TMI Blog2021 (2) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. Issue of territorial jurisdiction of a Court in the context of Sections 47 and 48 of the Act again came up for consideration before the Bombay High Court in WIRELESS DEVELOPERS INC VERSUS INDIAGAMES LTD [ 2012 (1) TMI 391 - BOMBAY HIGH COURT] . Relying on the judgment in case of TATA INTERNATIONAL LTD., MUMBAI VERSUS TRISUNS CHEMICAL INDUSTRY LTD. [ 2001 (10) TMI 1187 - BOMBAY HIGH COURT] , the Court in clear words observed that at the stage of arbitration the subject-matter would be a contract and therefore factors such as place where the contract was entered into and related issues would become material to decide the territorial jurisdiction. However, once the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt debtor, etc. as argued by Respondent No.1 would be the relevant factors. Counsel for Respondent No.1 has conceded fairly during the course of arguments that in case the Award is a money Award, this Court would have jurisdiction as then the place of location of the assets of the Judgement Debtor shall be the determinative criterion for the territorial jurisdiction of the Court. The learned Senior Counsel for the Petitioner is right in its argument that the Award in question is a money Award and not an Award for specific performance. The two Clauses referred to above are clearly in the nature of exit clauses which entitled the Petitioner to sell shares in the event of default by the Respondents. This was not dependent on any corresponding / reciprocal obligation on the part of the Respondents and in fact the Respondents were bound by the terms of the clauses to buy back the shares and pay the money to the Petitioner of a value equivalent to the fair market value of the shares plus 25% IRR. The direction to the Petitioner to return the title documents, was only a consequential direction once the shares were sold to Respondent No.1 and the money was received by the Petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the hotel in question. The order was carried in appeal to the Supreme Court in Civil Appeal Nos.5696-5697/2019. While affirming the injunction granted by this Court, Supreme Court directed that the question of jurisdiction be decided first and the direction to file an affidavit of assets would be subsequent thereto, if the Court came to a conclusion that it had jurisdiction to entertain the petition. In this context and pursuant to the orders of the Supreme Court, the present petition was taken up for hearing on the question of territorial jurisdiction of this Court to entertain the petition. Arguments were heard by the Court limited to the jurisdiction and accordingly, judgment was reserved only on the issue of maintainability of this petition. 3. Shorn of unnecessary details, the brief facts that need to be encapsulated for the limited purpose of deciding the maintainability are that Respondent no.1 / Shristi Infrastructure Development Corporation Ltd. set up Respondent No.2 / Shristi Hotel Private Limited (now known as Sarga Hotel Pvt. Ltd.) as a Special Purpose Vehicle to construct and operate a Hotel namely The Westin Kolkata Rajarhat , Kolkata, West Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount equivalent to the outstanding Investor Total Investment (i.e. the pro-rata Investor Total Investment representing the Equity Shares and other Investor Securities subscribed by the Investor under this Agreement and still held by the Investor at the time of the Investor exercising this right) plus an IRR of 25% compounded annually on the outstanding Investor Total Investment and the sale and purchase of the Equity Shares and other Investor Securities of the Investor shall be completed within 30 (thirty) days from the date of exercise by the Investor of its right (by issuing a written notice to this effect) to sell such Equity Shares and securities to the Promoter. Provided that if the Investor has received any distributions pursuant to Clause 12.1 the said amount will be deducted from outstanding Investor Total Investment referred to in this Clause while calculating the amount payable by the Promoter to the Investor for the purchase of the Investor Securities in accordance with the terms of this Clause 17.2 (a). (b). Where the Investor seeks to sell its Equity Shares and other Investor Securities in accordance with Clause 17.2(b), and such Equity Shares and other Investo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shristi Infrastructure Development Corporation Limited of executed transfers and any other title documents relating to its shares in Shristi Hotel Private Limited. 