Delhi High Court - Orders
Future Retail Ltd vs Amazon.Com Nv Investment Holdings Llc & ... on 5 January, 2022
Author: Jyoti Singh
Bench: Chief Justice, Jyoti Singh
$~13 & 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
13
+ LPA 6/2022
FUTURE RETAIL LTD ..... Appellant
Through: Mr. Harish Salve & Mr. Sandeep
Sethi, Senior Advocates with Mr. Raghav Shankar,
Mr. Harshvardhan Jha, Ms. Ritika Sinha,
Ms.Arshiya Sharda & Mr. Aman Pathak,
Advocates
versus
AMAZON.COM NV INVESTMENT HOLDINGS LLC & ORS.
..... Respondents
Through: Mr. Gopal Subramanium, Mr.Rajiv
Nayar, Mr. Gourab Banerji, Mr. Amit Sibal &
Mr.Nakul Dewan, Senior Advocates with
Mr.Anand S. Pathak, Mr. Amit K. Mishra,
Mr.Shashank Gautam, Ms. Sreemoyee Deb,
Mr.Vijay Purohit, Mr. Mohit Singh, Mr. Promit
Chatterjee, Ms. Anubhuti Mishra, Mr. Shivam
Pandey, Ms. Samridhi Hota, Ms. Nikita Bangera,
Mr. Pratik Jhaveri, Mr. Faizan Mithaiwala,
Ms.Didon Misri, Mr. chetan Chawla,
Mr.Vijayendra Pratap Singh, Mr. Rachit Bahl,
Ms.Roopali Singh, , Mr. Abhijan Jha, Mr. Priyank
Ladoia, Mr. Tanmay Sharma, Ms. Vanya Chhabra,
Mr. Arnab Ray, Mr. Vedant, Kapur, Mr. Shaurya
Mittal, Mr. Abhisar Vidyarthi, Mr. Kartik Nayar,
Mr. Pawan Bhushan, Ms. Hima Lawrence,
Ms.Ujwala Uppaluri, Mr. S.P. Mukherjee, Mr.T.S.
Sundaram, Mr. Vinay Tripathi, Mr. Aishvary
Vikram, Mr. Kaustubh Prakash, Ms. Anushka
Shah, Ms. Neelu Mohan, Ms. Smriti Kalra &
Ms.Manjira Dasgupta, Advocates for R-1
LPA 6/2022 & LPA 7/2022 Page 1 of 6
Signature Not Verified
AMIT NARAYAN
BHARTHUAR
Location:
Signing Date:06.01.2022
11:22:08
Mr. Mukul Rohatgi & Mr. Dayan Krishnan, Senior
Advocates with Mr. Mahesh Agarwal, Mr. Rishi
Agrawala, Mr. Karan Luthra, Mr. Pranjit
Bhattacharya, Mr. Sanjeevi Seshadri & Mr. Ankit
Banati, Advocates for R-2
14
+ LPA 7/2022
FUTURE COUPONS PRIVATE LIMITED & ORS. ..... Appellants
Through: Mr. Mukul Rohatgi & Mr. Dayan
Krishnan, Senior Advocates with Mr. Mahesh
Agarwal, Mr. Rishi Agrawala, Mr. Karan Luthra,
Mr. Pranjit Bhattacharya, Mr. Sanjeevi Seshadri &
Mr. Ankit Banati, Advocates
versus
AMAZON.COM NV INVESTMENT HOLDINGS LLC & ANR.
..... Respondents
Through: Mr. Gopal Subramanium, Mr.Rajiv
Nayar, Mr. Gourab Banerji, Mr. Amit Sibal &
Mr.Nakul Dewan, Senior Advocates with
Mr.Anand S. Pathak, Mr. Amit K. Mishra,
Mr.Shashank Gautam, Ms. Sreemoyee Deb,
Mr.Vijay Purohit, Mr. Mohit Singh, Mr. Promit
Chatterjee, Ms. Anubhuti Mishra, Mr. Shivam
Pandey, Ms. Samridhi Hota, Ms. Nikita Bangera,
Mr. Pratik Jhaveri, Mr. Faizan Mithaiwala,
Ms.Didon Misri, Mr. chetan Chawla,
Mr.Vijayendra Pratap Singh, Mr. Rachit Bahl,
Ms.Roopali Singh, , Mr. Abhijan Jha, Mr. Priyank
Ladoia, Mr. Tanmay Sharma, Ms. Vanya Chhabra,
Mr. Arnab Ray, Mr. Vedant, Kapur, Mr. Shaurya
Mittal, Mr. Abhisar Vidyarthi, Mr. Kartik Nayar,
Mr. Pawan Bhushan, Ms. Hima Lawrence,
Ms.Ujwala Uppaluri, Mr. S.P. Mukherjee, Mr.T.S.
Sundaram, Mr. Vinay Tripathi, Mr. Aishvary
Vikram, Mr. Kaustubh Prakash, Ms. Anushka
LPA 6/2022 & LPA 7/2022 Page 2 of 6
Signature Not Verified
AMIT NARAYAN
BHARTHUAR
Location:
Signing Date:06.01.2022
11:22:08
Shah, Ms. Neelu Mohan, Ms. Smriti Kalra &
Ms.Manjira Dasgupta, Advocates for R-1
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 05.01.2022 Proceedings have been conducted through video conferencing. CM APPLs. 570-571/2022 (exemptions) in LPA 6/2022 CM APPLs. 573-574/2022 (exemptions) in LPA 7/2022 Allowed, subject to all just exceptions.
