“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION PETITION NO. 5 OF 2007

M/s.Tata Industries Ltd. & Anr. …. Applicants

Versus

M/s.Grasim Industries Ltd. …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J

1.Two companies, first being M/s.Tata Industries Ltd., and the second

being M/s. Apex Investments (Mauritius) Holding Private Limited

(hereinafter referred to Applicant Nos.1 and 2 respectively) have

approached this Court under Section 11(6) of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as “the Act”) for appointment

of the Arbitrator in a commercial dispute which has arisen between them

and Grasim Industries Limited (hereinafter referred to as “the non-

applicant”). Initially the applicants had approached Bombay High Court by

way of an application under Section 11(6) of the Act, however, a stand was

taken by the non-applicant that this would amount to an international

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commercial arbitration and, therefore, it would be the Chief Justice of India

alone who would have the powers to constitute the Arbitral Tribunal under

Section 11(12) of the Act. It is, therefore, that the matter has come before

this Court. The parties are ad idem on this jurisdictional issue that the

jurisdiction to appoint the Arbitrator lies with the Chief Justice of India or as

the case may be, his nominee.

2.There is no dispute between the parties that there is an arbitration

agreement between the parties vide Clause 12.04 of the Shareholders

Agreement dated 15.12.2000 and Clause 9 of the Share Transfer

Agreement dated 1.6.2006. That issue need not, therefore, be dilated

upon.

3.The parties are also ad idem that the claims are within limitation.

4.The only question to be decided, on which the parties have

extensively argued, is whether there is a live arbitrable issue.

5.Following background facts would help to understand the

controversy between the parties.

6.M/s.Tata Industries Limited (hereinafter referred to as “TIL”) is a

company incorporated under the Indian Companies Act, 1956 (Applicant

No.1) while Apex Investments (Mauritius) Holding Private Limited

(Applicant No.2) is a company incorporated under the Laws of Mauritius.

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The Applicant No.2 has its registered office at Mauritius while non-applicant

M/s.Grasim is also a company incorporated under the Indian Companies

Act, 1956.

7.Tata Cellular Limited (hereinafter called the “TCL”) had obtained a

CMTS licence for Andhra Pradesh Circle on 19.12.2005. Similarly, Birla

AT &T Communications Ltd. (hereinafter referred to as “BACL”) which was

a joint venture undertaking of A.V. Birla Group and AT&T Wireless Group

held CMTS licences for Maharashtra and Gujarat Circles since 15.12.1995.

Tata Teleservices Limited (hereinafter referred to as “TTSL”) was granted a

basic service licence for Andhra Pradesh Circle on 4.11.1997. A

Memorandum of Understanding was arrived at between AT&T Wireless

Inc., AV Birla Group and Tata Industries Limited on 1

st

March, 2000

whereby they agreed to provide CMTS service through a single entity. As

per this Memorandum of Understanding AT&T Wireless Inc., AV Birla

Group and TIL agreed to provide services through a single entity or an

alliance of entities and agreed to merge themselves to form IDEA Cellular

Limited (hereinafter referred to as “IDEA”). The Memorandum of

Understanding was entered into on 13.11.2000 by merging TCL with

BACL.

8.A Shareholders Agreement came into existence on 15.12.2000

between AT&T Wireless Inc., AV Birla Group (through Grasim Industries

Limited) and Tata Group through TIL. In this Agreement respective rights

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and obligations of the parties for the merger/amalgamation of the TCL into

BACL and modalities and functions of merged entities were recorded.

Under that Agreement, the applicants, the non-applicant and AT&T

Wireless Services Inc., were to hold 44,72,35,136 shares being one-third of

the subscribed and paid up Equity Share Capital of the merged entity, i.e.,

IDEA. Article 3.04(b) of the Shareholders Agreement provides as under:

“Each founder covenants and agrees that except as set out in

Section 3.04(c) and Section 3.04(d), it will not engage in,

either directly or indirectly though an affiliate, (i) any activity

that would constitute the business of the merged company

within the territorial telecom circles covered by the licences; or

(ii) any opportunity outside the territorial telecom circles

covered by the licences that would constitute the business or

the merged company in India and the neighbouring territories

unless the opportunity has been first offered to the merged

company to undertake such new business by placing the same

before the Board of Directors of the merged company. The

Board of Directors shall deliberate, without the participation of

the India placing the opportunity before the Board (the

Opportunity Shareholder”) on whether to avail of such an

opportunity. If the Board decides not to avail itself of such

opportunity or does not convey the decision in respect thereto

within a period of 120 days (or such shorter period as may be

necessary in the context of the nature of the opportunity) from

the date of receipt of such offer by the merged company then;

(i)the Opportunity Shareholder shall invite the other

Founders for discussions on whether a joint venture for

availing the opportunity may be undertaken;

(ii)If the other Founders do not wish to participate in

a joint venture the Opportunity Shareholder shall be free

to avail of the opportunity on its own.”

Article 8 is the Confidentiality Clause which reads as under:

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“8.01Confidential Information Defined:

For the purposes of this Agreement, “confidential information”

shall mean all oral, written and/or tangible information created

by the merged company or disclosed by a Founder (in either

case “owner”) to the receiving Founder (“Recipient”) which is

confidential, proprietary and/or not generally available to the

public, including but not limited to information relating in whole

or in part to present and future products, services, business

plans and strategies, marketing ideas and concepts, especially

with respect of unannounced products and services, present

and future product plans, pricing, volume estimates, financial

data, product enhancement information, business plans,

marketing plans, sales strategies, customer information

(including customer’s applications and environment), market

testing information, development plans, specifications,

customer requirements, configurations, designs, plans,

drawings, apparatus, sketches, software, hardware data,

prototypes or other technical and business information.

Notwithstanding the foregoing, information shall not be

deemed confidential and Recipient shall have no obligation

with respect to any such information which:

(a)is already known to Recipient, or

(b)is or becomes publicly known, through any means

including publication, inspection of a product, or

otherwise, and through no negligence or other wrongful

act of Recipient, or

(c)is received by recipient from a third party without

similar restriction and without breach of this Agreement,

or

(d)is independently develop by Recipient, or

(e)is furnished to a third party by owner without a

similar restriction on the third party’s rights.

8.02Treatment of Confidential Information

From the execution of this Agreement until three (3) years

after the Recipient ceases to be a shareholder, Recipient

shall, and shall cause its affiliates to, keep confidential and will

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not disclose, and will cause its affiliates not to disclose, to third

parties, the confidential information receive from, or made

available by owner in the course of the transactions

contemplated hereby and will use and cause its affiliates to

use, the same level of care with respect to the confidential

information as Recipient employees with respect to its own

proprietary and confidential information of like importance, and

will not use and will cause its affiliates not to use such

confidential information for any purpose other than the

performance of its obligations under this Agreement. Promptly

upon the Recipient ceasing to be a shareholder, written

confidential information will be returned to Owner or destroyed

immediately upon the request of owner, and no copies,

extracts or other reproductions shall be retained by the

Recipient. All documents memoranda, notes and other

writings whatsoever prepared by recipient which contain the

confidential information shall be returned to owner or

destroyed at owner’s request. Confidential information

provided by owner shall remain the property of owner. For the

avoidance of doubt, the merged company shall not be deemed

to be a Recipient for purposes of this Section.

