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TMI Blog2020 (12) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to return a finding - this Court is of the considered opinion that prima facie the present suit cannot be held to be not maintainable on the two grounds urged by Amazon, that is, that the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before this Court have already been urged and considered by the Emergency Arbitrator. Whether the Emergency Arbitrator lacks legal status under Part I of the A C Act and thus coram non judice? - HELD THAT:- It is now well settled that party autonomy is the backbone of arbitration. The courts in India have given due importance to the concept of party autonomy, and have further given full effect to the choice of the parties with respect to all three laws involved in an arbitration agreement, subject to the public policy of India and the mandatory provisions of the A C Act - In the present case, the parties have expressly chosen the SIAC Rules as the curial law governing the conduct of arbitration proceedings. The said Rules are self sufficient to govern the proceedings under arbitration at every stage. The Courts in such cases would uphold the express choice of the parties subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29th August, 2020 is void, Amazon also contends that consent of FCPL as required under the FRL SHA has not been taken in this regard. However, FRL has placed on record the letter dated 29th August, 2020, signed on behalf of both FRL and FCPL wherein FCPL has granted its approval for the transaction between FRL and Reliance. During the course of arguments, learned counsel for FRL contested the letter dated 29th August, 2020 claiming that the same is not accompanied by a statement of truth based on affidavit, however, since arguments in the application have been heard finally at the ad interim stage, both parties have filed documents without filling the necessary affidavits, which the parties will be required to in the suit, while completing the pleadings. This Court is of the opinion that the Board Resolution dated 29th August, 2020 of FRL is prima facie neither void nor contrary to any statutory provision nor the Articles of Association of FRL. Whether by conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules? - HELD THAT:- A conflated reading of the Clause-4.1 (iv) of the FCPL S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action and in any case the said document has not seen the light of the day. Whether FRL is entitled to an interim injunction? - HELD THAT:- The trinity of the principles for grant of interim injunction i.e. prima facie case, irreparable loss and balance of convenience are required to be tested in terms of principles as noted above. Since this Court has held that prima facie the representation of Amazon based on the plea that the resolution dated 29th August, 2020 of FRL is void and that on conflation of the FCPL SHA and FRL SHA, the 'control' that is sought to be asserted by Amazon on FRL is not permitted under the FEMA FDI Rules, without the governmental approvals, this Court finds that FRL has made out a prima facie case in its favour for grant of interim injunction. However, the main tests in the present case are in respect of balance of convenience and irreparable loss . Even if a prima facie case is made out by FRL, the balance of convenience lies both in favour of FRL and Amazon. It would be a matter of trial after parties have led their evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... athi, Mr.Mukul Rohtagi and Mr.Vikram Nankani, Sr.Advocates with Mr.Mahesh Agarwal, Mr.Rishi Agarwala, Mr.Karan Luthra, Mr.Pranjit Bhattacharya and Mr.Ankit Banati, Advocates, Dr.Abhishek Manu Singhvi, Sr.Advocate with Mr.Avishkar Singhvi, Ms.Madhavi Khanna, Mr.K.R.Sasiprabhu and Mr.Aditya Swarup, Advocates ORDER I.A.10376/2020 (under Order XXXIX Rule 1 and 2 CPC) Brief Facts 1.1 The plaintiff-Future Retail Ltd. (in short 'FRL') has filed the present suit impleading Amazon.com NV Investment Holdings LLC (in short Amazon ) as defendant No.1; Future Coupons Pvt. Ltd. ( in short 'FCPL') as defendant Nos.2; the promoters of the plaintiff (in short 'Biyanis') as defendant Nos.3 to 11, Future Corporate Resources Private Limited (in short 'FCRPL'), Akar Estate and Finance Private Limited (in short 'AEFPL') as defendants No.12 and 13 respectively, and Reliance Retail Ventures Limited (in short 'RRVL') and Reliance Retail and Fashion Lifestyle Limited (in short 'RRFLL' as defendant Nos.14 and 15 respectively (together referred as Reliance) with the following prayers: (a) Restrain by an order of permanent inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest of justice, equity and good conscience. 1.2 Prayers in the interim application, that is, I.A.10376/2020 (under Order XXXIX Rule 1 and 2 CPC) are identical to prayers (a), (b) and (c) in the plaint. 1.3 At the outset on a query raised by this Court as to whether the parties agree that this application can be finally decided based on the arguments on behalf of the parties without formal counter affidavits, learned counsels for the parties stated that the application be finally decided without formal affidavits based on oral arguments on behalf of the parties. Mr.Harish Salve, learned Senior Counsel appearing for the plaintiff further stated that in the interim application, he is not seeking any anti arbitration injunction or any anti suit injunction but only an interim restraint on Amazon to not interfere before the authorities such as SEBI etc. in relation to the lawful 'transaction' between FRL and Amazon pending consideration before the Regulators and statutory authorities. 1.4 Though not challenging the Emergency Award order (in short 'EA order') dated 25th August, 2020 on merits before this Court which challenge is also not maintainable in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FRL will go into liquidation, causing damage to the public shareholders, livelihood of the employees etc. The transaction will infact preserve the value of the Amazon s investment in FCPL whose primary asset is its shares in FRL. In case FRL becomes insolvent, the same will destroy the substratum of Amazon s investment in FCPL. It is, therefore, also claimed that de hors the invalidity of EA order, the conduct of Amazon in the interfering before the statutory authorities/Regulators amounts to tortious interference. 1.6 Since the assets of FRL are suffering deterioration at a rapid pace, it is imperative that the transaction between FRL and reliance is expeditiously concluded to stave off the prospects of the company going into liquidation. The transaction is presently at the stage of seeking various regulatory approvals from inter alia the Stock Exchanges and the Securities and Exchange Board of India (in short SEBI) Despite the fact that Amazon was in loop in respect of the transaction as is evident from the various correspondences, Amazon for the first time on 3rd October, 2020 wrote to NSE/BSE/SEBI, raising the plea that the transaction between Amazon and Reliance violated it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L (in short FCPL SHA). (iv) Share subscription agreement dated 22nd August, 2019 executed between Amazon, FCPL and persons listed in Schedule-I being Biyanis, FCRPL and AEFPL (in short FCPL SSA); (v) Letter dated 22nd August, 2019 by FRL to the Stock Exchanges in relation to execution of FCPL SHA and FCPL SSA;. (vi) An application dated 23rd September, 2019 filed before the Competition Commission of India (in short 'CCI') by Amazon (investor) for obtaining the approval of CCI for proposed acquisition of 34,02,713 Class-A voting equity shares and 63,71,678 Class-B non-voting equity shares aggregating to 49% of the total voting and non-voting equity share capital in FCPL, (a wholly owned subsidiary of FCRPL; FCPL and FCRPL being owned and controlled by the promoter group, that is, Biyanis); (vii) Letter dated 19th December 2019 by FCPL to FRL in relation to the FRL SHA dated 12th August, 2019 notifying the effective date for the purposes of the FRL SHA to be the date of the said letter and that the list of restricted persons was as set out in the Annexure - I of the letter; (viii) E-mails dated 12th March, 2020; 15th March, 2020; 19th March, 2020 and 25th Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Target Exemption because the value of the assets and turnover of FCL (as of March 31, 2019) (which is the target for the purposes of Proposed Transaction Ill) are below the thresholds provided in the Target Exemption. (iii) Accordingly, it is submitted that each of the constituent transactions of the Proposed Combination, on a standalone basis, are not notifiable to the Hon'ble Commission. (iv) Without prejudice to the foregoing, should the Hon'ble Commission consider the Proposed Combination to be a notifiable combination, the Amazon is notifying the Proposed Combination in terms of Section 6(2) of the Competition Act read with Sub-regulation (4) of Regulation 9 of the Combination Regulations. 5.1.3. Right(s) acquired or arising out of or in connection with the transaction(s) referred to at 5.1.1 and 5.1.2 above. (v) It is clarified that the Amazon is not acquiring control over FCPL in any manner pursuant to the Proposed Transaction III. The Amazon submits that the rights to be acquired by the Amazon pursuant to the consummation of the Proposed Transaction III are mere investor protection rights, which are typically granted to minority investors with a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement between a Material Entity (as defined in the SHA) and an affiliate of the Amazon. FCPL and the Promoters have also agreed not to transfer, encumber, divest or dispose of these Retail Assets (as defined in the SHA), directly or indirectly, in favour of a mutually agreed list of Restricted Persons (as defined in the SHA). (D) In Para 29 Amazon notified that the rationale of FCPL was that the Promoters have invited Amazon to invest in FCPL with a view to strengthen and augment the business of FCPL. FCPL believes that the Proposed Combination will provide an opportunity to FCPL to learn global trends in digital payments solutions and launch new products and usage of in-built payment mechanisms can lead to acquisition of customers' base and increased loyalty. (E) In Para 30 Amazon notified the rationale for Amazon as it believes that FCPL holds a potential for long term value creation and providing returns on its investment. Amazon has decided to invest in FCPL with a view to strengthen and augment the business of FCPL (including the marketing and distribution of loyalty cards, corporate gift cards and reward cards to corporate customers) and unlock the value in the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to have provided their irrevocable, and unconditional consent for any Transfer or Encumbrance over Securities of the Company held by FCL, if such Transfer or Encumbrance is in accordance with the provisions of the FCL SHA. Contentions on behalf of FRL 2.1 According to Mr.Harish Salve, learned Senior Counsel appearing for FRL states that FRL is a listed company having more than three lakhs shareholders, over 25,000 employees and several other stakeholders (including banks and financial institutions). The Covid-19 pandemic has had significant impact on Indian businesses, particularly the retail sector, in which FRL carries on its business and thus the transaction between FRL and Reliance is to protect the interest of all the stakeholders of FRL through a large infusion of funds and acquisition of liabilities of FRL s business by Reliance. 