Bombay High Court
Prysmian Cavi E Sistemi … vs Vijay Karia And 76 Ors. on 6 February, 2026
Author: Abhay Ahuja
Bench: Abhay Ahuja
2026:BHC-OS:4754
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL EXECUTION APPLICATION NO. 21 OF 2021
Prysmian Cavi E Sistemi S.R.I (formerly
known as Prysmian Cavi E Sistemi Energia S.R.I.) ... Applicant
Versus
Vijay Karia and others ... Respondents
WITH
CHAMBER SUMMONS NO. 327 OF 2019
INTERIM APPLICATION NO. 1401 OF 2021
INTERIM APPLICATION (L) NO. 16939 OF 2023
IN
COMMERCIAL EXECUTION APPLICATION NO. 21 OF 2021
Mr. Darius Khambata, Senior Advocate, Mr. Zubin Behramkamdin,
Senior Advocate alongwith Mr. Tushar Hathiramani, Ms. Sneha
Jaisingh, Ms. Jaidhara Shah and Ms. Neeraja Barve instructed by
Bharucha & Partners, Advocates for the Applicant.
Mr. Vikram Nankani Senior Advocate alongwith Mr. Yash Momaya
alongwith Mr. Ayush Khandelwal and Ms. Kritika Mundra instructed by
TRD associates, Advocate for the Respondents No. 1,5 to 7, 9, 58A, 61,
65 and 66.
Dr. Birendra Saraf Senior Advocate a/w. Mr. Manthan Undakat i/b.
Undakat & Co. Advocates for Respondents No. Respondent Nos. 3, 4,
11 to 18, 46 to 48 & 77.
Mr. Karl Tamboly alongwith Mr. Ayush Khandelwal and Ms. Kritika
Mundra instructed by TRD Associates, Advocate for the Respondents
No. 20,22,23,25,27,28,31 to 34, 36 to 42, 22, 25, 50 to 57, 64 and 73.
Mr. Swayam Chopda, OSD to the Court Receiver and Ms. Nandini
Deshpande, 1st Assistant to the Court Receiver.
Mr. Ganesh Murthy i/b K.V. Aiyar & Associates Advocates for Applicants
in IA/147/2025
None for the Respondents No. 21,24 and 26.
CORAM : ABHAY AHUJA, J.
RESERVED ON : 11th NOVEMBER 2025
PRONOUNCED ON : 6th FEBRUARY 2026
Digitally
signed by
NIKITA
NIKITA YOGESH
YOGESH GADGIL Nikita Gadgil/AVK 1/93
GADGIL Date:
2026.02.20
19:27:57
+0530
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JUDGMENT:
–
1. The present Execution Application has been filed by the
Applicant Corporation for execution of a Final Award (which
incorporates by reference Three Partial Awards) passed by a Sole
Arbitrator in London under the London Court of International
Arbitration Rules (2014) (LCIA Rules) which has been held to be
enforceable against the Respondents in India.
2. The background facts are that, the Applicant Corporation, a
Company incorporated in Italy, manufacturing cables and systems for
energy and telecommunications and one Ravin Cables Limited (“the
Company”), a public limited unlisted company incorporated under the
Indian Companies Act, 1956 engaged in manufacturing various
electrical control and other cables entered into a Joint Venture
Agreement (JVA) on January 19, 2010 . The Respondents are referred
to in the JVA as existing shareholders, and were represented by the
Respondent No.1 herein. The Respondents hold 49% of the share
capital of the Company. Pursuant to the JVA, the Applicant company
became entitled to majority shareholding (51%) of the Indian Company
Ravin Cables. By a “Control Premium Agreement” of even date, the
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Applicant Company paid 5 Million Euro to the Respondents as control
premium for the acquisition of the share capital of Ravin Cables as a
result of which the Applicant would be entitled to manage and control
Ravin Cables by appointing three Directors on board and also appoint a
Chief Executive Officer in due course.
3. Around 2011-2012, the parties were at loggerheads for control
over the management of the Company. Each party claimed the other
had committed material breaches of the JVA. As a result of the disputes
that ensued between the parties, the Applicant on February 27, 2012,
issued a Request for Arbitration in terms of Clause 27 of the JVA
claiming that the Respondents had committed material breaches of the
JVA by ousting the Applicant from the control of the Company. On,
March 26, 2012 the Respondents responded to the request for
arbitration and included several counter claims.
4. On March 26, 2012 the Applicant served the determination
notice as required under the JVA to remedy/rectify the breach within
sixty (60) days from the date of notice. Time even beyond the sixty
(60) days period was given, but according to Applicant none of the
breaches were remedied. As a result, LCIA appointed a Sole Arbitrator
on June 6, 2012.
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5. The Arbitration proceedings culminated in the Arbitral Tribunal
publishing 4 (Four) separate Awards, Three Partial Awards dated
15.02.2013, 19.12.2013 and 14.01.2015 respectively and the Final
Award which incorporated the Three Partial Awards dated 11.04.2017
are sought to be enforced in the present petition.
6. The First Partial Award (‘FPA’) was passed on February 15, 2013
the scope of which was limited only to the issues of
interpretation/construction of the JVA and the question of jurisdiction.
7. The Second Partial Award (‘SPA’) was issued on December 19,
2013 which dealt with which of the parties materially breached the
terms and conditions of the JVA. The Tribunal held that the existing
shareholders, including the Respondents herein, were in material
breach of the JVA, which they failed to rectify and were therefore
obligated to sell all the shares held by them to the Applicant at a 10%
discount to the Fair Market Value. The date of assessment of the Fair
Market Value of shares to be transferred was linked to the date of sale
prescribed within 30 days of the Event of Default Notice.
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8. The Third Partial Award (‘TPA’) issued on January 14, 2015
confirmed the breach by the existing shareholders. The Tribunal
declared that “All rights of whatsoever nature conferred on the
Respondents and specifically Mr. Karia under the JVA have ceased to be
effective.”
9. By the Final Award dated April 11, 2017 the learned Sole
Arbitrator confirmed the aforesaid Three Partial Awards in favour of the
Applicant and directed and ordered as under:-
“57. For the reasons set out in this Final Award which itself
incorporates by reference the First, Second, and Third PFAs
and Procedural Orders 12, 13 and 14, the Tribunal HEREBY
FINDS, HOLDS, ORDERS AND DECLARES as follows:
1. The Respondents do transfer to the Claimant (Prysmian)
10,252,275 shares held by them to the Claimant (Prysmian)
at the Discounted Price of INR 63.9 share aggregating to INR
655,200,000/-
2. The Third Respondent Mr. Karia (who holds Power of
Attorney executed by each Existing Shareholder) do forthwith
and without delay execute the requisite transfer forms for
transfer of 10,252,275 shares in favour of the Claimant.
3. The Third Respondent and the Twelfth Respondent,Mr.
Piyush Karia’s, who purport to be and continue to act as
director of the Company fo forthwith and without delay:
A. Convene and hold a meeting of the Board of Directors of
the Company not later than 21 days after the date of this
Final Award limited to noting and registering the transfer of
10,252, 275 shares from the Respondents in favour of the
Claimant;
B. Table before that meeting the executed transfer forms;
C. Vote in favour of the resolution/motion to register the
transfer of the 10,252,275 shares in favour and in the name
of the Claimant andNikita Gadgil/AVK 5/93
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D. On registration of the transfer of shares as aforesaid to
resign from the Board of the Company as Chairman and
Managing Director and as Executive Director of the Company
respectively.
4. Each of the Respondents and particular the Third and
Twelfth Respondents, Mr. Karia and Mr. Piyush Karia are
restrained from acting themselves or through servants or
agents from
A. Claiming or attempting to exercise or exercising any rights
whatsoever under the JVA in relation to the Company
including but not limited to representation on the Board of
the Company or their consent or approval being required in
any matter relating to the Company whether at the Board of
the Company or at meetings of the shareholders of the
Company.
B. Claiming or attempting to claim, or representing to
attempting to represent the Company in any matter and in
any manner whatsoever.
C. Using or attempting to use any assets, properties or
facilities of the Company including but not limited to the
Company’s offices and communication facilities.
5.The Third and Twelfth Respondents, Mr. Karia and Mr.
Piyush Karia themselves or through servants or agents are
restrained from acting or claiming or holding themselves out
to be the Chairman or Managing Director and as Executive
Director, respectively or directors of the Company (except for
the limited purpose as set out in (3) above.)
6. The Respondents jointly and severally do pay to the
Claimant the legal and sundry disbursements costs of and
relating to this Arbitration in the sum of US. $ 2,317,199.82
7. The Respondents are to bear and insofar as not already
paid to reimburse the Claimant, the total costs of the
Arbitration as determined by the LCIA Court pursuant to
Article 28.1 of the LCIA Rules, which are £ 283043.71
8. All other claims of the Claimant and Respondents are
dismissed.”
10. The Respondents have not challenged the Final Award under the
English Arbitration Law. Thereafter, in 2019 the Applicant filed
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Commercial Arbitration Petition No. 442 of 2017 under Section 48 of
the Arbitration and Conciliation Act, 1996 (“Arbitration Act“) praying
for enforcement of the Foreign Award. The Respondents resisted the
enforcement on the grounds that the Tribunal has failed to determine
the Counter Claim of the Respondents and that the award was in
contravention of the Foreign Exchange Management Act, 1999
(“FEMA”) and various other objections were raised.
11. The said petition came to be allowed by a Learned Single Judge
of this Court (Coram: A K Menon, J, as His Lordship then was) by an
Order dated January 7, 2019 rejecting the objections raised by the
Respondents and holding the awards enforceable against the
Respondents thereby permitting the Applicants to proceed to execute
the awards.
12. On 1st February 2019, the Applicants filed the present Application
seeking execution of the Award against the Respondents, and thereafter
filed Chamber Summons No. 327 of 2019 on February 22, 2019 seeking
(i) injunction against Respondent No.1 and Respondent No. 11 from
exercising any rights under the JVA including but not to limited to
representation on the Board of Directors of the Company; (ii)
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injunction, against the Respondents from alienating assets; (iii)
appointment of the Court Receiver in respect of 1,02,52,275 shares;
and (iv) disclosure of assets of the Respondents.
13. On 26th March, 2019, the Respondents being aggrieved by the
Judgment dated 7th January, 2019 challenged the same by way of Civil
Appeals No. 1544 of 2019 and 1545 of 2019 filed before the Hon’ble
Supreme Court.
14. By Order dated 27th March, 2019 in Chamber Summons No. 327
of 2019, this Court directed the Respondent No. 1 to deposit in this
Court, all of the 1,02,52,275 equity shares and the Respondents were
directed to file disclosure Affidavits. Of the total shares, the
Respondents have deposited 91,30,175 shares with the Prothonotary
and Senior Master of the High Court and the balance 11,22,100 shares
are yet to be deposited.
15. On, 13th February, 2020 the Hon’ble Supreme Court vide its
judgment in Vijay Karia and Others v. Prysmian Cavi E Sistemi SRL and
Others1, dismissed the Civil Appeals filled by the Respondents rejecting
1 (2020)11 SCC 1
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all objections raised by them as to the enforceability of the Awards and
imposed costs of Rs. 50 Lakhs on the Respondents.
16. On, 19th June, 2020, the Applicant has filed Interim Application
No. 1401 of 2021 seeking appointment of 5 of it’s nominees to the
Board of Directors of the Company and to enforce and execute the
Awards and it’s rights under the Awards.
17. On 7th September, 2021, Respondent No. 70, Dineshchandra N
Shah filed Interim Application (L) No. 20259 of 2021 seeking
declaration that the Award dated April 17, 2017 be declared null and
void as against Respondents No. 70 and 78. Interim Application No. (L)
20259 of 2021 has been dismissed by a self operative order dated 09 th
September 2025 for non removal of office objections. That by Order
dated 09th September 2025, the Applicant has amended the Petition
and deleted Respondents No. 70 and 78.
18. The Respondent No. 1 had filed an Interim Application No. 216
of 2021 inter alia seeking to implead the Reserve Bank of India (the
“RBI”) in the Execution Application as according to the Respondents,
the RBI ought to be heard on the issue of sale and transfer of shares to
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the Applicant under the Award. The same came to be dismissed by this
Court vide its order dated 5th April, 2022 of this Court (Coram : B. P.
Colabawalla, J). Paragraph 4 of the said order is relevant and is quoted
thus:
“4. It is made clear that the points raised by the Applicants
in the above Interim Application (Original Respondents)
are kept open for the Respondents to agitate at the time of
opposing the above Execution Application or any
proceedings filed therein. It is further made clear that the
Applicants shall not be allowed to canvass in the future that
RBI needs to be joined as a party Respondent in the above
Execution Application or any proceedings therein.”
(emphasis supplied)
19. During the pendency of the Execution Application, the connected
Chamber Summons and the Interim Application No. 1401 of 2021, the
Respondent No. 1 continued to represent the Company in breach of the
Awards. The Applicants, therefore, initiated Contempt Proceedings
(Contempt Petition (Civil) No(s) 478 of 2022) against the Respondents
for breach of the Awards before the Hon’ble Supreme Court. By Order
dated 26th September, 2022 in Prysmian Cavi e Sistemi SRL Vs. Vijay
Karia & Anr.2, the Hon’ble Supreme Court disposed of the Contempt
Petition by passing the following order:-
2 Contempt Petition (Civil) Nos 478 of 2022 in Civil Appeal No. 1544 of 2020 decided on 26th
September 2022.
