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Amazon on Tuesday while assailing the order of division bench of Delhi High Court told the Supreme Court that the high court erred in entertaining the Future group's appeal and granting it relief by paving the way for the Rs 24,713 crore merger deal with Reliance Retail.

Senior counsel Gopal Subramanium for Amazon said, award of Emergency Arbitrator’s award which had restrained Future Retail Ltd (FRL) from going ahead with its deal was enforceable and the high court under a provision of the Arbitration and Conciliation Act had to act to execute it and not sit in appeal against the interim award.

Senior Counsel for Amazon submitted that if a party adopted Singapore International Arbitration Tribunal Rules which provide for a proper framework, then the parties did not have the authority to self style as nullity & disobey the order. 

He further submitted that section 37 of the Arbitration Act did not provide for appeal against an order u/s 17(2). 

"It is an incompetent appeal u/s 13 of the Commercial Courts Act r/w order 43 of CPC. Provisions of CPC are available for supporting an enforcement action but enforcement originates under the Arbitration & Conciliation Act, 1996," contended Senior Advocate Subramanium while pressing for upholding the order dated March 18, 2021 passed by the Single Judge of Delhi High Court. 

“Award by EA has not been challenged by an appeal,” submitted the Senior Advocate for Amazon.

Bench of Justice RF Nariman and Justice BR Gavai was hearing an appeal against the Delhi High Court order dated March 22, 2021 passed by Hon’ble Chief Justice DN Patel & Justice Jasmeet Singh  that had stayed the order dated March 18, 2021 passed by a Single Judge that had upheld the emergency award.

On March 18, the Single Judge Bench of Justice JR Midha, Delhi High Court upheld the Emergency Award passed against Future-Reliance deal, observing that the Future Retail, Future Coupons, Kishore Biyani and others violated the Emergency Award.

The Court imposed a cost of Rs 20 lakh on Future group, to be deposited with the Prime Minister's Relief Fund for providing COVID vaccination to the Below Poverty Line category - senior citizens of Delhi.

Justice JR Midha while imposing the cost said that although the Future Retail, Kishore Biyani and others took Rs.1431 crore from Amazon, solely on the basis of the rights provided by FRL to FCPL that they would not transfer their retail assets without the prior consent of Amazon and never to a Restrict Person & since the agreement was breached, the parties intentions were dishonest & there was no remorse other than imposing a heavy cost. 

The court vide order dated March 18, had also said that the case fell under the consequences enumerated in Order XXXIX Rule 2A of CPC as Future Retail, Kishore Biyani and other parties deliberately and willfully violated the interim order passed dated October 25, 2020 & accordingly issued a show cause notice asking the violators as to why they should not be detained in civil prison for a term not exceeding three months.

Further, directing the attachment of assets of Kishore Biyani, Future Retail, Future Coupons and other parties, the Single Bench of Justice JR Midha ordered the filing of an affidavit detailing their assets. It further held that the Emergency Arbitrator had rightly invoked the 'Group of Company' doctrine in relation to the Future Group companies. The Future Group was also barred from taking further action in furtherance of the deal with Reliance.

Justifying the costs imposed on Future, the court said that the Emergency Arbitrator is an Arbitrator for all intents and purposes; order of the Emergency Arbitrator is an order under Section 17(1) and enforceable as an order of this Court u/s 17(2) of the Arbitration and Conciliation Act.

The Supreme Court Bench of Justice Rohinton Fali Nariman, Justice B.R. Gavai Justice Hrishikesh Roy on April 19, 2021 had stayed the Delhi High Court orders passed by Division Bench of Justice DN Patel & Justice Jasmeet Singh on March 22, 2021 & Single Judge Bench of Justice JR Midha on March 18, 2021.

“We will stay further proceedings before the Single Judge & Division Bench. Meanwhile, pleadings will be completed & matters will come up with other matters on 4th May. All counter affidavit & rejoinders to be filed within one week.”, the Bench remarked.

Case Title: Amazon.Com NV Investment Holdings LLC v. Future Retail & Ors|SLP(C) No. 6113-6114/2021