8.03Notice prior to disclosure:

If Recipient (or its affiliate) is requested or required (by oral

questions, interrogatories, requests for information or

documents, subpoena, civil investigative demand or similar

process) to disclose any confidential information, Recipient will

promptly notify owner of such request or requirement so that

owner may seek an appropriate protective order or waive

compliance with the provisions of this Section 8.03. If, in the

absence of a protective order or the receipt of a waiver

hereunder, Recipient (or any of its affiliates) is in the written

opinion of Recipient’s counsel compelled to disclose the

confidential information or else stand liable for contempt or

suffer other censure or significant penalty, Recipient (or its

affiliates) may disclose only so much of the confidential

information to the party compelling disclosure as is required by

law. Recipient will exercise (and will cause its affiliate to

exercise) reasonable efforts to obtain a protective order or

other reliable assurance and confidential treatment will be

accorded to confidential information.”

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Article 9 of the Agreement deals with the effectiveness and termination.

Article 9.02 relates to right to terminate for cause. It specifically provides

that in the event of occurrence of a material breach on the part of the

Defaulting Founder, each Founder shall have right to make the election as

provided in Clause 9.02(b). However, for that purpose the electioning

Founder should have given written notice of the alleged breach to

Defaulting Founder and in terms of that notice the Defaulting Founder has

not cured, within 60 days, the said breach, if the said breach is capable of

being cured within such period, or the Defaulting Founder has not taken

substantial and appropriate steps to cure the breach. The “material

breach” is defined in this Clause as:

(i)a breach of confidentiality provisions set forth in Article VIII of

the Agreement;

(ii)breach of the provisions of Section 3.04(b) relating to non-

competition;

(iii)the failure to contribute capital as required under Section 2.04

(a);

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(iv) a breach of provisions relating to election of Directors, filling of

Board vacancies, removal of Directors and election of Chairman of

the Board;

(v)a breach of the provisions under Article 10 relating to transfer

of equity, capital or voting interest;

(vi)a breach by a party of the provisions under Section 6.02.

Article 10.06 provides that if any party receives from or otherwise

negotiates with third parties a bonafide offer to purchase any of the equity

capital owned or held by such party and intends to make sale of its shares

to such third party, such founder must notify the other two parties of the

Shareholders Agreement by way of a notice mentioning offer price, the

third parties making the offer and the number of shares that such third

party wants to purchase on which the offeree would have option to

purchase such amount of shares at the offer price within 45 days of the

offer notice.

9.The Arbitration clause worded in Article 12.04 and Article 12.04(a),

(b), (c), (d) and (e) are as under:

“12.04 Governing law and consent to Jurisdiction:

Arbitration:

(a)This Agreement and all questions of its interpretation

shall be construed in accordance with the laws of the Republic

of India without regard to its principles of conflict of laws.

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(b)The parties agree that they shall attempt to resole

through good faith consultation in their behalf, disputes arising

in connection with this Agreement and such consultation shall

begin promptly after a party has delivered to another party a

written request for such consultation.

(c)In the event that, after exhausting the efforts for

resolution of dispute described in paragraph (b), the parties

have been unable to resolve a dispute, and if the dispute is

one which relates to an alleged breach of any representation,

warranty, covenant or agreement under or the validity or

termination of, covenant or agreement under or the validity of

termination of this agreements, such dispute shall be finally

settled according to the procedure set forth in paragraph (d).

(d)A dispute subject to resolution under this paragraph (d)

shall be finally settled by binding arbitration in Mumbai, India

before and pursuant to the Indian Arbitration and Conciliation

Act, 1996. Each party shall select an arbitrator within fifteen

(15) days from the initial arbitration request.

Promptly upon their selection, such arbitrators shall agree

upon and select a third arbitrator from the panel of arbitrators

UNCITRAL. The parties shall agree in advance as to manner

in which the arbitration panel shall promptly hear witnesses

and arguments, review documents and otherwise conduct the

arbitration proceedings. Should the parties fail to reach an

agreement as to the conduct of the arbitration proceeding

within twenty (20) days from the selection of the third

arbitrator, the arbitration panel shall formulate its own

procedural rules and promptly commence the arbitration

proceedings. The arbitration proceedings shall be conducted

as expeditiously as possible with due consideration for the

complexity of the dispute in question. The arbitration panel

shall issue its decision in writing within thirty (30) days from the

hearing of final arguments by the parties. The parties agree

that the arbitrators will have the power to rule on questions of

its own jurisdiction over any dispute, to award damages and, in

appropriate circumstances, to award equitable relief but shall

not be authorized to award punitive or exemplary damages to

any party. The parties specifically agree to be bound by the

decisions rendered by the arbitration panel provided for herein

and agree not to submit a dispute subject to this Section 12.04

(d) to any federal, State or local court or arbitration association

except as may be necessary to enforce the procedures of this

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Section 12.04(d) or to enforce the decision rendered by the

arbitrators. The parties to any dispute submitted to arbitration

hereunder shall share equally the costs of the arbitral panel

and shall each bear their own attorneys’ fees and other

expenses incurred in connection with any arbitration

proceedings. If court proceedings to stay litigation or compel

arbitration are necessary, the party who unsuccessfully

opposes such proceedings shall pay all associated costs,

expenses and attorneys’ fees which are reasonably incurred

by the other party.

(e)During the pendency of a dispute/arbitration

proceedings the parties shall be bound by the terms of this

Agreement.”

The parties point out that in 2004 AT&T Wireless Services Inc., which was

the holding company of AT&T Cellular Private Limited (Mauritius), merged

with New Cingular Wireless Services Inc. (hereinafter referred to as

“NCW”) pursuant to a global restructure cum merger. Subsequently in

September, 2005 TIL acquired the entire shareholding of AT&T Cellular

Pvt. Ltd. from NCW and the Birla Group acting through Aditya Birla Nuvo

Ltd. (hereinafter referred to as “ABNL”) acquired 16.45% shares in IDEA

from AT&T Cellular Private Limited. AT&T Cellular Private Limited was

subsequently renamed as Apex Investments (Mauritius) Limited. As a

result of this, the shareholding of Birla Group in IDEA increased to 50.14%

while TIL continued to have 31.69% of the issued share capital. The

balance 1.70% of IDEA was held by AIG (Mauritius) LLC.

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10.On 31.1.2006, the Applicant No.1 served a notice on the non-

applicant under Article 9.02 of the Shareholders Agreement in which it was

stated that pursuant to an e-mail communication received by it from one

Mr.Sanjeev Aga, it was clear that Aditya Birla Telecom Limited (hereinafter

referred to “ABTL”), a subsidiary of ABNL had applied to the Department of

Telecommunication for grant of UAS license for the Mumbai Metro Circle.

It was further stated in that notice that vide Board Circular dated 29.7.2005,

the Board of Directors of IDEA had accepted proposal to apply for UAS

licence for the Mumbai Metro Circle and consequently the said application

was filed on 3.8.2005. The Applicant No.1 thus asserted that the filing of

the application for UAS licence by ABTL for the Mumbai circle was in clear

violation of Article 3.04(b) of the Shareholders Agreement and amounting

to a material breach by Aditya Birla Group under Article 9.02 of the

Shareholders Agreement and accordingly it was requested to cure the said

material breach within 60 days of the receipt of the said letter by

withdrawing the said application made by ABTL for grant of UAS licence for

Mumbai Circle.

11.On 27.2.2006, Applicant No.1 sent the Termination Notice under

Article 9.02 (b) of the Shareholders Agreement that ABNL, which was an

affiliate company of Aditya Birla Group, for the purposes of Shareholders

Agreement had displayed confidential financial data of IDEA including

particulars of revenue, PBDIT, OPM%, PBIT, Net profit/loss, capital

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employed, ROCE (annualized)% and projections, on its website. It was

asserted that this information displayed on the website was confidential

information within the meaning assigned to the said term in Article 8.01 of

Shareholders Agreement. Since such confidential information was not in

the public domain and since none of the exceptions to the protection of

confidential information contained in Section 8.01 of the Shareholders

Agreement were available to ABNL, the disclosure of confidential

information was a clear breach of Article 8.02 of the Shareholders

Agreement. It was also asserted that such material breach was not

capable of being cured and, therefore, the said letter was to be treated as

the Termination Notice in accordance with Article 9 of the Shareholders

Agreement and the Applicant No.1 was proceeding to purchase the

shareholding of AV Birla Group within 90 days of the receipt of the said

notice. A copy of the notice was also endorsed to IDEA in order to take

steps to facilitate access to an international firm of auditors appointed by

Applicant No.1 for computing the fair market value of the IDEA shares. 12.