8. Petitioner seeks enforcement and execution of the above mentioned directions in the present petition alongwith certain other reliefs detailed in the prayer clause of the petition. At this stage, it is important to note certain developments which occurred during the pendency of the present petition. The National Company Law Tribunal, Kolkata Bench (NCLT) by an order dated 12.08.2020 admitted a petition seeking commencement of insolvency proceedings against Respondent No.2 at the instance of a purported operational creditor, for failure to pay a claim of ₹ 2.3 Crores and Moratorium was declared. Alleging that the NCLT proceedings were collusive in nature between Respondent No.2 and the operational creditor, the Petitioner herein assailed the said order, by filing an Appeal being Company Appeal (AT)(Insolvency) No.800/2020, before the National Company Law Appellate Tribunal (NCLAT). The prime ground raised in the Appeal was that the NCLT proceedings were collusive and designed to frustrate and defeat the Awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performance of Clauses 14.2 and 17.2 pertaining to Put Options. Under Clause 28.12 of the SSHA, parties had specifically agreed that only a Court of competent jurisdiction can decree a suit for specific performance and that Court can only be the court at Kolkata for the following reasons : (a). Respondent No.1 is a company incorporated under the provisions of Companies Act, 1956, having its registered office at Kolkata; (b). Sarga is a company incorporated under the Companies Act having its registered office at Kolkata; (c). The SSHA under which the contractual arrangement between the parties was crystallized, was executed at Kolkata; (d). On account of the arrangement under the SSHA, Petitioner holds 35% shares in Sarga. The dispute pertains to Put Options and thus relates to these very shares of Sarga and the shares have a situs at Kolkata; (e). For subscribing to the 35% shareholding, Petitioner paid a consideration of ₹ 80 Crores, which amount was received in the bank account maintained and operated at Kolkata; (f). The SSHA was entered into with an objective of construction and operation of a five star hotel at Kolkata; (g). The operativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction that the First Respondent should pay to the Claimant the maximum price permissible under Indian law, being US$ 24.86 million, and a further sum of US$ 45.6 million as damages/compensation for the Respondents failure to perform their obligations under clause 17. 14. Considering the said prayers, the Tribunal in para 283 observed as follows :- 283. In the view of the Tribunal, the consequence of the application of the principle in Sudbrook Estates Ltd. V. Eggleton is that the remedy is not damages equivalent to the fair value less present value, but an order, by way of specific performance, for payment of the price against delivery of the shares. Such a remedy is included in the Claimant s catalogue of possible remedies and is plainly the right one. 15. In light of the above, it is further argued that under the Explanation to Section 47 of the Act with respect to specific performance, an Enforcement Petition can only lie in Courts within whose jurisdiction the Award-debtor resides or where the assets, which are subject-matter of the Award are situated, which in this case are the shares of Sarga. In the present case, both are within the jurisdiction of High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als placed before us would indicate that the Cayman Islands law, unlike other laws does not recognise the multiplicity of registers. Section 184 of the Cayman Islands Act [Ed.: Reference is to the provisions of the Companies Law (2007 Revision) (Law 13 of 2006) of the Cayman Islands which has since been replaced by the Companies Law (2011 Revision).] provides that the company may be exempt if it gives to the Registrar, a declaration that operation of an exempted company will be conducted mainly outside the Island . Section 193 of the Cayman Islands Act [Ed.: Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011] expressly recognises that even exempted companies may, to a limited extent trade within the Islands. Section 193 permits activities by way of trading which are incidental of offshore operations, also all rights to enter into the contract, etc. 348. The facts in this case as well as the provisions of the Cayman Islands Act would clearly indicate that the CGP (CI) share situates in the Cayman Islands. The legal principle on which situs of an asset, such as share of the company is determined, is well settled. Reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be enforced, as opposed to any other High Court within whose jurisdiction the Award-debtor may have assets. Any other interpretation, it is argued, will render the Amendment redundant and the interpretation suggested by the Petitioner would render the phrase questions forming the subject-matter of the Arbitral Award as otiose. Learned counsel relies on the judgments in the case of Davis vs. Sebastian, (1999) 6 SCC 604 and State of Rajasthan vs. Leela Jain and Ors., AIR 1965 SC 1296 in support of the proposition that words in a Statute must be given their natural ordinary meaning and nothing should be omitted, added or deleted therefrom. 