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“Heard Mr. Kapil Sibal, learned senior counsel.
The present proceeding under the Contempt of Courts Act, 1971 has
been initiated by the petitioner alleging willful disobedience of the
order of this Court passed on 13.02.2020. The appeal of the
respondent was in substance dismissed in connection with the
arbitration award.
Execution proceeding has been filed by the petitioner before the
Bombay High Court. In that execution proceeding certain stand has
been taken which according to Mr. Sibal, learned senior counsel, are
contumacious and it is for this reason, he argues, that the present
contempt proceeding has been taken out.
In our opinion, as the execution proceeding has already been filed,
the Execution Court ought to proceed in this matter expeditiously
and if any stand is taken by the judgment debtor, which is contrary
to the opinion of this Court, we need not add that the Executing
Court ought to ignore such stand.
With these observations, we dispose of the present contempt
petition under the Contempt of Courts Act with a request to the
Executing Court to conclude the execution proceeding within a
period of six months.
Pending application(s), if any, shall stand disposed of.
There shall be no order as to costs.”
20. On 2nd June, 2023, the Applicants filed Interim Application (L)
No. 16939 of 2023, seeking interim reliefs sought in the Chamber
Summons No. 327 of 2019 and Interim Application No. 1401 of 2021
alleging that Respondents’ were acting in breach of the Awards and
have also filed a Limited Additional Affidavit dated July 19, 2023 and
Additional Affidavit dated September 07, 2023 stating that the
Respondents No. 1 and 11 continue to hold themselves out and act as
Directors of the Company and have reappointed themselves as the
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Chairman and Managing Director and Whole Time Director respectively
causing the Company to enter into agreements to that effect.
21. It has been submitted that on, 21 st June 2023 and 30th August
2023, the Applicant’s nominee director on the Board of Directors of the
Company received notices from the Cost Audit Department of the
Ministry of Corporate Affairs, concerning the company’s non
compliance with the provisions of Section 148 of the Companies Act,
2013 for the financial years ending in 31 st March, 2019 and 31st March,
2021.
22. It has been submitted that on, 1st September 2023, the
Respondent No.1, acting as director of the company, in breach of the
Award, approved a circular resolution for the appointment of a Cost
Auditor for the financial year 2023-2024.
23. It is submitted that on 2nd September, 2023, by email addressed
to the Respondent No.1, Respondent no. 11 one Mr. Tayfun Anik, the
Company Secretary of the company circulated a Board Resolution
passed by Respondents No.1 and 11, convening the Annual General
Meeting of the Company in breach of Award.
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24. On 09th September 2025, the learned Senior Counsel for the
Applicant, on instructions, sought leave to withdraw the Interim
Application No. 1973 of 2021 and to delete Respondents No. 71,72,74
and 75 from the array of parties to the Execution Application which
was not objected to by the Respondents. Accordingly, the Interim
Application No. 1973 of 2021 was disposed of as withdrawn and the
Applicant was also permitted to delete Respondents No. 71,72,74 and
75 from the array of parties to the Execution Application and
amendments were directed to be carried out to the Execution
Application to that effect.
25. On 2nd September, 2025, Respondents No. 1, 5 to 7, 9, 58A, 61,
65 and 66 filed Interim Application No. (L) 27011 of 2025 seeking to
place on record letter of Reserve Bank of India dated 9 th August, 2025
and as the learned Senior Counsel for the Applicant had no objection.
This Court allowed the Interim Application.
26. On 10th November, 2025, the letter dated 9 th August, 2025 of RBI
(the “RBI letter”) was placed on record under an affidavit dated 10 th
November, 2025.
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27. As regards the issue with respect to the RBI letter dated 19 th
August, 2025, this Court has heard Mr. Momaya, learned Counsel
appearing for the Respondents No. 1, 5 to 7, 9, 58A, 61, 65 and 66
and Mr. Khambata, learned Senior Counsel appearing for the Applicant
in the matter on 11th November 2025. On the very same date, at the
request of the learned Senior Counsel for the Applicant, Respondents
No. 70 and 78, were permitted to be deleted from the array of parties
to the Execution Application which was not objected to by the
Respondents.
28. I have heard Mr. Darius Khambata, Mr. Vikram Nankani, Dr.
Birendra Saraf, Mr. Zubin Behramkamdin, learned Senior Counsel, as
well as Mr. Karl Tamboly and Mr. Yash Momaya learned Counsel at
length and also considered the rival contentions.
29. Mr. Darius Khambata, Learned Senior Counsel for the Applicant
has submitted that the Respondents have sought to re-agitate issues
concluded during enforcement proceedings, based on the specious
assertion that while a foreign award may be held to be enforceable
under Section 48 and 49 of the Arbitration Act, it does not ipso facto
render the award executable. That the Respondents’ conduct is in the
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teeth of the Hon’ble Supreme Court’s Order dated 26 September 2022
in Prysmian Cavi e Sistemi SRL v. Vijay Karia & Anr (supra) and the
executing Court ought to ignore any stand taken by the Respondents
which is contrary to the opinion of the Hon’ble Supreme Court.
30. Mr. Khambata has submitted that objections raised by the
Respondents regarding the illegality of the award cannot be raised in
the execution proceedings and thus ought to be disregarded. Mr
Khambata has urged that the executing court cannot go behind the
award and thus it is only where the award sought to be enforced is, on
the face of the record, wholly without jurisdiction and thus a nullity,
that an executing Court will interfere with the execution of an
award/decree. Mr. Khambata has submitted that a decree which is
illegal or not passed in accordance with the procedure laid down by
law cannot be termed in-executable by the executing court. The only
recourse in such situations is for the award debtor to have the decree
set aside in appeal/appropriate proceedings and which in the facts of
this case has not been done. Reliance has been placed on the following
judgments of the Hon’ble Supreme Court to canvass the aforesaid
submissions:
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i. Vasudev Dhanjibhai Modi v. Raja bhai Abdul Rehman & Ors3
ii. Rafique Bibi (Dead) by LRs v. Sayed Waliuddin (Dead) by LRs and
Ors4
iii. Bhavarlal Bhandhari v. Universal Heavy Mechanical Lifting
Enterprises5
31. Mr. Khambata has further submitted that Respondents’
contention that the executability of an award differs from the
enforceability of the award, is wholly devoid of merit. Mr. Khambatta
has relied upon the decision of the Supreme Court in LMJ International
Limited v. Sleep well Industries Company Ltd 6 wherein Hon’ble
Supreme Court has held that Section 48 of the Arbitration Act does not
envisage piecemeal consideration of the issue of maintainability of the
execution case concerning the foreign awards, in the first place; and
then the issue of enforceability thereof. Mr. Khambata has submitted
that in view of the legislative intent of speedy disposal of arbitration
proceedings and limited interference of courts, Courts are expected to
consider both these aspects simultaneously at the threshold and
adopting any other view would result in encouraging successive and
multiple rounds of proceedings for the execution of foreign awards,
which would run contrary to the object of the Act.
3 (1970)1 SCC 670
4 (2004) 1 SCC 287
5 (1999) 1 SCC 558
6 (2019) 5 SCC 302
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32. Mr. Khambata has submitted that Respondents’ objection to the
enforceability/executability of the Awards based on FEMA and NDI
Rules has been considered and rejected by this Court in its judgment
dated January 7, 2019 in Arbitration Petition No. 442 of 2017 as well
as by the Hon’ble Supreme Court in Vijay Karia and Others v. Prysmian
Cavi E Sistemi SRL and Others (supra). Mr. Khambata has submitted
that hence the Respondents are precluded from re-agitating the same
submissions in the present application.
33. Mr. Khambata has further submitted that, neither FEMA nor the
NDI Rules mandate that the transfer of shares is conditioned upon the
“prior permission” of the Reserve Bank of India. Mr. Khambata has
submitted that Section 3 of the FEMA relied upon by the Respondents
mandates “general or special permission of the Reserve Bank ” for
dealings in or transfers of ” any foreign exchange or foreign security to
any person not being an authorized person ” and for receiving
“otherwise through an authorized person, any payment by order or on
behalf of any person resident outside India in any manner. ” Mr.
Khambata has submitted that Section 3 of the FEMA mandates
“general or special permission” but it does not require such permission
to be prior permission and therefore the requirement of such ” general
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or special permission” cannot be construed to mean ” prior permission”.
In support, Mr. Khambatta has relied upon the following judgments:
i. Life Insurance Corporation of India v. Escorts Ltd7
ii. Videocon Industries Ltd. V. Intesa Sanpaolo SPA8
34. Mr. Khambata, has further submitted that with respect to the
Respondents’ contention relating to valuation as well as the appropriate
valuation date, the same have not only been considered and negatived
by the Arbitral Tribunal but also by this Court in the enforcement
proceedings and by the Hon’ble Supreme Court in Vijay Karia and
Others v. Prysmian Cavi E Sistemi SRL and Others (supra) and
therefore the same cannot be re-agitated before this Court.
35. Mr. Khambata has submitted that neither the FEMA Regulations
nor the NDI Rules nor the pricing guidelines contained therein impose
any restriction in respect of valuation date to be within 6 months from
the date of transfer. Mr. Khambata would urge that the Respondents
have deliberately misconstrued and wrongly summarized the RBI
guidelines and the correspondence between themselves and the RBI/
the Authorised Dealer Bank. Mr. Khambata has submitted that the RBI
has simply reiterated the NDI Rules and the pricing guidelines, but does
7 (1986) 1 SCC 264
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not say that the valuation should be within 6 months from the date of
the share transfer and receipt of consideration is mandatory but only
says that such a valuation is acceptable.
36. As regards the contentions, that the Interim Application No. 1401
of 2021 is barred by res judicata on account of the National Company
Law Tribunal (‘NCLT’) proceedings on the ground that the reliefs
sought fall within the exclusive jurisdiction of NCLT. Mr. Khambata, has
submitted that the Application before the NCLT was filed by Applicant
on 20th December, 2017 under Section 98 of the Companies Act, 2013
seeking directions requiring an AGM to be convened to appoint its
nominee directors, Alessandro Brunetti and Dileep Choksi on the basis
of its existing majority shareholding of 51% of the Company to enforce
in furtherance of Applicant’s right to representation on the Board
pending enforcement of the Awards. Mr. Khambata has submitted that
the Awards have since been held to be enforceable by this Hon’ble
Court by its judgment dated 07th January, 2019 and subsequently by the
Hon’ble Supreme Court in Vijay Karia and Others v. Prysmian Cavi E
Sistemi SRL and Others (supra). Consequently, the Applicant is now
entitled to take over the Company completely and the Respondents are
disentitled from exercising any rights in relation to the Company or on
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the Board. Mr. Khambata would submit that therefore now the
Applicant is entitled to nominate all the 5 directors, as set out in
Interim Application No. 1401 of 2021.
37. Mr. Khambata has further submitted that Section 98 of the
Companies Act contemplates the NCLT directing convening of a
meeting of a Company (i.e. an order passed directing the company to
hold a meeting) whereas the prayers sought for in Interim Application
No. 1401 of 2021 are qua the Respondents in enforcement of the
contractual rights confirmed by the Awards and they do not fall within
the purview of Section 98 of the Companies Act. In contrast, the
present application seeks enforcement of contractual rights to nominate
directors to the Board of the Company and Sections 241 or 242 of the
Companies Act pertain to proceedings complaining of oppression and
mismanagement in the affairs of a Company and therefore, the reliefs
sought herein are not covered under the scope of Sections 241or 242 of
the Companies Act.
38. Mr. Khambata therefore submitted that the reliefs sought by the
Applicant are neither barred by res judicata on account of NCLT
proceedings nor the reliefs sought fall within the exclusive jurisdiction
of the NCLT.
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39. Mr. Khambata has further submitted that the contentions of the
Respondents against Interim Application No. 1401 of 2021 are
untenable as the same are not only contrary to the express language of
Clause 23.7 of the JVA, but also since this very contention has been
rejected by the Arbitral Tribunal in the Third Partial Award at
paragraph 30.
40. Mr. Khambata has submitted that the reliefs sought for in Interim
Application No. 1401 of 2021 flow from the Awards, and the reliefs
sought fall within the powers of the executing court enumerated under
Section 51(e) of the Code of Civil Procedure, 1908 (“CPC“). Mr
Khambata has submitted that the Hon’ble Supreme Court in State of
Haryana v. State of Punjab & Anr 9 has held that the residuary power
under Section 51(e) allows a court to pass orders for enforcing a decree
in a manner which would give effect to it.
41. Mr Khambata has placed reliance on the judgment of the Division
Bench of the Calcutta High Court in case of Karthick Chandra Pal v.
Dibakar Bhattacharya10 cited in Babu Lal v. M/s. Hazari Lal Kishori Lal
9 (2004)12 SCC 673
10 (1950) ILR 1 Cal 350
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& Ors11 wherein the Calcutta High Court held that where a decree
directs specific performance of a contract, the details which flow do not
in any way limit the jurisdiction of the executing court to the particular
steps which are mentioned in the decree, but all such other steps,
which ought to be taken for giving full effect to the decree for specific
performance, are not only within the competence of the court but the
court is bound to assist the party to that extent.
42. As regards the Respondents’ contentions that the Applicant is
incapable and unwilling to run the Company or is acting to the
detriment of the Company Mr. Khambata, has submitted that these
contentions are entirely baseless in as much as Prysmian has never
been in management and control of the Company thereby negating the
Respondents claim that the Company could have incurred losses under
Applicant’s Management.
