it is constituted, depending on the factual position obtaining at the time the arbitration proceedings commence. Suffice it to say, at this stage on the parameters of the factual matrix presented to me, no case is made out for the grant of the interim measures as sought.
40. Therefore, this Petition is disposed of without grant of any relief. It is hoped that the parties proceed to arbitration to resolve their disputes, as contracted.
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41. All actions required to be taken pursuant to this order, shall be taken upon receipt of a downloaded copy as available on this Court's website.
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