2.2 According to the learned Senior Counsel, the present plaint seeks injunction against Amazon from unlawfully interfering with the performance of the transaction between FRL and Reliance (defendant Nos.14 and 15) to restructure and transfer a part of FRL s business to Reliance to raise funds immediately required by FRL inter-al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NCLT adequately safeguards Amazon s interest. By the collapse of FRL s business, Amazon would gain as a large competitor in the form of FRL would be out of the business. The balance of convenience, therefore, also lies in restraining Amazon from in any manner interfering with the transaction. 2.6 Claim of Amazon that the FRL SHA, FCPL SHA and FCPL SSA are a Single Integrated Transaction is not only contrary to the provisions of FRL SHA, FCPL SHA and FCPL SSA but also the representation of Amazon before the Competition Commission of India (CCI). 2.7 Contention of Amazon based on the letter dated 19th December, 2019 issued by FCPL to FRL under the FRL SHA notifying the effective date of FRL SHA as 19th December, 2019 and listing the Restricted Persons for the purposes of FRL SHA is fallacious and misleading. Based on this letter Amazon contends that FCPL SHA and FRL SHA are interlinked since the list of Restricted Persons notified under this letter was the same as the list of Restricted Persons set out in the FCPL SHA. 2.8 According to FRL the said letter was issued by FCPL in accordance with the provisions of FRL SHA which stipulates that the effective date of FRL SHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case that it was persuaded to invest in FCPL being assured of certain rights under the FRL SHA, does not confer upon Amazon any derivative rights under the FRL SHA. Amazon knew, being a foreign investor, its limit of investment in view of Regulatory Regime in India and thus it was content with an investment made with the shareholder of FRL. Reliance is placed on the decisions reported as (2012) 6 SCC 613 Vodafone International Holdings BV vs. Union of India; RNRL vs. RIL (supra); 2000 (3) Mh LJ 700 Rolta India Ltd vs. Venire Industries Ltd.; 1959 AC 324 Scottish Co-operative Wholesale Society Ltd vs. Mayer and [2009] EWCA Civ 291 Hawkes vs. Cuddy to contend that the Directors of a listed entity have to act in fiduciary duty and not merely follow the direction of Promoters which tantamount to destroy the value of public shareholders and other stakeholders. 2.13 The WhatsApp chats between the parties clearly reveal that Amazon was aware of the fact that FRL was engaged in the talks to transfer its business to Reliance since June/July, 2020 and the representation of Amazon to the Authorities that it only came to know of the transaction on 16th September, 2020 is false. As a matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A C Act. Though the legality/illegality on merits of the EA order is not an issue in the present suit but the legal status of the EA order is an issue in the present suit. FRL is not challenging the legality of the findings in the EA order on merits nor seeking a declaration as to the invalidity of the EA order but since the Emergency Arbitrator has no legal status, thus the EA order is not binding, FRL seeks its relief on the basis that the EA order is a nullity. Since Amazon claims that the EA order is valid, same is an issue to be decided by this Court. 2.18 Appearance of the FRL before the Emergency Arbitrator was subject to its objections as to the jurisdiction and the said objection cannot be waived. According to learned Senior Counsel, FRL appeared before the Emergency Arbitrator without prejudice to the objection that an Emergency Arbitrator is not recognized under Part-1 of the A C Act as is evident from the letters of FRL dated 6th October, 2010 and 7th October, 2020 to SIAC and the response dated 12th October, 2020. Thus Amazon s contention that FRL waived the objection to the jurisdiction of the Emergency Arbitrator is false and misconceived. 2.19 Further sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal commercial arbitration as FRL SHA contemplates a purely domestic arbitration. This is a primary conflict in the two arbitration clauses, one being purely domestic arbitration and the other International commercial arbitration seated at Delhi, in India. Further in both the domestic and international commercial arbitration under Part-I, Emergency Arbitrator is barred, as the remedy for seeking an interim relief before the Arbitral Tribunal is constituted, is under Section 9 of the A C Act from a Court. That being the only remedy available, Amazon cannot bypass the said remedy and seek appointment of an Emergency Arbitrator. 2.23 Under Section 11(1) of the A C Act, an Arbitrator has a degree of permanence. The A C Act also does not contemplate that for the first six months there would be one arbitrator and than other one. Further Sections 12 and 13 of the A C Act which permit a party to challenge the jurisdiction of an Arbitrator, provide for the grounds and procedure on which appointment of the Arbitrator can be challenged. Section 15 of the A C Act provides for the manner in which the mandate of an Arbitrator can be terminated and another Arbitrator can be substituted. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 572 Narayan Prasad Lohia vs. Nikunj Kumar Lohia, relied upon on behalf of Amazon has no application to the facts of the present case as in the said case two Arbitrators were appointed and the Court held that the appointment of two Arbitrators would not frustrate Section 10 of the A C Act as in the event the two Arbitrators arrive at conflicting views, they could very well appoint a third Arbitrator to act as a presiding Arbitrator. Reliance of Amazon on the Rules of Delhi International Arbitration Centre ( DIAC Rules ), Mumbai Centre of International Arbitration ( |MCIA Rules ) and Madras High Court Arbitration Centre ( MHCAC Rules ) which provide for emergency arbitration procedures to contend that emergency arbitration is recognized under the A C Act is also misconceived as DIAC, MCIA and MHCAC Rules cannot override the mandatory provisions of the A C Act. Further these Rules have been made flexible so as to apply to foreign seated arbitrations as well and the Rules were framed in anticipation of the amendment proposed by 246th Law Commission Report which sought amendment to Section 2(1)(d) of the A C Act to include emergency arbitration which was not accepted by the Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPL SHA was governed by the A C Act and the concept of an Emergency Arbitrator prior to the constitution of an Arbitral Tribunal is foreign to the A C Act and hence the Emergency Arbitrator cannot be recognized as coram judice for granting any reliefs under the A C Act. Despite challenging the jurisdiction of the Emergency Arbitrator to grant interim relief as the said jurisdiction under the A C Act is either vested in the Court in terms of Section 9(1) of the A C Act or before the Arbitral Tribunal once it is constituted under Section 9(3) of the A C Act, the Emergency Arbitrator passed the EA Order. 3.2 It is well settled that an Arbitral Tribunal is constituted either on the basis of agreement between the parties or under Section 11 of the A C Act and in the present case there was neither an agreement between the parties nor a direction under Section 11 of the A C Act for appointment of the Emergency Arbitrator Under Section 2 (6) read with Section 19 (2) of the A C Act, derogation of the A C Act is only possible where the A C Act itself permits the parties to derogate therefrom. Further Section 9 of the A C Act does not contain the phrases like subject to any agreement to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram non judice. A plain reading of Clause 25 of the FCPL SHA providing for arbitration clearly notes that the substantive law of arbitration is the Indian Arbitration and Conciliation Act, 1996 and the SIAC Rules merely prescribe the procedure for the arbitration proceedings. In case of conflict with Indian substantive law, the provisions of the A C Act will prevail and apply mutatis mutandis. The seat of arbitration being New Delhi, the arbitration proceedings are governed by Part-I of the A C Act. Under Part-I of the A C Act, interim order can only be passed under Section 9 or 17 of the A C Act. The Emergency Arbitrator being a temporary creature under the SIAC Rules is not the Arbitral Tribunal and has no jurisdiction to pass orders under Section 17 of the A C Act. 4.2 Reiterating the provisions under the SIAC Rules and Section 11 of the A C Act relating to the appointment of Arbitral Tribunal, Sections 13 to 15 and 32 of the A C Act relating to the manner in which the mandate of Arbitral Tribunal can be terminated and Sections 14 or 15 for appointment of a substitute arbitrator, it is contended that under Part-I of the A C Act there is no scope of appointment of different Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the UNCITRAL Model Law, it does not contemplate appointment of an Emergency Arbitrator which position of the law is affirmed by the Supreme Court in the decision reported as 2004 (3) SCC 155 Firm Ashok Traders Anr. vs. Gurumukh Das Saluja Ors. 4.7 Chapter XV of the Companies Act, 2013 read with the Companies (Compromise, Arrangement and Amalgamations) Rules, 2016, the National Company Law Tribunal Rules, 2016 and the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( SEBI LODR ) form a complete code governing all aspects of the scheme of arrangement between the company, its members and its creditors. 