CONCILIUM MARINE GROUP AB and CONCEJO AB v SHARATH THAZHATHE VEEDU

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE G.GIRISH`** ``` THURSDAY, THE 13[TH] DAY OF JUNE 2024 / 23RD JYAISHTA, 1946 ``` ## **`OP(ICA) NO. 1 OF 2023`** ## **`PETITIONERS/RESPONDENTS:`** ``` 1CONCILIUM MARINE GROUP AB AGED 37 YEARS PO BOX 502813105 NAKA, STOCKHOLM, SWEDEN REPRESENTED BY ITS POWER OF ATTORNEY HOLDER ADITI DINENDRA KAMATH, AGED 37 YEARS, D/O DINENDRA ANANT KAMATH, RESIDING AT J, 6/5, JAL MANGAL DEEP, BANGUR NAGAR GAREGAON WEST, MUMBAI - 400090 ``` ``` 2CONCEJO AB PO BOX PO BOX 502813105 NAKA, STOCKHOLM, SWEDEN REPRESENTED BY ITS POWER OF ATTORNEY HOLDER ADITI DINENDRA KAMATH, AGED 37 YEARS, D/O DINENDRA ANANT KAMATH, RESIDING AT J, 6/5, JAL MANGAL DEEP, BANGUR NAGAR GAREGAON WEST, MUMBAI -, PIN - 400090 ``` ``` BY ADV MILLU DANDAPANI ``` ## **`RESPONDENT/CLAIMANT:`** ``` SHARATH THAZHATHE VEEDU AGED 54 YEARS S/O MUTHUKRISHNA VARIER VARANATTU HOUSE PERUMBAVOOR ERNAKULAM KERALA, PIN - 683542 ``` ``` BY ADVS. V.SREEJITH (K/1398/2000) MANSOOR.B.H.(K/351/2003) BASIL KURIAKOSE(K/643/2007) SAKEENA BEEGUM(K/001187/2021) ``` ``` THIS ORIGINAL PETITION INTERNATIONAL COMMERCI HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON 13.06.2024 DELIVERED THE FOLLOWING: ``` 2 O.P.(ICA) No.1 of 2023 **‘CR’** **G.GIRISH, J. --------------O.P (ICA) No.1 of 2023 -----------------------------Dated this the 13[th] day of June, 2024 -------------------------------------------------** ## **J U D G M E N T** This original petition is filed under Sections 2(1)(e), 2(2) and Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) for an interim injunction restraining the respondent and his men or agents from alienating or encumbering the petition schedule properties or creating any document or conveyance in respect of those properties before the satisfaction of the Arbitral Award dated 30.01.2023 in S.C.C Arbitration V2020/199 of the Arbitral Tribunal, Sweden. 2. The 1[st] petitioner is a joint stock company incorporated under the laws of Sweden, and the 2[nd] petitioner is its parent company. The respondent was the erstwhile Managing Director of the 2[nd] petitioner company who resigned from the directorship of the said company following allegations of misappropriation. It is stated that when the petitioner companies initiated criminal 3 O.P.(ICA) No.1 of 2023 prosecution against the respondent, he approached the petitioner companies and requested to dispense with the criminal prosecution in return for his offer to resign from all the designated posts of the companies and to pay the amount misappropriated immediately. However, the respondent, as claimant, is said to have initiated arbitration proceedings at Sweden against the petitioners as S.C.C Arbitration V2020/199, which resulted in the arbitral award dated 30.01.2023 dismissing the claims due to lack of jurisdiction, but awarding costs and interest on costs to the petitioners herein who were the respondents in that arbitration proceedings. As per the above award, the petitioners claim to be entitled to an amount of Rs.8,95,44,507/- as costs and Rs.1,55,54,963/-, Rs.21,743.23/- and Rs.2,272.15/- as costs of arbitration in addition to interest charged on the above amount. 3. Alleging that the respondent is trying to fraudulently dispose of and encumber the petition schedule properties belonging to him to defeat the execution of the above award, the petitioners have filed the present original petition to injunct the respondent from committing any such acts. 4 O.P.(ICA) No.1 of 2023 4. In the counter filed, the respondent contended that the present proceedings are prima facie not maintainable due to the pendency of a suit instituted by the petitioners before the Munsiff’s Court, Perumbavoor as O.S.No.53 of 2023 in respect of the same reliefs. It is the further contention of the respondent that the proper course available to the petitioners was to seek enforcement of the arbitral award instead of moving the present petition for interim orders. According to the respondent, the prayer in this petition for an interim injunction against the alienation of the petition schedule properties till the satisfaction of the arbitral award, is a relief of perpetual nature which cannot be allowed under Section 9 of the Act. The respondent also contended that some of the properties scheduled in the petition do not belong to him, and that the amounts are calculated wrongly in the petition. The respondent also stated that the value of the properties scheduled in the petition is far above the amount claimed by the petitioners. Upon the above premises, the respondent seeks a dismissal of this petition. 5. The point to be decided is whether the respondent is liable to be restrained by interim injunction, as prayed for in the 5 O.P.(ICA) No.1 of 2023 petition, from alienating or encumbering the scheduled properties, or creating any documents or conveyance in respect of those properties, pending the enforcement of the arbitral award granting costs and interest on costs to the petitioners. 6. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 7. At the time of arguments, the learned counsel for the respondent mainly relied on a ground which is not stated in the counter affidavit filed, to challenge the maintainability of this petition. Adverting to the observation in Ext.P1 arbitral award that the Tribunal does not have jurisdiction to determine the matters under the settlement agreement, which was not signed by the parties, the learned counsel for the respondent contended that there is absolutely no scope for a petition under Section 9 of the Act, when the Arbitral Tribunal itself arrived at the finding that it has no jurisdiction to deal with the dispute. Thus, it is pointed out that the present petition filed by the petitioners is prima facie not maintainable. 