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2014 (1) TMI 1825 - HC - Indian LawsArbitration and Conciliation - order and direction seeked against respondents to deposit monies to the extent of the claims of the petitioner under Share Subscription Agreement and Share Holders Agreement including the investment of approximately US$ 60 million and cost and/or in the alternative to provide adequate and satisfactory security in regard to the claims of the petitioner - Petitioner seeks injunction restraining the respondents from dealing with their assets including bank accounts with Corporation Bank - Held that:- Having taken a view that law of Singapore would apply to the parties in this proceedings and under laws of Singapore, respondents would have remedy of challenge the interim awards before the appropriate court at Singapore and the respondents not having challenged the said jurisdictional award and interim award, in my view the said jurisdictional award and interim award made by the arbitral tribunal between the same parties arising out the same agreement in the arbitration proceedings have become final and conclusive on the issue of jurisdiction and the respondents are barred by the principles of estoppel in re-agitating the same issue in this proceedings. Learned senior counsel is right in his submission that the question as to whether the arbitral tribunal being less suitable or it would be more convenient or appropriate for a civil court to decide allegations of fraud etc., is not a ground available under Section 48 (2)(a) of the Arbitration Act. In my view, only such cases which cannot decided by the arbitrators can be covered by Section 48(2)(a). The dispute raised by the petitioner before the arbitral tribunal related to the rights of the petitioner in personam and could be considered by the arbitral tribunal and there is no bar contemplated under Section 48 (2)(a) in the arbitral tribunal adjudicating upon such dispute. Petitioner has made out a case for interim measures. In one of the arbitration proceeding out of the two arbitral tribunal has already rendered a final award. In my view petitioner has good chances of succeeding in the arbitration proceedings. If the interim measures are not granted in favour of the petitioner, even if petitioner succeeds in arbitration proceedings, petitioner would not be able to recover any amount from the respondents. Thus balance of convenience is in favour of the petitioner and against the respondents. Pursuant to the ad interim order passed by this Court, respondents have been already restrained from withdrawing the amount lying in the account of the respondents with Corporation bank other than the amount allowed to be withdrawn. The said order is in force since 3/8/2012. Respondents have not filed any appeal against the said order. The respondents have rendered an undertaking to return the amount allowed to be withdrawn by this Court in this proceedings. Respondents have also not paid fees of the arbitral tribunal. Pursuant to the order passed by Division Bench on 30/01/2013, respondent No.1 has been directed to deposit ₹ 1.40 cores equivalent to 3,35,000 Singapore dollars with the Corporation bank in a separate fixed deposit towards arrears of contribution of arbitration fees to be paid by respondent No.1 and has directed that the said order is passed without prejudice to rights and contentions of the parties keeping all contentions open. Respondents are restrained from withdrawing the amounts retained by the Corporation Bank in the accounts of the respondents to the extent of USD 60 million. In the event of the balance in the said accounts with the Corporation bank of the respondents less than USD 60 million, respondents are directed to deposit the shortfall in the said account so as to maintain the balance of USD 60 million within four weeks from today.
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