These letters dated 20.2.2006 and 1.3.2006 were disputed by letters

dated 31.1.2006 and 27.2.2006 respectively wherein a clear cut denial was

asserted to the effect that there was no violation of the provisions of the

Shareholders Agreement relating to non-competition and confidentiality.

Then vide the subsequent correspondences dated 16.3.2006 and

27.3.2006, Applicant No.1 reaffirmed all its stand and its entitlement to

purchase the entire equity share capital of the non-applicant in IDEA in

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accordance with the provisions of Shareholders Agreement. There was a

further denial on the part of the non-applicant by its letters dated 17.3.2006

and 3.4.2006.

13.However, in the meantime, the applicant received an offer for

purchasing its stake as well as the stake of M/s. Apex Investments

(Mauritius) Holding Private Limited in IDEA from Global Communication

Services Holding Limited. In such an eventuality, in terms of Clause 10.06,

the applicants were bound to offer the shares at the same price to the non-

applicant. Accordingly, a notice dated 5.4.2006 came to be served by

Applicant No. 1 on its behalf and on behalf of its subsidiary M/s. Apex

Investments (Mauritius) Holding Private Limited, offering the said shares to

the non-applicant. In this notice, the material terms and conditions of the

offer were specified vide para 3. It was stated:

“By this letter, TIL and Apex are intimating the AV Birla Group

of their having received a bonafide offer for purchase of the

Sale Shares and of TIL and Apex having accepted the offer

made to them, subject to this prior offer being made to the AV

Birla Group. Without prejudice to the notices of termination

dated January 31, 2005 and February 27, 2006 issued by TIL

to the AV Birla Group, TIL and Apex are hereby making the

first offer for purchase of the Sale Shares to the AV Birla

Group at the price and on the material terms and conditions

mentioned above. This Offer Notice shall remain irrevocable

for a period of 45 days after the Notice Date (i.e., 45 days after

the receipt of this Offer Notice by yourselves).

On the very next day of this Offer, the non-applicant vide its

communication dated 6.4.2006 accepted the Offer of Purchase. However,

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it was specified in that reply that their acceptance of the Offer was without

prejudice to their contentions that the notices of termination referred to in

the said Offer Notice were not tenable. The applicant TIL on the very next

day, i.e. 7.4.2006, conveyed that they would be shortly forwarding two Draft

Share Purchase Agreements for the sale of IDEA shares held by Tata

Industries Limited and Apex Investments (Mauritius) Holding Private

Limited. However, in the second para of this Notice, it was reiterated as

under:

“We reiterate that our offer and your acceptance thereof, is

without prejudice to the notices of termination dated January

31, 2006 and February 27, 2006 issued by us, and your rival

contentions which we have not accepted.”

14.On 10.4.2006, the letter dated 7.4.2006 was replied to. There again,

it was reiterated:

“As regards our position regarding the notices of termination,

we wish to reiterate your position already communicated.”

On 19.4.2006, by the even dated letter, the applicant reiterated that

the non-applicant had breached the Confidentiality Clause and that the

claim of the non-applicant that the data displayed on the website was not

confidential under the Shareholders Agreement, is misplaced. It was

asserted in para 6 of the letter that non-applicant No. 1 was making

contradictory statements. It was lastly asserted:

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“As already explained above, since the AV Birla Group is in

violation of the provisions of the Shareholders Agreement, the

First Notice and the Second Notice issued by us cannot be

withdrawn. Since you have failed in agreeing upon the name

of the international firm of auditors we shall therefore proceed

in accordance with the Shareholders Agreement to do the

needful in connection with determining the Fair Market Value

of IDEA shares.”

Again on 19.4.2006 by the letter of even date, the applicants reaffirmed the

contents of Notices of Termination dated 31.1.2006 and 27.2.2006.

15.On 24.4.2006 the Non-applicant replied to the letter dated 19.4.2006

and intimated the applicants their readiness to make full and final payment

against the delivery of shares by TIL and the Apex. On 24.4.2006 the

applicants issued a notice requesting to commence the process of

consultation with respect to the dispute which had arisen between the

parties and which was more particularly highlighted in their earlier notices.

In that notice it was said:

“We note that vide your letters dated February 28, 2006,

March 1, 2006, March 17, 2006, April 3, 2006 and April

24, 2006, you have disputed the contents of the said

Notices and have also disputed the fact of commitment

of “material breaches” of Section 3.04 and 9 of the

Shareholders Agreement by you.

It is, therefore, apparent that a dispute has arisen

between us in connection with the terms of the

Shareholders Agreement.”

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A further reference was given to Clause 12.04 (b) of the Shareholders

Agreement which provided for consultation and, therefore, by the same

notice the process of consultation was called upon by the applicants.

Lastly it was straightaway suggested that:

“In case you are not interested in exploring the process

of consultation as aforesaid, and would like to proceed

with arbitral proceedings straight away, we would be

agreeable to that procedure also.”

On 27.4.2006 the non-applicant responded to the applicants consultation

notice and asserted that there was no arbitral dispute surviving between

the parties and, therefore, there was no longer a basis for arbitration

regarding the issues set forth in the termination notices. The non-applicant

also requested the applicants to withdraw the consultation notice. It was,

therefore, pointed out through the notice dated 5.5.2006 by the applicants

that the termination of the agreement on their part was made without

prejudice to the pendency of the dispute and/or arbitration proceedings and

the position was clarified from time to time. On 5.5.2006 the applicants

formally served a letter by way of formal notice for arbitration. This notice

was contested by the non-applicant by its letter dated 17.5.2006 again

reiterating its position that there was no arbitrable dispute surviving

between the parties. Hence on 19.5.2006, the applicants communicated to

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the non-applicant that they had appointed their nominee Arbitrator under

Clause 12.04 (d) of the Shareholders Agreement.

16.So far so good. Thereafter two share purchase agreements were

entered into between the applicants and the non-applicant. There was a

specific reference made to the claim of arbitration made on behalf of the

TIL in Clause (d) which runs as under:

“In relation to the notices dated January 31, 2006 and

February 27, 2006 issued by TIL (as a founder under the

Shareholders Agreement as hereinafter defined) to the AV

Birla Group, TIL has pending arbitration disputes with the AV

Birla Group, TIL has not accepted the rival contentions of the

AV Birla Group in respect of the said notices nor has the AV

Birla Group accepted, TIL’s claim pending Arbitration. As

such, the execution of and consummation of the transaction

contemplated by this Agreement shall not prejudice or affect

the pendency of continuation of the arbitration proceedings

between TIL and AV Birla Group.”

In Clause 2.3 it was further specified in this Agreement that:

“TIL for itself and Apex has issued the Termination Notices.

The offer made by TIL to the AV Birla Groupa pursuant to the

offer notice, was made without prejudice to he said

Termination Notices, Grasim Industries Limited, as part of the

AV Birla Group has refuted the Termination Notices. Further,

in order to enforce the rights accrued to TIL and Apex on

account of the Termination Notices, TIL, for itself and Apex

has pursuant to clause 12.04(d) of the Shareholders

Agreement on May 5, 2006 issued a notice to arbitrate to the

AV Birla Group. Accordingly, this Agreement is being

executed without prejudice to the rival contentions of either

party with reference to the Termination Notices and the legal

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rights which have accrued to each party (including Apex acting

through TIL as founder) under the Shareholders Agreement.”