6 O.P.(ICA) No.1 of 2023 8. It is true that the Arbitral Tribunal had observed in Ext.P1 award that it has no jurisdiction to proceed with the arbitration due to the absence of signatures of the parties in the shareholders’ agreement relied on by the respondent. But still, the Tribunal has passed an award confined to the costs and interest on costs to which the petitioners herein (respondents in the arbitral proceedings) are entitled from the respondent (claimant in the arbitral proceedings). The award in the above regard has been passed in accordance with Sections 37 and 42 of the Swedish Arbitration Act and Articles 49 and 50 of the Arbitration Rules of Sweden which provided broad discretion to the Arbitral Tribunal to award the costs of arbitration and reasonable party costs even in cases where the Arbitral Tribunal determines its lack of jurisdiction to adjudicate the dispute before them. Therefore, the challenge against the legal sanctity of the arbitration award, which is one confined to the costs and interest on costs, is devoid of merit. It is an irony that it was the respondent herein who had moved for the initiation of arbitral proceedings, and his contention throughout the said proceedings was that the shareholders’ agreement between the parties was 7 O.P.(ICA) No.1 of 2023 entered into by conduct since it was drafted, circulated, agreed and performed by the parties, notwithstanding the fact that it lacked the signatures of the parties. The arbitral award which is marked as Ext.P1 would further reveal that right from the very beginning, the petitioner herein challenged the validity of the unsigned shareholders’ agreement relied on by the respondent for the initiation of arbitral proceedings, and even claimed for a bifurcation of the issue relating to the jurisdictional competence of the Arbitral Tribunal, to have the said matter decided before further proceeding with the arbitration. But the above request of the petitioner before the Arbitral Tribunal was strongly resisted by the respondent, and it is due to the above reason that the Arbitral Tribunal had to decide about its lack of jurisdiction at a stage, almost at the fag end of the proceedings. It has been observed in Clause 115 of Ext.P1 arbitral award that if the claimant (respondent herein) had agreed to bifurcate the issue of jurisdiction, the costs incurred by the respondents (petitioners herein) would in all likelihood have been substantially reduced. It is thereafter, that the Arbitral Tribunal proceeded with the calculation of costs including costs of arbitration, and interest on 8 O.P.(ICA) No.1 of 2023 costs and passed the final award as permitted by Sections 37 and 42 of the Swedish Arbitration Act and Articles 49 and 50 of the Rules thereunder, directing the claimant (respondent herein) to pay the said amount to the respondents (petitioners herein). Hence, the said award of Swedish Arbitral Tribunal cannot be said to be invalid for want of jurisdiction. 9. Section 9 of the Act deals with the interim measures which could be resorted to by the court in connection with arbitral proceedings. It is explicit from the aforesaid provision that such interim orders under Clauses (i) and (ii) in respect of the matters specified thereunder, could be passed by the court during the three stages as stated hereunder: (1) It can be before the commencement of arbitral proceedings. - (2) It can be during the pendency of arbitral proceedings. - (3) It can be after the making of the arbitral award, but - before it is enforced in accordance with Section 36. 10. Going by the proviso to Section 2(2) of the Act, subject to an agreement to the contrary, the provisions of Section 9 of the 9 O.P.(ICA) No.1 of 2023 Act apply to international commercial arbitration even if the place of arbitration is outside India, and an arbitral award made in such place is enforceable and recognised under the provisions of part II of the said Act. As far as the present case is concerned, none of the parties are having a contention that there exist an agreement ousting the applicability of Section 9, or the right of the parties to seek enforcement of the award in India. Therefore, there is absolutely nothing which precludes the petitioner from approaching this Court with a petition under Section 9 of the Act for an interim injunction against the disposal of the properties belonging to the respondent. 11. One of the challenges raised by the respondent against the maintainability of this petition is that the petitioners cannot initiate proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, before approaching the competent court for the enforcement of the arbitral award claimed by them. It appears from the aforesaid challenge that the respondent’s contention is that a petition under Section 9 of the Arbitration and Conciliation Act, 1996 could be laid in respect of the enforcement of a foreign award only after initiating the procedures covered 10 O.P.