Bombay High Court
Prysmian Cavi E Sistemi ... vs Vijay Karia And 76 Ors on 27 March, 2019
Author: G.S. Patel
Bench: G.S. Patel
32-CHSCD327-19.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
CHAMBER SUMMONS NO. 327 OF 2019
IN
COMM EXECUTION APPLICATION (L) NO. 263 OF 2019
Prysmian Cavi E Sistemi SRI (formerly known as ...Applicant
Prysmian Cavi E Sistemi Energia SRI)
Versus
Vijay Karia & Ors ...Respondents
Mr Fredun DeVitre, with MP Bharucha, Shreya Gupta & Arati Ranade, i/b Bharucha & Partners, for the Applicant. Mr Manthan Unadkat, i/b M/s. Unadkat & Co., for Respondents Nos.
2, 3, 4, 10 to 18, 46 to 48 and 77.
CORAM: G.S. PATEL, J
DATED: 27th March 2019
PC:-
1. This is an application for execution of a foreign Award. Very briefly stated, Mr David Joseph QC, acting as a sole arbitrator, made a final Award on 14th April 2017 in London. This followed three previous Awards, each described as a "partial final Award". These partial final Awards were dated 15th February 2013, 19th December 2013 and 14th January 2015.
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2. The disputes relate to the Respondents' shareholding in an Indian company, Ravin Cables Limited. Respondent No. 1, Vijay Karia, represents the existing shareholders of Ravin. He holds Powers of Attorney from the other Respondents. Under a Joint Venture Agreement dated 19th January 2010, the Award Holder, an Italian company, Prysmian Cavi E Sistemi SRI, was to hold 51% of Ravin's equity. There are various other considerations or aspects with which I am presently not concerned.
3. After Mr Joseph made his last and final Award on 14th April 2017 (incorporating in it by reference the three previous partial final Awards), Prysmian sought enforcement of that Award in Arbitration Petition No. 442 of 2017. This was argued -- evidently at some quite considerable length -- before AK Menon J. On 7th January 2019, having considered the rival contentions, Menon J delivered an elaborate judgment holding that all four Awards were enforceable against the Respondents. He said Prysmian could proceed in execution. Pending that enforcement by execution, he ordered an injunction in terms of prayer clause (b)(vii)(a) of the Arbitration Petition before him. That prayer reads:
"for an injunction restraining the Respondents from transferring, alienating, disposing of, encumbering or creating any third party rights and/or interest over or in respect of their respective shareholding in the capital of the company forthwith"
4. Prysmian then filed this Execution Application and Chamber Summons. The first relief in the Chamber Summons, in prayer A(i), is for a direction to the Respondents to deposit in Court the share Page 2 of 5 27th March 2019 ::: Uploaded on - 28/03/2019 ::: Downloaded on - 29/03/2019 02:21:07 ::: 32-CHSCD327-19.DOC certificates of 10,252,275 fully paid up equity shares of Ravin of the face value of Rs. 10/- in accordance with the details set out in Schedule "A". Then there is a prayer for an injunction restraining Respondents Nos. 1 and 11 from exercising any rights in respect of these shares, claiming or attempting to claim a right to represent the company (and from actually doing so), and from using any of its assets. There follows a broadly worded prayer for a restraint against disposal of Ravin's movable and immovable assets, evidently on the basis that the Joint Venture Agreement and the resultant Award contemplated Prysmian taking over or acquiring Ravin Cables entirely. The second set of prayers is for interim reliefs pending the Chamber Summons in substantially these terms.
5. I am now told by Mr Undakat, who has instructions from some of the Respondents, that his clients filed a Special Leave Petition against Menon J's order only late last evening. This does not mean that execution is automatically stayed.
6. Mr DeVitre for Prysmian seeks only a limited ad interim relief today. He points out that Vijay Karia, who holds Powers of Attorney from the others, and has throughout been said to have represented the other group opposing Prysmian, has himself neither entered appearance here despite service, nor is he said to be a petitioner before the Supreme Court. Mr DeVitre says that it is not only necessary and just, but eminently convenient, that Vijay Karia be directed to bring into Court the subject equity shares of Ravin Cables Limited with accompanying signed transfer forms. I believe Mr DeVitre is correct. There can be no conceivable prejudice to any Respondent if such an order is made. Should the petitioners before Page 3 of 5 27th March 2019 ::: Uploaded on - 28/03/2019 ::: Downloaded on - 29/03/2019 02:21:07 ::: 32-CHSCD327-19.DOC the Supreme Court obtain a favourable order in their SLP, these shares will be returned to them in the condition in which they were received. But if they do not, Prysmian ought not to be required to spend further time nor to suffer greater delay in enforcing an Award that was several years in the making, and the enforcement of which was itself pending for two years in this Court. Indeed, it is possible to argue that the order or orders Mr DeVitre seeks today are those that could have been made on the Arbitration Petition itself. Certainly these reliefs are consistent with, and consequential to, the final result in that Arbitration Petition.
7. I will, therefore, make an order today in terms of prayer clause A(i) but with a modification, thus: Respondent No.1 will, by 5:00 pm on 3rd April 2019, deposit with the Prothonotary & Senior Master of this Court all 10,252,275 fully paid up equity shares of Ravin Cables Ltd of the face value of Rs. 10/- held by the Respondents, together with share transfer forms duly signed by the 1st Respondent as the Constituted Attorney of the transferor- Respondents. The Prothonotary & Senior Master will hold these shares and share transfer forms in his custody, and will not release them until further orders.
8. This is entirely without prejudice to the rights and contentions of those who have approached the Supreme Court.
9. Further, given the nature of the transaction, essentially a take- over or acquisition, between today and 4th April 2019 the Respondents are not to alienate, dispose of, encumber or part with Page 4 of 5 27th March 2019 ::: Uploaded on - 28/03/2019 ::: Downloaded on - 29/03/2019 02:21:07 ::: 32-CHSCD327-19.DOC possession of any of the assets of Ravin Cables Limited except in the ordinary and usual course of that company's business.
10. List the matter on 4th April 2019.
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