4.8 The Board of Directors of FRL vide Resolution dated 29th August, 2020 have approved the transaction in a properly constituted meeting at which the majority of the Directors voted in favour of the proposed transaction. 4.9 It is thus prayed that Amazon be injuncted from interfering in the transaction between FRL and Reliance. Contentions on behalf of Amazon 5.1 According to Mr. Gopal Subramanium, learned Senior counsel appearing on behalf of Amazon the suit as filed by the plaintiff seeking an anti-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal and hence cannot be acted upon. Without challenging the EA order, FRL seeks to claim it to be a nullity in the present proceedings. This is impermissible as a collateral challenge cannot be maintained under the Indian Law. 5.4 Though FRL has not seriously questioned the Emergency Arbitrator s findings about the applicability of the group of companies doctrine and/or the theory of implied consent in these proceedings, however FRL continues to argue that it was not a signatory to the arbitration agreement in FCPL SHA. The issues agitated before the Emergency Arbitrator cannot be re-agitated in the present proceedings. During the course of arguments neither FRL nor defendant Nos.2 to 13 have addressed arguments on the breaches committed of the FCPL SHA and FRL SHA. Thus, no case is made out for the present action to safeguard the transaction, which is post the EA order, premised on a breach and an afterthought with the sole motive of a collateral challenge. Therefore, no case of tortious interference is made out. 5.5 Learned Senior counsel for Amazon takes serious objection to the filing of the documents dated 29th August, 2020 filed by FRL and FCPL on 12th November, 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal to mean a sole arbitrator or a panel of arbitrator . Therefore, Emergency Arbitrator is an arbitrator under the SIAC Rules and accordingly under the A C Act; Secondly, an Arbitral Tribunal will comprise an Emergency Arbitrator in terms of Section 2(8), Section2(1)(d) of the A C Act and the SIAC Rules in accordance with the principle of party autonomy; Thirdly, under the SIAC Rules, the Emergency Arbitrator occupies the position of and functions as an arbitrator till the Arbitral Tribunal is fully constituted. Rule 1.3 of the SIAC Rules defines an Emergency Arbitrator as an arbitrator appointed in accordance with Para 3 of Schedule I . Besides several other provisions of SIAC Rules such as Rule 38, 39 and Schedule I, reinforce that an Emergency Arbitrator occupies the position of an arbitrator and functions as an arbitrator. Further there is nothing in the A C Act which prohibits, disempower or nullify proceedings before an Emergency Arbitrator. Reliance is placed on the decision in (1998) 3 SCC 573 K.K. Modi v. K.N. Modi. Submission of FRL that since an Emergency Arbitrator is not expressly provided under the A C Act, it must follow that the A C Act prohibits emergency arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Arbitrator shall be enforceable in the manner as provided in the A C Act. Therefore, the proceedings before the Emergency Arbitrator were valid under the Indian law and the EA order constitutes an interim measure under Section 17(1) of the A C Act enforceable as an order of the Court under Section 17(2) of the A C Act. 5.10 Referring to the decisions in (2016) 9 SCC 44 Anita International v. Tungabadra Sugar Works; (2011) 3 SCC 363 Krishnadevi Malchand v. Bombay Environmental Action Group; (2002) 7 SCC 46 Prakash Narain v. Burmah Shell learned counsel for Amazon contends that unless an order is set aside, the same is valid and cannot be indirectly challenged in collateral proceedings. Thus the challenge of FRL to the EA order in the present suit is not maintainable. Since the EA order is an interim measure under Section 17(1) of the A C Act, it is deemed to be an order of the Court under Section 17(2) of the A C Act and can be challenged only in the manner prescribed by law and not otherwise. Contention of FRL that since the EA order is without jurisdiction and a coram non judice, hence, not required to be challenged as per the requirement of law and order in this respect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings. 5.13 In response to the FRL s argument that it was not a party to the FCPL SHA reliance is placed on the decisions in (2013) 1 SCC 641 Chloro Controls India (P) Ltd. v. Severn Trent; (2018) 16 SCC 413 Cheran Properties v. Kasturi; (2019) SCC Online SC 995 MTNL v. Canara Bank and (2017) SCC Online Del 11625 GMR Energy v. Doosan Power to contend that non-signatories can also be bound as parties to the arbitration agreement. 5.14 Learned Senior counsel for Amazon contends that the agreements i.e. FRL SHA, FCPL SHA and FCPL SSA were negotiated at the same time amongst Amazon, FRL, FCPL and the Biyanis. The future group, including FRL was represented by a common team of legal counsel. Further, FRL SHA though executed on 12th August, 2019 became effective only on 19th December, 2019 vide letter dated 19th December, 2019 issued by FCPL to FRL, once FCPL communicated the list of restricted persons under the FRL SHA. These facts were duly considered by the Emergency Arbitrator, who held that besides these facts, the terms of the agreement established cogent commonality, intimate inter-connectivity and undeniable indivisibility of the contractual agreements . In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had invested into FCPL and a key basis for that investment was the continued operation of FRL s retail business by FRL and the Biyanis. Before the CCI, FRL also acknowledged and confirmed this understanding by executing the FRL SHA. The integrated nature of the understanding amongst Amazon, FCPL, the Biyanis and the FRL was thus set out clearly in the representation to the CCI. 5.18 It is further contended that the FRL SHA, FCPL SHA and FCPL SSA constituting a single, integrated transaction do not make the agreement illegal being in violation of the Foreign Exchange laws. Amazon does not control FRL. FRL forms a part of the future group of companies. Defendant No.3 and 8 herein are the directors on the Board of FRL; defendant No.3 being the Executive Chairman and defendant No.8 being the Managing Director of FRL. Thus, they are the person who are entrusted with substantial power of management of the affairs of the company, as defined under Section 2(54) of the Companies Act, 2013. At the time of entering into FRL SHA and FCPL SHA, defendant No.3 to 13 (excluding FCPL) held 47.2% shares of FRL (which translate into 43.58% of FRL shares on a fully diluted basis). Thus defendant No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad no lawful justification to interfere with such a contract. [see (1990) SCC Online Cal 55 Balailal Mukherjee vs. Sea Traders]. 5.23 Amazon having demonstrated before the Emergency Arbitrator and before this Court that the transaction is in egregious breach of the FRL SHA and FCPL SHA, no case for grant of interim injunction as prayed for is made out. Consequently, the application be dismissed. ISSUES 6.1 On the arguments addressed by the parties, following issues arise for consideration before this Court: I. Whether the present suit is prima facie maintainable? II. Whether the Emergency Arbitrator lacks legal status under Part I of the A C Act and thus coram non judice? III. Whether the Resolution dated 29th August, 2020 of FRL is void or contrary to any statutory provision? IV. Whether by conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules? V. Whether prima facie a case for tortious interference is made out by FRL? VI. Whether FRL is entitled to an interim injunction? Whether the present suit is prima facie maintainable 7.1 Objections of Amazon to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering with the rights of FRL (not a signatory to FCPL SHA) and to other third party i.e. Reliance, with performance of their obligations under the transaction is illegal, amounting to tortious interference in lawful acts of FRL and Reliance. The three grounds urged by FRL to support its plea of tortious interference by Amazon are; Firstly, that the EA order on the strength of which Amazon seeks to obstruct the approval of the transaction before the Statutory Authorities/Regulators is invalid as the Emergency Arbitrator is a coram non judice; Secondly, Amazon is illegally claiming the Resolution dated 29th August, 2020 of FRL as void and contrary to the statutory provisions; and Thirdly, by conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'control' over FRL which is forbidden under the FEMA FDI Rules. 7.6 Section 9 of the CPC provides as under:- 9. Courts to try all civil suits unless barred- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is neither expressly or impliedly barred. 7.7 Supreme Court in 1995 Supp (4) SCC 286 Mos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survival of FRL and that the same amounts to tortious interference entailing a relief of injunction. Further, merely because Amazon impleaded FRL as a party in the Emergency Arbitration based on the conflation of the FCPL SHA, FCPL SSA and FRL SHA as also on the basis of the principle of 'group of companies' that does not imply that FRL is barred from taking any civil action against Amazon except through invoking Arbitration for the reason there is no arbitration agreement between FRL and Amazon as such. 7.11 In the present suit, seeking the relief against tortious interference by Amazon, one of the grounds urged by FRL is the invalidity of the Emergency Arbitrator amounting to use of 'unlawful means' in its representations to the authorities. Therefore, also FRL in these proceedings is entitled to challenge the legal status of Emergency Arbitrator, to the extent required for making out the ingredients of 'unlawful means'. 