In pursuance of this an application was filed before the Bombay High Court

and as has been stated earlier, the said application came to be withdrawn

and a fresh application came to be made before this Court for the

appointment of Arbitrator.

17.Mr.Harish N. Salve, Mr.R.F. Nariman and Mr.Mukul Rohtagi, Senior

Counsel on behalf of the applicants painstakingly took the court through the

Shareholders Agreement as well as the Share Purchase Agreement. The

Court was taken through the whole history along with necessary

documents and it was reiterated that the appointment of Arbitral Tribunal

was a must for resolving the live issues between the parties. Learned

counsel firstly urged that there was no dispute about there being

Shareholders Agreement to which contesting entities were the parties and

further that the applicants held shares in IDEA subject to discipline of

Shareholders Agreement. Learned counsel thereafter relied upon the

Notice dated 31.1.2006 whereby a material breach was alleged on the part

of the non-applicant, i.e., to secure the licences which would necessarily

involve business in competition with IDEA. The attention of the Court was

also drawn to the second notice dated 27.2.2006 by which the

confidentiality clause was alleged to have been breached, which breach

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was an incurable breach. Thus the applicants asserted that under the

terms of the Shareholders Agreement, the applicants were entitled to

purchase the shares of the non-applicant in the event of the breach at a

price that was heavily discounted price, i.e., at 25% less than the market

price as per clause 9.02(b)&(c) of the Shareholders Agreement. It was,

therefore, urged that the dispute had arisen which has been shown in the

Termination Notices dated 31.1.2006 and 27.2.2006, which has been

disputed by the non-applicant’s reply dated 28.2.2006 and 1.3.2006. It

was, therefore, urged that such dispute clearly fell within the Arbitration

Clause.

18.It was further urged that there was a live issue between the parties

and that there was a difference between a live issue and a live claim. It

was urged that whether the claim had any merit or not was a matter which

could be considered at the stage of appointing an Arbitrator and an issue

which has never been closed or treated to have been closed remains a live

issue. Heavy reliance was placed on the judgment of this Court reported in

Shree Ram Mills Ltd. v. Utility Premises (P) Ltd. [(2007) 4 SCC 599 at

p.607]. It was, therefore, urged that as per the principles laid down, the

initial notices of termination were disputed by the non-applicant; that on 27

th

March, 2006 an international firm of auditors was appointed by the

applicants to determine the fair value of shares; that on 5

th

April, 2006, the

applicant had received an offer for selling these shares to a third party and

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on that very date the applicant had raised the dispute although the

arbitration proceedings had by then not yet commenced. It was pointed out

by the learned counsel that the non-applicant in its reply dated 28.2.2006

had very clearly understood this position and has reiterated therein as

under:

“Your Second Notice is wrongful, illegal, malafide, non est

factum and designed to take advantage of your own wrongs.

The Shareholders Agreement continues to subsist under law

and contract, despite the second notice. Such notice is of no

consequence under the Shareholders Agreement or in the

eyes of law. You are not entitled to rely upon or take any

advantage based upon the Second Notice.”

Learned counsel pointed out that in the first notice there was no termination

of contract but it was a notice to correct the material breach while the

second notice purported to terminate the Agreement. Learned counsel

also pointed out that in the reply dated 28.2.2006 there was a tacit

agreement that the Shareholders Agreement remained in existence

inasmuch as it was stated in its notice that:

Any breach by you of the provisions of the Shareholders

Agreement relating to transfer of shares will result in an invalid

and illegal transfer, which will not be binding on either Idea or

the Birla Group. Also, such breach will be a material breach

under Section 9.02 of the Shareholders Agreement. Please

be advised that the Birla Group is committed to asserting its

rights in respect of any attempted breach in accordance with

law. Please also note that any third party participating in any

sale of the shares of Idea held or controlled by the Tata Group

will also be liable to the Birla Group. We also hereby put all

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such third parties on notice of your obligations towards the

Birla Group, and the Birla Group’s potential claims against

them for inducing the breach of the Shareholders Agreement.”

Learned counsel further argues that the offer which was made on 5

th

April,

2006 was a “without prejudice” offer which was accepted by non-applicant

on “without prejudice” basis on 6

th

April, 2006 and therefore, when on 24

th

April, 2006 the non applicant informed the applicants that they were ready

to make full and final payment on the same day, the applicants requested

to commence the process of consultation to resolve the dispute which had

arisen. Learned counsel also pointed out that subsequently when the

Share Purchase Agreement was executed on 1

st

June, 2006, it contained

clauses which made it clear that the disputes were being kept outside this

arrangement and they would be resolved separately and thus the live issue

remained to be alive.

19.It was further argued that though the non-applicant had contested

the notices of termination suggesting that there was no arbitrable issue, still

an agreement was entered into on 1

st

June, 2006 wherein there was clear

reference to the clauses keeping the disputes arising out of the live issues

alive. Learned counsel relied upon the following observations made in

Heyman & Anr. v. Darwins Ltd. [(1942) 1 All E.R. 337]:

“Repudiation, then, in the sense of a refusal by one of the

parties to a contract to perform his applications, thereunder,

21

does not of itself abrogate the contract. The contract is not

rescinded. It obviously cannot be rescinded by the action of

one of the parties alone. Even if the so-called repudiation is

acquiesced in or accepted by the other party, that does not

end the contract. The wronged party has still his right of action

for damages under the contract which has been broken, and

the contract provides the measures of those damages. It is

inaccurate to speak in such cases of repudiation of the

contract. The contract stands, but one of the parties has

declined to fulfil his part of it. There has been what is called a

total breach or a breach going to the root of the contract, and

this relieves the other party of any further obligation to perform

what he for his part has undertaken.”

“I am accordingly of opinion that what is commonly called

repudiation or total breach of a contract, whether acquiesced

in by the other party or not, does not abrogate a contract,

though it may relieve the injured party of the duty of further

fulfilling the obligations which he has by a contract undertaken

to the repudiating party. The contract is not put out of

existence, though all further performance of the obligations

undertaken by each party in favour of the other may cease. It

survives for the purpose of measuring the claims arising out of

the breach, and the arbitration clause survives for determining

the mode of their settlement. The purpose of the contract

have failed, but the arbitration clause is not one of the

purposes of the contract.”

Similarly other observations by House of Lords reported in the above case

were also heavily relied upon to the effect:

“To say that the contract is rescinded or has come to an end or

ceased to exit may in individual cases convey the truth with

sufficient accuracy, but the fuller expression that the injured

party is thereby absolved from future performance of his

obligations under the contract is a more exact description of

the position. Strictly speaking, to say that, upon acceptance of

the renunciation of a contract, the contract is rescinded is

incorrect. In such a case the injured party may accept the

renunciation as a breach going to the root of the whole of the

22

consideration. By that acceptance he is discharged from

further performance and may bring an action for damages, but

the contract itself is not rescinded.

The injured party may therefore rely upon the contract and

apply to have the action stayed if he desires to do so.”

“The same observations as apply to accepted repudiation

apply, I think to frustration. The phrase ‘frustration of the

contract’ is as inaccurate in expression as is the phrase

‘rescission of the contract by repudiation’. The contract is not

frustrated. Its future performance or the adventure is

frustrated. The damages are still at large and so is the

question whether, having regard to the terms of the contract

express or implied, there has been frustration or not. This

appears to have been recognized in Scott & Sons v. Del Sel

[(1923) S.C. (H.L.) 37) which though a Scottish case was

decided on the same principles as apply in English law, and is

binding upon your Lordships’ House. So far as the case of

Hirji Mulji [(1926) AC 497], which is not binding, lays down a

different principle, I do not think it should be followed, despite

the authority which is undoubtedly possesses.”

