Bombay High Court
Holista Tranzworld Private Limited And ... vs Iifl Wealth Finance Ltd on 14 February, 2019
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM.ARBITRATION PETITION (L) NO.1160 OF 2018
1.Ecogreen Cleantech Pvt.Ltd. & Anr. ...Petitioners
Versus
IIFL Wealth Finance Ltd. ...Respondent
COMMERCIAL NOTICE OF MOTION NO.450 OF 2019
IN
COMM.ARBITRATION PETITION (L) NO.1160 OF 2018
IIFL Wealth Finance Ltd. ...Applicant
In the matter between
1.Ecogreen Cleantech Pvt.Ltd. & Anr. ...Petitioners
Versus
IIFL Wealth Finance Ltd. ...Respondent
with
COMMERCIAL NOTICE OF MOTION NO.457 OF 2019
IN
COMM.ARBITRATION PETITION (L) NO.1165 OF 2018
IIFL Wealth Finance Ltd. ...Applicant
In the matter between
Holista Tranzworld Pvt.Ltd. & Anr. ...Petitioners
Versus
IIFL Wealth Finance Ltd. ...Respondent
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Dr.Birendra Saraf I/b. Kalyani Tulankar with Ranjit Shinde, for the Petitioner.
Mr.Sachin Chandarana, Mayur Bhojwani, Ms.Krina Gandhi I/b. Manilal Kher
Ambalal & Co., for the Respondent.
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CORAM: G.S.KULKARNI, J.
DATED: 14th February, 2019
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P.C.:
1. Heard learned Counsel for the petitioner and the learned Counsel
for the respondent.
2. This is a petition under Section 9 of the Arbitration and Conciliation
Act, whereby the petitioner has prayed for interim reliefs pending the
arbitral proceedings. On 19 October 2018 this Court (S.J.Kathawalla, J.)
on hearing this petition, before the respondent were to appear, passed the
following order:-
"1. Perused the Petition. For reasons set out in the Affidavit dated 17 th
October,2018, notice is not given to the Defendant. I am satisfied that if
notice is given to the Respondent, they may sell the security to interested
buyers and the purpose of filing the present petition will be defeated. In
view thereof, there shall an ad-interim injunction against the Respondent
upto 22nd October, 2018 in terms of prayer clauses (a) and (b) of the
Petition, which is reproduced hereunder :
"(a) that pending the arbitral proceedings, making of the arbitral award
and until final execution of the arbitral award, the Respondent be
restrained by an order and injunction of this Hon'ble Court from
demanding repayment of the loan under Econogreen Cleantech Pvt. Ltd.,
Loan Account No.LASCRN424582 prior to the tenure of 24 months in
terms of the sanctioned letter dated 26-06-2018;
(b) that pending the arbitral proceedings, making of the Arbitral Award
and until final execution of the arbitral award, the Respondent be
restrained by an order of injunction of this Hon'ble Court from selling
5,04,000 (Five Lakhs Four Thousand shares) of the Tamilnad Mercantile
Bank Ltd., Toothukudi, offered as security for loan facility under Ecogreen
Cleantech Pvt. Ltd., loan Account No.LASCRN424582;"
Stand over to 22nd October, 2018."
3. The said order thereafter has continued to operate. The respondents
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have now appeared as also have filed Notice of Motion (Lodg) No.202 of
2019 praying that the above ex-parte order dated 19 October 2018 passed
by this Court be vacated inasmuch as the ad-interim order both in terms of
prayer clause (a) and (b) is causing a serious prejudice to the respondents
inasmuch as there is restrain on even making a demand as can be seen
from the relief as granted in terms of prayer clause (a). In regard to
prayer clause (b) it is contended that the respondents are not in a position
to utilise the security to realise the amount due and payable by the
petitioner under default.
4. There is consensus between the parties as informed to the Court by
the learned Counsel for the parties, on instructions, that the parties are
willing to refer the disputes and differences as arising under the Master
Financing Agreement dated 6 January 2017 for adjudication of disputes
by arbitral tribunal.
5. In view of the consensus between the parties for referring of the
disputes to arbitration as contained in clause 25.1 of the said agreement, it
would be appropriate that the disputes are referred for adjudication by
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appointing a sole arbitrator.
6. After hearing the learned counsel for the parties on the ad-interim
relief granted by this Court by an order dated 19 October 2018, the ad-
interim relief as granted in terms of prayer clause (a) need not be kept in
operation and stands vacated.
7. As regards the relief as granted in terms of prayer clause (b), it
would be appropriate that the relief as granted in terms of prayer clause
(b) be kept in operation till the arbitral tribunal decides the Section 17
application which may be filed by the petitioner. Dr.Saraf has submitted
that the loan is a subsisting loan as the term of the loan would end in June
2020 and in the connected petition (Commercial Arbitration Petition (L)
no.1165 of 2018) in June, 2019. It is stated that the loan has already
been regularized. This is however disputed by Mr.Chandarana, learned
Counsel for the respondent. Dr.Saraf on instructions of the petitioners
submits that if there are any outstanding amounts, the same would also
be cleared.
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8. Be that as it may, all these are the issues on merits of the matter
which it clearly appears that the parties have intended to resolve. In the
above circumstances further adjudication of these petitions is not called
for and they can be conveniently disposed of in view of the consensus of
the parties as noted above, Hence, the following order:-
ORDER
I. Mr.Rohan Rajadhyaksha, Advocate is appointed as a prospective sole arbitrator to adjudicate the disputes and differences between the parties arising under the Master Financing Agreement 6 January 2017 and the personal guarantees which are subject matter of these proceedings. II. The learned prospective arbitrator, fifteen days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act,1996, to the Prothonotary and Senior Master of this Court, to be placed on record of this application with a copy to be forwarded to the parties.
III. At the first instance, the parties are directed to appear before the prospective Arbitrator on a date which may be fixed by the learned prospective Arbitrator within ten days from the disclosure as may be ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 11:27:40 ::: pvr 6 905-906nmcd450-carbpl1160-18=nmcd457-19.doc received by the parties.
IV. The petitioner shall if so desires may move an application under Section 17 of the Arbitration and Conciliation Act,1996 within two weeks of the learned Arbitrator entering a reference. V. The learned Arbitrator shall endeavour to decide Section 17 application as expeditiously as possible and preferably within a period of two months from the date of filing of the said application. VI. Ad-interim order passed by this Court in terms of prayer clause (b) of the petition shall continue to operate till the adjudication of Section 17 Application and an order adverse to the petitioner is passed, for a period of one week thereafter.
VII. All contentions of the parties on merits of the matter are expressly kept open.
VIII. The petitions are disposed of in the above terms. No costs. IX. In view of disposal of the petitions, pending notices of motion do not survive, they are accordingly disposed of.
X. Office to forward a copy of this order to the learned Arbitrator.
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