43. Regarding the letter of RBI which the Respondents have placed
on record, Mr Khambata has submitted that the RBI Letter was issued
pursuant to Mr. Karia’s letter dated 05th December, 2022 which was
written by Mr. Karia only 3 days prior to when the matter was
11 (1982)1 SCC 525
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originally reserved for orders by this Court and was never disclosed up
until the Respondents filed Interim Application (L) 27011 of 2025. Mr
Khambata has submitted that this is nothing but an impermissible
attempt to have RBI’s views represented before this Court contrary to
this Court’s order dated 05th April 2022 by which the Respondents were
restrained from raising the issue that “RBI needs to be joined as a party
Respondent in the above Execution Application or any proceedings
therein the future”.
44. Mr. Khambata has submitted that the RBI letter does not bear out
any new circumstance necessitating a renewed hearing of the issues
already argued and dealt with. That in fact, the RBI Letter records that
the RBI has no objection to the enforcement of the arbitration award
upheld by the Hon’ble Supreme Court of India and only additionally
states that the transfer of equity shares of the Company from the
Original Respondents resident in India to the Applicant must be in
accordance with FEMA 1999 and the FEMA NDI Rules, 2019 (including
the pricing guidelines contained therein). Mr Khambata has also
submitted that if the RBI chooses to direct that a price for the shares
higher than awarded is required under Rule 21(2) (b) (iii) of the NDI
Rules, then the Applicant subject to its right to challenge the RBI Order
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in accordance with law will either comply with the RBI Order in this
regard or seek the necessary permission/condition from the RBI.
45. On the deletion of Respondents No. 70,71,72,74,75 and 78 from
the array of parties to the Execution Application, Mr. Momaya, learned
Counsel for the Respondents No. 1, 5 to 7, 9, 58A, 61, 65 and 66 has
submitted that the said amendment has far reaching consequences on
the execution of the Award in the sense that the arbitral proceedings
from which the Award that is sought to be executed were for specific
performance of the JVA, and that Clause 23.4 and Clause 23.5.2, as
also Clause 23.5.1 clearly provide for purchase by the Applicant of all
but not less than all of the shares of the Company held by the
Respondent Mr. Karia and the Existing Shareholders. Mr. Momaya has
referred to the SPA which recorded the provisions of Clause 23.4 and
thereafter consequentially directed and ordered that the Respondents
are required to sell to the Applicant all of their shares and that the
Applicant is ordered to buy all of the Respondents’ shares and that the
same is also crystallized in the Final Award at paragraph 57.
46. Mr. Momaya has submitted that the Applicant is unilaterally
seeking to purchase some but not all of the shares held by the Existing
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Shareholder and the same amounts to rewriting of both the Award as
also the underlying JVA. That it is not open to the Applicant to seek to
acquire some but not all of the shares held by Mr Karia and the Existing
Shareholders in execution and the same be tested on one touchstone –
what would the position have been in the Arbitral Proceedings. That in
the arbitral proceedings, if the Applicant had sought to acquire some
but not all of the shares in exercise of its rights under Clause 23 of the
JVA, the same would have been necessarily rejected as being a right not
available to the Applicant under the contract and had the Applicant
sought to do so, not only would it have been acting contrary to the
contract but, it would have been demonstrating ex-facie a lack of
readiness and willingness, disentitling it from relief. Mr. Momaya has
relied upon the following decisions in his written submissions in
support of the aforesaid contention:
i. Shree Ambika Medical Stores & Ors. v. Surat People‘s Co-
operative Bank Ltd12
ii. Maharashtra State Electricity Distribution Company Limited v
Maharashtra Electricity Regulatory Commission & Ors13
iii. Moti Lal Banker (Dead) by His Legal Representative v. Maharaj
Kumar Mahmood Hasan Khan1412 (2020) 13 SCC 564
13 2022 4 SCC 657
14 1968 SCC OnLine SC 219Nikita Gadgil/AVK 25/93
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47. Mr. Momaya has submitted that a partial execution of the award
is not permissible in law or under the JVA and an Award must either be
executed as a whole, or not at all- this is all the more so for an award
for specific performance which contains reciprocal obligations upon
each side, and it is not open to the Applicant to undertake piecemeal
action/partial execution.
48. The next objection canvassed by Mr. Momaya, is that Mr. Karia ,
had preferred an Application under Rule 3 read with Rule 4 of NDI
Rules, 2019 to the Reserve Bank of India which supports the
Respondents objection to the execution of the Award as the same
mentions that the transfer of the equity instruments of the Company
from persons resident in India (Mr. Karia and other shareholders) to
the foreign investor viz., Prysmian Cavi E Sistemi SRL must be in
accordance with the extant FEMA, 1999, rules, and regulations made
thereunder, including adherence to the pricing guidelines prescribed
under the Foreign Exchange Management (Non-Debt Instruments)
Rules, 2019. Mr. Momaya has submitted that therefore the Executing
Court cannot grant any relief for transfer of shares till the same is in
accordance with FEMA.
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49. In response, Mr. Khambata has submitted that under the JVA,
specifically in terms Clause 28.16, Mr Karia is the constituted attorney
holder for all Existing Shareholders and is the ” sole Prysmian
interface”. Mr Khambata has submitted that in any event the reliefs
sought by the Applicant are severable, each relief is independent and
distinct from the other reliefs sought which is evident from the TPA
which clarifies that the Respondents’ obligation to sell their shares is in
addition to their obligation to give up their rights under the JVA. Mr.
Khambata has submitted that the total shareholding of the Respondents
No. 70,71, 72, 74,75 and 78 in the Company constitutes 0.55% and no
prejudice will be caused as alleged by the Respondents. Mr. Khambata
has submitted that partial execution of a decree that grants separate
reliefs is permissible in law and relies upon the decision of this Court in
the case of Panaji Girdharlal v Ratanchand Hajarimal Marwadi 15 in
support.
50. Mr. Khambata has submitted that therefore this Court be pleased
to allow Interim Application No. 1401 of 2021 and dismiss / disregard
the objections raised by the Respondents and be pleased to pass an
order of injunction in terms of prayer clause A (ii) of the Chamber
15 1933 SCC Online Bom 8
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Summons restraining Respondents No. 1 and 11 from
acting/claiming/holding themselves out and acting as Directors of the
Company.
51. Mr. Khambata has also submitted that the Applicant is seeking
set-off against the aggregate transfer price payable by the Applicant to
the Respondents, the legal and sundry disbursement costs of USD
2,317,188.82 and Euro 2,38,034.71 payable by the Respondents under
Order XXI, Rule 19(b) of the CPC and that this Court may grant the
same.
52. Mr. Khambata has finally submitted that the Respondents have
employed dilatory tactics to derail the execution proceedings and that
any such attempts ought to be dismissed in terms of the Hon’ble
Supreme Court’s Order dated 26th September 2022 passed in Contempt
Petition (Civil) No. 478 of 2022 which directs the executing court to
ignore any stand taken by the Respondents which is contrary to the
opinion of the Hon’ble Supreme Court and the reliefs as sought for in
the Execution Application as well as the Interim Applications and
Chamber Summons be granted and that costs also be imposed upon the
Respondents for such dilatory tactics.
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53. Mr. Vikram Nankani, Learned Senior Counsel for the
Respondents No. 1,5 to 7, 9, 58A, 61, 65 and 66 has submitted that a
foreign award cannot be put directly into execution, but first must go
through the rigours of Section 48 and 49 of the Arbitration Act. That
there is a two-step process, first being the enforcement and thereafter
execution of a foreign award in India. That once a foreign award is held
to be enforceable under Section 48 of the Arbitration Act, it is deemed
to be a decree of that Court; and can be executed as though it were a
decree of that Court. Execution must necessarily be under the
provisions of municipal law, viz. the CPC and particularly Order XXI
and Section 47. That merely because a foreign award is held to be
enforceable under Section 48 does not necessarily mean that the
foreign award can be or should be executed by the domestic court
under the CPC.
54. Mr. Nankani has submitted that I.A. No. 1401 of 2021 and
Chamber Summons No. 327 of 2021 cannot be decided before deciding
the execution application and only after the award is held to be
executable, can the reliefs claimed in the Chamber Summons and the
Interim Applications be considered.
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55. Mr. Nankani has relied upon the decision of the Apex Court in
Forasol v. Oil and Natural Gas Commission 16, submitting that no Court
can pass a decree directing the Defendant to do an impossible or an
illegal act. Mr. Nankani has submitted that even in Forasol v. Oil and
Natural Gas Commission (supra), the Hon’ble Supreme Court caveated
it’s judgment on enforceability as being subject to the obtaining of
approvals under Foreign Exchange Regulation Act, 1973 (the “FERA”)
from the concerned authorities.
56. Mr. Nankani has further submitted that whilst the executing
court cannot go behind the decree there are circumstances in which the
executing court can refuse execution. Mr. Nankani has relied on the
decision of the Hon’ble Supreme Court in Dhurandar Prasad Singh v.
Jai Prakash University17 in support of this contention. Mr. Nankani has
submitted that these include a situation when the decree is not capable
of execution under the law because the same was passed in ignorance
of such a provision of law. Mr. Nankani has submitted that the Court
cannot direct a party to do something in compliance of a decree which
will, in effect result in violation of law.
16 1984 Supp SC 263
17 (2001) 6 SCC 534
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57. Mr. Nankani has submitted that the transfer of shares would
amount to a capital account transaction as defined in Section 2 (e) of
FEMA. Therefore under Section 6 (2A) of the FEMA, the Central
Government in consultation with the RBI, is empowered to prescribe
any class or classes of capital account transactions, not involving debt
instruments, which are permissible, and any conditions which may be
placed on such transactions. That under section 46 (2) (ab) of FEMA,
the Central Government is empowered to make rules governing the
permissible classes of capital account transactions in accordance with
Section 6 (2A) FEMA and the prohibition, restriction or regulation of
such transactions.
58. Mr. Nankani, has further submitted that as on date, the
applicable rules in this regard are the NDI rules. Under the NDI Rule 2
(ac), the Applicant is seeking to make an investment by executing the
Final Award i.e. transfer of a security and the same is an investment as
defined in the NDI Rules. Equity shares constitute non-debt
instruments, as defined in Rule 2 (ai) of the NDI Rules. Further, Under
Rule 2A, the RBI has the power to administer the NDI Rules, and may
interpret the same and issue such directions, circulars, instructions,
clarifications, as it may deem necessary, for the implementation of the
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NDI Rules. That under Rule 3, there is an absolute restriction on a
person resident outside India, in the present case the Applicant, making
an investment in India, except in accordance with the NDI Rules. The
Second Proviso, however permits the RBI, on an application made to it
and for sufficient reasons, to permit a person resident outside India to
make an investment in India subject to such conditions as the RBI may
consider necessary. That under Rule 4, there is an absolute restriction
on an Indian entity such as the Respondent Company from receiving
investment in India from a person resident outside India, except in
accordance with the NDI Rules. Under Rule 5, an investment by a
person resident outside India is subject to entry route sectoral caps, or
investment limits, as the case may be and the attendant conditionalities
for such an investment is laid down in the NDI Rules. That Rule 9 (3)
provides that a person resident in India holding equity instruments of
an Indian company, may transfer the same to a person resident outside
India by way of sale, subject inter-alia to adherence to the pricing
guidelines. These pricing guidelines are provided under Rule 21, and
under Rule 21 (1) (b) (iii), the price of equity instruments of an Indian
company transferred from a person resident in India to a person
resident outside India shall not be less than the valuation of equity
investments done as per any internationally accepted pricing
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methodology for valuation on an arm’s length basis duly certified by a
Chartered Accountant or a Merchant Banker registered with the
Securities and Exchange Board of India (the “SEBI”) or a practicing
Cost Accountant, in case of an unlisted Indian company.
59. Mr. Nankani has submitted that the NDI Rules must, necessarily,
be complied with before any transfer can take place. The NDI Rules
pre-suppose that the transfer will take place at a price fixed as per the
pricing guidelines. Rules 3, 4, 5, 9 (3), and 21 (1) (b) (iii) ought to be
read together, the cumulative effect of which is that a transfer must be
in accordance with the pricing guidelines. That in the present case, the
transfer is to take place in accordance with the valuation arrived at by
Deloitte Report, which is not in accordance with the requirements of
FEMA.
60. Mr. Nankani further submitted that the valuation adopted in the
Final award viz. the valuation of Deloitte is non-compliant with the
requirements of FEMA as the value of the Company’s stake in Power
Plus, was not taken into account and the contra report issued by BDO
(Binder Dijker Otte) which arrived at valuation orders of magnitude
higher than either Deloitte Report or Kalyaniwalla and Mistry Report
was not taken into account.
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61. Mr. Nankani has submitted that in order to comply with the law
of transfer of such shares of an Indian Company by an Indian Resident
to a Non-Resident, it is incumbent to first arrive at a correct fair market
valuation as per the FEMA Regulations and directions/procedures of
the Authorized Dealer Bank. Mr. Nankani has further submitted that it
is only after carrying out such valuation that in execution of the Decree
can the said shares be transferred as per the procedure laid down in the
FEMA Regulations and various Rules made there under.
