Amazon v Future Group: LIVE UPDATES from Delhi High Court

The Delhi High Court is hearing a batch of petitions dealing with the ongoing dispute between Amazon and Future Group. There are four ‘dramatis personae’ (Amazon, Future Coupons, Future Retail and Reliance) in the litigation, and four sets of cases before the Court which need to be dealt with.The case is being heard by Justice C Hari Shankar.The hearings arose from a the February 1 direction from the Supreme Court whereby it set aside the October 29, 2021 decision of the Delhi High Court refusing to stay the award passed by a Singapore International Arbitration Centre (SIAC) tribunal which had restrained Future Group from going ahead with its ₹24,731 crore merger deal with Reliance Retail.Read more about the plea here. Live updates from the hearing below..Senior Advocate Gopal Subramanium starts his submissions for Amazon..Subramanium: The issue here is the sanctity of the contract..Subramanium: Courts have repeatedly upheld the sanctity of contracts. I am not asking you to preclude anything from consideration but we want to take you through a journey in the case which has moments of proclamations and potentially disturbing moments..Subramanium gives a brief history of the case..Subramanium: FDI is the reality of the day. We have moved from an era where FDI was prohibited to an era when investments is allowed, subject to government approval.11.Subramanium: Another route of investment is that if you are a listed entity, then there can be foreign portfolio investment not excluding 10%..Subramanium: The journey in this case began between Future Group and Amazon Group. Amazon is a leading entity in the world, it also has great potentiality to surge in the market. It is consumer centric movement borne out of a sense of enterprise and initiative..Subramanium: The conversation flowered between the parties. Right up till December 2018, the parties agreed that Amazon would take foreign portfolio of around 9.99% in Future..Subramanium: We have on one hand certain synergistic arrangement with Amazon's affiliate in India. It was able to get permission for sale of stuff in India. Parties were wanting strong synergies to come about and the portfolio investment seemed the most appropriate route..Subramanium: In 2019, some amount of reservation appeared on account of a press note issued by the UOI..Subramanium: Future Coupons was actually a wholesale dealer in fabric and it then decided to launch into coupons business. It made a filing before CCI in April 2019 seeking approval for a warrants transaction..Subramanium: The CCI approved the warrants filing. Naturally, in terms of the warrants which could be converted, it was aggregating to 7% of share of FRL..Subramanium: The promoters constituted 25% and they were looking for investor for paying the balance 75% and that is when my client took into this investment..Subramanium: The money had to go into FCPL and there was a stipulation that it would seep to FRL..Subramanium: In order to enable the warrants to converted into shares and subscription to be paid, an agreement was signed between promoters, FCPL and FRL. This was the underlying edifice for the other two agreements between FCPL and Amazon..Subramanium: A lot has been said about the order of CCI. But under the Share Subscription Agreement (SSA), the filing of Amazon was to be cleared by FCPL. Please bear that in mind..Subramanium: We filed before the CCI. The competition assessment was also offered to the commissioners..Subramanium: Certain protections were offered to my clients. But they futuristic vision and could happen only after three years of investment..Subramanium: The CCI approval came, and on 26/12/2019 the money came and flowed in directly to the FRL.Subramanium: One of the competitive groups was Reliance and it became one of the restrictive person..Subramanium: Therefore all the three agreements contemplated four things. i. No day to day control by Amazon either in FCPL or FRL. ii. FRL will be the sole vehicle for conduct of retail business. iii. There would be no transfer of retail assets except with the consent of investor.iv. There could never be a transfer of asset to restricted person..Subramanium: It is not that this 1400 crore is the only support I gave to Future. By claiming to be a partner with Amazon, Future Group was able to shore up 500 million dollars..Subramanium: My clients were mindful and considerate of Future Group's condition and they wanted to help during the pandemic. However, simultaneously they were dealing with the restricted person..Subramanium: FRL later announced that its 19 companies will merge into a company which in-turn will part with the assets of Reliance's retail venture. This is what we call disputed transaction. This happened on 20 August 2020..Subramanium: Under the Shareholders Agreement there is an arbitration clause. It provided that there would be an arbitration under Part I of the Act but it would be government by the rules of SIAC..Subramanium: Just like Delhi International Arbitration Centre or Mumbai or Madras Arbitration centre, the SIAC has a provision of Emergency Arbitrator..Subramanium: We lodged applications for arbitration and emergency relief. In accordance with the practise of SIAC, the court nominates a person as EA. Mr VK Raja