7.12 The issue in the present suit is not the violation of the EA order or whether the EA order is binding on FRL or not, but whether this Court can consider the legal status of the Emergency Arbitrator or that the same can be decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. Supreme Court in the said decision was not dealing with the issue of the competence of a Court to decide the inherent lack of jurisdiction of the forum which passed the order, in a collateral proceedings. Thus the said decision has no application to the facts of the present case. 7.17 Challenge of FRL to the EA order is not on merits and no declaration for the EA order being invalid or illegal on merits is sought from this Court. Case of the FRL is that since Amazon is trying to enforce and act upon the EA order before the Statutory Authority/Regulators and as the Emergency Arbitrator is a coram non-judice, this Court can go into the validity of the same to the extent asserted in the present suit. In the present suit, the cause of action pleaded by FRL is the tortuous interference by Amazon in its lawful transaction and to determine the ingredients of the said cause of action, i.e. whether use of 'unlawful means' is being resorted by Amazon, this Court is required to return a finding. 7.18 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written request for such consultation. In the event the Dispute is not resolved by means of negotiations within a period of 30 (thirty) days or such different period mutually agreed between the parties, such Dispute shall be referred to and finally resolved by arbitration in accordance with the arbitration rules of the Singapore International Arbitration Centre ( SIAC ), and such rules (the Rules ) as may be modified by the provisions of this Section 25 (Governing Law and Dispute Resolution). This Agreement and the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceeding, which award, if appropriate, shall determine whether and when any termination shall become effective. 25.2.2.Seat and Venue of Arbitration. The seat and venue of the arbitration shall be at New Delhi unless otherwise agreed between the Parties to the Dispute and the arbitration shall be conducted under and in accordance with this Section 25 (Governing Law and Dispute Resolution). This choice of jurisdiction and venue shall not prevent either Party from seeking injunctive reliefs in any appropriate jurisdiction. (Emphasis suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sole arbitrator or a panel of arbitrators; (2) This Part shall apply where the place of arbitration is in India: [Provided that subject to an agreement to the contrary, the provisions of sections 9, 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act.] xxx xxx xxx (6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue. xxx xxx xxx (8) Where this Part- (a) refers to the fact that the parties have agreed or that they may agree, or (b) in any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement. (9) Interim measures, etc., by Court.-[(1)]A party may, before or during arbitral proceedings or at any time after the making of the arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it. (2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure,1908 (5 of 1908), in the same manner as if it were an order of the Court. 8.7 Relevant provisions of SIAC Rules and the Schedule thereunder, including providing for Emergency Arbitration are as under: 1. Scope of Application and Interpretation 1.1 Where the parties have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx xxx 6. An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute, unless otherwise agreed by the parties. 7. xxx xxx xxx 8. The Emergency Arbitrator shall have the power to order or award any interim relief that he deems necessary, including preliminary orders that may be made pending any hearing, telephone or videoconference or written submissions by the parties. The Emergency Arbitrator shall give summary reasons for his decision in writing. The Emergency Arbitrator may modify or vacate the preliminary order, the interim order or Award for good cause. xxx xxx xxx 11. Any interim order or Award by the Emergency Arbitrator maybe conditioned on provision by the party seeking such relief of appropriate security. 12. The parties agree that an order or Award by an Emergency Arbitrator pursuant to this Schedule 1 shall be binding on the parties from the date it is made, and undertake to carry out the interim order or Award immediately and without delay. The parties also irrevocably waive their rights to any form of appeal, review or recourse to any State court or other judicial authority with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itration, which in the present case are the competent English courts, will have jurisdiction in respect of procedural matters concerning the conduct of arbitration. But the overriding principle is that the courts of the country whose substantive laws govern the arbitration agreement are the competent courts in respect of all matters arising under the arbitration agreement, and the jurisdiction exercised by the courts of the seat of arbitration is merely concurrent and not exclusive and strictly limited to matters of procedure. All other matters in respect of the arbitration agreement fall within the exclusive competence of the courts of the country whose laws govern the arbitration agreement. [See Mustil Boyd, Commercial Arbitration, 2nd edn.; Allen Redfern and Martin Hunter, Law Practice of International Commercial Arbitration, 1986; Russel on Arbitration, 20th edn. (1982); Cheshire North's Private International Law, 11th edn. (1987).] 27. The proper law of the contract in the present case being expressly stipulated to be the laws in force in India and the exclusive jurisdiction of the courts in Delhi in all matters arising under the contract having been specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r every step of the proceeding, the need to have recourse to the municipal system of law and the courts of the place of arbitration is reduced to the minimum and the courts of that place are unlikely to interfere with the arbitral proceedings except in cases which shock the judicial conscience. (See the observations of Kerr, LJ. in Bank Mellat v. HellinikiTechniki SA [(1983) 3 All ER 428 (CA)].) 49. Courts would give effect to the choice of a procedural law other than the proper law of the contract only where the parties had agreed that matters of procedure should be governed by a different system of law. If the parties had agreed that the proper law of the contract should be the law in force in India, but had also provided for arbitration in a foreign country, the laws of India would undoubtedly govern the validity, interpretation and effect of all clauses including the arbitration clause in the contract as well as the scope of the arbitrators' jurisdiction. It is Indian law which governs the contract, including the arbitration clause, although in certain respects regarding the conduct of the arbitration proceedings the foreign procedural law and the competent courts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same as the law of the place of arbitration on the ground, that is the country most closely connected with the proceedings; (ii) it is open for the parties to chose a curial law which is different from the law governing the arbitration agreement; and (iii) when the law governing the arbitration agreement and the curial law are different, the Court will first look at the arbitration agreement to see if the dispute is arbitrable, then to the curial law to seek how the reference should be conducted and then return to the first law in order to give effect to the resulting award. The relevant extract of the report is set out hereunder:- 10. In the Law and Practice of Commercial Arbitration in England, 2nd Edn. by Mustill and Boyd, there is a chapter on The Applicable Law and the Jurisdiction of the Court . Under the sub-title Laws Governing the Arbitration , it is said, An agreed reference to arbitration involves two groups of obligations. The first concerns the mutual obligations of the parties to submit future disputes, or an existing dispute to arbitration, and to abide by the award of a tribunal constituted in accordance with the agreement. It is now firmly establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erns the validity of the arbitration agreement, the question whether a dispute lies within the scope of the arbitration agreement; the validity of the notice of arbitration; the constitution of the tribunal; the question whether an award lies within the jurisdiction of the arbitrator; the formal validity of the award; the question whether the parties have been discharged from any obligation to arbitrate future disputes. 2. The curial law governs the manner in which the reference is to be conducted; the procedural powers and duties of the arbitrator; questions of evidence; the determination of the proper law of the contract. 3. The proper law of the reference governs the question whether the parties have been discharged from their obligation to continue with the reference of the individual dispute. *** In the absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the seat of the arbitration, i.e., the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings. So in order to determine the curial law in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was observed: (SCC p. 130) 5. Party autonomy being the brooding and guiding spirit in arbitration, the parties are free to agree on application of three different laws governing their entire contract- (1) proper law of contract, (2) proper law of arbitration agreement, and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as curial law . The interplay and application of these different laws to an arbitration has been succinctly explained by this Court in Sumitomo Heavy Industries Ltd. v. ONGC Ltd., [Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC 305] which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Ltd. v. Union of India [Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 : (2014) 3 SCC (Civ) 737] . (Emphasis supplied) 8.14 In Centrotrade (supra), a three judge bench of the Supreme Court was called upon to test the legality of a double-tier arbitration agreement. The parties had agreed that if either of them is dissatisfied with the domestic award rendered in India, they would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent entered into by them. HCL cannot wriggle out of a solemn commitment made by it voluntarily, deliberately and with eyes wide open. (Emphasis supplied) 8.15 In the present case, the parties have expressly chosen the SIAC Rules as the curial law governing the conduct of arbitration proceedings. The said Rules are self sufficient to govern the proceedings under arbitration at every stage. The Courts in such cases would uphold the express choice of the parties subject to the public policy of India and the mandatory provisions of the A C Act. As observed by the Supreme Court in NTPC v. Singer (Supra), it would be unlikely for the Courts to interfere with such arbitral proceedings except in cases which shock the judicial conscience. 