62. Mr. Nankani has submitted that pricing guidelines as per the
Rules need compliance simultaneously with transfer and that there is
no provision for post facto approval. The trigger event is transfer of
shares, accordingly the consideration for transfer cannot be anything
other than the lawful price in accordance with the NDI Rules. That
hence a transfer of shares in violation of Rules 3, 4, 5, 9 (3) and 21 is
not a rectifiable breach. That transfer of shares in execution presently
sought, the price of which, as per pricing guidelines must be
determined contemporaneously to the transfer.
63. Mr. Nankani has submitted that the Applicant has consciously
and voluntarily invited an award on a representation to the Tribunal
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that necessary approval of RBI shall be obtained. The pricing guidelines
under the NDI Rules require a current valuation, or at the very least a
recent valuation.
64. Mr. Nankani has further submitted that apart from the pricing
guidelines, in the present case, the valuation of the equity shares is of
the year 2014, as against a transfer that is to take place in 2025/2026
i.e. nearly a decade later.
65. Mr. Nankani has submitted that in case of non-compliance, the
Respondents as recipients would face huge penalties under Section 13
of FEMA, in the teeth of the bar under Rule 4.
66. Mr. Nankani has further submitted that under Regulation 3.1.
Schedule I of the Foreign Exchange Management (Mode of Payment
and Reporting of Non Debt Instruments) Regulations, 2019 (NDI
Payment and Reporting Regulations), the mode of payment is required
to be adhered to. Under sub-regulation (3), if the sale is not completed
within 60 days, monies are required to be refunded within 15 days
thereafter. Under sub-regulation (4) the Respondents will each be
required to open escrow accounts in which the monies will have to be
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deposited. That under Regulation 4(3), Form FC TRS is required to be
submitted and the onus is on the resident transferor, i.e. the
Respondents. That Form FC – TRS requires a solemn declaration from
the Respondents that the pricing guidelines (in NDI Rules) have been
complied with.
67. Mr.Nankani has further submitted that the Applicant has failed to
show its readiness and willingness to fulfill its obligations under the
final award. Mr.Nankani has placed reliance on the decision of the
Hon’ble Supreme Court in the case of Jai Narain Ram Lundia vs. Kedar
Nath Khetan18 and has submitted that when a decree imposes
reciprocal obligations on party it must be executed wholly as decreed
or not at all.
68. Mr. Nankani has submitted that the Appointment of Directors
and injunctions against the Respondents, as sought for by the Applicant
cannot be granted in Execution, that there is no provision, order or
direction in the Final Award that entitles the Applicant to seek to have
its directors appointed as is sought. Mr Nankani has submitted that the
Final Award does not provide for this in any manner and that the
18 AIR 1956 SC 359
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jurisdiction for appointment of directors in the manner sought by the
Applicant lies with the NCLT under Section 98 of the Companies Act,
2013 and the Applicant has in fact already exercised this legal remedy
available to it by filing a Petition being Company Petition No. 833 of
2017 before the NCLT for having its directors appointed to the Board
and the same is reserved for Orders by NCLT. Mr. Nankani has relied on
the decision of the Hon’ble Supreme Court in the case of Cheran
Properties Ltd. v. Kasturi & Sons19 in support.
69. Mr. Nankani therefore submitted that the Applicant cannot
engage in forum shopping and attempt to ride two horses at the same
time as it is seeking to do. Learned Senior Counsel has further
submitted that seeking appointment of directors in execution
proceedings is not a matter of incidental or consequential relief as is
sought to be made out by the Applicant and that it is a new and fresh
relief sought for the first time and cannot be granted in execution
proceedings, whether as an interim relief, or a final relief. Mr. Nankani
has submitted that the Applicant is seeking to re-write and modify the
award.
19 (2019) 16 SCC 413
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70. Mr. Nankani has further submitted that in the event the Final
Award is held to be not executable in relation to sale and/or transfer of
shares at a later date, or the transfer is to take place at a higher value
as determined under FEMA, which higher value if the Applicant fails to
pay, it will be impossible to put the clock back in respect of all the
decisions that have taken by the nominee directors of the Applicant
during interregnum. Mr. Nankani has therefore submitted that the
Executing Court cannot grant any relief whether in respect of
appointment of directors or injunctions against Respondent No.1 and
Respondent No. 11 till the transfer of shares is finally concluded in
accordance with FEMA.
71. Mr. Nankani has submitted that therefore in the circumstances
this Court not grant any relief as the award is not executable and in the
absence of RBI permission, the execution as prayed for will result in
violations of FEMA.
72. Dr. Birendra Saraf, Learned Senior Counsel appearing for
Respondents No. 3, 4, 11 to 18, 46 to 48 and 77 in furtherance of the
submissions advanced by Mr. Nankani has submitted that, there is a
material difference in the scope of enquiry and the powers by a Court
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in proceedings for enforcement of a foreign award under Section 48 of
the Arbitration Act and the execution of an award as a decree of the
Court after the Court is satisfied that the award is enforceable.
73. Dr Saraf has submitted that, the proceedings for enforcement of
a foreign award are considered on the basis of the narrow grounds
specified in Section 48 of the Act. If the challenge doesn’t fit into the
narrow window of challenge, conditions made available from grounds
(a) to (e) and the Court is satisfied that the award is enforceable, the
award is “deemed to be a decree” of that Court under Section 49 of the
Arbitration Act. That the decision of the Hon’ble Supreme Court in
Vijay Karia and Ors v. Prysmian (supra) holds that the award is
enforceable, however the executing Court has to see that the award is
to be executed subject to certain compliances, regulatory or otherwise.
That a foreign award may be governed by foreign law and also
enforceable but that does not mean that at the stage of execution,
compliance with the provisions of Indian law or Indian statute has to be
overlooked.
74. Taking this Court to Part II of the Arbitration Act, which deals
with enforcement of certain foreign awards, and to the definition of a
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foreign award in Section 44 of the Arbitration Act and to Section 46 of
the Arbitration Act which provides as to when a foreign award is
binding, Dr Saraf has submitted that any foreign award which would be
enforceable under this chapter shall be treated as binding for all
purposes on the persons as between whom it was made and may
accordingly be relied on by any of those persons by way of defence, set
off or otherwise in any legal proceedings in India.
75. Dr. Saraf has submitted that the enforceability of a foreign award
only means that the said award can be relied in proceedings by way of
defence, set off but that cannot mean that an enforceable foreign award
is executable without reference to the provisions of the CPC applicable
to execution of decrees. Dr. Saraf has submitted that Section 49 of the
Arbitration Act reiterates this position when it provides that where a
Court is satisfied that the foreign award is enforceable, the award shall
be deemed to be a decree of the Court. Dr. Saraf has submitted that
once an award is deemed as a decree of the Court then the provisions
applicable to execution of decree under the CPC become applicable and
the executing Court has to consider that.
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76. Referring to the decision of the Hon’ble Supreme Court in Vijay
Karia and Others v. Prysmian Cavi E Sistemi SRL and Others (supra)
holding that the subject award is enforceable, Dr. Saraf has submitted
that the said decision has primarily dealt with the aspect of breach of
the fundamental policy of India and not with the breach of specific
provision of statutes in India.
77. Dr. Saraf has relied upon Rules 3 and 9 of the FEMA Rules and
upon paragraphs 97,98,102 and 110 of Cruz City Mauritius Holdings v.
Unitech Ltd20 which have been cited by the Hon’ble Supreme Court in
Vijay Karia and Others v. Prysmian Cavi E Sistemi SRL and Others
(supra) in paragraphs 87 and 88 in support of his contentions. Heavily
relying upon paragraph 88 of the said decision, Dr. Saraf submits that
even the Hon’ble Supreme Court has observed that if the foreign award
directs shares to be sold at a sum less then the market value, the
Reserve Bank of India may choose to step in and direct that the said
shares be sold only at the market value and not at the discounted value
or the Reserve Bank of India may choose to condone such a breach.
20 2017 SCC Online Del 7810
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78. Dr. Saraf has submitted that the fundamental policy of Indian law
must amount to a breach of some legal principle or legislation which is
so basic to Indian law that it is not susceptible of being compromised.
Relying upon paragraph 88, Dr. Saraf has submitted that fundamental
policy refers to the core values of India’s public policy as a nation which
may find expression not only in statutes but also in the time honoured,
hallowed principles which are followed by Courts. Judged from this
point of view, Dr Saraf has submitted that the enforcement of the
foreign award was upheld. Dr Saraf has further submitted that the
expression fundamental policy of Indian law refers to the principles and
the legislative policy on which Indian statutes are founded which
cannot be expected to be compromised but not to any specific provision
of law including FEMA, which will have to be looked into by the
executing Court.
79. Dr. Saraf further relied upon the decision of the Hon’ble Supreme
Court in the case of Union of India v. Vedanta Ltd 21 to submit that a
party holding a foreign award can apply for enforcement but the court
before taking further effective steps for the execution of the award has
to proceed in accordance with Sections 47 to 49 of the CPC. That once
21 (2020) 10 SCC 1
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the court has decided that the foreign award is enforceable, it can
proceed to take further effective steps for execution of the same by
taking recourse to the provisions of Order XXI of Civil Procedure Code.
80. Placing reliance on Section 47 of the CPC, Dr. Saraf, further
submitted that, an executing court cannot go behind a decree, but that
doesn’t imply that the decree as passed must be executed ignoring all
rights and laws which might render its implementation either illegal or
impossible. Dr. Saraf has submitted that a Court will not execute a
decree which would lead a party to be in contravention of the law.
81. Mr. Karl Tamboly, Learned Counsel appearing for the Respondent
No.20, 22, 23, 25, 27, 28, 31 to 34 , 36 to 42, 44, 45, 50 to 57, 64 and
73 has adopted the submissions advanced by Mr. Vikram Nankani and
Mr. Birendra Saraf, Learned Senior Counsel and has submitted that the
foreign award, now deemed to be a decree of the Indian Court must
meet the rigors that a domestic award or domestic decree must meet in
execution. Mr. Tamboly has submitted, that whilst the Awards itself
may not be illegal, in executing it, Indian Law must be complied with,
and this Hon’ble Court cannot direct the Respondents to do any act that
would be in contravention of the Indian Law. In support of these
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submissions Mr. Tamboly has relied on the following decisions of this
Court:
i. Toepfer International Asia Pvt. Ltd v. Thapar Ispat Limited22
ii. Force Shipping Ltd v. Ashapura Minechem Ltd.23
82. In rejoinder, Mr. Behramkamdin, learned Senior Counsel, for the
Applicant has submitted that the issues raised on behalf of the
Respondents have already been deliberated upon and decided by the
Hon’ble Supreme Court in the enforcement proceedings in the matter
in Vijay Karia & Ors v. Prysmian Cavi e Sistemi Srl (supra). Mr.
Behramkamdin reiterates that by re agitating the same issues, the
Respondents’ conduct is in the teeth of the Hon’ble Supreme Court’s
decision, and the executing court ought to ignore any stand taken by
the Respondents which is contrary to the opinion of the Hon’ble
Supreme Court.
83. Mr. Behramkamdin has submitted that the Respondents’
contention that executability of a foreign award ought to be tested at a
different threshold runs contrary to the judgment of the Hon’ble
Supreme Court in LMJ International Ltd v. Sleepwell Industries
Companies Ltd (supra). Learned Senior Counsel has submitted that
22 (2000) 2 Mah LJ 331
23 (2003) Mah LJ 329Nikita Gadgil/AVK 44/93
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therefore, the reliance by the Respondents’ on Force Shipping Limited v.
Ashapura Minechem Limited (supra) in support of their contention that
executability of a foreign award on the one hand and enforceability of
the said award require separate determination is misplaced.
84. Mr. Behramkamdin, has further submitted that the Respondents’
submissions also fall foul of the judgment of the Delhi High Court in
NTT Docomo Inc v. Tata Sons Limited24 which held that there is no
provision in law which permits RBI to intervene in enforcement
proceedings to which it is not a party. Mr. Behramkamdin, would
further distinguish the judgments relied upon by the Respondents. Mr.
Behramkamdin has submitted that in view of the above, the
Respondents’ submissions are thus wholly devoid of merit and this
Court may allow the Execution Application as well as the connected
Interim Applications and Chamber Summons.
85. The Applicant is seeking execution of the Awards directing the
Respondents to transfer their 49 percent shareholding in the Company
to Applicant at the value of INR 63.19 per share determined as on 30 th
September, 2014 and for consequential reliefs.
24 2017 SCC OnLine Del 8078
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86. The Respondents’ have sought to resist the execution of the
Awards primarily on the ground that the executability of an award
differs from the enforceability of the award and that they are two
different and distinct stages and that the executing Court cannot execute
a decree, the implementation of which is either illegal or impossible.
That there exists a dichotomy between the executability of an award on
one hand and enforceability of the award on the other, and that there is
material difference in the scope of enquiry and the powers of the Court
in a proceeding for enforcement of a foreign award under Section 48 of
the Arbitration Act and the execution of an award as a decree of the
Court after the Court is satisfied. Also the ground that the transfer of
shares would be contrary to the FEMA and the Foreign Exchange
Management (Non-debt Instrument) Rules, 2016 (NDI Rules) including
on the valuation for the transfer of shares has been raised.
87. Other grounds including objecting to the prayers sought in Interim
Application No. 1401 of 2021 on account of the NCLT proceedings
(Company Application No. 833 of 2017) filed by the Applicant
purportedly for reliefs falling within the exclusive jurisdiction of the
NCLT and to the partial execution of the award have also been raised.
