Thread by @barandbench

Delhi High Court to soon begin hearing Future Retail's appeal against order directing status quo on deal with #Reliance.

Matter is listed for hearing before Division Bench of Chief Justice DN Patel and Justice Jyoti Singh.

#Amazon #Future

@fg_buzz @kishore_biyani @amazon

Senior Advocate Gopal Subramanium is making rejoinder submissions on behalf of @amazon.

Amazon has opposed any interference in the status quo order passed by Justice JR Midha and has prayed that parties await his interim order that is presently reserved.

#Amazon #Future

Hearing begins.

@fg_buzz @amazon

#Future #Amazon

Senior Advocate Gopal Subramanium begins.

Yesterday I was drawing the court's attention to the Arbitration clause .. : Subramanium

Emergency Arbitrator was an institution agreed to by the parties: Subramanium

For the purposes of remedy under Commercial Courts Act, whether it is an order passed under Arbitration Act: Subramanium

There is a wealth of cases. Whether is this an order under Arbitration Act or CPC: Subramanium

Arbitration act is a consolidated statute. It is self contained. Order is one which is traceable under Arbitration Act: Subramanium

Subramanium refers to a Supreme Court case to further his submissions.

The new section 37 and old section 39 have the same words. Since right to appeal is creature of a statute. If you are not covered under sec 37, you have no right to appeal : Subramanium states from the judgement.

A special law can detract from general law. Arbitration is a special act which detracts from CPC : Subramanium

Under 1996 also it is a special act. After the Commercial Courts Act, was the position altered? Supreme court says it is still a self contained court. If the order is in aid of Arbitration, it is an order under Arbitration Act: Subramanium

In this case, if they had preferred under section 37 against Emergency Award, it would have been futher appealable under Commercial Courts Act: Subramanium

There is no reason to import CPC here. We have to look at Arbitration act and Commerical courts act to see if an appeal would lie : Subramanium

Arbitration is a choice of patties. Because it is an Arbitral remedy.. purpose is expeditious proceedings.. interlocutory order of Arbitral Tribunals are thus not appealable: Subramanium

Parties*

When they pointed out.. having regard to the fact that we styled the Petition as Section 17(2) read with Order 39.. they had some room to say it was an order under CPC.. but there is no appeal unless provided for in the statute : Subramanium

Interlocutory orders passed in enforcement proceedings.. they file a special leave petition under art 136 : Subramanium

What Mr Salve urged yesterday, he urged before the Single judge and I rebutted. The same I'm going to do today. The Single judge had the basis to pass the status quo order : Subramanium

I don't mean to interrupt. But will my friend finish today? Just for diary purposes : Senior Adv Harish Salve for FRL.

I'll take the whole day : Subramanium

I'll need half an hour : Senior Adv Rajiv Nayar for Amazon

Your (Salve) turn will come next week then : Subramanium

Subramanium continues to argue that the present appeal is not maintainable.

Subramanium reads section 37.

I'll read it with Commercial Courts Act: Subramanium

It is possible for the Arbitral Tribunal to take a view that it has no jurisdiction. Appeal would lie (under section 37)..appeal would also lie from order under section 17: Subramanium

Subramanium reads section 13 Commerical Courts Act.

If this order was in a regularly constituted suit, appeal would lie. The order which is passed is by aide of Order 39, it is an order under Section 17 in aide of Arbitration : Subramanium

Subramanium refers to a Supreme Court case.

The statute has to be given logical conclusion.. the juridical consequence is that it is an order of the court, which can be enforced under section 17 (2) : Subramanium

The order must be a live order, an operative order.. : Subramanium

In the absence annulment of the order.. the order must be enforced: Subramanium

The order which the Single Judge has passed is in aide of Arbitrator's order, and it is an order passed under a special statute. If it is not listed in section 37, appeal would not lie : Subramanium

Subramanium refers to a Supreme Court case to support his submissions.

I'm only reading this one judgement in one go: Subramanium continues to read the judgement.

Subramanium continues to read the judgement.

Mr Salve did not put a gloss to say that the Single Judge order is an order appealable under Section 37. He says it's an order under CPC. But it is an order in aide of Arbitration, it an order under Arbitration Act: Subramanium

Let me take the court through certain other decisions.. before I come to the seminal decision : Subramanium

Delhi High court has been a leading court in Arbitration .. many of the old judgements are as good as gold : Subramanium

Subramanium reiterates that Arbitration Act is a self contained Code and Emergency Arbitrator is not alien to the Act.

ICC referred to the Emergency Arbitrator as ore Arbitration referee : Subramanium

Subramanium highlights the existence of Emergency Arbitrator in Delhi, Mumbai International Arbitration Centre Rules.

My Lord the Chief Justice is the patron of the Delhi Arbitration Centre : Nayar

And I'm member of advisory council : Nayar

The first judgement is of Supreme Court.. Deep Industries .. : Subramanium

Subramanium deals with the judgement.

Subramanium continues to read the judgement.

Under Arbitration act, expeditiousness and enforcement are key features: Subramanium

Subramanium continues to read.

There is a statutory remedy in respect of order passed by an Arbitral Tribunal under section 17.. here an application under right to appeal under commercial court act : Subramanium

If there are remedies, an appeal which is not maintainable is completely inconsistent with the objective of the Arbitration Act: Subramanium

Because objection to Emergency Arbitrator is not overruled, it can still be re-agitated before the Arbitral Tribunal.. : Subramanium

Subramanium continues to read the judgement.

This is a unique occasion for this court to consider.. if I am able to prove that Emergency award is under Part I.. there is no reason why effective enforcement can't be granted : Subramanium

A special law prescribes what can be done and prohibits what can't be done : Subramanium

Enforcement is a part of this very statute : Subramanium

Letters patent appeal would be excluded : Subramanium

Subramanium moves on to another High Court judgement.