was appointed as EA. He gave notice to all parties, invited pleadings, settled the proper time table and we joined FRL..Subramanium: We joined FRL as Resp-2. FRL objected to being joined as a party. They also objected to EA saying there is no such concept in India law. Mr Raja conducted a full day hearing. FRL appeared and EA pronounced an order..Subramanium: This order of 25/10/2020 held three things. First, under India law, non signatories can be made parties. He said FRL is within the scope of the arbitration agreement. He found that there was a prima facie breach of many clauses in the agreement and most significantly that the retail assets would be protected. The arbitrator therefore passed an interim order of prohibitory character and his order was that you will not act in the aid of the disputed transaction..Subramanium: After this order was passed, and this is one of the disturbing feature of the case, is that under the SIAC rules that once an order is passed the respondents undertake to abide by the ruling without delay..Subramanium: However, FRL was advised that the EA order is a nullity. And they wrote to all regulators and went on with application in support of the transaction..Subramanium: And this is an important feature in this case. One would have understood that an aggrieved person would have sought to file an appeal but they were so confident of their understanding of the law that they did not do it..Subramanium: They instituted a suit against me and make Reliance as pro-forma parties. It prayed for an anti-arbitration injunction. The suit was essentially asking for three things. 1 Permanent injunction against arbitration. 2. Amazon should be permanently injuncted.3. An order directing Amazon to not to write anything to any authority..Subramanium: The plaint was accompanied by an interlocutory application. It was completely a copy of the plaint..Subramanium: On the first day, we raised the point that the suit is not maintainable. The learned judge then actually decided to deal with the application..Subramanium: Justice Mukta Gupta then pronounced the order in relation to that interlocutory application..Subramanium: The most critical part of the order are; 1. EA is corum judice. 2. She said whether control is being exercised by Amazon in FRL is a matter for trial..Subramanium: These were prima facie observations. She said that this suit was not for challenge of that order and therefore she said she cannot restrain amazon from writing to authorities to placing reliance on EA's order..Subramanium: To suggest that she was effacing the EA order is wrong, she in fact said something contrary..Subramanium: The learned judge dismissed the application for interim relief. It is extraordinary that this order is being constantly urged to say that there was in fact control..Subramanium: After 90 days the EA order ceases to have an effect unless a tribunal is constituted. The tribunal therefore was constituted..Subramanium: We now come to January 2021. We decided to file an enforcement petition for the purpose of ensuring that the order of EA is not disregarded..Subramanium: By this time, the stock exchange board gave an approval subject to outcome of litigation. We filed the Execution Petition on January 25 and on January 26, on India's Republic Day, a petition for approval is filed before NCLT..Subramanium: Justice Midha passed the order but it was stayed by the division bench..Subramanium: We filed the SLP and an order was passed by the SC saying proceedings can go on but no order should be pronounced by the NCLT. This interim order was vacated by SC on 6, August, 2021..Subramanium: The Supreme Court allowed the appeals of Amazon, set aside the order of division bench and held that EA order was enforceable and binding. It was further said no appeal can lie before the Division Bench..Subramanium: Till 6 August, 2021, the EA order has not been appealed..Subramanium: In between March and August, FRL says I will now file applications before tribunal and it does so on 11 March..Subramanium: Applications challenged the jurisdiction of the tribunal and to vacate the EA order. These were heard in July 2021. Only August 6, SC delivered its judgment saying EA order is enforceable. Then FRL decided to file SLP against Justice Midha's orders..Subramanium: In those petitions, SC was apprised that applications have been moved before tribunal. On September 9, SC asked everyone to wait for tribunal's order..Subramanium: On 20 October, 2021, the applications were dismissed by the tribunal..Subramanium: There was one more application which was to permit them to continue with proceedings, this too was rejected..Subramanium: On February 1, 2022 the SC pronounced its judgment on SLP..Subramanium: In both the February 1 and February 15 orders, SC said the High Court should decide the matter uninfluenced by its orders..Subramanium: On March 25, 2021, they lodged a complaint with CCI and the substance of that complaint is that I undertook a filing before the commission, I am arguing a case before SIAC and that all the agreements should be considered together therefore revoke the approval..Subramanium: The authority has fallen into an error to believe that..Subramanium: On November 22, 2021, with their written submissions, they produced some letters of Amazon. Commission