Seeking orders to restrain Future Retail Limited (FRL) from alienating its assets, E-commerce giant Amazon contended before the Hon’ble Supreme Court that the FRL was acting in collusion with Reliance so to let the latter take over the former's stores in violation of the injunction orders.
Future Group, on the other side , contended that it was facing great financial problems which resulted in termination of the leases of their stores, and that the landlords later handed over the properties to Reliance group.
During the hearing, the Hon’ble Supreme Court asked if it can pass any restraint orders without hearing the landlords. The Supreme Court will continue the hearing on April 4 , 2022.
The bench consist of the Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli was hearing Amazon's appeal against the Delhi High Court order which stayed the proceedings in the Singapore Arbitration Tribunal.
In the appeal, it has moved an application seeking to restrain the alienation of FRL assets. According to Amazon, assets must continue to remain with FRL and operate with FRL until matter is resolved by arbitral tribunal.
Senior Counsel Gopal Subramanium, appearing for Amazon, contended that the recommencement of arbitration is in the mutual interest of both the parties and added that there can be no sudden handover of assets to revise the status quo. He said that over 800 shops of Future Retail Limited have been vacated and taken over by Reliance group.
In response to FRL's submission that it was having no money to pay rent of their stores, Mr Subramanium submitted that in their own annual accounts authorised in July 2021, they said that they have enough money to play all rentals and there is no document to show they couldn't pay the rentals .
After that Senior Advocate Aspi Chinoy appearing for Amazon submitted that counter filed by FRL proves that transfer to shops to Mukesh Dhirubhai Ambani group was collusive and a consensual act.
He also said while in their case they couldn't pay the rent and had to surrender to landlords, 800 of these leases were then handed over to MDA group and as lessees they allowed same FRL to be the licensee .
"Is this remotely possible without connivance? I haven't heard of such cooperative lessees in India", Mr Chinoy remarked.
Senior Advocate Harish Salve, appearing for FRL, informed the court that FRL still has 374 stores with it and the rest of the stores are with Reliance.
"Reliance entered into agreements with landlords. We owe them 3000 crores of rentals. Once this goes into section 7 of THE Insolvency and Bankruptcy Code , 2016[1], all this will come to an end.
No one wants to do business with FRL as section 7 may come in any day. For 1400 crores Amazon destroyed a 2400 crore company." Mr Salve said
"You said you have 374 stores. You say you haven't paid for any of them. Are you in occupation in default?" the bench asked
"Hanging by thread. My bank accounts are frozen. I can't pay rent. Everyone's hoping that if the scheme gets through Reliance will come in and everyone will get the money. That is where we are, it’s the hard reality that's where Amazon has got us", Mr Salve said.
Senior Advocate Mukul Rohatgi appearing for Future Coupons Private Ltd contended that if leases cannot be honoured and rent cannot be paid the landlords are entitled to get the shops back.
Opposing Amazon's prayer in its application, Mr Rohatgi submitted that there can't be an interlocutory order in an appeal where this issue doesn't arise.
"In February 2022, we couldn't find a solution to NPA, bank accounts were frozen. Nobody today is willing to give us anything today. 374 stores somehow we are running today, we're managing. Most employees have left. Amazon wanted to destroy us and they have", Mr Salve said.
Senior Advocate Rakesh Dwivedi appearing for the group of banks submitted that no interim order should be granted which goes against banks' interest and their interest shouldn't be prejudiced.
In the Future- Amazon dispute, the lawyers on behalf of the American e-commerce giant Amazon had on an earlier occasion proposed to have an informal dialogue with the Future Group to settle the dispute amicably.
Senior Advocate Gopal Subramanium for Amazon had later informed the Court that the dispute could not be resolved through discussion.
AMAZON'S NOTICE:
Amazon has also issued a public notice alleging that Future Group is on the verge of purportedly allowing handing over of the retail assets to Reliance in violation of orders of the Arbitral Tribunal and submissions made by it before the Supreme Court .
According to Amazon, Future Retail Limited and its promoters made false submissions before the Supreme Court stating that the retail assets would continue to vest in FRL until the scheme of arrangement with Reliance was finally approved by the NCLT.
'These false statements were made knowingly as FRL was on the verge of purportedly allowing handing over of the retail assets to the MDA Group.' the public notice issued by Amazon states .
The notice has warned parties who assist or cooperate with FRL in transferring, disposing, or alienating its assets, of civil and criminal consequences under law.