The applications are disposed of.
LPA 6/2022 & CM APPL.569/2022 (interim relief) LPA 7/2022 & CM APPL.572/2022 (interim relief)
1. Present Letters Patent Appeals were mentioned for circulation today and were permitted to be listed.
2. We have heard learned Senior Counsels appearing on behalf of the Appellants as well as Respondent No.1 in both the appeals and examined their rival contentions.
3. Issue notice.
4. Mr. Anand S. Pathak, learned counsel accepts notice on behalf of Respondent No. 1 in both the appeals.
5. Mr. Mahesh Agarwal, learned counsel accepts notice on behalf of Respondent No. 2 in LPA 6/2022.
6. Issue notice to Respondents No.3 to 13 in LPA 6/2022 and to Respondents No.2 to 12 in LPA 7/2022, through ordinary process, returnable on 01.02.2022.
LPA 6/2022 & LPA 7/2022 Page 3 of 6 Signature Not Verified AMIT NARAYAN BHARTHUAR Location: Signing Date:06.01.2022 11:22:087. Looking to the order dated 17.12.2021 (Annexure-8 to the memo of LPA 6/2022), passed by Competition Commission of India ('CCI'), a statutory regulator, especially paragraphs 70, 75, 76, 78, 79 and 80, whereby the earlier approval granted by CCI vide order dated 28.11.2019 (Annexure-3 to the memo of LPA 6/2022) has been kept in abeyance, we prima facie, find merit in the contention of the Appellants that the agreement between Amazon and FCPL is unenforceable and consequently, the Arbitration Agreement and in view thereof, the Arbitral Tribunal should have taken up the application filed under Section 32(2)(c) of the Arbitration and Conciliation Act, 1996, seeking termination of the arbitration proceedings, on priority and before recording evidence. We have also perused para 48 of the aforementioned order of CCI, which reads as follows:-
"48. In view of the above, the Commission notes that the Internal Correspondence discussed above clearly demonstrates that Amazon had failed to disclose true and complete details of the purpose of the Combination, which is required to be given under Item 5.3 of Form I. Further, Amazon had misrepresented that its decision to pursue the Combination was based on the unique business model of FCPL, and that FRL, a company with strong financials and futuristic outlook, is relevant to the Combination only from the perspective of financial strength to FCPL. As brought out earlier, Amazon also failed to disclose and clarify the real purpose of the Combination in the Notice and continued with its false/misleading assertions even in its response to the queries posed vide letters dated 9th October, 2019 and 24th October, 2019 of the Commission. Amazon has also suppressed relevant and material documents required to be furnished in terms of Item 8.8 of Form I. Considering these, the Commission has no hesitation to hold that such conducts of LPA 6/2022 & LPA 7/2022 Page 4 of 6 Signature Not Verified AMIT NARAYAN BHARTHUAR Location: Signing Date:06.01.2022 11:22:08 Amazon amount to suppression and misrepresentation of the purpose of the Combination, which is a material particular. This is in contravention of the provisions contained in clauses
(a) and (b) of Section 44 and clause (a) of sub-section (1) of Section 45 of the Act. The conduct of Amazon in suppressing relevant and material documents against the disclosure requirement under Item 8.8 of Form I is a contravention of clause (c) of sub-section (1) of Section 45 of the Act. Similarly, the rights over FRL that were considered as strategic in the Internal Correspondence of Amazon, were represented as mere investor protection rights. Such repeated assertions, contrary to their actual purport, amount to statements that are false in material particular, in contravention of the provisions contained in clauses (a) and (b) of Section 44 and clause (a) of subsection (1) of Section 45 of the Act."
(emphasis supplied)
8. Learned Senior Counsels appearing on behalf of the Appellants have highlighted that the CCI has rendered clear findings against Respondent No.1 that it has misrepresented and suppressed crucial facts and that such omissions and false statements have denied and disabled the Commission an opportunity to assess the effects of the actual combination. It was also pointed out that CCI has imposed a penalty of Rs.202 Crores on Respondent No.1.
9. Having perused the order of CCI, the impugned orders passed by the Arbitral Tribunal and the judgment of the learned Single Judge dated 04.01.2022, in our view, Appellants have made out a prima facie case for grant of interim relief and the balance of convenience also lies in favour of the Appellants. If the interim relief prayed for is not granted, it would cause irreparable loss to the Appellants.
LPA 6/2022 & LPA 7/2022 Page 5 of 6 Signature Not Verified AMIT NARAYAN BHARTHUAR Location: Signing Date:06.01.2022 11:22:0810. We therefore stay the further proceedings before the Arbitral Tribunal in Amazon.com NV Investment Holdings LLC v. Future Coupons Private Limited, SIAC Arbitration No. 960 of 2020 as well as the impugned judgment passed by the learned Single Judge, till the next date of hearing.
11. Learned Senior Counsels appearing for Respondent No.1 have raised several grounds in opposition to the contentions raised by the Appellants, including an objection to the maintainability of the present appeals. All these grounds including that of maintainability of the appeals shall be dealt with on the next date of hearing.
CHIEF JUSTICE JYOTI SINGH, J JANUARY 5, 2022/ns LPA 6/2022 & LPA 7/2022 Page 6 of 6 Signature Not Verified AMIT NARAYAN BHARTHUAR Location: Signing Date:06.01.2022 11:22:08