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88. Coming to the issue of enforcement v/s executability of the
Award it would be first pertinent to consider Section 49 of the
Arbitration and Conciliation Act, 1996 which deals with enforcement of
a foreign award which reads thus:-
“Section 49. Enforcement of foreign awards – Where the
Court is satisfied that the foreign award is enforceable
under this Chapter, award shall be deemed to be a decree
of that Court.”
89. Even though the Section refers to ‘enforcement’ and deals with
the enforcing of an award as a decree yet the words ‘enforce’ or
‘enforcement’ have not been defined either in the Act or in the CPC.
The Code of Civil Procedure only prescribes the mode and procedure
for the execution of a decree. Execution has also not been defined.
Therefore to understand the scope and ambit of these words let’s refer
to the meanings assigned to the words in a judicial dictionary. The
word ‘enforce’ is defined in the Black’s Law Dictionary as ” to give force
or effect” and the the word ‘enforcement’ is defined as ” the act or
process of compelling compliance with a law, mandate, command,
decree or agreement.” The word “execution” is defined as “the act of
carrying out or putting into effect (as a court order) “. As can be seen
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the words enforcement and execution, bear the same meaning and are
often used interchangeably. In the context of arbitral awards, once an
award is held to be enforceable, it necessarily becomes executable, as
enforceability under law implies that the award can be acted upon in
the manner as a decree of a civil court. Thus while all execution
proceedings fall under the umbrella of enforcement, a determination
that an award is enforceable legally entitles the award-holder to initiate
execution. If the Court is satisfied that the application under Section 48
is without merit, and the foreign award is found to be enforceable, then
under limited purpose of the legal fiction is for the purpose of the
enforcement of the foreign award. The High Court concerned would
then enforce the award by taking recourse to the provisions of Order
XXI of the CPC.
90. The decision of the Hon’ble Supreme Court in Furest Day Lawson
v. Jindal Exports Ltd25, wherein the Appellant filed Execution
proceedings without filing a separate application for enforcement of
foreign award draws home the point. The Hon’ble Supreme Court
observed that if separate proceedings are to be taken, one for deciding
the enforceability of a foreign award and the other thereafter for
25 AIR 2001 SC 2293
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execution, it would only contribute to protracting the litigation and
adding to the sufferings of the litigant in terms of money, time and
energy and avoiding such difficulties is one of the objects of the Act as
can be gathered from the scheme of the Act and particularly looking to
the provisions contained in Sections 46 to 49 in of the Arbitration Act
relation to enforcement of foreign award. Citing paragraph 40 in the
case of Thyssen Stahlunion Gmbh vs. SAIL26 the Hon’ble Supreme Court
has observed that a party holding foreign award can apply for
enforcement of it but the Court before taking further effective steps for
the execution of the award has to proceed in accordance with Sections
47 to 49 and that once the Court decides that the foreign award is
enforceable, it can proceed to take further effective steps for execution
of the same. Paragraph 31 of the said decision can be usefully quoted
as under :
“31. Prior to the enforcement of the Act, the law of arbitration
in this country was substantially contained in three enactments
namely (1) The Arbitration Act, 1940, (2) The Arbitration
(Protocol and Convention) Act, 1937 and (3) The Foreign
Awards (Recognition and Enforcement) Act, 1961. A party
holding a foreign award was required to take recourse to these
enactments. The Preamble of the Act makes it abundantly clear
that it aims at consolidating and amending Indian laws relating
to domestic arbitration, international commercial arbitration
and enforcement of foreign arbitral awards. The object of the26 (1999) 9 SCC334
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Act is to minimize supervisory role of the court and to give
speedy justice. In this view, the stage of approaching the court
for making the award a rule of court as required in the
Arbitration Act, 1940 is dispensed with in the present Act. If the
argument of the respondent is accepted, one of the objects of
the Act will be frustrated and defeated. Under the old Act, after
making award and prior to execution, there was a procedure
for filing and making an award a rule of court i.e. a decree.
Since the object of the Act is to provide speedy and alternative
solution of the dispute, the same procedure cannot be insisted
under the new Act when it is advisedly eliminated. If separate
proceedings are to be taken, one for deciding the enforceability
of a foreign award and the other thereafter for execution, it
would only contribute to protracting the litigation and adding
to the sufferings of a litigant in terms of money, time and
energy. Avoiding such difficulties is one of the objects of the Act
as can be gathered from the scheme of the Act and particularly
looking to the provisions contained in Sections 46 to 49 in
relation to enforcement of foreign award. In para 40 of the
Thyssen Stahlunion Gmbh vs. SAIL [(1999) 9 SCC 334]
judgment already extracted above, it is stated that as a matter
of fact, there is not much difference between the provisions of
the 1961 Act and the Act in the matter of enforcement of
foreign award. The only difference as found is that while under
the Foreign Award Act a decree follows, under the new Act the
foreign award is already stamped as the decree. Thus, in our
view, a party holding foreign award can apply for enforcement
of it but the court before taking further effective steps for the
execution of the award has to proceed in accordance with
Sections 47 to 49. In one proceeding there may be different
stages. In the first stage the Court may have to decide about the
enforceability of the award having regard to the requirement of
the said provisions. Once the court decides that foreign award
is enforceable, it can proceed to take further effective steps for
execution of the same. There arises no question of makingNikita Gadgil/AVK 50/93
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foreign award as a rule of court/decree again. If the object and
purpose can be served in the same proceedings, in our view,
there is no need to take two separate proceedings resulting in
multiplicity of litigation. It is also clear from objectives
contained in para 4 of the Statement of Objects and Reasons,
Sections 47 to 49 and Scheme of the Act that every final
arbitral award is to be enforced as if it were a decree of the
court. The submission that the execution petition could not be
permitted to convert as an application under Section 47 is
technical and is of no consequence in the view we have taken.
In our opinion, for enforcement of foreign award there is no
need to take separate proceedings, one for deciding the
enforceability of the award to make it a rule of the court or
decree and the other to take up execution thereafter. In one
proceeding, as already stated above, the court enforcing a
foreign award can deal with the entire matter. Even otherwise,
this procedure does not prejudice a party in the light of what is
stated in paragraph 40 of the Thyssen judgment.”
91. The aforesaid findings of the Hon’ble Supreme Court would
squarely apply to the facts of this case.
92. Therefore, what the law requires is the satisfaction of the Court
that the foreign award is enforceable and once that is done there is no
necessity for the Executing Court to delve into the very same question
once again. To give a restricted and therefore contrived meaning to
the word ‘enforcement’ would lead to an absurd situation where a
foreign award creditor would have to face an additional hurdle in the
form of objections as to executability of a foreign award alien to the
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grounds enumerated in Section 48 of the Arbitration Act even after the
award has been held to be enforceable.
93. The Hon’ble Supreme Court in the case of LMJ International Ltd
and Ors v. Sleepwell Industries Co. Ltd (supra) has held that the
grounds urged regarding maintainability of the execution case could
not have been considered in isolation and de hors the issue of
enforceability of the subject foreign awards as the same were
intrinsically linked to the question of enforceability of the foreign
award. It has also been held that that Section 48 of the Arbitration Act
does not provide for or permit piecemeal consideration and keeping in
mind the legislative intent of speedy disposal of arbitration proceedings
and limited interference by the Courts, taking any other view would
result in encouraging successive and multiple rounds of proceedings for
execution of foreign awards which cannot be countenanced. That,
keeping in mind the avowed object of the Arbitration Act, in particular
while dealing with the enforcement of the foreign awards, the scope of
interference has been consciously constricted by the legislature in
relation to the execution of the foreign awards.
94. Paragraph 17 of the said decision is usefully quoted as under:-
“17.Be that as it may, the grounds urged by the petitioner in the
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earlier round regarding the maintainability of the execution
case could not have been considered in isolation and dehors the
issue of enforceability of the subject foreign awards. For, the
same was intrinsically linked to the question of enforceability of
the subject foreign awards. In any case, all contentions
available to the Petitioner in that regard could and ought to
have been raised specifically and, if raised, could have been
examined by the Court at that stage itself. We are of the
considered opinion that the scheme of Section 48 of the Act
does not envisage piecemeal consideration of the issue of
maintainability of the execution case concerning the foreign
awards, in the first place; and then the issue of enforceability
thereof. Whereas, keeping in mind the legislative intent of
speedy disposal of arbitration proceedings and limited
interference by the courts, the Court is expected to consider
both these aspects simultaneously at the threshold. Taking any
other view would result in encouraging successive and multiple
rounds of proceedings for the execution of foreign awards. We
cannot countenance such a situation keeping in mind the
avowed object of the Arbitration and Conciliation Act, 1996, in
particular, while dealing with the enforcement of foreign
awards. For, the scope of interference has been consciously
constricted by the legislature in relation to the execution of
foreign awards. Therefore, the subject application filed by the
Petitioner deserves to be rejected, being barred by constructive
res judicata, as has been justly observed by the High Court in
the impugned judgment.”
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95. Therefore the contention of the Respondents that the
enforcement of the arbitral award is distinct from executability is
hereby rejected.
96. The reliance of the Respondents on the decision of the Hon’ble
Supreme Court in Union of India v. Vedanta Limited (supra) is also
misplaced in as much as the said decision itself holds that if the Court is
satisfied that the application under Section 48 is without merit, and the
foreign award is found to be enforceable, which also is the case herein,
then under Section 49 the award shall be deemed to be a decree of that
Court and the High Court concerned would enforce the award by
taking recourse to the provisions of Order XXI of the CPC.
97. The Respondents have also relied on the judgment of this Court
in Force Shipping Limited v. Ashapura Minechem Limited (supra) in
support of their contention that executability of a foreign award on the
one hand and enforceability of the said award require separate
determination. In my view the reliance placed on this decision is also
misplaced as the Judgment holds that “once the court proceeds to hold
that the Award is enforceable, it can thereafter proceed to execute the
decree without further procedural requirements.”
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98. The Respondents have also relied on the decision of Toepfer
International Asia Pvt Ltd. v. Thapar Ispat Limited (supra) to argue that
post enforcement, the foreign award is required to meet the rigours
that a domestic award or domestic decree must meet in execution
under Order XXI of the CPC, however, the said decision only holds that
once an award is deemed to be a decree of the Court, it is open to the
parties to seek its execution in accordance with the provisions of the
CPC. The said decision, in my view, does not further the case of the
Respondents. Once a foreign award is held to be enforceable, then
execution is to follow as a matter of course, more so, as all the
objections raised herein have already been dealt with and negated by
the Hon’ble Supreme Court.
99. In view of what has been held as above, the contention on behalf
of the Respondents that the enforcement under Section 48 and 49 is
merely the opening mechanism by which the Court determines that the
foreign award is fit for execution in India, and once it is held to be fit in
that regard, it is deemed to be a decree of the Indian Court, which then
must abide by municipal law during the course of its execution is
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rejected. Such a contention would defeat the very purpose of Section
48 of the Arbitration Act, which adopts the pro-enforcement bias of the
New York Convention.
100. It is trite law that the executing court cannot go behind a decree
or an award which is held to be executable and it is only where the
award/decree sought to be enforced is on the face of the record, wholly
without jurisdiction and thus a nullity, that an executing court will
interfere with the execution of an award/decree. And that admittedly is
not the case here.
101. In the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman and Ors (supra) the Hon’ble Supreme Court has held that the
court executing a decree cannot go behind the decree: between the
parties or their representatives it must take the decree according to its
tenor, and cannot entertain any objection that the decree was incorrect
in law or on facts, until it is set aside by an appropriate proceeding in
appeal or revision. Paragraph 7 of the decision is relevant as well and
the same is usefully quoted as under:
“7. When a decree which is a nullity, for instance where
it is passed without bringing the legal representative on
the record of a person who was dead at the date of theNikita Gadgil/AVK 56/93
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decree, or against a ruling prince without a certificate,
is sought to be executed an objection in that behalf may
be raised in an execution proceeding if the objection
appears on the face of the record: where the objection
as to the jurisdiction of the Court to pass the decree
does not appear on the face of the record and requires
examination of the questions raised and decided at the
trial or which could have been but have not been
raised, the executing Court will have no jurisdiction to
entertain an objection as to the validity of the decree
even on the ground of absence of jurisdiction….”
(emphasis supplied)
102. In the case of Rafique Bibi (Dead) by LRs v. Sayed Waliuddin
(Dead) by LRs and Ors (supra) the Hon’ble Supreme Court has held
that even if a decree suffering from illegality or irregularity of
procedure cannot be termed inexecutable by the executing court, the
remedy of a person aggrieved by such a decree is to have it set aside in
a duly constituted legal proceedings or by a superior court failing which
he must obey the command of the decree. Paragraph 8 of the decision
is relevant and is usefully reproduced as under:
“8. A distinction exists between a decree passed by a Court
having no jurisdiction and consequently being a nullity and
not executable and a decree of the court which is merely
illegal or not passed in accordance with the procedure laid
down by law. A decree suffering from illegality or
irregularity of procedure cannot be termed inexecutable by
the executing court, the remedy of a person aggrieved by
such a decree is to have it set aside in a duly constituted
legal proceedings or by a superior court failing which he
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a court of competent jurisdiction cannot be denuded of its
efficacy by any collateral attack or in incidental
proceedings.”