Whether there could be letters patent appeal when appeal did not lie under Arbitration Act: Subramanium

Subramanium reads the judgement.

There is a judgement of Justice Leela Seth.. the court may note the paragraph numbers. I need not repeat: Subramanium

There's UOI vs MK Pvt Ltd.. : Subramanium

Next judgement is full bench of Calcutta High Court. It deals with CPC and court has gone into various provisions .. : Subramanium

Subramanium reads the judgement.

When provisions of CPC are extended to Arbitration Act, it does not automatically import Order 43: Subramanium

Last judgement is part of the paperbook. I request your lordship to look at the file .. : Subramanium

Subramanium reads the judgement.

If section 17 (2) is the solution and nothing has happened to the Emergency Award and if Single judge (Justice Mukta Gupta) sustains the Award, it is enforceable: Subramanium

If the Emergency Arbitrator is an Arbitral Tribunal, it has to be so in terms of Section 17 (2) : Subramanium

Emergency Arbitrator is as good as sole Arbitrator for emergency measures under SIAC.. it can't be urged that Emergency Arbitrator would be Arbitral Tribunal under 2(d) but wouldn't be so under Section 17: Subramanium

The interlocutory order of the Single Judge (Justice Gupta) was a dismissal order. That I could rely on the Emergency Award else I would suffer irreparable injury : Subramanium

The rule of law .. most people don't appreciate it but Arbitration laws are integral.. they must follow it for rule of law : Subramanium

Contracts are by and large to be honoured. Parties must give primacy to the remedy that they have chosen : Subramanium

A point was raised that suit was not maintainable. Single judge said that cause of action of tort was a different cause of action and it is maintainable: Subramanium

The single judge has not adverted to the EA order or the reasons therein.. the Emergency order was preserved.. : Subramanium

The Single judge said the order can't be challenged on merits in the suit. The observations were made independently : Subramanium

The single judge records that order on merits is not under challenged: Subramanium

The single judge used the principles of irreparable injury.. : Subramanium

The court found that my interference had lawful justification and I could write to the authorities.. the question is what happened before and after of the order of single judge : Subramanium

Whatever my friend argued, was rebutted. We said the Emergency Award was preserved and there was no challenge to it. Certain observations have been made..it is a separate matter. The point is that Emergency order has been preserved: Subramanium

The Emergency order continued.. does the Rule of law contemplate.. the promoters are part to the Arbitration agreement..it can't be a nulity qua them: Subramanium

Can you have this as nulity qua one party? We read the agreements together for interpretation of contracts. They used the word conflate. I'll deal with it later. The money was used for FRL : Subramanium

Today after getting the money FRL is saying it is all void, unlawful: Subramanium

Emergency Arbitrator has the power to determine his jurisdiction : Subramanium

Whatever was argued here, justice Gupta, Justice Midha .. all was argued before the Arbitrator. The Emergency Arbitrator analysed the agreements.. High Court judgements on Group of companies.. justice Mukta Gupta does deal with it : Subramanium

Before the Arbitrator, Mr Salve said these are the principles but FRL shouldn't be made a party.. Emergency Arbitrator applied the doctrine and said you took the money. The Arbitrator has the transcript : Subramanium

The transcript is available. Question was asked would you have entered the agreement had it not been for FRL agreement. Answer was yes, FRL was the foundation. It would be very unwise to urge that valid order of Arbitrator can be undone collaterally : Subramanium

Whatever has to be done, has to be done as per law.. the case illustrates the danger.. if sanctity of Arbitration is to be preserved.. how else can you preserve unless by enforcement : Subramanium

The party doesn't challenge the order but makes an announcement to the world that it is a nulity: Subramanium

Injunction is against all .. who pursued even after the Emergency Award. The Emergency order now automatically order or the court. In the interest of Commerical Arbitration, why should this not be enforced or out in vogue : Subramanium

I'll show passage after passage of the judge saying it is not in challenge before the Court.. what is the meaning of superseded? Can anyone say order of the court he superseded (without w lawful challenge)?: Subramanium

Could the judge have gone behind the order? It can't in enforcement proceedings.. it is an impermissible suggestion : Subramanium

The two crucial words are valid and subsisting : Subramanium

Subramanium refers to a SIAC communication to all the parties.

NCLT Petition wae filed in January 26. January 27 the matter was heard by the single judge. Next day they write to the Arbitral Tribunal contesting the jurisdiction : Subramanium

Subramanium reads the communication to Arbitral Tribunal in this regard.

He wants to file an application. Perfectly legitimate. That means there is an order: Subramanium

They say it is a nulity. It is void.. now they say they want to file an application for vacation.. it means that the order subsists : Subramanium

All this that was argued.. company sinking, COVID 19.. all this was urged.. we are not acting out of any other motive. We are constantly committed to help the company. It's not that we can't find a solution for FRL. We don't want the company to go down : Subramanium

We reiterated this even in enforcement. We are committed to our stand that we are willing to help.. there is a contract and I'm willing. I want FRL to survive: Subramanium

We were in touch for the purpose of resolving the matter even till the time the deal was made public: Subramanium

I can invest exactly like FCPL which in turn can pass the money to FRL.. before anything can be done, you go to a restricted persons..the breaches stand admitted: Subramanium

We stand interpret the contracts together. Arbitrator noted all this. If there is breach, injunction can be granted to preserve the substratum of the dispute : Subramanium

How much time will you take. We will continue on Monday: Court

I will conclude on Monday: Subramanium

Hearing adjourned till Monday, February 8.