8.16 Rule 30 of the SIAC Rules deals with Interim and Emergency Relief. Rule 30.3 in clear terms provides that the parties to the arbitration are also entitled to apply to a judicial authority for grant of interim relief, and that such request made to a judicial authority for grant of interim relief shall not be incompatible with the SIAC Rules. Therefore, the SIAC rules themselves recognize and uphold the right of a party to avail interim r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 2(1)(d) of the A C Act. It is thus contended that what was expressly rejected by the Parliament cannot be deemed to be included in the definition of 'arbitral tribunal' under Section 2(1)(d) of the A C Act. On the contrary, Mr.Gopal Subramanium contended that the Parliament in its wisdom did not accept the recommendation of the Law Commission to provide for an Emergency Arbitrator in the amendment to the A C Act, does not mean that the Emergency Arbitrator was excluded in the A C Act, and that the recommendation of the Law Commission has no bearing on the interpretation of a provision in the A C Act. 8.21 In the decision reported as 2020 SCC OnLine 656 Avitel Post Studioz Ltd. ors. vs. HSBC PI Holdings (Mauritius) Ltd., Supreme Court dealing with the contention that an amendment to Section 16 proposed by the 246th Law Commission Report in the light of the Supreme Court decision i.e. 2010 (1) SCC 72 N. Radhakrishnan vs. Maestro Engineers which appears to denude an Arbitral Tribunal of the power to decide on issues of fraud etc. claimed that the decision in N. Radhakrishnan (supra) having not been legislatively overruled, cannot now be said to be in any way d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd recognized under the provisions of Part II of the A C Act, provisions of Section 9, 27 and Clause (b) of sub Section (1) and sub Section (3) of Section 37 of the A C Act, would be applicable, subject to an agreement to the contrary between the parties. Thus, parties by agreement can decide to the inapplicability of these provisions. The phrase even if the place of arbitration is outside India , further makes it clear that the said entitlement of the parties to exclude the aforementioned provisions by agreement is available in international commercial arbitrations seated in India, and even if the seat of such international commercial arbitration is outside India. Clarifying the position, Supreme Court in (2012) 9 SCC 522 Bharat Aluminium Co. vs. Kaiser Aluminium Technical Services Inc. (BALCO) held that if the parties to an arbitration seated outside India choose the A C Act to govern the arbitration proceedings, it would still not make Part 1 of the A C Act applicable. Instead, only the provisions in the A C Act relating to the internal conduct of the arbitration proceedings will be applicable, to the extent they are not inconsistent with the mandatory provisions of the curial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Association of the company, which is a public document. Being a private document, it binds parties thereon and not the other remaining shareholders of the company. Explaining the advantages of a SHA, Supreme Court noted that it gives greater flexibility, unlike Articles of Association and makes provision for resolution of any dispute between the shareholders and also how the future capital contributions have to be made. It was further held that the provisions of the SHA may also go contrary to the provisions of the Articles of Association, however, in that event, naturally provisions of Articles of Association would govern and not the provisions in SHA. 9.2 Following the decision in AIR 1965 SC 1535 Shanti Prasad Jain Vs. Kalinga Tubes Limited, Supreme Court in Vodaaphone (supra) further held that the agreement between non-members and members of a company will not bind the company, but there is nothing unlawful in entering into agreement for transferring of shares. Of course, the manner in which such agreement is to be enforced in the case of breach is given in the general law between the company and the shareholders. A breach of SHA which does not breach the articles of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the parties. 9.6 Supreme Court in the decision (2017) 14 SCC 80 Energy Watchdog vs. Central Electricity Regulatory Commission Ors. noted the evolution of law in relation to the impact of an unforeseen event on the performance of a contract, after it is made, as under: 34. Force majeure is governed by the Contract Act, 1872. Insofar as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. Insofar as a force majeure event occurs dehors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract Act. Sections 32 and 56 are set out herein: 32. Enforcement of contracts contingent on an event happening.-Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void. xx xx xx 56. Agreement to do impossible act.-An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that where the Court finds that the contract itself either impliedly or expressly contains a term, according to which performance would stand discharged under certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt with under Section 32 of the Act. If, however, frustration is to take place dehors the contract, it will be governed by Section 56. 37. In Alopi Parshad Sons Ltd. v. Union of India [Alopi Parshad Sons Ltd. v. Union of India, (1960) 2 SCR 793 : AIR 1960 SC 588] , this Court, after setting out Section 56 of the Contract Act, held that the Act does not enable a party to a contract to ignore the express covenants thereof and to claim payment of consideration, for performance of the contract at rates different from the stipulated rates, on a vague plea of equity. Parties to an executable contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate, for example, a wholly abnormal rise or fall in prices which is an unexpected obstacle to execution. This does not in itself get rid of the bargain they have made. It is only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not to frustrate a contract. Similarly, in Treitel on Frustration and Force Majeure, 3rd Edn., the learned author has opined, at Para 12-034, that the cases provide many illustrations of the principle that a force majeure clause will not normally be construed to apply where the contract provides for an alternative mode of performance. It is clear that a more onerous method of performance by itself would not amount to a frustrating event. The same learned author also states that a mere rise in price rendering the contract more expensive to perform does not constitute frustration. (See Para 15-158.) 41. Indeed, in England, in the celebrated Sea Angel case [Edwinton Commercial Corpn. v. Tsavliris Russ (Worldwide Salvage Towage) Ltd. (The Sea Angel), 2007 EWCA Civ 547 : (2007) 2 Lloyd's Rep 517 (CA)] , the modern approach to frustration is well put, and the same reads as under: 111. In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix or context, the parties' knowledge, expectations, assumptions and contemplations, in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of the company which position of law cannot be disputed in view of Section 166 of the Companies Act, 2013 and decisions noted hereinafter. 9.8 The Companies Act, 2013 which is a special enactment codifies the fiduciary duty of the directors of a company under Section 166 as under: 166. Duties of directors (1) Subject to the provisions of this Act, a director of a company shall act in accordance with the articles of the company. (2) A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of environment. (3) A director of a company shall exercise his duties with due and reasonable care, skill and diligence and shall exercise independent judgment. 9.9 Supreme Court in AIR 1950 SC 172 Nanalal Zaver Anr. Vs. Bombay Life Assurance Co. Ltd. Ors. reiterating the well settled principle that in exercising their powers, whether general or special, the directors, must always bear in mind that they hold a fiduciary position and must exercise their powers for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir nominees, the alternative of disregarding their instructions or betraying the interests of the minority. It was noted that the society pursued a different course. It acted in oppression and unscrupulously which act was promoted by the action or inaction of the nominee Directors. The company which might had recovered its former prosperity could not do as the Directors thought it had served its purposes and it can conveniently be liquidated. It was held: The short answer is that it was the policy of the society that the affairs of the company should be so conducted and the minority shareholders were content that it should be so. They relied-how unwisely the event proved-upon the good faith of the society, and, in any case, they were impotent to impose their own views. It is just because the society could not only use the ordinary and legitimate weapons of commercial warfare but could also control from within the operations of the company that it is illegitimate to regard the conduct of the company's affairs as a matter for which they had no responsibility. After much consideration of this question, I do not think that my own views could be stated better than in the late L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the relation of parent and subsidiary companies, the company being formed to run a business for the society which the society could not at the outset have done for itself, unless they could have persuaded Dr. Meyer and Mr. Lucas to become servants of the society. This the petitioners were not prepared to do. The company, through, the knowledge, the experience, the connections, the business