(emphasis supplied)
103. In the case of Bhawarlal Bhandari v. Universal Heavy Mechanical
Lifting Enterprises (supra) the Hon’ble Supreme Court while deciding
the question whether the award/decree was a nullity being barred by
limitation and whether the executing court can go behind such a decree
while relying on the decision of the Vasudev Dhanjibhai Modi v.
Rajabhai Abdul Rehman (supra) held that even if a decree was passed
beyond the period of limitation, it would be an error of law or at the
highest a wrong decision which can be corrected in appellate
proceedings and not by the executing court which was bound by such a
decree.
104. In view of the aforesaid elucidation, the Respondents’ contention
that the executing court is required to test the decree against a lesser
bar of violation of Indian law runs contrary to the settled position.
Under Section 47, the Executing Court can undertake only a limited
enquiry regarding jurisdictional issues which goes to the root of the
decree and has the effect of rending the decree a nullity, which is not
the case here.
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105. The Respondents have relied upon the judgment of the Hon’ble
Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University
(supra) to submit that a decree may be set aside if it is passed in
ignorance of law. A complete reading of the judgment reveals that a
challenge to the validity of a decree does not render a decree to be
inexecutable on account of it being in ignorance of law and in fact, the
Hon’ble Supreme Court has analysed the meaning of the phrase void ab
initio in relation to a decree and in fact held that the High Court was
not justified in allowing objections under Section 47 of the CPC.
Further the said decision is distinguishable as the said decision pertains
to a situation where the award was inexecutable by virtue of a law
which declared the award itself to be non-executable which is not the
case here.
106. The reliance upon the decision in the case of Jai Narain Ram
Lundia vs. Kedar Nath Khetan (supra) by the Respondents in support of
the contention that the Applicant has failed to show its readiness and
willingness to fulfill its obligations under the final award is not
necessary to be dealt with as on behalf of the Applicant but the
Respondents have failed to consider that during the course of
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arguments it has been reiterated that the Applicant is able and to bring
the funds into Court as and when the shares are dematerialized.
107. As can be seen, the Respondents / Award debtors had challenged
the enforcement proceedings before this Court which challenge has
been negatived all the way up to the Hon’ble Supreme Court. In fact, in
the Contempt Petition after all the challenges to the enforcement of the
Award are rejected. The Hon’ble Supreme Court has in its last order in
the case of Prysmian Cavi E Sistemi S.R.L. versus Vijay Karia &
Anr(supra) held that:
“Execution Court ought to proceed in this matter expeditiously
and if any stand is taken by the judgment debtor, which is
contrary to the opinion of this Court, we need not add that the
Executing Court ought to ignore such stand.”
108. In view of the above, it would not be necessary for this Court to
go into any stand taken by the Respondents which is contrary to the
opinion of the Hon’ble Supreme Court but to ignore it.
109. The Respondents have further contended that the execution of
the Arbitral Awards i.e. the transfer of shares directed therein, without
the prior approval of the RBI, would constitute a contravention of the
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NDI Rules and more specifically the pricing guidelines contained
therein i.e. Rule 21 and of the Foreign Exchange Management Act,
1999. The Respondents have also submitted that there is no provision
permitting the grant of a post facto approval by the RBI. I am afraid the
said contentions have already stood negatived by the Hon’ble Supreme
Court in Vijay Karia and Others v. Prysmian Cavi E Sistemi SRL and
Others (supra) where in paragraph 88 it has been held as under:
88. This reasoning commends itself to us. First and foremost,
FEMA – unlike FERA – refers to the nation’s policy of managing
foreign exchange instead of policing foreign exchange, the
policeman being the Reserve Bank of India under FERA. It is
important to remember that Section 47 of FERA no longer
exists in FEMA, so that transactions that violate FEMA cannot be
held to be void. Also, if a particular act violates any provision of
FEMA or the Rules framed thereunder, permission of the Reserve
Bank of India may be obtained post-facto if such violation can
be condoned. Neither the award, nor the agreement being
enforced by the award, can, therefore, be held to be of no effect
in law. This being the case, a rectifiable breach under FEMA can
never be held to be a violation of the fundamental policy of
Indian law. Even assuming that Rule 21 of the Non-Debt
Instrument Rules requires that shares be sold by a resident of
India to a non-resident at a sum which shall not be less than the
market value of the shares, and a foreign award directs that
such shares be sold at a sum less than the market value, the
Reserve Bank of India may choose to step in and direct that the
aforesaid shares be sold only at the market value and not at the
discounted value, or may choose to condone such breach.
Further, even if the Reserve Bank of India were to take action
under FEMA, the non-enforcement of a foreign award on the
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ground of violation of a FEMA Regulation or Rule would not
arise as the award does not become void on that count. The
fundamental policy of Indian law, as has been held in Renusagar
(supra), must amount to a breach of some legal principle or
legislation which is so basic to Indian law that it is not
susceptible of being compromised. “Fundamental Policy” refers
to the core values of India’s public policy as a nation, which may
find expression not only in statutes but also time-honoured,
hallowed principles which are followed by the Courts. Judged
from this point of view, it is clear that resistance to the
enforcement of a foreign award cannot be made on this
ground.”
110. It is has been contented on behalf of the Respondents on the
basis of the above that the Supreme Court judgment does not hold that
no prior permission or approval of RBI is required in the present case.
The submission is completely flawed as the Hon’ble Supreme Court has
left it to the discretion of RBI to step in the event the shares are not
sold at the market value or to choose to condone such breach.
111. As can be seen that the Hon’ble Supreme Court has categorically
held that unlike Section 47 of the Foreign Exchange Regulation Act,
1973 (“FERA”) transactions that violate FEMA cannot be held to be
void. That even if RBI were to take action under FEMA, the non-
enforcement of a foreign award on the ground of violation of a FEMA
Regulation or Rule would not arise as the award does not become void
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on that count. That a rectifiable breach under FEMA can never be held
to be a violation of the fundamental policy of Indian Law. That if a
particular act violates any provision of FEMA or the Rules framed
thereunder, permission of RBI may be obtained post facto if such
violation can be condoned.
112. Section 3 of FEMA reads as under
“3. Dealing in foreign exchange, etc.–Save as otherwise
provided in this Act, rules or regulations made thereunder, or
with the general or special permission of the Reserve Bank, no
person shall–
(a) deal in or transfer any foreign exchange or foreign security
to any person not being an authorised person;
(b) make any payment to or for the credit of any person
resident outside India in any manner;
(c) receive otherwise through an authorised person, any
payment by order or on behalf of any person resident outside
India in any manner.
Explanation.–For the purpose of this clause, where any person
in, or resident in, India receives any payment by order or on
behalf of any person resident outside India through any other
person (including an authorised person) without a
corresponding inward remittance from any place outside India,
then, such person shall be deemed to have received such
payment otherwise than through an authorised person;
(d) enter into any financial transaction in India as
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consideration for or in association with acquisition or creation
or transfer of a right to acquire, any asset outside India by any
person.
Explanation.–For the purpose of this clause, “financial
transaction” means making any payment to, or for the credit of
any person, or receiving any payment for, by order or on behalf
of any person, or drawing, issuing or negotiating any bill of
exchange or promissory note, or transferring any security or
acknowledging any debt”
113. As can be seen, Section 3 of the FEMA inter-alia provides that no
person can deal in or transfer foreign exchange/foreign security to a
person not being an authorised person or make payment to or for the
credit of any person resident outside India, “Save as otherwise provided
in this Act, rules or regulations made thereunder, or with the general or
special permission of the Reserve Bank, no person shall..”
114. Section 3 of the FEMA, by itself does not impose any requirement
of prior approval or prior permission. The term “general or special
permission” includes within its ambit, both prior permission as well as
subsequent permission.
115. In the case of LIC v. Escorts Ltd (supra) the Hon’ble Supreme
Court had while considering Section 29(1) of FERA has held that
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‘permission’ of Reserve Bank of India may also be ex post facto and
need not necessarily be a prior one. Paragraph 63 of the said decision is
usefully quoted as under:
“63. We have already extracted Sec.29(1) and we notice that
the expression used is “general or special permission of the
Reserve Bank of India” and that the expression is not qualified
by the word “previous” or “prior”. While we are conscious that
the word ‘prior” or “previous” may be implied if the contextual
situation or the object and design of the legislation demands
it, we find no such compelling circumstances justifying
reading any such implication into Sec 29(1). On the other
hand, the indications are all to the contrary. We find, on a
perusal of the several, different sections of the very Act, that
the Parliament has no been unmindful of the need to “clearly
express its intention by using the expression “previous
permission” whenever it was thought that “previous
permission” was necessary. In Sections 27(1) and 30, we find
that the expression ‘permission’ is qualified by the word
‘previous’ and in Sections 8(1), 8(1) and 31, the expression
‘general or special permission’ is qualified by the word
“previous”, whereas in Sections 13(2), 19(1), 19(4), 20, 21(3),
24, 25 28(1) and 29, the expressions ‘permission’ and ‘general’
or ‘special permission’ remain unqualified. The distinction
made by Parliament between permission simpliciter and
previous permission in the several provisions of the same Act
cannot be ignored or strained to be explained away by us.
That is not the way to interpret statutes. The proper way is to
give due weight to the use as well as the omission to use the
qualifying words in different provisions of the Act. The
significance of the use of the qualifying in one provision and
its non-use in another provision may not be disregarded. In
our view, the Parliament deliberately avoided the qualifying
word ‘previous ‘ in Section 29(1) so as to invest the ReserveNikita Gadgil/AVK 65/93
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Bank of India with a certain degree of elasticity in the matter
of granting permission to non-resident companies to purchase
shares in Indian companies. The object of the Foreign
Exchange Regulation Act, as already explained by us,
undoubtedly, is to earn, conserve, regulate and stored foreign
exchange. The entire scheme and design of the Act is directed
towards that end. Originally the Foreign Exchange Regulation
Act, 1947 was enacted as a temporary measure, but it was
placed permanently on the Statute Book by the Amendment
Act of 1957. The Statement of Objects and Reasons of the
1957 Amendment Act expressly stated, “India still continues to
be short of foreign exchange and it is necessary to ensure that
our foreign exchange resources are conserved in the national
interest.” In 1973, the old Act was repealed and replaced by
the Foreign Exchange Regulation Act, 1973, the long title of
which reads : “An Act to consolidate and amend the law
regulating certain payments, dealings in foreign exchange ant
securities, transactions indirectly affecting foreign exchange
and the import and export of currency and bullion, for the
conservation of foreign exchange resources of the country and
the proper utilisation thereof in the interest of the economic
development of the country.” We have already referred to
sec.76 which emphasises that every permission or licence
granted by the Central Government or the Reserve Bank of
India should be animated by a desire to conserve the foreign
exchange resources of the country. The Foreign Exchange
Regulation Act is, therefore, clearly a statute enacted in the
national economic interest. When construing statutes enacted
in the national interest, we have necessarily to take the broad
factual situations contemplated by the Act and interpret its
provisions so as to advance and not to thwart the particular
national interest whose advancement is proposed by the
legislation. Traditional norms of statutory interpretation must
yield to broader notions of the national interest. If the
legislation is viewed and construed from that perspective, asNikita Gadgil/AVK 66/93
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indeed it is imperative that we do, we find no difficulty in
interpreting ‘permission’ to mean ‘permission’, previous or
subsequent, and we find no justification whatsoever for
limiting the expression ‘permission’ to ‘previous permission’
only. In our view what is necessary is that the permission of
the Reserve Bank of India should be obtained at some stage
for the purchase of shares by non-resident companies.”
116. Further in the case of Videocon Industries Ltd v. Intesa Sanpaolo
SPA (supra) this Court has in paragraph 35 held that the words “or
with the general or special permission of Reserve Bank” cannot be
construed as prior permission of the Reserve Bank.
117. In the facts of this case, in fact the transaction being a current
account transaction, is already contemplated in the general permission
that have been granted by the Reserve Bank of India only subject to the
pricing / valuation being certified by a Chartered Accountant, which in
the facts of this case is done by the Deloitte Report and which has
already been looked into and approved by the Hon’ble Supreme Court
and therefore the same issue cannot be re-agitated before this Court.
The question therefore of prior approval from Reserve Bank of India
does not arise.
118. The Respondents have sought to rely upon the decision of Cruz
City Mauritius Holdings v. Unitech Limited (supra) to contend that the
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prior approval of the RBI is necessary, the Respondents’ reliance is
misplaced in as much as in the facts in the said decision pertain to the
remittance of foreign exchange in favour of a foreign party seeking
enforcement of a foreign exchange in favour of the Indian Party.
119. In light of the aforesaid, the contention of the Respondents that
the Awards are in contravention of FEMA having been previously raised
and decided before the Hon’ble Supreme Court cannot be raised again
in execution.
120. The Respondents have also objected to the executability of the
Award contending that the valuation date adopted in the Deloitte
Valuation on the basis of which the Awards were passed being of 2014
is not in compliance with law, which they contend requires a
current/recent valuation. That since the UAE subsidiary’s valuation
(Power Plus Cable Company LLC) was not included in the Deloitte
Report (and was in fact included in the BDO Report commissioned by
the Respondents, which yielded a much higher valuation) the Deloitte
valuation is improper. That since the Deloitte valuation report was not
a report prepared for the purposes of valuation under FEMA read with
NDI Rules the same is invalid.