The public notice has stated that any attempt by Future Retail Ltd and its promoters transfer/dispose/alienate any of its retail assets is in violation of binding orders of the Arbitral Tribunal, and party assisting or cooperating in such actions will be liable for civil and criminal consequences under law.
According to the public notice, any attempt by Future Retail Ltd and its promoters to transfer/dispose/alienate any of its retail assets would be in violation of the Arbitral Tribunal's binding orders, and anyone assisting or cooperating in such actions would be subject to civil and criminal penalties
BACKGROUND:
Amazon filed a special leave petition against the Delhi High Court's judgement staying further arbitration proceedings before the Singapore Tribunal against Future Group. The bench, comprising of CJI NV Ramana, Justice AS Bopanna, and Hima Kohli, was hearing the case.
The division bench's impugned order also stayed the Single Judge's judgement[2] dismissing Future Group's petition contesting the two orders of the Singapore Arbitration Tribunal deferring the hearing of Future's petition seeking termination of Amazon's arbitration proceedings.[3]
The High Court also issued notice on the two appeals brought by Future Retail Ltd. and Future Coupons Pvt. Ltd., both of which challenged the stated Single Judge ruling and ordered it to be returned by February 1, 2022.
Future Group relied on a decision passed by the Competition Commission of India on December 17, 2021, which stayed Amazon's contract with Future Group.[4]
Before the Supreme Court, Amazon has argued that the impugned interim order injuncting an ongoing international commercial arbitration seated in New Delhi under SIAC Rules presided over by a distinguished Arbitral Tribunal and involving parties and experts from across the world is strikingly contrary to the provisions, intent and purpose of the Arbitration and Conciliation Act which emphasises party autonomy and minimum judicial interference. [5]
SINGLE JUDGE'S OBSERVATIONS
The Court was of the view that just because the hearing of the termination application was scheduled for a date after the hearing of the expert witnesses, it did not mean that the Arbitral Tribunal was not willing to consider the said applications on merits or was discounting the merits of the said applications.
The Court further noted that prima facie, there was nothing to suggest that the Arbitral Tribunal denied equal opportunity to the parties or that the Arbitral Tribunal was not accommodating towards requests made by the Future Group.
The Hon’ble Court Said that
“As noted hereinabove, there is nothing to suggest that the Arbitral Tribunal has denied equal opportunity to the parties or that the Arbitral Tribunal has not been accommodating towards requests of the petitioners. Mere fixation of tight timelines or denial of requests for adjournment by the Arbitral Tribunal or deciding the order in which the Arbitral Tribunal considers the applications filed by the parties cannot be reason enough to contend that the orders of the Arbitral Tribunal are perverse or lacking in inherent jurisdiction.
Therefore, no exceptional circumstances or perversity have been demonstrated/made out in the petitions or during the hearing to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India.
31. Furthermore, all rights and contentions of the petitioners with regard to the violation of any provisions of the statute as well as the arbitration being conducted in violation of the agreement would be open to challenge by the petitioners under Section 34 of the Arbitration and Conciliation Act’.[6]
Case Title: Amazon.com NV Investment Holdings LLC vs Future Coupons Private Limited & Ors, Amazon.com NV Investment Holdings LLC vs Future Retail Ltd & Or
[1]SECTION 7 OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016
INITIATION OF CORPORATE INSOLVENCY RESOLUTION PROCESS BY FINANCIAL CREDITOR.
7. (1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation.—For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor.
(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed.
(3) The financial creditor shall, along with the application furnish— (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board.
(4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3).
(5) Where the Adjudicating Authority is satisfied that— (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application;
or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority
. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5).
(7) The Adjudicating Authority shall communicate— (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of admission or rejection of such application, as the case may be.
[2] FAO(OS) (COMM) 21/2021
[3]FUTURE COUPONS PRIVATE LIMITED & ORS. VERSUS AMAZON.COM NV INVESTMENT HOLDINGS LLC & ORS., SLP(C) Nos.13556-13557/2021 (XIV)
[4] https://www.cci.gov.in/sites/default/files/Notice_order_document/Order-688.pdf
[5] AMAZON.COM NV INVESTMENT HOLDINGS LLC V. FUTURE RETAIL LIMITED & ORS, CIVIL APPEAL NOs. 4494-4495 OF 2021
[6] Future Coupons Private Limited & ... vs Amazon.Com Nv Investment ... on 4 January, 2022, CM(M) 2/2022 & CM No.176/2022