21. Quite apart from the objection to the territorial jurisdiction, in view of the developments during the pendency of the petition, counsel for Respondent No.1 strenuously argued that even otherwise the present proceedings cannot be prosecuted further by the Petitioner on account of the proceedings pending in the NCLT, where a Resolution Professional has been appointed by the COC of Sarga and moreover, the Resolution Professional has not been impleaded as a party in the present case. It is also argued that continuation of the present Enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of this Court. The Petitioner seeks to enforce the partial Award against the assets of Respondent No.1 which are within the jurisdiction of this Court based on the following : (a). Respondent No.1 holds shares in a subsidy known as Shristi Urban Infrastructure Development Ltd. (SUIDL), whose registered office is in Delhi. Therefore, Respondent No.1 s assets being shares of SUIDL are sited in Delhi; (b). Respondent No.1 claims to work for gain in Delhi, having an office at D-2, 5th Floor, Southern Park, Saket Place, Saket, New Delhi; and (c). Petitioner has averred that Respondent No.1 has a bank account in Delhi which is an uncontroverted position, not having been denied by Respondent No.1. 25. In support, Mr. Nayar places reliance on a diagrammatic chart to show the structure of parties and their respective shareholdings. For ready reference, the chart is scanned and is placed below : 26. It is further submitted that in EA-375 of 2019 wherein SIDCL has challenged the jurisdiction of this Court, it is not denied that the said assets are in Delhi and likewise in the appeal before the Supreme Court being Civil Appeal No.5696 of 2019 no statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 47, cannot mean the relief granted, as no question can arise in relation to it. Thus, the questions forming will relate back to the cause of action i.e. breach of the contractual provisions, resulting in the Award. Premised on this interpretation, it is argued by Respondent No.1 that the Calcutta High Court would be the Court of jurisdiction since it is that court which will be entitled to entertain a suit in relation to questions forming subject-matter of the arbitration i.e. contractual breaches by Companies registered in Kolkata viz. Respondent Nos.1 and 2. 29. Mr. Nayar submits that this argument by the Respondent obliterates the distinction between the phrases subject-matter of the Award and subject-matter of the Arbitration and this difference has been explained in Tata International (supra) and Balco (supra) and is crucial. Under Section 47 of the Act, the questions forming the subject-matter of a money Award would simply the questions of availability of assets within the jurisdiction of the executing Court and not as to where the contract was signed or parties resided, etc. If no assets are available, the decree cannot be executed by such a Court. Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the jurisdiction of this Court to enforce the partial Award. Section 42 of the Act on which Respondent No.1 has placed reliance is inapplicable to Part-II of the Act and this has been so held by the High Court of Bombay in Eitzen Bulk A/S vs. Ashapura Minachem Ltd., 2011 SCC Online Bom 1329 and this view was affirmed by the Supreme Court. 33. On the aspect of the moratorium with respect to Respondent No.2 and non impleadment of the IRP in the present proceedings, it is argued by learned Senior Counsel that since the Petitioner has filed an affidavit stating that it is not proceeding against Respondent No.2 at this stage, this objection is irrelevant. On the question of seeking leave to continue proceedings against Respondent No.2 at an appropriate stage, Mr. Nayar argues that Respondent No.1 is not entitled to take objections on this ground as this issue concerns Respondent No.2 and moreover the submission is based on the selective and self-serving reading of the affidavit. Any leave has to be granted in accordance with law. It is submitted that the Petitioner cannot be prevented from taking recourse to a remedy that may become available in future due to change of circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated at Delhi. 36. Arguing in rejoinder, Mr. Mishra reiterates the submissions made in support of the preliminary objection as well as the pendency of the IBC proceedings. Learned counsel distinguishes the judgments relied upon by the Petitioner. With respect to the judgments in Trammo (supra) and Glencore (supra), it is submitted that the said cases pertain to arbitral Award whose subject-matter is money in form of damages and not specific performance of the contractual obligations. In both the cases, the Courts were not called upon to interpret the phrase questions forming in the Amended Explanation to Section 47 of the Act. 37. I have heard learned senior counsel for the Petitioner and counsel for Respondent No.1. 38. On account of the preliminary objection raised by Respondent No.1 on the maintainability of the petition, the first and foremost issue that this Court is called upon to decide is whether this Court has territorial jurisdiction to entertain the present petition. Reading of the order of the Supreme Court indicates that before proceeding further in the matter the issue of territorial jurisdiction has to be decided. In view of this, the objection to the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be inadequate and thus, the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 was brought in. India became a signatory to both the Conventions. To give effect to the 1923 Protocol and the 1927 Convention, the Arbitration (Protocol and Convention) Act, 1937 was enacted in India. However, there were certain limitations in its application and in 1953 the International Chamber of Commerce proposed a new treaty which finally led to the adoption of the Convention on the recognition and enforcement of Foreign Arbitral Awards at New York in 1958, popularly known as the New York Convention. This came into force on 07.06.1959 and India became a State Signatory to the Convention on 13.07.1960. To give effect to the Convention, the Foreign Awards (Recognition and Enforcement) Act, 1961 was enacted. This was preceded by the enactment of the Arbitration Act, 1940 and after the 1961 Act, the Arbitration Conciliation Act, 1996 was enacted. 