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121. Apart from the fact that the issue has already been concluded by
the decision of the Hon’ble Supreme Court and cannot be re-agitated
before this Court, it is settled law that valuation relating to the date of
the passing of the awards in the year 2014 would be relevant and not
the current or recent valuation or the date when the Hon’ble Supreme
Court passed the order negativing the challenges to the enforcement of
the award or the date of the judgment holding the awards to be
executable in view of the decision of the Hon’ble Supreme Court
holding the award to be enforceable. The decision of the Hon’ble
Supreme Court in the case of Forasol vs. Oil and Natural Gas
Commission (supra) as sought to be relied upon by Mr.Nankani,
therefore, would not be applicable to the facts of this case.
122. The Hon’ble Supreme Court in the decision of Vijay Karia and
Others v. Prysmian Cavi E Sistemi SRL and Others (supra) has rejected
the above objection recording its finding in Paragraph 108 which is
usefully reproduced as under:-
“108. Having found that the delay in the valuation
report was attributable largely to the appellants and
that therefore the agreed date of 30-9-2014 is the
correct date, we find nothing in the award which can
be said to even remotely shock our conscience. This
ground is also therefore rejected. Dr Sinhgvi’s ferventNikita Gadgil/AVK 69/93
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plea to exercise our power under Article 142 of the
Constitution of India, so as to shift the valuation date
from 30-09-2014 to the date of our judgment must also
be rejected given the learned arbitrator’s finding. Quite
apart from this, nothing in Section 48 of the Arbitration
Act would permit an enforcing court to add to or
subtract from a foreign award that must either be
enforced or rejected by reason of any of the grounds
under Section 48 being made out to resist enforcement
of such foreign award. This Court’s power under Article
142 ought not to be used to circumvent the legislative
policy contained in Section 48 of the Arbitration Act.”
(emphasis supplied)
123. The Respondents have contended that since the UAE subsidiary’s
valuation (Power Plus Cable Company LLC) was not included in the
Deloitte Report (and was in fact included in the BDO report
commissioned by the Respondents, which yielded a much higher
valuation), the Deloitte valuation is improper. This very contention was
negatived by the Supreme Court in Vijay Karia and Others v. Prysmian
Cavi E Sistemi SRL and Others (supra) where the Hon’ble Supreme
Court found that the Respondents’ submissions in this regard were duly
considered and rejected by the arbitrator, who correctly applied
valuation mechanism contractually agreed upon by the parties.
Paragraph 107 is usefully reproduced as under:
“107. Dr Singhvi then agrued that the valuation
made by Deloitte ignored a stake of 49% of Ravin inNikita Gadgil/AVK 70/93
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a company called Power Plus, which stake has been
valued by the appellants’ valuer (one BDO) at INR
563 crores. Considering that this aspect was not
taken into account by Deloitte, the valuation report
ought not to have been accepted by the learned
arbitrator, also being contrary to the position taken
by both parties. This submission was dealt with by
the learned arbitrator in greater detail in para 19 of
the final award dated 11-4-2017. Among other
things, the learned arbitrator referred to Clause 17
of the JVA and stated that the said clause together
with the formula prescribed therein was followed by
Deloitte. Since this was done, Deloitee cannot
possibly be faulted and cannot further be asked to
take into account the stake of Ravin in Power Plus,
as that would go outside the JVA. This again is a
matter for the arbitrator to determine. This again is
a ground wholly outside grounds that can attract
challenge to foreign awards under Section 48.”
(emphasis supplied)
124. The Respondents have further contended that the Deloittte
valuation report was not a report prepared for the purposes of
valuation under FEMA read with the NDI rules and is thus invalid. This
contention has also been considered and negatived by the Hon’ble
Supreme Court in Vijay Karia and Others v. Prysmian Cavi E Sistemi
SRL and Others (supra) in Paragraph 110 which is reproduced as
under:-
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“110. Dr. Singhvi then argued that in ordering the
sale of shares at a 10% discount of the fair market
value arrived at by Deloitte, FEMA and the Rules made
thereunder would be breached, resulting in the award
being contrary to the public policy of India, in that it
would be against the fundamental policy of the
Indian law. As pointed out hereinabove, for the
reasons given in paras 84 to 89 of this judgment, this
ground again is bereft of any merit. In fact, the
learned arbitrator awarded INR 63.90 per share as
per the Deloitte valuation, which was contractually
binding under Clause 17 of the JVA. Therefore, the
lower valuation of INR 16.88 per share as in the M/s.
Kalyaniwalla & Mistry valuation report dated 4-3- 2016
was not accepted.”
125. The Respondents’ attempt to raise the above and other objections
in the current execution mirrors those previously addressed during the
enforcement phase of the arbitral award. Such repetitive objections are
impermissible, as they contravene the pro-enforcement bias of the New
York Convention adopted by Section 48 of the Arbitration Act. Allowing
the respondents to reintroduce these objections at this juncture would
effectively grant them a ‘second bite at the cherry’ undermining the
finality of the arbitral award and the efficiency of the execution process
and therefore these objections stand rejected.
126. The aforesaid view is in consonance with the fact that India is a
signatory to the Convention on the Recognition and Enforcement of
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Foreign Arbitral Awards, 1958 (hereinafter referred to as “New York
Convention”) and intends – through this legislation – to ensure that a
person who belongs to a Convention country, and who, in most cases,
has gone through a challenge procedure to the said award in the
country of its origin, must then be able to get such award recognized
and enforced in India as soon as possible, it not being in dispute that
the awards have not been challenged in the country of origin and even
the challenge to its enforcement has been rejected by the Hon’ble
Supreme Court.
127. The Respondents have also sought to object to the Execution of
the Arbitral Awards on the ground that the reliefs sought by the
Applicant for transfer of shares, is in the exclusive jurisdiction of the
NCLT and the executing court cannot grant such relief. The
Respondents have sought to rely on decision of the Hon’ble Supreme
Court in Cheran Properties Ltd v. Kasturi & Sons Ltd (supra) in support
of this contention.
128. I am unable to agree with the said objection and agree with
Mr.Khambata that Section 98 of the Companies Act, 1956,
contemplates the NCLT directing convening of a meeting of a company
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whereas the prayers sought for in Interim Application No.1401 of 2021
are qua the Respondents in enforcement of the contractual rights
confirmed by the award not falling within the purview of Section 98
and that the reliefs sought do not fall within the exclusive jurisdiction
of the NCLT. That, this Court being an executing Court can exercise
powers under Section 51(e) of the CPC, as has been upheld by the
Hon’ble Supreme Court in the case of State of Haryana vs. State of
Punjab and Another (supra) which allows this Court to pass orders for
enforcement of decrees in a manner to give effect to it. Further, the
decision in the case of Cheran Properties Ltd. vs. Kasturi & Sons (supra)
is distinguishable and therefore not applicable and would not apply to
the facts of this case as the said decision was on an application for
rectification whereas the present case pertains to execution of a foreign
award which declares the Applicant’s rights to have the shares held by
the Respondents in the Company transferred to it. It is in furtherance
of these rights that the Respondents have been directed to convene and
hold a meeting of the board of directors of the company for the limited
purpose of registering the transfer of shares in favour of the Applicants,
whereas the award in the case of Cheran Properties Ltd. vs. Kasturi &
Sons (supra) contains no such direction / order. There is no
rectification of the register of members sought in the facts of this case.
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129. In the case of Babu Lal v. M/s. Hazar Lal Kishori Lal and Others
(supra) Hon’ble Supreme Court citing the judgment of a Division
Bench of the Calcutta High Court in case of Karthick Chandra Pal v.
Dibakar Bhattacharya (supra) held that the residuary power under
Section 51 (e) allows a court to pass orders for enforcing a decree in a
manner which would give effect to it. Paragraph 7 of the said decision
is relevant and is usefully quoted as under:
7. In Karthick Chandra Pal v. Dibakar Bhattacharya a
Division Bench of the Calcutta High Court, however, after
reviewing a number of reported cases, viz.,Ranjit Singh v.
Kalidasi Devi. Madmohan Singh v. Gaja Prasad Singh,
Deonandan Prasad v. Janki Singh and Atal Behary v. Barada
Prasad, observed:
“It is incontestable that in a suit for specific performance of
contract for the sale of land it is open to the plaintiff to join
in the sale suit two prayers, one for the execution of the
deed of transfer and another for recovery of possession of
the land in question….
We ought to remember in this connection that no special
form of decree in a suit for specific performance is supplied
by the Civil Procedure Code. Chapter 11, Specific Relief Act
deals with the various circumstances under which a contract
may be enforced specifically and where it cannot be
allowed. When a contract is to be specifically enforced, it
means simply this that when the parties do not agree to
perform the contract mutually the intervention of the Court
is required and the Court will do all such things as the
parties would have been bound to do had this been done
without the intervention of the Court. A sale of a property
after payment of the consideration and upon due executionNikita Gadgil/AVK 75/93
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of the deed of sale presupposes and requires the vendor to
put the purchaser in possession of the property. It cannot be
suggested that when a party comes to Court for a specific
performance of a contract he is to be satisfied with simply
the execution of the document on payment of the
consideration money. The Court when allowing the prayer
for specific performance vests the executing court with all
the powers which are required to give full effect to the
decree for specific performance. By the decree for specific
performance, the court sets out what it finds to be the real
contract between the parties and declares that such a
contract exists and it is for the executing court to do the
rest, In may be noticed further that a decree in a suit for
specific performance has been considered to be somewhat
in the nature of preliminary decree which cannot be set out
in the fullest detail all the different steps which are required
to be taken to implement the main portion of the order
directing specific performance of the contract. The
executing court is in such a case vested with authority to
issue necessary directions.”
130. Section 51(e) of the Code of Civil Procedure, 1908 which
provides thus:-
“Subject to such conditions and limitations as may be
prescribed, the Court may, on the application of the
decree-holder, order execution of the decree-
….
(e) in such other manner as the nature of relief granted
may require”
131. I am of the view that the residuary power under Section
51(e) of the CPC permits execution as far as machinery under CPC
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can actually operate, it does not create new substantive jurisdiction,
it only covers cases where the machinery under CPC is adaptable.
The injunctive reliefs in furtherance of the Awards and transfer of
shares and direction to the Respondents to take all necessary steps
and to execute all necessary documents for the appointment of the
Applicant’s nominee directors on the Board of Directors of Ravin
Cables Ltd are within the powers of the executing Court.
132. The Respondents have placed on record a letter of the RBI
dated 19th August 2025 which was issued pursuant to Mr. Vijay
Karia’s letter dated 05th December 2022.
133. It has been submitted by the Respondents that the said letter
makes it clear that RBI requires as a mandate of law that even in
execution of the Award, the NDI Rules have to be complied with.
134. The RBI Letter which is post the filing of the execution
proceedings in paragraph 2 states that it has no objection to the
enforcement of the arbitration award upheld by the Hon’ble Supreme
Court of India, however, the transfer of the equity instruments of Ravin
Cables Limited from persons resident in India (Shri Vijay Karia and
other shareholders) to the foreign investor viz. Prysmian Cavi E Sistemi
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SRL must be in accordance with the extant FEMA, 1999 rules, and
regulations made thereunder, including adherence to the pricing
guidelines prescribed under the Foreign Exchange Managaement (Non-
Debt Instruments) Rules, 2019.
135. The scanned copy of the said RBI Letter is extracted below :
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136. As can be seen, the RBI letter does not bear out any new
circumstance necessitating a renewed deliberation on issues already
argued and dealt with. The RBI letter in fact records that the RBI has
no objection to the enforcement of the arbitration award upheld by the
Hon’ble Supreme Court. The said letter does not convey that prior
permission of the RBI is required for the execution of the award. Infact,
as noted above, paragraph 88 of the decision of the Hon’ble Supreme
Court in the case of Vijay Karia and Others vs. Prysmian Cavi E Sistemi
SRL and Others (supra) has considered and negatived this objection
which cannot be gone into again, and that, no objection as to the FEMA
1999, Rules, Regulations nor the pricing guidelines can be raised again.
The objection sought to be raised by way of a fresh letter dated 19 th
August 2025 post the filing of the Execution Application, in my view,
would therefore not be of any relevance but only to delay the execution
proceedings, inviting an order for payment of costs.
137. Moreover, it is pertinent to refer to the decision of the Delhi High
Court in case of NTT Docomo Inc v. Tata Sons Limited (supra) wherein
the Delhi High Court has held that there is no provision in law which
permits RBI to intervene in a petition seeking enforcement of an
Arbitral Award to which RBI is not a party.
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138. It is also pertinent to note here that the Interim Application No.
216 of 2021 inter alia seeking that the Reserve Bank of India be
impleaded to the Execution Application came to be dismissed by this
Court vide its order dated April 5, 2022 recording thus:
“4. It is made clear that the points raised by the Applicants
in the above Interim Application (Original Respondents)
are kept open for the Respondents to agitate at the time of
opposing the above Execution Application or any
proceedings filed therein. It is further made clear that the
Applicants shall not be allowed to canvass in the future that
RBI needs to be joined as a party Respondent in the above
Execution Application or any proceedings therein.”
(emphasis supplied)
139. The Respondent has also submitted that the deletion of the
Respondents No. 70,71,72,74,75 and 78 from the array of parties to the
Execution Application, have far reaching consequences on the
execution of the Award and that partial execution of the Award is not
permissible in law or under the JVA and an Award must either be
executed as a whole, or not at all.