has passed the order which is vigorously contested by us..Subramanium: They have relied on that CCI order and got a stay of the arbitral proceedings..Subramanium: It is his understanding that because of CCI order, the arbitration proceedings should go. And because this proceeding should go, they should get the relief under Section 37..Subramanium: Where will I be then? I will be without a remedy. It is a moment of disturbance in this case..Subramanium: Under Section 28 of the contract is a measure of public policy, it says the contract would be void if it prohibits anyone from considering any legal proceedings..Subramanium: If somebody is bound by arbitration clause, they cannot say I am aggrieved and wounded individual and therefore I would not allow you to have arbitration and not obey any order..Subramanium: It cannot be urged that the orders of tribunal were washed away due to interim orders in enforcement proceedings. The essential is that order of arbitration has not gone..Subramanium: They have not shown slightest regard for that arbitration award..Subramanium: Even as you are hearing the appeal, FRL's stores are gone, their assets are gone..Subramanium: I would urge you to look at the conduct of the appellant..Bench: They filed a vacation application for vacation of EA order. Apart from that a DB order is there which has stayed the proceedings, can you now say that they have to comply with the order?.Subramanium: I agree that you have to be cognisant of the DB order but the there was gap of one year and for that one year at least some one had to comply..Bench: Mr Salve said as of today he is concerned with the continuance of NCLT proceedings. He says that SC has allowed the matter to reach a particular stage and then HC has to decide. He also said J Gupta allowed the authorities to continue..Bench: He said so far as NCLT does not pronounced a final order no prejudice will be caused to anyone..Bench: He said there is no embargo on proceedings to continue. Subramanium: It is a very attractive argument I must say so..Subramanium: This obliterates the difference between appeal and enforcement. He can succeed in this argument only if there is an order dismissing my enforcement petition..Subramanium: If the Court in enforcement had said that this order is not one which is to be enforced then it is a separate matter. he can then say field is open to him that there is no embargo..Subramanium: Execution and enforcement are not necessarily the basis to judge whether a duty to obey the order exists..Subramanium: Adherence to an order emanating from Section 17(2) of Arbitration Act is different from orders in enforcement proceedings..Subramanium: Adherence cannot effaced or undermined by referring to interlocutory orders in enforcement proceedings..Subramanium: I believe our country must always be seen as a country which will take forward the principles of arbitral proceedings unless, as you have repeatedly said, something is palpably wrong..Subramanium: Even if the underlying contract goes, the arbitration survives..Subramanium: I cannot be prevented from having access to a remedy. Here someone has taken the money, it is breach. The orders are founded on the finding of a breach. The money has come in and now they are saying they will do whatever they want..Subramanium: This, I submit, is the matter which should concern us..Subramanium: The question is are the proceedings before NCLT, all the approvals granted, are they consistent with the order? J Mukta Gupta simply said decide in accordance with law. This was an innocuous direction..Subramanium: Can parties take upon themselves, self-styled assumption of authorities and declare an order is invalid? Justice Nariman dealt with this aspect..Subramanium: Justice Nariman also said that no man can say order is invalid..Subramanium: My enforcement, till now, has not been found to be without merit..Subramanium: Supreme Court has said you have to be uninfluenced by its order. They have noted my submission that no prejudice should be caused. They wanted all the petitions to be together so that you can look at it all..Senior Advocate Amit Sibal informs the court that some assets of FRL have been transferred to Reliance. Sibal: This has been reported in the media..Sibal: One of the injunctions which are passed in the interim order is that they cannot take any steps to transfer any assets in any manner without prior permission..Sibal: Appellant is FRL, they have challenged the order, it is invoking the jurisdiction of court to seek interim relief but it is violating the order. How can they sustain a prayer for interim relief if they are violating the orders..Bench: It is not on record before me. I am not even sure if we can do anything about it..Bench: You place this on record I can't put these things on record. I am not going to expand things..Bench: I am seized, presently, with two appeals challenging the refusal of arbitration tribunal to stay the order of the EA. Any facts which are unnecessary, I am not inclined to entertain them unless you get some order from Supreme Court..Bench: I am not going to let this matter go on for five years..Arguments to continue on March 15 at 2:15 PM.

Amazon v Future Group: LIVE UPDATES from Delhi High Court

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