Bombay High Court
Actis Consumer Grooming Products ... vs Rakesh Malhotra And 9 Ors on 5 March, 2020
Author: G. S. Patel
Bench: G.S. Patel
916-CARBPL306-2020.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION ( L) NO. 306 OF 2020
Actis Consumer Grooming Products Ltd ...Petitioner
Versus
Rakesh Malhotra & Ors ...Respondent
Mr Janak Dwarkadas, Senior Advocate, with Mr Ashish Kamat,
Mr Rajendra Barot, Mr Anoj Memon, Ms Trisha Sarkar, Ms
Megha Chandra, Ms Vidhi Barot, Ms Sharvari Kothawade &
Mr Vedant Jalon, for the Petitioner.
Mr Gautam Ankhad, with Ms Nishtha Mohanty, Mr S Ghosh, Mr
Arban Sen, Ms Sanaya Patel, i/b Hariani & Co, for Respondent
Nos. 1,4,5 & 7.
CORAM: G.S. PATEL, J.
DATED: 5th March 2020 PC:-
1. Mr Dwarkadas moves this petition for urgent ad-interim reliefs under Section 9 of the Arbitration and Conciliation Act 1996. The Petitioner obtained a partial award on 12th February 2020 from an arbitral tribunal in LCIA Arbitration Case No 183927. This was a Geneva-seated arbitration.
2. Mr Ankhad appears for some of the Respondents.
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3. For the present, at this ad-interim stage I am considering only prayer clauses (d) and (e) at pages 43 and 44. They read thus:
"(d) to appoint a Court Receiver with all powers under Order XL of the Code of Civil Procedure, 1908, including of forcible entry with or without assistance of the police along with the assistance of such other persons (including technical experts), to visit the facilities of Respondent No.4 with the assistance of concerned representatives of the Petitioner and Respondent No.10 and direct the Court Receiver to inspect the said facilities and prepare and submit to this Hon'ble Court, a report on:
(i) the condition of the machineries of Respondent No.4 and the machineries of Respondent No.10, which are lying in the facilities of Respondent No.4;
(ii) the status of the sales afxed by the Court Receiver, High Court, Bombay on the machineries of Respondent No.10, which are lying in the facilities of Respondent No.4, pursuant to the orders dated February 16, 2018, February 21, 2018, March 5, 2018, March 27, 2018 and May 16, 2018 passed by this Hon'ble Court in the Bombay in the Section 9 Petition;
(iii) status and locations of the machineries of Respondent No.4 as per its Fixed Assets Register; and
(iv) the status and locations of the machineries of Respondent No.10 that were sealed by the Court Receiver, High Court, Bombay as mentioned hereinabove;
(e) restrain Respondent Nos. 1 to 3 and 5 to 7 from dealing with, parting with possession, alienating and/or creating any third party right, title or interest in relation to the assets and properties (movable, immovable, tangible, Page 2 of 6 5th March 2020 ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 02:09:04 ::: 916-CARBPL306-2020.DOC intangible, machinery and raw material) of Respondent Nos. 4 and 10."
4. Prayer clause (d) essentially seeks an updated status report from the Court Receiver in regard to some machinery of Respondent No. 4 and that of Respondent No.10 in the facilities of Respondent No. 4. I am told that this machinery is at two locations in Himachal Pradesh. The 4th Respondent's plants in question are at Plot No.16, Ramnagar Industrial Area, Gagret, District Una, Himachal Pradesh and at 49/102/103, HP SIDC Industrial Area, Shogi, District 7, Shimla, Himachal Pradesh. The machinery in these facilities is the subject matter of previous orders dated 16th February 2018 (page 746), 21st February 2018 (page 749), 5th March 2018 (page 752), 27th March 2018 (page 756) and 16th May 2018 (page 759). The Court Receiver was to fx his seals on the machines of Respondent No.10 lying in these two locations.
5. No further reliefs are sought in prayer clause (d) and I can see no difculty in making such an order.
6. Mr Dwarkadas expresses the apprehension that when the Receiver last visited there were obstructions and he was not permitted to perform his assignment. Mr Ankhad assures me that will not happen. His representatives are present in Court. His statement is accepted as an undertaking to the Court.
7. In any case, the Superintendents of Police at Gagret and at Shogi are requested to render all possible assistance to the Court Receiver upon production of an authenticated copy of this order.
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8. While the Petitioners will make the necessary arrangements for the Court Receiver's travel and accommodation, no representative of the Petitioner is permitted to accompany the Court Receiver to the actual premises in question. I am rejecting the request of Mr Dwarkadas because I do not want any further complication in the matter at this stage.
9. The Court Receiver will have his past record for the purposes of a fresh report showing the situation then and the situation now. I specifcally require the Receiver to take photographs and for that purpose the Receiver will depute additional staf from his ofce who are to take photographs. The original digital fles must be retained on the Court Receiver's records. Print outs will be required. It is open to the Court Receiver to make a video recording of the entire visit. Both the photographs and the video recording must bear a date and time stamp. The representatives of the Respondents who are present at site will without protest sign the Court Receiver's site visit report in acceptance of their presence at the site. Their signature will not convey acceptance of the contents of the site report.
10. The Respondents are not to refuse access to the Court Receiver's representatives to any part of the two plants to inspect the machinery and the seals previously placed.
11. Mr Ankhad has instructions to make a statement that his clients will ensure the safety and security of the Court Receiver and his staf and that no employee or workmen of any of the Page 4 of 6 5th March 2020 ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 02:09:04 ::: 916-CARBPL306-2020.DOC Respondents will in any way threaten or obstruct the Court Receiver. The statement is noted and accepted.
12. I am making it clear that the order presently is in the terms of prayer clauses (d)(i), (d)(ii), (d)(iii) and (d)(iv), meaning that the Court Receiver must also make a report on the status of the machinery that is found on site.
13. There will also be an ad-interim injunction until the next date of hearing in terms of prayers clause (e) restraining Respondents Nos. 1 to 3 and 5 to 7 from parting with possession, alienating, or creating any third party interest in regard to all the assets and properties of Respondents Nos. 4 to 10 except in the ordinary and usual course of business. I note that the prayer uses the words 'dealing with'. I am not granting that relief, i.e. using the words 'dealing with'.
14. Mr Ankhad has several submissions to make including on jurisdiction. All contentions are expressly left open. He is at liberty to fle and serve an Afdavit in Reply on or before 20th March 2020. Should a Rejoinder be required, I will address that on the next occasion.
15. As regards prayer clause (f ), Mr Ankhad makes a statement that the matter before the NCLT is not listed before the 30th March 2020. Since I will be listing this Section 9 Petition on 2nd April 2020, Mr Ankhad states that his clients will take an appropriate Page 5 of 6 5th March 2020 ::: Uploaded on - 06/03/2020 ::: Downloaded on - 07/03/2020 02:09:04 ::: 916-CARBPL306-2020.DOC adjournment before the NCLT. That statement is also noted and accepted.
16. List the matter on 2nd April 2020, high on the supplementary board.
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