Amazon -Future Dispute : Fair Opportunity Must In A Case Of 'This Magnitude', Says Supreme Court [Full Court Room Exchange]

The Supreme Court on Thursday stayed the proceedings in the Delhi High Court in relation to the attachment of the assets of Future Retail Limited and its promoters for alleged breach of the Emergency Award passed in favour of Amazon.The Court also asked all authorities including the NCLAT, CCI and the SEBI to not pass final orders for four weeks in relation to the Future-Reliance deal. " The issue is, we must be fair. In a matter of this magnitude, if hearing takes place without giving an opportunity of filing proper counter affidavit to parties, how can one pass orders like attaching property, pay cost, civil imprisonment etc. What is this!", the Chief Justice of India NV Ramana remarked before passing the interim order. A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice AS Bopanna was hearing special leave petitions filed by Future Coupons Private Ltd and Future Retail Ltd against the order passed by the single bench of the Delhi High Court. The Single Bench Order directed the attachment of assets of Future group companies and its promoters, Kishore Biyani and others, for alleged breach of the Emergency Award. The single bench had also issued a show-cause notice for the civil arrest of Biyani and other directors of Future Group The observation was made after submissions were made on behalf of Future Retail and FCPL that impugned orders were passed by the Single Bench after hearing the case for just three days, without hearing all the parties and without giving sufficient time to file their replies. The submissions were however opposed by Amazon saying that the order was passed after 8 days of arguments, including filing and arguing of submissions; nobody was denied an opportunity to be heard. Supreme Court on Thursday heard elaborate arguments by Senior Advocates Harish Salve and Mukul Rohatgi for Future group and Senior Advocate Gopal Subramanium for Amazon. Courtroom Exchange: Order of Single judge is wrong & contrary to Natural Justice: Senior Advocate Harish Salve for Future Retail Elaborating on the issue in the present matter, Senior Advocate Harish Salve appearing for FRL stated that: "An order was made by Emergency Arbitrator on 25th Oct 2020. An Arbitration is invoked on agreement between Amazon and Future Coupons Private Ltd(FCPL). I have a contract, a shareholder agreement with FCPL, the Indian Company which has agreement with Amazon. They invoke arbitration under FCPL- Amazon arbitration agreement and add me as a party to arbitration. I go to the emergency arbitrator and tell him I'm not party of the agreement and of the Arbitration. I tell him if you hold I'm party to the agreement it will be illegal as Government of India has not allowed foreign direct investment in multi brand retail. Therefore If you hold Amazon has interest in me, it will violate the law. The Emergency Arbitrator in Singapore didn't quite follow the point". Salve further added that "FRL filed a suit in Delhi High Court and claimed that the arbitration is not being challenged and claimed that, Amazon is making incorrect representation to SEBI, CCI etc in relation to a deal we have for selling our assets to Reliance. In the pandemic, retail was worst hit and revenues went down, got down in serious difficulty. We entered into a deal where Reliance is bringing in 26000 crores, all Banks will be paid off, and shops will be running. We wanted to push that deal. In that deal, my promoters get nothing." Explaining the Delhi High Court's interim order in the suit filed by FRL, Salve stated that the Bench held that emergency arbitrator can pass the order, held that the suit is maintainable, the resolution was valid, Directors have a fiduciary responsibility and can't blindly follow the shareholders. The Single Bench went to the extent of saying that Amazon's conduct was illegal but said it won't injunct them from making a representation. It also directed all statutory authorities to hear what both sides have to say. Mr Salve added that Amazon, in January, moved single-judge Bench of the Delhi High Court for enforcement of the order of the Emergency Arbitrator. "Day to day hearing went on. One of the things the Judge held against is that we had not taken a proper pleading of nullity. When we asked for time to respond to the application, we were not given time. We were not even given 5 days time to file a reply. And then see the order!" Salve remarked. "The first order was on 28th January and arguments were partly heard. The second was on 29th January, 2021 when notice issued. The arguments were heard from 2:45-4:30 and the matter was listed on 1st Feb. As if Amazon was on fire and would have collapsed if the court gave us 5 days time to reply!" Mr Salve remarked. Mr Salve added that the Single Judge closed the hearing on 1st February, listed the matter on 2nd February and issued an order...

Amazon -Future Dispute : Fair Opportunity Must In A Case Of 'This Magnitude', Says Supreme Court [Full Court Room Exchange]

Srishti Ojha

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