Shortly stated the claim of the applicants is for the profits they had become

entitled to by the breach of confidentiality clause on the part of the non-

applicant which profit was on account of applicant’s entitlement to purchase

the shares of non-applicant at the rate 25% less than the market price. Its

reiteration is that though subsequently it agreed to sell all its shares to the

non-applicant on account of the offer having been made to it by Global

Communication Services and though subsequently the Share Purchase

Agreement dated 1.6.2006 was executed between the applicants and the

non-applicant, since the said agreement was subject to the disputes raised

23

earlier and without prejudice to its rights it could still lay its hand on its

claim.

20.As against this Shri K.K. Venugopal, Dr. Abhishek Manu Singhvi and

Shri Shyam Diwan, learned senior counsel for the Non-applicant opposed

the appointment of Arbitral Tribunal on various grounds and basically on

the ground that there was no live issue remaining pending between the

parties. The major contention is that by Share Purchase Agreement, the

applicants had made an exit from the company and, therefore, they were

left with no rights under the Shareholders Agreement. A very heavy

reliance was placed by Shri Venugopal on Clauses 7.01 (a) and (b) which

are as under:

“7.01 (a)For a founder to exercise its rights under this

Agreement, the Founder must hold 15% of the issued,

subscribed and paid up Equity Capital (the “Threshold Limit”).

(b)Should the shareholding of any Founder fall below the

Threshold Limit;

i) Such Founder shall not be entitled to exercise any

rights under this Agreement;

ii)Such Founder shall comply with all obligations set

forth in this Agreement;

iii)Such Founder shall act in accordance with the

instructions of the other founders;

iv)any disposal by such Founder of any shares held

by it shall be in accordance with Article X.”

24

Heavily relying on this clause, the learned Senior Counsel argued that once

by a Share Purchase Agreement, the applicants agreed to sell their shares

to the non-applicant and due to such act once the shareholding of the

applicants fell below 15%, it had no right to assert more particularly under

the Shareholders Agreement. Learned counsel argues that there were two

options to the applicants when they received an offer from Global

Communications Services, a third party, for the sale of their shares if the

applicant had accepted the offer. First option was to sell the entire

shareholding to Global Communications and exit IDEA in which case the

non-applicant could also choose to sell its entire shareholding in IDEA to

Global Communications by giving a Special Disposal Notice and once the

Tata Group allowed the Birla Group to sell all its shares to Global

Communications, it could no longer require the Birla Group to then sell the

same shares to the Tata Group for the reason that Birla Group would no

longer have those shares. The second option, according to the learned

counsel was to sell the entire shareholding in IDEA to the non-applicant

and exit IDEA. According to the learned counsel in both these cases on

acceptance of the offer by the applicants from Global Communications,

there would be an inevitable result of voluntary effacement of all rights that

the applicants claim on the Birla Group shareholding in IDEA. It was

pointed out that the applicants had accepted this offer from the Global

Communications much before it attempted to reserve any rights against the

non-applicant and, therefore, had irrevocably elected to exit IDEA, electing

25

for second option. It was, therefore, urged that there was a concluded

contract between Global Communications and the applicants even before a

letter dated 5.4.2006 was sent by the applicants to Birla Group to purchase

their shareholding in IDEA and hence the applicants had elected to exit

IDEA themselves. In support of this proposition, the learned counsel relied

on three cases:

(i)Sargent and ASL Developments Limited, reported at

(1974) 4 Australian Law Reports (A.L.R.) 257.

(ii)Jai Narain Parasrampuria (Dead) and others Vs.

Pushpa Devi Saraf and others, reported at 2006 7

SCC 756.

(iii)National Insurance Company Limited Vs. Mastan

and another, reported at 2006 2 SCC 641.

21.In short, it was contended that by accepting the offer of Global

Communications the claim made by the applicants under Termination

Notices for purchase of Birla Group shareholding in IDEA at a defaulting

price got necessarily effaced with the subsequent option given in the offer

notice to Birla Group to sell their entire shareholding to Global

Communications. It was further urged that with the offer of sale to Global

Communications, the applicants recognized and acquiesced that the Birla

Group’s shareholding in IDEA was not subject to any encumbrance or

26

reservations and the applicants, therefore, necessarily abandoned all

purported claims for the purchase of Birla Group’s shareholding and there

was nothing left with the applicants to reserve in the offer notice or any

documents executed thereafter. It is pointed out that the Agreement to Sell

to Global Communications took place without any notice to the Birla Group

and contrary to the alleged right of applicants to buy out Birla Group and

remain invested in IDEA with increased shareholding, the applicants

themselves exited IDEA by selling their shares to Birla Group companies

and thereby reducing the Tata Group’s shareholding in IDEA to Nil. It is

accordingly suggested that as a result all rights of Tata Group pursuant to

Termination Notices were effaced and there was no arbitrable dispute

surviving between the parties. It is pointed out that there was no claim for

damages in the Termination Notice and in fact such a claim was not even

possible because it was excluded by the decision to seek a buy out under

Section 9.02 of the Shareholders Agreement. It was then stated that the

claim by the applicants was frivolous and unsustainable because of the

alleged loss of an opportunity to buy out Birla Group’s shareholding in

IDEA was not caused by any breach of contract by any Birla Group

company but it was by applicants’ own voluntary decision to exit the

company and thereby lost the right to acquire Birla Group’s shareholding in

IDEA. It is pointed that the purported rights of the applicants under the

Termination Notice is not possible in law also particularly because the Tata

Group’s election to exit IDEA and to let Birla Group remain invested in

27

IDEA and as such all their claims were erased. Learned counsel also

relied on Clause 7.01(b)(i) of the Shareholders Agreement which is as

under:

i) Such Founder shall not be entitled to exercise any rights

under this Agreement;

It was suggested that even if the Arbitration clause remains inspite of the

termination of the Shareholders Agreement, because of the above

mentioned clause, there is complete bar created on the exercise by the

applicants of the substantive right to seek a buy out. A live procedural

mechanism of dispute resolutions through arbitration cannot be set in

motion to enforce a dead claim and, therefore, there would be no question

of starting an arbitration proceeding.

22.As to what should be the approach of the Court in an application

under Section 11(6) was explained by this Court in SBP Co. Vs. Patel

Engineering Ltd. and Another reported in 2005 8 SCC 618. This was a

decision to resolve as to whether the Chief Justice of India or his nominee,

while dealing with the matters under Section 11(6) acts in his administrative

capacity or his judicial capacity. The Court ultimately, held that the Chief

Justice of India acts in his judicial capacity. Hon. P.K. Balasubramanyan,

J., who authored the judgment on behalf of the majority, in his conclusions,

pointed out clearly in point iv (points i, ii and iii not relevant) that:-

28

“(iv)The Chief Justice or the designated Judge will have the

right to decide the preliminary aspects as indicated in

the earlier part of this judgment. These will be his own

jurisdiction to entertain the request, the existence of a

valid arbitration agreement, the existence or otherwise

of a live claim, the existence of the condition for the

exercise of his power and on the qualifications of the

arbitrator or arbitrators………………………”

The law, thus, stands crystalised by this judgment indicating the

exact scope of the Judge in dealing with an application under Section 11(6)

of the Act. The judgment was thereafter considered in number of cases.

