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13. On 14 th January, 2015 the Third PFA was made. It granted final relief holding that all rights of the respondents under the joint venture agreement ceased to be effective and that all aspects requiring respondents consent stands excluded. The respondents were restrained from exercising rights under the JVA and held that the date of the valuation would be 30 th September, 2014. On 11th May, 2015 the said Karia addressed an email to the tribunal that the respondents have called upon Deloitte to refrain from proceeding with the valuation and threatening civil and criminal proceedings if Deloitte failed to comply. On 23rd November, 2015 Deloitte published its valuation report determining fair market value of the respondents equity shares at Rs.71/- after discounting the value by 10%. The Chartered Accountants engaged by the petitioners, however, also carried out the valuation of the shares after taking into Foreign Exchange Management Act (FEMA) requirements. That valuation surprisingly found that the each share was valued at Rs.16.88.

45. Mr. Chinoy submitted that the contract was subject to Indian law and the petitioner had obviously claimed specific performance of clause 23. The respondents relied upon non compliance under section 16(c) resulting in petitioners being dis-entitled to claim specific performance. This submission was not dealt with. Not having dealt with this aspect the award is perverse. The arbitrators failure to deal with these issues are contrary to the fundamental policy of Indian law as contemplated in ONGC vs. Western Geco [(2014) 9 SCC 263] . It was submitted that the award is invalid since it directs respondents to transfer their shares @ 10% discount of fair market value. Fair Market Value was to be determined by one of 4 firms. The determination of the fair market value was jointly referred to Deloitte to issue their valuation report but directed respondents to sell at discounted price at 10% discount of the Fair Market Value. That under the Foreign Exchange Management Act and Foreign Exchange Management (Transfer of Securities) regulation and pricing guidelines issued there under share can be transferred to non residents at price not less than Fair Market Value determined by internationally accepted pricing methodology for valuation of shares. That the provision in the JVA for discounted price would be unenforceable as matter of Indian law and this was highlighted by the petitioners before the tribunal. Mr. Chinoy submitted *42* carbp-442.17(Prysmian)09012019.odt that is the fundamental policy of law that the shares may not be transferred to a non resident at less than Fair Market Value but tribunal did not consider the issue by contending that the respondents had not raised it at the stage of First and Second PFAs. He submitted that the tribunal could not justify transfer of shares contrary to FEMA regulations.

54. In view of Mr. Chinoy's submission on violation of FEMA and the RBI *49* carbp-442.17(Prysmian)09012019.odt pricing guidelines, it was pointed out that the respondents had raised the issue in their reply dated 30th December, 2016. By contending that in RBI guidelines sale of shares can only be at fair market value and cannot be discounted as otherwise it would be in contravention of Indian law but they did not produce either FEMA regulations or personal guidelines or any other circular and accordingly the contention was rejected. He submitted that under pricing guidelines the price of transfer of shares from resident to non resident was to be not less than fair market value. There is no bar against the price being higher than valuation as determined under FEMA. That the Deloitte valuation was Rs. 71 per share and applying 10% discount Rs. 61.93 ps. per share and the valuation is contractually binding. Valuation by Deloitte is not certified for the purposes of FEMA and that the petitioner had produced a valuation from M/s. Kalyaniwalla & Mistry which certified the fair market value for the purposes of FEMA that valuation was 16.38. The K & M report was part of the petitioner applications for final award and respondents did not deal with it at all. They ignored the K & M report of the petitioners and highlighted the fact that respondents had not dealt with K & M report. They ignored the fact that although the FEMA valuation is much lower then the Deloitte valuation the claimant is committed to purchase shares as contractually agreed. The discounted price of 63.93 was worked out in accordance with the contract and is not less than FEMA fair valuation of 16.38. The objections on *50* carbp-442.17(Prysmian)09012019.odt this ground are therefore misconceived.

97. With reference to Mr. Chinoy's other ground to resist enforcement viz, the enforcement of the Award being in contravention of the Foreign Exchange Management Act, in Penn Racquet (supra), the Delhi High Court had held that recognition and enforcement of a foreign award cannot be denied merely because it was in contravention with the laws of India. An award should be contrary to the fundamental policy of Indian law and only then enforcement could be denied. This Court had in Pol India Projects (supra) approved of the decision in Penn Racquet Sports (supra) as squarely applicable to the facts of the cases. The Court in Pol India Projects (supra) further observed that the Supreme Court had held since the expression "public policy' covers the field not covered by the words "and the law of India" which follow that expression contravention of law alone will not attract the bar of public policy and something more than the contravention of law is required and adverting to the facts of the case even if a law of guarantee could not have been issued in favour of the respondents under provisions of the Foreign Exchange Management (Guarantees) Regulation, 2000 which was acted upon by the parties simplicitor *88* carbp-442.17(Prysmian)09012019.odt violation of the provisions would not be contrary to the fundamental policy of Indian law. POL India Projects Ltd (supra) followed the Delhi High Court decision in SRM Exploration P.Ltd vs. N & S & N Consultants [(2012) 4 Company Law Journal 178 Delhi] holding that legislative intent while enacting FEMA is not to void a transaction even if it is in violation. As also of the decision of the Bombay High Court in Vitol SA vs Bhatia International Ltd and Noy Vallencia Engineering Spa Vs Jindal Drugs Ltd (2006) 5 Bom C.R. 155 all of which allowed enforcement of foreign awards held and held that even if guarantees are not issued under FEMA Regulations, violation of the provisions would not be contravention of the fundamental policy of Indian law. In the facts of the case I do not find the objection on the ground of violation of FEMA as canvassed by Mr. Chinoy of substance since on facts, the fair value for the purposes of FEMA was determined at a far lower rate.