140. The FPA held that the Applicant had rightly brought the
arbitration against each of the Existing Shareholders, each of whom
was represented by Mr. Vijay Karia. Paragraph 11 and 42 of the FPA is
reproduced as under:
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“11. It is no longer disputed by the Respondents that all
Existing Shareholders are party to the JVA and to this
arbitration. The First Respondent initially in its Response to the
Request to Arbitration sought to argue that only Mr. Vijay Karia
was party to the arbitration and validly before the Tribunal.
This, however, was not pursued by the Respondents’ legal
advisors and, in any event to the extent that there is any possible
room for doubt or dispute, the Tribunal holds that by virtue of
Clause 28.16 of the JVA and the Power of Attorney provided in
Schedule XIII of the JVA, all the Existing Shareholders are
represented by Mr. Vijay Karia for all purposes of the JVA and
that the Claimant has validly and correctly brought this
arbitration against each of the Existing Shareholders under the
JVA, each of whom is represented by Mr. Vijay Kaira. Yet further,
and in any event, the Respondents have now brought their own
counterclaim in this arbitration and fully participated in it.
Therefore there cannot be any dispute that each of the
Respondents is party to this arbitration reference…
….
42.On 09 September 2012, the Respondents served their
Statement of Defence and Counterclaim. The Respondent no
longer pursued its reservation with regard to the position of the
First Respondent. The Statement of Defence and in particular
the Counterclaim was served and filed on behalf of all the
Respondents.”
141. The Final Award, as noted above, held that the Respondents
do transfer to the Claimant 10,252,275 shares by them to the
Claimant at the Discounted Price of INR 63.9 per share aggregating
to INR 655,200,000, and Mr. Vijay Karia (who holds Powers of
Attorney executed by each Existing Shareholder) do forthwith and
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without delay execute the requisite transfer forms for transfer of
10,252,275 shares in favour of the Claimant.
142. The Applicant has therefore filed the execution application to
execute the Awards as a decree of this Court and joined all the
Respondents in the captioned Execution Application out of
abundant caution. Clause 28.16 of the JVA demonstrates that Mr.
Vijay Karia is deemed to be the constituted attorney for all the
Existing Shareholders.
143. By an order dated 27th March 2019, this Court directed Mr.
Vijay Karia to deposit all 10,252,275 shares with the Prothonotary
& Senior Master held by Respondents along with the share transfer
forms signed by Mr. Karia as the constituted attorney of the
transferor-Respondents of which 91,30,175 shares have been
deposited with the Prothonotary and Senior Master of the High
Court and the balance 11,22,100 shares are yet to be deposited.
144. On 18th February 2020, this Court once again directed the
Respondents to comply with the Order dated 27 th March 2019
within 15 days. Thereafter, by an order dated 14 th July 2021, this
Court directed the Applicant to issue notice to each Respondent
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separately since the Respondents’ advocate had submitted that Mr.
Vijay Karia does not hold the power of attorney on behalf of all
Respondents.
145. As noted above, on 9th September 2025 and on 11th November
2025, this Court has permitted deletion of the Respondents no.70,
71, 72, 74, 75 and 78 at the request of the Applicant. It is pertinent
to note that no objection was raised then nor the order permitting
the deletion has been challenged. But only subsequently an
objection has been raised on behalf of the Respondents that the
award cannot be executed partially as the award contemplates
transfer of all shares. Apart from the fact that no objection was
raised when the deletion was allowed, I am of the view that
although the award contemplates transfer of all shares held by
multiple shareholders, and the same refers to entitlement inter se
the contracting parties the same is not necessarily a joint,
inseparable obligation requiring simultaneous performance. The
said relief is several and the award does not expressly stipulate that
the transaction is indivisible or conditional upon collective
performance.
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146. In execution, the court is concerned with enforceability of
obligation as it operates in fact. The award directing transfer of
shares does not become incapable of partial enforcement merely
because it uses the expression ‘all shares’. Therefore, where certain
shareholders are not proceeded against or where execution is given
up qua certain Respondents, the award holder is still entitled to
enforce the Award against the remaining shareholders whose
obligations are independently enforceable.
147. It is trite law that partial execution of a decree that grants
separate reliefs is permissible. In the case of Panaji Girdharlal v.
Ratanchand Hajarimal Marwadi (supra) this Court held that where
the decree sought to be executed gives two different reliefs, the
decree may be executed separately and the Applicant will have
waived his right to execution for the reliefs he chooses not to press.
148. Accordingly, the relief of transfer of shares is severable and
distinct and the Applicant is entitled to pursue the execution
against those Respondents whose share transfer obligations are
sought to be enforced.
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149. Apropos the above discussion, all the objections against the
Final Arbitral Award raised by the Respondents are hereby rejected
and the Final Arbitral Award is held to be executable and the
Execution Application is held to be maintainable. The execution to
proceed as per law.
150. It is clear that the stand taken by the Respondents is contrary to
the opinion of the Hon’ble Supreme Court in enforcement proceedings
viz. in the case of Prysmian Cavi E Sistemi SRL vs. Vijay Karia and
Another (supra) and despite that, the Respondents have raised the
very same issues only to delay the fruits of the award in favour of the
Execution Applicant, by not only re-agitating the grounds already
decided and negatived by the Hon’ble Supreme Court but also
endeavoured to raise a fresh issue in the garb of a fresh letter from the
Reserve Bank of India which cannot be permitted but has to be
deprecated by imposition of costs to be paid to the Applicant,
particularly when there is no challenge to the award under the English
law.
151. In view of what has been observed above, the decisions in the
cases of Shree Ambika Medical Stores & Ors vs. Surat People‘s Co-
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operative Bank Ltd. (supra), Maharashtra State Electricity Distribution
Company Limited vs. Maharashtra Electricity Regulatory Commission
& Ors. (supra) and Moti Lal Banker (Dead) by His Legal
Representative vs. Maharaj Kumar Mahmood (supra) relied upon by
Mr.Momaya for Respondents no.1, 5 to 7, 9, 58A, 61, 65 and 66 cited
only in the written submissions filed by the Respondents no.1, 5 to 7,
9, 58A, 61, 65 and 66 and not furnished at the time of hearing on
which the other learned Senior Counsel / Counsel have had no
opportunity to deal with, do not assist the case of the said
Respondents being clearly distinguishable on facts.
152. Also, in view of the aforesaid, the other arguments or other
judgments cited need not be gone into.
153. Ergo, the following order is passed:
ORDER
(i) Prayer Clause (J) (1) of the Execution Application is hereby
granted (less the shares belonging to Respondents No.
70,71,74,75 and 78) which reads as under:-
“1. By issuing appropriate order and directions to the
Respondents to sell and transfer to the Applicant theNikita Gadgil/AVK 86/93
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10,252,275 shares held by them in the capital of the Company
at the price of Rs.63.9/- per share aggregating to
Rs.655,200,000/-“.
(ii) It is understood that the sale, transfer of shares as above would
be upon payments of the consideration mentioned above.
(iii) Prayer Clause 30 (i) of the Interim Application No. 1401 of
2021 is hereby granted and the Respondents No. 1 and 11 are
directed to take all necessary steps to execute all necessary
documents for appointment of the the Applicant’s nominee-
directors on the Board of Directors of the Company Ravin
Cables Ltd (whose particulars are out in Annexures H to L of
the Additional Affidavit dated 11 th March 2020 in Chamber
Summons No. 327 of 2019) within a period of two weeks from
the date of uploading of this order:
a. Mr. Benoit Lecuyer
b. Mr. Manoj Vaidya
c. Mr. Pradeep Saigal
d. Mr. Alessandro Brunetti and
e. Ms. Ciniza Farise;
(iv) Pending compliance with the aforesaid direction and until a
fresh Board of Directors can be appointed in extra-ordinary
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general meeting of the shareholders of Ravin Cables Ltd., the
Applicant’s nominees be appointed as directors on the Board.
(v) Pending compliance with the aforesaid direction the
Respondent No.1 and 11 and each of them by themselves or
through their respective agents, representatives or servants are
restrained by an order of injunction from claiming or exercising
or attempting to exercise any rights whatsoever under the Joint
Venture Agreement dated 19th January 2010 in relation to the
Company including but not limited to representation on the
Board of Directors of the Company whether at meetings of
Board of Director or at meetings of the shareholders of the
Company, from claiming or attempting to claim , or
representing or attempting to represent the Company in any
manner whatsoever, or using or attempting to use any assets,
properties or facilities of the Company including but not limited
to the Company’s offices and communication facilities except
for the limited purpose of compliance with this order and
directions contained herein.
(vi) The Prothonotary & Senior Master is directed to handover to
the Court Receiver High Court Bombay the 91,30,175 shares of
Ravin Cables Ltd already deposited by the Respondents with
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the Prothonotary and Senior Master as directed by this Court in
its order dated 23rd June 2021 within a period of two weeks
from the date of uploading of this Order.
(vii) In respect of the 91,30,175 shares of Ravin Cables Ltd, as
directed by this Court in its Order dated 23 rd June 2021, the
Court Receiver, High Court Bombay is directed to transfer to
the Applicant, the 1,83,350 shares that are already in the
dematerialised form in compliance with National Securities
Depository Ltd Business Rules – September 2021 and SEBI
Rules and Regulations within a period of four weeks thereafter.
(viii) The Court Receiver, High Court, Bombay is directed to cause
the transfer of 10,00,000 shares held by Respondent No.3
(represented by Respondent 11 and pledged with Central Bank
of India (CBI) to the Applicant and CBI’s pledge be noted in
terms of the Order dated 28 th October 2021 within a period of
three weeks thereafter.
(ix) The Court Receiver, High Court, Bombay is directed to cause
the transfer of 1200 shares held by Respondent No.13
(represented by Respondent No.11) that lie with one Mr. Vikas
Kaushik in dematerialised form to the Applicant within a
period of two weeks from the date of uploading of this Order.
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(x) Respondents No. 21,24 and 26 have been served but have
remain unrepresented till date and therefore Respondent No.
21,24 and 26 each are restrained from disposing or transferring
of 100, 200 and 500 shares of Ravin Cables Ltd held by them
respectively and the Applicant is at liberty to take steps for
cancellation of these share and issuance of fresh shares in its
favour.
(xi) If any of the Respondents fail to provide the documents within
10 days from such request by the Court Receiver, the Court
Receiver shall stand appointed in respect of the shares
deposited by such defaulting Respondent and the Court
Receiver shall take all steps and sign and execute all required
applications, forms and documents for, and on behalf and in the
name of the registered holder(s) for the purpose of
dematerialising and,or transferring the said shares to the
Applicant. If the shares are required to be dematerialised prior
to transfer, the Court Receiver shall open the demat account(s)
in the name of “The Court Receiver, High Court Bombay
[names of the present registered holder(s)]”
(xii) The costs for opening of DEMAT accounts or for transfer of
shares, if any shall be borne by the Applicant at the first
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instance and shall be entitled to adjust the same against the
sale price payable for the shares.
(xiii) The legal and sundry disbursement costs of USD 2,317,188.82
and Euro 2,38,034.71 payable by the Respondents be set-off
against the aggregate transfer price amounting to INR
Rs.65,52,00,000/- payable by the Applicant in terms of Order
XXI,Rule 19(b) of the CPC is allowed to be set-off.
(xiv) The Respondents are directed to cooperate fully with the Court
Receiver and expeditiously provide and execute all documents
and information as may be required for the purpose of
transferring the said shares to the Applicant by the Court
Receiver.
(xv) All concerned including the Manager of the Depository, the
Registrar of Companies, the National Securities Depository Ltd
and Link Intime India Pvt Ltd., the Registrar and Transfer Agent
of Ravin Cables Ltd to act on an authenticated copy of this
Order and ensure opening of the DEMAT accounts and the
transfer of the shares as per the above timelines.
(xvi) The Respondents to cooperate with the Execution Applicants in
every manner to comply with the aforesaid order.
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(xvii) In addition Respondents to pay cost of Rs. 10 Lakhs to the
Applicant within a period of four weeks from the date of
uploading of this Order.
(xviii) In view of the aforesaid, and in view of the reliefs under the
Chamber Summons No. 327 of 2019 and Interim Application
No.1401 of 2021 having been granted the Interim No (L)
16939 of 2023 seeking the same stands disposed as allowed.
(xix) Accordingly, Interim Application No. 1401 of 2021 and
Chamber Summons No. 327 of 2019 also to stand disposed as
allowed.
(xx) The Execution Application to accordingly stand disposed as
above.
154. After the order has been pronounced, Mr. Momaya, learned
Counsel for the Respondents No.1, 5 to 7, 9, 58A, 61, 65 and 66 seeks
stay of the order passed today, which is vehemently opposed by Mr.
Khambata, learned Senior Counsel appearing for the Execution
Applicant.
155. In view of what has been observed in the order pronounced
today, the request for stay is rejected.
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Interim Application No. 147 of 2026.
156. This Interim Application was not on board on 11 th November,
2026 when the matters were closed for orders.
157. The learned Associate of this Court points out that from the CIS
system it appears that the said Interim Application has been
subsequently lodged on 11th November, 2025
158. However, today Mr. Murthy, learned Counsel appears for the
Interim Applicants and submits that he has instructions to withdraw the
Interim Application as the Applicants have been deleted from the array
of the parties in the Execution Application and connected proceedings.
159. The learned Senior Counsel and the other learned Counsel have
no objection.
160. The Interim Application accordingly stands disposed as
withdrawn.
(ABHAY AHUJA, J.)
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