ability and the energies of the petitioners, had built up a valuable goodwill in which the society shared and which there is no reason to think would not have been maintained, if not increased, with the co-operation of the society. The company was in substance, though not in law, a partnership consisting of the society, Dr. Meyer and Mr. Lucas. Whatever may be the other different legal consequences following on one or other of these forms of combination one result, in my opinion, followed in the present case from the method adopted, which is common to partnership, that there should be the utmost good faith between the constituent members. In partnership the position is clear. As stated in Lindley on Partnership, 11th ed., p. 401: A partner cannot, without the consent of his co- partners lawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the documents filed by Amazon it is clear that defendant No.3 (Kishore Biyani) in March, 2020 informed Amazon expressing its fear of Covid-19 disrupting capital markets globally leading to significant deterioration of FRL s market capitalization with the stock falling down per share, leading to a requirement for increased encumbrances of FRL s shares and a shortfall in security in two of their facilities under UBS AG and L T Finance Ltd. 9.16 Amazon was also asked to step in and nominate lenders of financial institutions (replacement financial institutions) to avoid alienation or disposal of FRL s shares held by the promoter groups. Considering the down turn in the market in April and May, 2020 several of FRL s lenders began recalling their facilities. From the documentation it is clear that the grim situation of FRL was duly notified to Amazon and though Amazon through its various options including from SAMARA was trying to negotiate however, nothing concrete resulted. It is in this peculiar circumstance and the fact, as the shares of FRL fell down with investors recalling their securities, it was essential for FRL to act, to survive. This is thus a case of supervening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that the Board Resolution dated 29th August, 2020 of FRL is prima facie neither void nor contrary to any statutory provision nor the Articles of Association of FRL. Whether conflation of the FRL SHA, FCPL SHA and FCPL SSA amounts to 'Control' of Amazon on FRL 10.1 The third ground on which FRL claims that Amazon is unlawfully interfering in the transaction is that by conflating the FCPL SHA and FRL SHA, Amazon seeks to control the affairs of FRL which is impermissible as at best it is a shareholder of FCPL and any rights vis- -vis that of a shareholder of FCPL vests in Amazon and in the said garb it cannot exercise control over FRL. Further the 'control' exercised by Amazon amounts to violation of FEMA FDI Rules. Relying upon the decision reported as 2019 (2) SCC 1 Arcelormittal India Pvt. Ltd. vs. Satish Kumar Gupta Ors., learned Senior Counsel for Amazon contends that Amazon does not have right to appoint the majority Directors of FCPL and the rights granted to Amazon under FCPL SHA are merely protective rights that do not relate in any manner to the day-to-day management and operation of FCPL or FRL. This is exactly the dichotomy of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the indirect foreign investment is being calculated for Company X which has investment through an investing Company Y having foreign investment, the following would be the method of calculation: (A) where Company Y has foreign investment less than 50%- Company X would not be taken as having any indirect foreign investment through Company Y. 10.3 Provisions of FEMA FDI Rules relevant to the contentions of the parties and relied upon by FRL are as under: 2(r) FDI or Foreign Direct Investment means investment through equity instruments by a person resident outside India in an unlisted Indian company; or in ten per cent or more of the post issue paid-up equity capital on a fully diluted basis of a listed Indian company; 2 (t) foreign portfolio investment means any investment made by a person resident outside India through equity instruments where such investment is less than ten per cent of the post issue paid-up share capital on a fully diluted basis of a listed Indian company or less than ten per cent of the paid-up value of each series of equity instrument of a listed Indian company; 2(u) FPI or Foreign Portfolio Investor means a person regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle, in the manner and subject to the terms and conditions specified in Schedule VIII. (d) A person resident outside India may invest in the depository receipts (DRs) issued by foreign depositories against eligible securities in the manner and subject to the terms and conditions specified in Schedule IX. xx xx xx 10. Investment by FPI - A FPI may make investments as under:- (1) A FPI may purchase or sell equity instruments of an Indian company which is listed or to be listed on a recognised stock exchange in India, and/or may purchase or sell securities other than equity instruments, in the manner and subject to the terms and conditions specified in Schedule II. Note - A FPI may trade or invest in all exchange traded derivative contracts approved by Securities and Exchange Board of India from time to time subject to the limits specified by the Securities and Exchange Board of India and the conditions prescribed in Schedule II. (2) A FPI may purchase, hold, or sell Indian Depository Receipts (IDRs) of companies resident outside India and issued in the Indian capital market, in the manner and subject to the terms and conditions as prescribed in Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean an LLP, the control of which is vested in resident Indian citizens and/ or Indian entities, which are ultimately owned and controlled by resident Indian citizens; (f) xx xx xx; (g) xx xx xx (i) indirect foreign investment means downstream investment received by an Indian entity from,- (A) another Indian entity (IE) which has received foreign investment and (i) the IE is not owned and not controlled by resident Indian citizens or (ii) is owned or controlled by persons resident outside India; or (B) an investment vehicle whose sponsor or manager or investment manager (i) is not owned and not controlled by resident Indian citizens or (ii) is owned or controlled by persons resident outside India : Provided that no person resident in India other than an Indian entity can receive Indirect Foreign Investment; (j) total foreign investment means the total of foreign investment and indirect foreign investment and the same will be reckoned on a fully diluted basis 10.4 Additional condition under the FDI Policy Circular of 2017: b. In any sector/activity, where Government approval is required for foreign investment and in cases where there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary approvals could be taken from the RBI. 10.7 Before this Court case of Amazon is that FRL SHA, FCPL SHA and FCPL SSA are a single integrated transaction and Amazon entered into the transaction based on two broad sets of special and protective rights as per the three agreements; the first set of rights being that the retail assets of FRL would not be alienated without the prior consent of Amazon, never to a restricted person mentioned in the Schedule and that Biyanis had agreed that FRL would remain the sole vehicle for conduct of the retail business. The second set of rights that were granted in favour of Amazon by the three agreements as a single integrated transaction was that, if the Indian laws permitted Amazon could become the single largest shareholder of FRL and in this regard, the Biyanis agreed to maintain the minimum shareholdings of 16.18% free from encumbrances. 10.8 On the date of notification of FRL SHA, that is, 26th December, 2019, only 16.18% FRL securities were free from encumbrances and as per Clause-17.2(i) of the FCPL SHA, the promoters were under an obligation to reserve the said minimum shareholding. 10.9 'Control' is defined in the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement or policy decisions can be, or are in fact, taken by virtue of shareholding, management rights, shareholders agreements, voting agreements or otherwise, control can be said to exist. 51. Thus, the expression control , in Section 29-A(c), denotes only positive control, which means that the mere power to block special resolutions of a company cannot amount to control. Control here, as contrasted with management , means de facto control of actual management or policy decisions that can be or are in fact taken. A judgment of the Securities Appellate Tribunal in Subhkam Ventures (I) (P) Ltd. v. SEBI [Subhkam Ventures (I) (P) Ltd. v. SEBI, 2010 SCC OnLine SAT 35], made the following observations qua control under the SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 1997, wherein control is defined in Regulation 2(1)(e) in similar terms as in Section 2(27) of the Companies Act, 2013. The Securities Appellate Tribunal held: (SCC OnLine SAT para 6) 6. The term control has been defined in Regulation 2(1)(c) of the Takeover Code to include the right to appoint majority of the Directors or to control the management or policy decisions exercisabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked in each case would be whether the acquirer is the driving force behind the company and whether he is the one providing motion to the organization. If yes, he is in control but not otherwise. In short control means effective control. (Emphasis supplied) 10.12 In the decision reported as 2000 (3) Mh.L.J 700 Rolta India Ltd., Mumbai Anr. vs. Venure Industries Ltd. Haryana Ors. the Division Bench of the Bombay High Court dealing with the pooling agreement between two or more shareholders held that by such an agreement shareholders bind one another to vote as they mutually agree. These agreements are enforceable because the right to vote is a proprietary right which right to vote may be aided and effectuated by a contract. It was also held that a pooling agreement may be utilized in connection with an election of Directors and shareholders resolution where shareholders have a right to vote however, a pooling agreement cannot be used to supersede the statutory right given to the Board of Directors to manage the company, the underlying reason being the shareholders cannot achieve by pooling agreement that what is prohibited to them if they are voting individually. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o rights which are protective in nature and the veto rights transgressing to acquisition of control on the company, the later being subject to FEMA FDI Rules. Thus to determine whether the rights conferred on Amazon under the FCPL SHA and the FRL SHA, amount to control over FRL would be a question to be determined on analysis of the various clauses of the agreement and can be determined only after the parties have completed their necessary pleadings and documents showing the underlined intention or by the competent fact finding authority. At this stage, this Court is only forming a prima facie opinion thereon based on the clauses of the FCPL SHA and FRL SHA. 10.14 Relevant Clauses of FCPL SHA read as under: 4. COMMITMENT OF THE PARTIES 4.1. The Promoters hereby agree, covenant and undertake: (i) to perform and observe and also cause the Company to perform all of the provisions of this Agreement and the Organizational Documents; (ii) that in their capacity as Shareholders they will exercise any power to vote or cause the power to vote to be exercised, at any meeting of the Shareholders of the Company so as to enable the approval of any and every resolution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Investor has been obtained prior to such meeting, or if at least 1(one) Investor Nominee Director is present in such meeting, and such Investor Nominee Director votes in favour of such matter, or (b) any meeting of the Shareholders of the Company, such matter shall be taken-up only if the written consent of the Investor has been obtained prior to such meeting, or if an authorized representative of the Investor is present in such meeting, and such representative votes in favor of such matter. xx xx xx 10. 1 Ownership and Control of the Promoters and Promoter Affiliates. 10.1.1.The Promoters hereby agree, covenant and undertake that they shall, and shall undertake and ensure that, any promoter Affiliate, holding Company Securities (in accordance with this Agreement) shall, at all times till it holds any Company Securities, (i) (if it is a body corporate) be wholly Controlled, to the exclusion of others, by the Ultimate Controlling Person, and his Immediate Relative, and the Ultimate Controlling Person and his Immediate Relative shall hold (directly and or indirectly) at least 76% (seventy six percent) of the legal and beneficial ownership and voting interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by the shareholders or the board or any committee of the board of the Material Entity on such matters, or (iv) be bound/committed to any resolutions/transactions pertaining to such matters; unless a prior written consent of the Investor and the Promoters has been obtained by the Company; provided however, that for a matter which pertain to issuance of Securities by a Material Entity and where the Company intends to or proposes to decline, or recuse itself from participating in such issuance, or not subscribing to its entire pro-rata entitlement required to maintain the Company s shareholding in the Material Entity (on a fully diluted basis) as on the date immediately prior to such issuance by the Material Entity, a written consent shall be required to be obtained only from the Investor prior to the Company declining, recusing itself, or not subscribing to its pro-rata entitlement in the Material Entity. 13.1.2.The Company and the Promoters agree, covenant and undertake that any updates to the list of Restricted Persons and its communication to FRL under FRL SHA shall be undertaken only after a prior written consent of the Investor has been obtained. 13.1.3.The Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company fail to get the FRL SHA Breach rectified or abandon the conduct of the remedial measures initiated, at any point in time, for rectification or resolution of the FRL SHA Breach, to the satisfaction of the Investor, the Company and the Promoters agree and acknowledge that the Investor shall be deemed to be the Company s duly appointed attorney with the full power, rights and authority to take such actions and steps as it deems fit on behalf of the Company and in the name of the Company in order to protect and enforce the rights, entitlements and interests of the Company. In this regard, the Company hereby grants the authority and the power to the Investor and its advisors, authorized representatives, officers and agents, to act as the legal representative/nominee/attorney of the Company and exercise, as the Investor deems fit on behalf of the Company, all such rights and powers that may be available to the Company under the FRL SHA and as a shareholder of FRL, including but not limited to the right to vote, attend shareholders meetings (for and on behalf of the Company), initiate any legal proceedings against FRL and, or, the Promoters, for the purposes of ensuring that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), which is a body corporate, hereby agrees, covenants, and undertakes that as long as it holds any Securities of the Company, the Ultimate Controlling Person and his Immediate Relatives, shall Control such Existing Shareholder, Existing Shareholder Trust or Existing Shareholder Affiliate (to the exclusion of other Persons), and own and hold at least 76% (seventy six percent) of the legal and beneficial ownership (and voting interests) on a fully diluted basis of such Existing Shareholder, Existing Shareholder Trust and, or Existing Shareholder Affiliate. 6.2. Restrictions on Transfer of or Encumbrances over Existing Shareholder Securities. 6.2.1. Each of the Existing Shareholders hereby covenant, undertake and agree that it shall not, and shall ensure that the Existing Shareholder Affiliates shall not and FCL hereby agrees, covenants, and undertakes that it shall not, Transfer or Encumber any of the Securities of the Company held by it to any Person or create any Encumbrance over the Securities of the Company held by it except pursuant to mutual written consent of FCL and the Existing Shareholders. All Transfer of Securities permitted by this Agreement may only be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting Shareholder is not a natural Person, then to a trust whose only trustees and only ultimate beneficiaries are the Ultimate Controlling Person, or his Immediate Relatives ( Existing Shareholder Trust''), as part of a bona fide succession-planning exercise, provided that the Existing Shareholders have obtained an executed Deed of Adherence from such trust, and its trustees, and delivered the same to the Company and FCL; or (ii) If, after any Transfer pursuant to Section 6.2.4(i)(a), or Section 6.2.4( i)(b), the applicable Affiliate ceases to be an Affiliate (or ceases to satisfy the requirement of Section 6.1). or the trust ceases to be Existing Shareholder Trust, then the Existing Shareholder that made the Transfer (the Transferring Party ) shall, procure that such Person shall immediately Transfer such Existing Shareholder Securities to the Transferring Party or to another Affiliate, or Existing Shareholder Trust of the Transferring Party in accordance with the terms of this Section 6.2.4 and the Transferring Party shall immediately give notice to the Company, and FCL that such Transfer has occurred. xx xx xx 9. RESERVED MATTERS AND OTHER MATTERS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights to interfere beyond the protective rights of the investment and disproportionate thereto, may cross over from the protective rights to controlling rights. 10.17 A conflated reading of the Clause-4.1 (iv) of the FCPL SHA and Clause-4.1 of the FRL SHA would show that vide the FCPL SHA a control was created even on the voting rights of the promoters of FCPL in relation to their decisions as shareholders of FRL so as to enable the approval of any and every resolution necessary or desirable to give effect to FCPL SHA and FRL SHA and likewise to ensure that no resolution of FRL is passed which is not in accordance with the FCPL SHA and/or FRL SHA. Even Clause-4.1 of the FRL SHA correspondingly provides for an obligation on every person representing as a shareholder of FRL, to exercise any power to vote or cause the power to vote to be exercised at any meeting of the shareholders so as to enable the approval of any and every resolution necessary or desirable to give full effect to the FRL SHA and to ensure that no resolution which is not in accordance with FRL SHA is passed. 10.18 Clause 9.1 of the FRL SHA relates to reserved matters. It is a non-obstante clause that obligates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns pertaining to such matters which require the consent of FCPL; 10.22 Further Clause 13.1.1 of the FCPL SHA requires the promoters of FCPL and FCPL to not cause FRL to take up, decide, act upon or implement the matters as set out in FRL SHA, which require the consent of FCPL or place such matters for a vote thereon at the board or shareholders meeting of the FRL or take any decision or cause any decision to be taken by the shareholders or the Board or any committee of the board of FRL on such matters, or be bound/committed by any resolutions/transactions pertaining to such matters unless a prior written consent of Amazon and the promoters has been obtained by FCPL. It further provides that FCPL is required to take prior written consent from Amazon in case FRL issues securities which FCPL proposes to decline to subscribe. 10.23 A conjoint reading of Clause 9.1 of the FRL SHA and Clause 13.1 of the FCPL SHA therefore shows that firstly, express consent of FCPL is required by FRL to act upon Reserved Matters under Clause 9.1, and that secondly, such Reserved Matters that require the consent of FCPL squarely fall under Clause 13.1 of the FCPL SHA, which cannot be acted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under FEMA Regulations, with respect to foreign direct investment in multi retail brand. Thus, even on being able to exercise the call option if Amazon is not to have control over FRL then Amazon cannot exercise control over FRL in praesenti based on the conflation of the FCPL SHA and FRL SHA. Further as per Clause 15.1 Amazon though has a right in its sole discretion, to purchase either by itself or by its permitted affiliates, the FRL call option securities upon occurrence of a FRL change in Law Event, Amazon had no obligation to exercise the said option. 