(ICA) No.1 of 2023 under Part-II, Chapter-I of the Arbitration and Conciliation Act, 1996, and the court dealing with enforcement of the award, arrives at a finding that the applicant is not disqualified under any of the conditions envisaged under Section 48 of the Arbitration and Conciliation Act, 1996. In other words, the contention of the respondent appears to be that the applicability of Section 9 of the Arbitration and Conciliation Act, 1996 in a case like this, would come into play only after the court where the application for enforcement of the arbitral award has been filed, arrives at the finding that the applicant has passed the test of Section 48 of the said Act and qualified himself to seek enforcement of the foreign award. 12. The argument advanced by the respondent in the above regard concerning the restricted applicability of Section 9 of the Arbitration and Conciliation Act, 1996 in respect of foreign awards, cannot be accepted since such a construction of the relevant provisions of the said Act would render the scope of Section 9 nugatory, and thereby defeats the right of a genuine award holder to seek the assistance of the court for preventing the opposite party from dissipating and disposing of his remaining asset in 11 O.P.(ICA) No.1 of 2023 India. The learned counsel for the petitioners brought to my notice the proposition of law in this regard laid down by the High Court for the State of Telangana in **Peaceful Water Limited of Monrovia Liberia v. Eastern Multitrans Logistics Private Limited [CDJ 2023 TSHC 429]** . It is seen from the aforesaid decision, which followed the earlier decisions of Bombay High Court in **Heligo Charters (P) Ltd. v. Aircon Feidars FZE [2018 SCC Online Bom. 1388]** and that of the Gujarat High Court in **Scan-Shipping Pvt. Ltd. v. Anupam Port Cranes Corporation [2019 GUJHC:59497 ARBI.P/2825/2019 dated 30.08.2019]** , that it has been laid down thereunder that Section 9 petition is maintainable even before the foreign award is put to actual enforcement, in view of the proviso to Section 2 of the Arbitration and Conciliation Act, 1996 which is intended to ensure that a court can step-in to protect an asset from being diverted or dissipated, and to ensure that the holder of a foreign award, which is yet to be found enforceable by the competent court, could proceed against the assets of the opposite party before it get dissipated or alienated. The above interpretation given by the High Court for the State of Telangana in the aforesaid 12 O.P.(ICA) No.1 of 2023 case about the scope and applicability of Section 9 of the Arbitration and Conciliation Act, 1996 in respect of foreign awards, is in consonance with the avowed objective of the said Act to have speedy and efficacious remedies for commercial disputes, irrespective of any regional or territorial limitations. Thus, the objection raised by the respondent against the maintainability of a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 in respect of a foreign award, before the court concerned rules on the enforceability of the said award, cannot be sustained. When such a valid award enforceable under the proviso to Section 2(2) of the Act is passed by the Foreign Arbitral Tribunal, the beneficiary to the said award has got every right to seek the reliefs under Section 9 of the Act before the enforcement of the said award, but of course, subject to the decision of the court concerned on a later occasion, about the enforceability of the said award under Section 48 of the Arbitration and Conciliation Act, 1996. Therefore, the argument advanced by the learned counsel for the respondent against the maintainability of this Original Petition, is prima facie unsustainable. 13 O.P.(ICA) No.1 of 2023 13. The other contention raised by the respondent against the maintainability of this petition due to the institution of a suit before the Munsiff’s Court, Perumbavoor, is also totally untenable in the absence of any provision of law which would bar the institution of a petition like this under the said circumstance. That apart, it is submitted by the learned counsel for the petitioners that the aforesaid suit which was filed as O.S.No.53/2023 before the Munsiff’s Court, Perumbavoor had been withdrawn by the petitioners. So also, the contention of the respondent about the error in the calculation of the compensation amount, the actual value of the petition schedule properties, and the absence of ownership of the respondent in some of the scheduled properties etc are not substantiated by any materials on record. That apart, all those matters could be dealt with at the appropriate time by the court dealing with the enforcement of the award. To summarise, it has to be held that the petitioners are entitled for the relief of injunction for a fixed period of time so that they would be able to seek the enforcement of the foreign arbitral award as against the assets of the respondent remaining in India. In the result, the petition stands allowed as follows: 14 O.P.(ICA) No.1 of 2023 The respondent is restrained by an injunction for a period of six months from today, or till the filing of an appropriate application by the petitioners before the competent court for enforcement of Ext.P1 arbitral award, whichever be earlier, from alienating or encumbering the petition schedule properties, or creating any document or conveyance in respect of those properties. (sd/-) ## **G.GIRISH, JUDGE** jsr 15 O.P.(ICA) No.1 of 2023 ## **`APPENDIX OF OP(ICA) 1/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE ARBITRAL AWARD DATED 30.01.2023 IN SCC ARBITRATION V2020/199 OF THE HON'BLE ARBITRAL TRIBUNAL, SWEDEN ```