In Shree Ram Mills Ltd. Vs. Utility Premises (P) Ltd. reported in 2007 4

SCC 599, it was observed relying on observations made in paragraph 39 of

SBP Co. Vs. Patel Engineering Ltd. and Another reported in 2005 8

SCC 618 (cited supra):

“A glance on this para would suggest the scope of the order

under Section 11 to be passed by the Chief Justice or his

designate. Insofar as the issues regarding territorial

jurisdiction and the existence of the arbitration agreement are

concerned, the Chief Justice or his designate has to decide

those issues because otherwise the arbitration can never

proceed. Thus, the Chief Justice has to decide about the

territorial jurisdiction and also whether there exists an

arbitration agreement between the parties and whether such

party has approached the court for appointment of the

arbitrator. The Chief Justice has to examine as to whether the

claim is a dead one or in the sense whether the parties have

already concluded the transaction and have recorded

satisfaction of their mutual rights and obligations or whether

the parties concerned have recorded their satisfaction

regarding the financial claims. In examining this if the parties

have recorded their satisfaction regarding the financial claims,

there will be no question of any issue remaining. It is in this

sense that the Chief Justice has to examine as to whether

there remains anything to be decided between the parties in

29

respect of the agreement and whether the parties are still at

issue on any such matter. If the chief Justice does not, in the

strict sense, decide the issue, in that event it is for him to

locate such issue and record his satisfaction that such issue

exists between the parties. It is only in that sense that the

finding on a live issue is given. Even at the cost of repetition

we must state that it is only for the purpose of finding out

whether the arbitral procedure has to be started that the Chief

Justice has to record satisfaction that there remains a live

issue in between the parties……..”

“It is for this reason that it was pointed out in the above para

that it would be appropriate sometimes to leave the question

regarding the live claim to be decided by the Arbitral Tribunal.

All that he has to do is to record his satisfaction that the

parties have not closed their rights and the matter has not

been barred by limitation.”

In the wake of above decision, it will be now necessary to see

whether a live claim or a live issue exists in between the parties.

23.As has already been clarified in the earlier part of the judgment that

there is jurisdiction in this Court to decide the application, secondly, there is

arbitration agreement between the parties, and thirdly, the claim is not

barred by limitation, the only issue which has to be decided is whether

there is a live issue in the sense as to whether the parties have already

concluded or recorded their satisfaction regarding the issues or whether

the parties are still in contest regarding certain issues.

24.In the backdrop of what has been asserted by the applicant and the

stands taken by the non-applicant, it would be first better to note certain

dates, which are of extreme importance. It will be seen there as below:

30

15.12.2000:A Shareholders Agreement (SHA) came into

effect between AT&T Group, Birla Group and

Tata Group.

9.11.2005:The name of AT&T Cellular Pvt. Ltd., Mauritius

was changed to M/s. Apex Investments

(Mauritius) Holding Private Limited (APEX).

31.1.2006:The first termination notice was served by the

applicant on the non-applicant, alleging breach of

Shareholders Agreement on account of the non-

applicant Company having applied for Unified

Access Service Licenses (UAS Licenses),

enabling license holder to provide any kind of

telecommunication service for Mumbai Metro

circle and thereby committing breach of Article

3.04 (b) of the Shareholders Agreement and

asking the non-applicant to remedy the breach

within 60 days.

27.2.2006:A second termination notice was sent by the

applicant to the non-applicant claiming that there

was a breach of confidentiality clause committed

by the non-applicant and since this breach was

31

incapable of being cured, the applicant demanded

to purchase the shareholding of the Birla Group

within 90 days of the said notice at a default price.

28.2.2006:The non-applicant disputed the first termination

notice dated 31.1.2006, while on 1.3.2006, the

non-applicant replied to the second termination

notice dated 27.2.2006.

16.3.2006:The applicants reiterated both the termination

notices.

17.3.2006:The non-applicant wrote a letter observing

therein:

“….. Based upon your above-

referenced two letters, we conclude

the Shareholders Agreement

continued to remain valid, subsisting

and enforceable.”

27.3.2006:The applicants reiterated the second notice of

termination insisting that they were entitled to

acquire shares and shown their readiness to

appoint international firm of auditors to determine

the fair market value of the shares to be

purchased by them.

32

3.4.2006:The non-applicant refused the claim once again.

5.4.2006:The applicant received the offer from Global

Communication Services for purchasing its stake

in IDEA and hence, it makes offer for the sale of

its shareholding under clause 10.06 to the non-

applicant. This offer notice was expressly

“without prejudice” to both the termination notices.

6.4.2006:This offer was accepted by the non-applicant.

However, it was clarified that the acceptance of

this offer was without prejudice to the contention

that the notices of termination were not tenable.

7.4.2006:The applicant sent the letter stating therein that it

would be shortly forwarding two Draft Share

Purchase Agreement for the sale of IDEA shares

held by it and M/s. Apex Investments (Mauritius)

Holding Private Limited. There was again a

reiteration that the offer made by it and the

acceptance thereof was without prejudice to the

termination notices dt. 31.1.2006 and 27.2.2006.

10.4.2006:The non-applicant submitted the particulars of the

Birla Group Companies, which would be

33

purchasing the shares of the applicant and M/s.

Apex Investments (Mauritius) Holding Private

Limited under the two Share Purchase

Agreements with the percentage of shares to be

purchased by such companies.

19.4.2006:The applicant reaffirmed its termination notices dt.

31.1.2006 and 27.2.2006 and also informed that it

would proceed to appoint an international firm of

auditors for determining the fair market value of

IDEA shares.

24.4.2006:The non-applicant replied and informed that they

were ready to make full and final payment against

the delivery of shares held by TIL and M/s. Apex

Investments (Mauritius) Holding Private Limited in

IDEA Cellular Ltd.

24.4.2006:The applicant made a request to commence the

process of consultation with respect to disputes

which have arisen between the parties on account

of breach of Shareholders Agreement.

27.4.2006:A letter was sent by the non-applicant that in view

of the agreement between the parties for

34

purchase of the shares of applicant by the non-

applicant and the further stands having been

taken by the parties, there was no arbitrable

dispute survived between the parties and

requested the applicants to withdraw the

consultation notice.

5.5.2006:A formal notice was issued for arbitration.

17.5.2006:The non-applicant reiterated that there was no

arbitrable dispute survived.

19.5.2006:The applicant conveyed the appointment of

nominee arbitrator under Clause 12.04(d).

1.6.2006:Two formal Share Purchase Agreements came

into existence. A clause 2(D) was inserted:

“2(D) In relation to the notices dated

January 31, 2006 and February 27, 2006

issued by TIL (as a founder under the

Shareholders Agreement as hereinafter

defined) to the A.V. Birla Group, TIL has

pending arbitration disputes with the AV

Birla Group, TIL has not accepted the rival

contentions of the AV Birla Group in

respect of the said notices nor has the AV

Birla Group accepted, TIL’s claims pending

arbitration. As such, the execution of and

consummation of the transaction

contemplated by this Agreement shall not

prejudice or affect the pendency or

35

continuation of the arbitration proceeding

between TIL and the AV Birla Group.”

Another Clause 2.3 was inserted:

“2.3TIL, for itself and Apex has issued

the Termination Notices. The offer made

by TIL to the AV Birla Group pursuant to

the Offer Notice, was made without

prejudice to the said Termination Notices,

Grasim Industries Limited, as part of the AV

Birla Group has refuted the Termination

Notices. Further, in order to enforce the

rights accrued to TIL and Apex on account

of the Termination Notices, TIL, for itself

and Apex has pursuant to clause 12.04(d)

of the Shareholders Agreement on May 5,

2006 issued a notice to arbitrate to the AV

Birla Group. Accordingly, this Agreement is

being executed without prejudice to the rival

contentions of either party with reference to

the Termination Notices and the legal rights

which have accrued to each party (including

Apex acting through TIL as founder) under

the Shareholders Agreement.”