41. The objects and reasons of the Act shows that the Act consolidated and amended the law relating to Domestic and International Commercial Arbitration and the law of enforcement of Foreign Arbitral Awards and is based on the UNCITRA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts having supervisory jurisdiction over the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and would include contracts. Subject-matter of an Award cannot include a contract as adjudication in respect of the claims under the contract has been done and resulted into an Award. The subject-matter of the Award could therefore be construed only to mean the relief finally awarded by the Award. The Court relied on the decision of the Supreme Court in Brace Transport (supra). Relevant para in Tata International (supra) is as follows :- 4. We then come to the issue as to the meaning of the expression subject matter of the Award and whether that would mean also subject matter of the arbitration proceedings. This is important because under Section 2(e) the expression with reference to the expression Court means the subject matter of the arbitration. The subject matter of the arbitration would include contracts. The subject matter of an Award cannot include a contract as adjudication in respect of the claims under the contract has been done and has resulted into an award. The subject matter of the Award therefore, is liable to be construed to mean what is the relief finally awarded by the Award. It may be in the form of money, it can be for specific performance, or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression as the explanation itself permits forum hunting if that expression can be used. After considering all these provisions a similar view was taken in Arbitration Petition Lodg. No. 427 of 2001 in the case of Naval Gent Marline Ltd. v. Shivnath Rai Harnarain (I) Ltd. and Ors., decided on 5th July, 2001 in which at the ad interim stage, apart from other issues, the issue as to the meaning of the expression subject matter of the award was in issue and has been similarly answered. In the instant case, defendants do not have their office or carry on business within the jurisdiction of this Court. The Offices are either at Gandhidham or Ahmedabad. It is not averred in the petition that the respondents have any money within the jurisdiction of this Court. In these circumstances, to my mind in the absence of the subject matter of the Award being within the jurisdiction of this Court, this Court would have no jurisdiction to hear and decide this petition. 45. Issue of territorial jurisdiction of a Court in the context of Sections 47 and 48 of the Act again came up for consideration before the Bombay High Court in Wireless Developers (supra). Relying on the judgment in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sold in execution of the award. 46. The Act of 1996 underwent an Amendment by the Amendment Act No.3 of 2016 with effect from 23.10.2015 (hereinafter referred to as 2015 Amendment ). The genesis of the said Amendment are the recommendations of the Law Commission in its 246th Report and therefore to understand the effect of the Amendment, it would be profitable to refer to certain paragraphs of the Report, which are relevant to the present issue and are as follows :- 38. Section 2(2) of the Arbitration and Conciliation Act, 1996 (the Act ), contained in Part I of the Act, states that This Part shall apply where the place of arbitration is in India. In comparison, Article 1(2) of the UNCITRAL Model Law provides: The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of arbitration is in the territory of this State. The central issue, therefore, that was before the two judge Bench of the Supreme Court in Bhatia International v. Interbulk Trading SA, (2002) 4 SCC 105 , and before the five-judge Bench in Bharat Aluminum and Co. v. Kaiser Aluminium and Co., (2012) 9 SCC 552 (hereinafter called BALCO ) was whether the exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration and which are not inconsistent with the mandatory provisions of the [foreign] Procedural Law/Curial Law. The same cannot be used to confer jurisdiction on an Indian Court. However, the decision in BALCO was expressly given prospective effect and applied to arbitration agreements executed after the date of the judgment. 