10.29 As noted above, the promoters of FCPL are the majority shareholders of FRL. Further, 9.82% of FRL's shareholding is with FCPL. Thus as per the FCPL SHA, on matters which require the consent of FCPL as set out in FRL SHA, no matter can be taken up, decided or implemented by the majority shareholders of FRL and the shareholders of FCPL without the consent of Amazon. These covenants prima facie transgress from a protective right to a controlling right in favour of Amazon particularly in view of the fact that the matters essentially requiring the consent of Amazon are of a very wide ambit, and the matters within the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial and academic debate. Lord Nicholls of Birkenhead in his opinion in OBG Ltd v Allan, [2007] UKHL 21 described the complexity in determining the ingredients of the tort of unlawful interference as under:- 139. .. In particular the House is called upon to consider the ingredients of the tort of interference with a business by unlawful means and the tort of inducing breach of contract. These are much vexed subjects. Nearly 350 reported decisions and academic writings were placed before the House. There are many areas of uncertainty. Judicial observations are not always consistent, and academic consensus is noticeably absent. In the words of one commentator, the law is in a terrible mess . So the House faces a daunting task. (Emphasis Supplied) 11.3 Similar observations were made by the Supreme Court of Canada in the decision of A.I. Enterprises Ltd. Versus Bram Enterprises Ltd. and Jamb Enterprises Ltd, 2014 SCC Online Can SC 16. Writing for the Court, Cromwell, J., opined:- 28. I will not dwell on the unfortunate state of the common law in relation to the unlawful means tort. As I noted earlier, there is not even consensus about what it ought to be called. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke an overall look at where this leaves the law. The effect of the views expressed above is to draw a sharp distinction between two economic torts. One tort imposes primary liability for intentional and unlawful interference with economic interests. The other tort imposes accessory liability for inducing a third party to commit an actionable wrong, notably a breach of contract, but possibly some other actionable civil wrongs as well. 11.7 In para 45, the House of Lords held that the most important question concerning this tort is determining what constitutes as 'unlawful means'. Lord Hoffman opined as under:- 45. The most important question concerning this tort is what should count as unlawful means. It will be recalled that in Allen v Flood [1898] AC 1, 96, Lord Watson described the tort thus- when the act induced is within the right of the immediate actor, and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment of a third party; and in that case the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party. 11.8 The rationale of the tort was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed, there would be an unlawful strike. In the latter, the union committed the Lumley v Gye tort of inducing breaches of the contracts of the employees of barge hirers to prevent them from hiring the plaintiff's barges. xx xx xx 51. Unlawful means therefore consists of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant. It does not in my opinion include acts which may be unlawful against a third party but which do not affect his freedom to deal with the claimant. 11.10 In India, the ingredients of tortious unlawful interference were succinctly laid down in the decision 2017 SCC Online Calcutta 14920 Lindsay International Vs. L.N. Mittal following the decision in OBG Limited (supra) as under: (i) use by the defendant of unlawful means. (ii) interfering with the action of a third party in relation to the claimant. (iii) intention to cause loss to the complainant. (iv) Damages. 11.11 In Lindsay International (supra) the Court also noted various decisions from different jurisdictions abroad be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the legal right. This tort is committed when A either persuades B to break his contract with C or by showing some unlawful acts he indirectly prevents B to perform contract. The origin of this tort is traced to Lumley v. Gye as mentioned earlier. 78. The principles that emerged from the discussions made above are that interference with the subsisting contract may arise in three different ways. It is not restricted simply to procuring a breach of contract but covers interference with the performance of the contract as well, that is to say, preventing or hindering one party from performing his contract even though it may not be a breach of the contract. Direct intervention by the persuasion whether by himself or his agents by words or other acts of communication if are intended to influence to break the contract with C would constitute a cause of action. 79. The second category consists of cases where the intervener does some unlawful acts on the person or property of B which disables him in performing his contract with C. 80. The third category covers cases where intervener persuades the third party to do some unlawful acts which interferes in B's due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reach of contract. The suit was dismissed at the stage of settling of issues, allowing the application under Order VII Rule 11 CPC by holding that relief as claimed was barred by law in view of Section 27 of the Indian Contract Act and the fundamental right to carry on business. However, in appeal, although the impugned judgment was not challenged on merits, the Division Bench of this Court observed that an action for tortious interference is a matter of evidence and trial is necessary. 11.14 Thus existence of a contract, interference wherein is alleged is a sine qua non for the tort of inducement. Contention on behalf of Amazon is that no such contract between FRL and Reliance has been placed on record hence FRL's suit for tortious interference is not maintainable. The two fold submission of Amazon in this regard is that firstly, the resolution of FRL dated 29th August, 2020 is void and secondly FCPL has not granted its consent which was required by FRL before proceeding with the transaction and in any case the said document has not seen the light of the day. 11.15 As noted in the preceding paragraphs, the resolution dated 29th August, 2020 is neither void nor contrary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no legal status in Part I of the A C Act; Secondly, that Amazon s characterization of the board resolution of FRL dated 29th August, 2020 as a void board resolution is wholly without any basis in law and illegal; and Thirdly, that Amazon has made false assertions as to the legality of its rights by conflating the FCPL SHA and FRL SHA, as the same amounts to violation of FEMA (FDI) Rules. 11.19 In OBG Ltd. v. Allan (Supra), the House of Lords recognized that although the ingredient of unlawful means is well established, there exists controversy as to its scope. Various earlier decisions were discussed and the broad and narrow scope of unlawful means was highlighted. Relevant extract is set out hereunder:- 149. Although the need for unlawful means is well established, the same cannot be said about the content of this expression. There is some controversy about the scope of this expression in this context. 150. One view is that this concept comprises, quite simply, all acts which a person is not permitted to do. The distinction is between doing what you have a legal right to do and doing what you have no legal right to do : Lord Reid in Rookes v Barnard [1964] AC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted against FRL and Reliance and would thus fall within the test as laid down for unlawful means as defined in OBG Ltd. (supra). Therefore, on two counts, FRL has been able to make out a prima facie case of tortious interference by Amazon. It is clarified that it is not the making of the representation by Amazon to the statutory authorities or the Regulators, which is an actionable wrong but making a representation based on incorrect assertions which makes the act based on unlawful means . It is further clarified that at this stage this Court is only required to form prima facie opinion which this Court has done on the facts before it and as held by the Division Bench of this Court in the case of Inox Leisure Ltd. (supra), that whether there is an unlawful interference or not, can be finally determined only after the parties have lead evidence. There is yet another test which has been laid down in some of the decisions such as Balailal Mukherjee vs. Sea Traders, Pepsi Food Ltd. and Greig vs. Insole (supra) that there should be no lawful justification of the defender in interfering however, that is an issue which overlaps while determining the issue of balance of convenience and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. 12.2 In the decision reported as 1995 (5) SCC 545 Gujarat Bottling Co.Ltd. Ors. vs. Coca Cola Co. Ors. the Supreme Court reiterating the principles for grant of interim injunction noted that the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rreparable loss as Amazon also claims to have created preemptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Amazon makes a representation based on incorrect facts thereby using unlawful means, it will be for the statutory authorities/Regulators to apply their mind to the facts and legal issues therein and come to the right conclusion. There is yet another aspect as to why no interim injunction can be granted in the present application for the reason both FRL and Amazon have already made their representations and counter representations to the statutory authorities/regulators and now it is for the Statutory Authorities/Regulators to take a decision thereon. Therefore, this Court finds that no case for grant of interim injunction is made out in favour of the FRL and against Amazon. Conclusion 13. Consequently, the present application is disposed off, declining the grant of interim injunction as prayed for by FRL, however, the Statutory Authorities/Regulators are directed to take the decision on the applications/objections in accordance with the law. - - TaxTMI - TMITax - Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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