25.A glance on these dates would clearly suggest that the first salvo

was fired by the applicant when it first sent the notice dated 31.1.2006. In

this way, the only complaint made was that ABTL, which was a subsidiary

of ABNL, had made an application on 3.1.2006 to the Department of

Telecommunication for grant of Unified Access Services License (UASL)

for Mumbai Metro circle. It was complained that this amounted to the

breach of clause 3.04(b) of the Shareholders Agreement as the Aditya Birla

Group could not be permitted to engage in, directly or indirectly through an

Affiliate, (i) any activity that would constitute the Business of the IDEA

36

Cellular Ltd. without complying with the provisions of Clause 3.04(b).

Noticee then was to remedy the breach within 60 days as per the

Shareholders Agreement. It is only to that extent that the dispute arose.

It would be remembered that there is a provision in the Shareholders

Agreement, by which even if the breach is committed by one party, the

other party could ask for remedying the same within 60 days. This was not

a termination of the Agreement. However, the second salvo came to be

fired on 27.2.2006, which was on account of the breach of the

Confidentiality clause. A position was taken that this breach was not such

as could be remedied and on that account, the applicants claimed all the

shareholding of Birla Group at the price, which would be 25% less than the

fair market price of the shares. In the subsequent correspondences, they

also offered to appoint a firm of Chartered Accountants for assessing the

fair market value of the shares.

26.The non-applicant was not to be left behind in disputing this claim by

its reply dated 1.3.2006. In this reply, it was suggested that the termination

notice was only by way of a counter action to the Birla Group’s recent

letters to the Department of Telecommunications, Ministry of

Communication and Information & Technology (DoT), complaining against

Tata Group’s continuing breach of the relevant telecom licenses. It was

thereafter denied that the investor presentations made by ABNL, and the

further presentation dated 12.9.2005 posted on the website of ABNL could

37

constitute a breach on the part of Birla Group of the restrictions contained

in Section 8.01 of the Shareholders Agreement. It was further reiterated

that the said presentation could not be deemed to be confidential under the

Shareholders Agreement, and that information conveyed in those

presentations was not confidential information at all. A further stand was

taken that since ABNL was a publicly listed company, any consolidated

accounts prepared by ABNL had to be disclosed to the investors, which

was consistent with its disclosure obligations and a good corporate

governance practice, and that the Tata Group was fully aware that ABNL

would be disclosing such information to the investors and the analysts. It

was further reiterated that since the information was received from IDEA

regarding consolidation and disclosure, such information was used for that

purpose and there was no impropriety or breach of Shareholders

Agreement by these disclosures, and that information was not at all

confidential. An allegation was made that the Tata Group was trying to sell

its shares to the third party and that it could not do so unless the

obligations in favour of Birla Group, as contemplated in the Shareholders

Agreement, were not met.

27.In short, till this reply was given, the only defense that was raised by

the non-applicant was that there was no breach of the Confidentiality

clause, as the information itself was not confidential. There was probably

an inkling to the non-applicant that the Tata Group was interested in

38

disposing of its shareholding in favour of some third party and, therefore, it

merely asserted it rights in case such sale to the third party of the

shareholding materializes. Therefore, at least up to this date, there was a

live issue as to whether there had been a breach of Confidentiality clause

on the part of the non-applicant.

28.However, that is not where the things stopped as merely a few

weeks thereafter, the applicants having received the offer from Global

Communication Services, offered their own shareholding to the non-

applicant on 5.4.2006, reiterating therein, that this offer was without

prejudice to the dispute which has arisen between the parties. The offer so

made, was accepted by the non-applicant, however, with a caveat in the

following words:

“This is without prejudice to our contentions that the notices of

termination referred to in the said Offer Notice, are not

tenable.”

Therefore, even at this point of time, when the offer was accepted,

the issue was very much there as to whether there was a breach of

Confidentiality clause on the part of the non-applicant. On 7.4.2006, the

applicants offered to send two Draft Share Purchase Agreements for the

sale and again reiterated that the offer and the acceptance by the non-

applicant was without prejudice to the notices of termination dated

31.1.2006 and 27.2.2006. On 10.4.2006, again the non-applicant wrote

39

back giving the details regarding the shares and the percentages, where

again they disputed the question of termination. There was a further

reiteration on 19.4.2006, of its stand, in details, and it was specifically

reiterated in the letter dated 19.4.2006:

“As already explained above, since the AV Birla Group is in

violation of the provisions of the Shareholders Agreement, the

First Notice and the Second Notice issued by us cannot be

withdrawn. Since you have failed in agreeing upon the name

of the international firm of auditors we shall therefore proceed

in accordance with the Shareholders Agreement to do the

needful in connection with determining the Fair Market Value

of Idea Shares.”

By their letter dated 24.4.2006, the applicants again showed their

readiness to purchase the shares. However, the earlier position was

reiterated by them to the effect that the stand taken by Tata Group was not

correct. On 24.4.2006, the applicants clearly reiterated that a dispute had

arisen between the applicants and the non-applicant in connection with the

terms of Shareholders Agreement and that for that purpose, they were

ready to start the process of consolidation as an initial step. It was also

conveyed that in case the non-applicant was not interested in process of

consolidation, the applicants would like to proceed with the arbitral

proceedings straight away. Lastly, the non-applicant wrote a letter dated

27.4.2006 in which for the first time, the position was taken that the

Agreement which was concluded between the parties consequent to the

offer notice and acceptance notice, and the further steps taken by both

40

would be that there was no arbitrable dispute surviving pursuant to the

notices.

29.It is here for the first time, that a stand was shifted by the non-

applicant from its earlier stand. Earlier, the contention was that there was

no breach of Confidentiality clause. The shifted stand was that because of

the subsequent Agreement, the earlier issue was already obliterated. It is

on this background that ultimately the formal Agreements dated 1.6.2006

came to be entered into by the parties. But before that, a notice for the

Arbitration was already issued by the applicants by their letter dated

5.5.2006. Even on this backdrop, the only position taken by the non-

applicant by its letter dated 17.5.2006 was that Tata Group was estopped

from asserting its alleged claims against the Birla Group. In view of the

election made by Tata Group by giving the offer notice dated 5.4.2006 to

the Birla Group and the acceptance by Birla Group dated 6.4.2006.

Therefore, it was concluded that there was no arbitrable dispute surviving

and yet in the Agreement dated 1.6.2006, the non-applicant again allowed

to insert the clauses regarding the Agreements being without prejudice to

the earlier rights. In fact, if the stand taken was that there was no arbitrable

issue because the offer concluded sale, there was no question of any such

“without prejudice” clause being inserted in the Agreement dated 1.6.2006.

It must be remembered that on the date when the formal Agreements were

signed on 1.6.2006, the non-applicant was already facing an arbitral notice

41

and yet the two clauses, viz., 2(D) and 2.3 (which we have mentioned

earlier in this judgment), came to be inserted. All this would suggest that

there indeed was an issue and a live one in between the parties till then as

described in (See Chairman and MD, NTPC Ltd. Vs. Reshmi

Constructions, Builders & Contractors reported in 2004 2 SCC 663

(Paras 35 and 36).

30.On the other hand, Shri Venugopal, learned counsel invited my

attention to a decision of High Court of Australia in Sargent and ASL

Developments Limited, reported at (1974) 4 Australian Law Reports

(A.L.R.) 257 (cited supra). The decision of the Australian High Court is on

the question of Doctrine of election. In my opinion, the decision is not

applicable to the present controversy as there was no question of election

on the part of the applicant herein. It is merely basing its claim on account

of the alleged clear breach of Shareholders Agreement in respect of the

Confidentiality clause. Even the second decision in Jai Narain

Parasrampuria (Dead) and others Vs. Pushpa Devi Saraf and others,

reported in 2006 7 SCC 756(cited supra) has no application. That is a

case where this Court explained the principles of estoppel and waiver and

whether a party could be permitted to take a different stand and the duty of

the court in such matters. No such questions arise in the present matter.