41. While the decision in BALCO is a step in the right direction and would drastically reduce judicial intervention in foreign arbitrations, the Commission feels that there are still a few areas that are likely to be problematic. (i) Where the assets of a party are located in India, and there is a likelihood that that party will dissipate its assets in the near future, the other party will lack an efficacious remedy if the seat of the arbitration is abroad. The latter party will have two possible remedies, but neither will be efficacious. First, the latter party can obtain an interim order from a foreign Court or the arbitral tribunal itself and file a civil suit to enforce the right created by the interim order. The interim order would not be enforceable directly by filing an execution petition as it would not qualify as a judgment or decree f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing a holder of a Foreign Arbitral Award sought interim relief by filing a petition under Section 9 of the Act pending enforcement and execution of the Award. The Respondent raised an objection to the territorial jurisdiction of the Court, referring to the amended provisions of the Act. The exact issue that fell for consideration before the Bombay High Court was whether the Court as referred to in Section 9 of the Act, in case of International Commercial Arbitration which takes place outside India, is a Court as defined under Section 2(1)(e) or as defined in the Explanation to Section 47 of the Act. 49. In the above context, the Bombay High Court framed a question and which in my opinion is extremely relevant and directly answers the issue raised by the Respondent, but in favour of the Petitioner. The question as framed was whether Section 2(1)(e)(ii) when it defines Court to mean the High Court having jurisdiction to decide the question forming the subject-matter of the arbitration would create an impediment preventing the Petitioner to invoke Section 9 before this Court . 50. The Bombay High Court relied on the judgments in BALCO (supra), Brace Transport (Supra), Wire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as in case the relief is in the nature of a money Award, the place of location of assets of the judgment debtor would give jurisdiction to the Court, while in case it is in the nature of specific performance then the considerations of the situs of the shares, registered office of the judgment debtor, etc. as argued by Respondent No.1 would be the relevant factors. Counsel for Respondent No.1 has conceded fairly during the course of arguments that in case the Award is a money Award, this Court would have jurisdiction as then the place of location of the assets of the Judgement Debtor shall be the determinative criterion for the territorial jurisdiction of the Court. 53. Before addressing this contentious issue, I may only note that it is no longer res integra that in case of a money award , the enforcement can lie in the Court where the assets are located and the Foreign Award holder is entitled to Forum hunting . For the sake of record, I may only refer to a few judgments on this aspect of the matter. In Brace Transport Corporation (supra), Supreme Court held as under :- 16. This being an award for money its subject-matter may be said to be money, just as the subject- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny part of the country where it is sought to be enforced as long as money is available or suit for recovery of money can be filed. In my opinion, therefore, expression subject matter of the award to the explanation under Section 47 is different from the expression subject matter of the arbitration under Section 2(e) of Part I of the Act. A foreign award if allowed to be enforced is a deemed decree. It can be enforced anywhere that the respondents may have money. In other words it is in the nature of forum hunting. The expression subject matter of the award and the subject matter of the arbitration agreement are two different and distinct expressions. In respect of a foreign award, if the expression subject matter of the award was to mean the same thing as the subject matter of the arbitration agreement, in most cases there would be no Court available where the award could be enforced as the entire cause of action in respect of the subject matter of the arbitration could be the foreign country. Merely because in the instant case, the contract was entered into in India cannot result in a different interpretation. The expression as the explanation itself permits forum hunting if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the appellant finds that there are no monies in the said account the appellant may be constrained to make another application for enforcement of the award, much like another application for execution of a decree under the Civil Procedure Code wherever another property of the respondent may be found for execution and enforcement of the award. 20. This, therefore, settles the territorial jurisdiction aspect under the application for execution made by the appellant. The notice issued under Order 21 Rule 22 would, therefore, be entitled to be issued by this Court having territorial jurisdiction for the enforcement of the award. The impugned order refusing to exercise jurisdiction on the ground that merely because the bank account of the respondent was within its territorial jurisdiction is, therefore, incorrect and must be set aside. This Court would have to exercise its jurisdiction to enforce the award. 56. Useful it would be to refer to para 16 of the said judgment where the Court relied on the judgment in the case of Brace Transport (supra) quoting from Law and Practice of International Commercial Arbitration by Redfern and Hunter and the said extract is as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered office in Delhi. (d) these amounts and shares are undoubtedly assets of the JD company (e) a foreign award is executable as a decree (f) Order XXI Rule 30 of the Code permits the sale of the property of the JD company in execution of a decree. 58. To the same effect is the view taken by the Bombay High Court in a recent decision in Trammo (supra) and the reference to the said decision is significant as judgement has been delivered taking into consideration the 2015 Amendment of the Act on which heavy reliance is placed by the learned counsel for Respondent No.1. Court has reaffirmed and reiterated the position of law prior to the Amendment and held that Court for the purpose of Section 47 of the Act would be a Court dealing with subject-matter of the Award and therefore where the relief granted by the Arbitral Tribunal is in the form of money, the location of the assets of the Judgment Debtor would determine the territorial jurisdiction of the Court, although as already stated above this was in the context of Section 9 of the Act. This Court has recently in Glencore (supra) taken a prima facie view following the above judgments and held that the locat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng US$24.86 million, and a further sum of US$45.6 million as damages/compensation for the Respondents failure to perform their obligations under clause 17; (iv) in the further alternative, a direction that the First Respondent should pay to the Claimant damages/compensation equivalent to the price set out in clause 17.2(a) for the Respondents' breach of their obligations under clause 17, being US$70.5 million; (v) damages equivalent to the FMV Price, which amounts to US$24.86 million; and, in the further alternative, a direction that the First Respondent should pay to the Claimant such other sums as the Tribunal thinks fit. (5) In the alternative to the relief sought above, the First Respondent be directed to pay to the Claimant a sum of US$70.5 million as damages/compensation for breach of representations and warranties; xxx xxx xxx (7) In the alternative, an order directing the First Respondent to pay to the Claimant a sum of US$70.5 million, as and by way of restitution; or xxx xxx xxx (9) Compounded pre-award and post-award interest on all monetary relief at such rate as the Tribunal considers appropriate; 61. Some of the obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er clause 17(b)(iv) is not excused. xxx xxx xxx 368. The Tribunal concludes that the Claimant has established that there were material breaches, amounting to EODs within clause 17.1(a), in relation to the conduct of meetings, the approval of accounts and the appointments of auditors. 369. It follows, considering both the Hotel EOD and the Material Breaches EODs, that triggering events under clause 17 have occurred, entitling the Claimant to exercise its rights under clause 17 .2. 62. Having observed that the Respondents were in breach of the provisions of SSHA, the provisions of Clauses 14.2 and 17.2 were examined by the Tribunal. Clause 14.2 has been extracted above in the earlier part of the judgment and it stipulates that in the event the Investor is unable to sell the equity shares / securities held by it in the SPV in the manner set out in Clause 13 or if the SPV does not undertake an IPO on terms satisfactory to the Investor and the Investor continues to hold the said securities after 54 months from the First Tranche Completion Date for a period of 270 days, the Investor shall have the right to sell the shares and securities it holds in the SPV and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, inter alia, passed a direction for payment of monies) has assets within the jurisdiction of this Hon ble Court. The Petitioner submits that on the basis of information available in the public domain, Respondent No.1 appears to hold shares in a subsidiary known as Shristi Urban Infrastructure Development Ltd., whose registered address is D-2, 5th floor, Southern Park, Saket Place, Saket, New Delhi-110 0017. Additionally, both Respondent No.1 and Respondent No.2 claim to work for gain and have offices in New Delhi. As seen in the letter dated 26.05.2019, Respondent No.1 claims that the following is its Delhi office address : D-2, 5th Floor, Southern Park, Saket Place, Saket, New Delhi-110 017 . Similarly, Respondent No.2 has also issued correspondence citing the same address as its corporate office address. By way of illustration, a copy of resolution purportedly passed at a board meeting of Respondent No.2 held on 27.02.2019 lists the address in Delhi of Respondent No.2 as the corporate office at the foot thereof is annexed hereto as Document 10. Further, the Petitioner verily believes that both Respondents operate bank accounts within the jurisdiction of this Hon ble Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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