The third decision in National Insurance Company Limited Vs. Mastan

and another, reported in 2006 2 SCC 641, is again on the question of

42

Doctrine of election, where this Court has observed that the Doctrine of

election postulates that when two remedies are available for the same

relief, the aggrieved party has an option to elect either of them, but not

both. The fact situation is not like that in the present case. This case,

therefore, has no application.

31.The other major limb of the argument was, however, that this issue

could not arise and became a dead issue at least after the applicants sold

out all their shares and their shareholding fell below 15%. The

aforementioned clause on which Shri Venugopal, Dr. Singhvi and Shri

Shyam Diwan, Advocates for the non-applicant heavily relied, being clause

No. 7.01(a) and 7.01(b), as also 7.02 (b) provided that in case the

shareholding falls below 15%, and in this case it has actually fallen below

15%, such party would not have any rights left with it under the Agreement

(Shareholders Agreement). The argument is obviously incorrect, as the

Arbitration Agreement under clause 12.04 would be clearly autonomous of

the Shareholders Agreement. Law is settled on this point that even if the

whole Agreement is terminated, the Arbitration Agreement would still

remain (See Chairman and MD, NTPC Ltd. Vs. Reshmi Constructions,

Builders & Contractors reported in 2004 2 SCC 663 (Para 39). It was

argued that clause 7.01 (b) operates as a complete bar on the exercise by

the applicants of the substantive right to seek a buy-out. That may be so,

however, that is only an eventuality subsequent to the crystalisation of the

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live issue between the parties for which the arbitration clause would come

handy to the applicants.

32.The learned counsels for the non-applicant very vehemently argued

that the issue had become dead. The issue cannot be held to be dead for

the simple reason that even in the subsequent Agreements (Shares

Purchase Agreements), there is a “without prejudice” clause and that too

despite the vehement claims and refusals of those claims on the part of the

parties.

33.Whether there was a breach of Confidentiality clause and whether

the applicants were entitled to any damages on account of that clause in

favour of the applicants, would be a matter in the helm of arbitration and

this Court would not go into that question.

34.It was tried to be argued that the cause of action for the arbitration

was based entirely on the offer notice, which was given by the applicants to

the non-applicant on account of the applicants having received the offer

from Global Communication Services. It is, therefore, argued by the

learned counsel that since the cause of action was on the offer notice and

since the Share Purchase Agreements were concluded on account of that

offer notice, any disputes arising would be solved in accordance with the

Share Purchase Agreement and not with the Shareholders Agreement and,

therefore, they would be resolved under English Law and LCIA Arbitration

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Rules. These clauses are to be found at pages 286-288 as also on pages

328-332 of the main Paper Book vide clauses 9.1, 9.4 and 9.5 in the First

Agreement dated 31.1.2006, as also 9.2.1 to 9.2.5 on pages 330 and 331

of the main Paper Book.

35.The contention is clearly incorrect, as the present dispute is not

based on the notice of offer dated 5.4.2006. The contention raised by the

learned counsels that the cause of action arose only from that notice, is

obviously incorrect, as has been shown in the earlier parts of the judgment.

The live issue was clearly there, much before the notice was given on 05-

04-2006 and the second agreement was even contemplated. That was the

issue whether there was a breach of Confidentiality clause on the part of

the non-applicant and what are the effects thereof. That issue continued to

be in existence and was never given up by the applicants. Therefore, that

contention is rejected.

36.By way of last argument, it was argued that M/s. Apex Investments

(Mauritius) Holding Private Limited was never a party to the Shareholders

Agreement. It was suggested that M/s. Apex Investments (Mauritius)

Holding Private Limited was originally a member of the AT&T Wireless

Group and held 32.9% shares in IDEA. It was then known as AT&T

Cellular Pvt. Ltd. It was then argued that it was required under Article 4.01

(a) of the Shareholders Agreement to execute a Deed of Adherence as

provided in “Annex C” to the Shareholders Agreement in order to (i)

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designate AT&T Inc. as its representative to exercise all rights and perform

all obligations under the Shareholders Agreement; (ii) agree to be bound

by all the provisions of the Shareholders Agreement; (iii) agree not to

revoke the designation of the representative without prior written consent of

the AV Birla Group and the Tata Group. It was also required that the

counter-part of the executed Deed of Adherence should have been

delivered to Grasim Industries Ltd. and TIL. It was then pointed out that

after TIL acquired AT&T Cellular Pvt. Ltd. itself which held the remaining

16.45% shares in IDEA, M/s. Apex Investments (Mauritius) Holding Private

Limited became a wholly owned subsidiary of TIL. It was then pointed out

that on 28.09.2005, AT&T Cellular Pvt. Ltd., New Cingular Wireless

Service Inc. (successor-in-interest to AT&T Inc.) entered into a Sale and

Purchase Agreement with Indian Rayon and Industries Ltd. (now called

ABNL), whereby the Shareholders Agreement was specifically terminated

as between the Birla Group and the AT&T Wireless Group and all pre-

existing rights/liabilities, if any, were specifically extinguished and waived.

So also on the same date, the AT&T Wireless Group (of which AT&T

Cellular Pvt. Ltd. was a part), executed a similar Sale and Purchase

Agreement with the Tata Group, whereby the Shareholders Agreement

was terminated between the Tata Group and the AT&T Wireless Group,

and thus the Apex Investments (Mauritius) Holding Private Limited (which

is a fall out from the AT&T Cellular Pvt. Ltd.) had terminated the

Shareholders Agreement and extinguished and waived all accrued rights

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and obligations against the Birla Group and, therefore, Apex Investments

(Mauritius) Holding Private Limited ceases to be a party to the

Shareholders Agreement and to any arbitration clause contained therein.

Apex Investments (Mauritius) Holding Private Limited, therefore, could no

longer have any claim for arbitration or assert any rights or liabilities under

the Shareholders Agreement. It was further pointed out that on

15.12.2000, when the Shareholders Agreement was executed, there were

only three parties, viz., (i) AT&T Inc., which was acting on behalf of itself

and AT&T Wireless Group; (ii) Grasim, acting on behalf of itself and the

Birla Group (iii) TIL, acting on behalf of itself and the Tata Group. The

argument, therefore, is that since Apex Investments (Mauritius) Holding

Private Limited was not a party then, there could be no privity of contract

between Apex Investments (Mauritius) Holding Private Limited and the

non-applicant Birla Group. It was pointed out that since the modality

drafted by clause 4.02 of Shareholders Agreement was not followed, Apex

Investments (Mauritius) Holding Private Limited could not join the

Shareholders Agreement and as such, Apex Investments (Mauritius)

Holding Private Limited not being a party to the Shareholders Agreement, it

cannot demand an arbitration through the arbitration clause. This

argument is obviously incorrect for the following reasons:

(i)It must be seen that after the offer was received from Global

Communications, both TIL on its behalf and on behalf of the Apex

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Investments (Mauritius) Holding Private Limited, offered to sell their

entire shareholding in IDEA in terms of the right of first refusal, which

offer has been accepted by the non-applicant.

(ii)Apex Investments (Mauritius) Holding Private Limited is now a

part and parcel of the Tata Group and is its subsidiary. Further, its

interests are bound to be affected.

(iii)In raising this issue, the non-applicant is making a complete

volte face, inasmuch as, when the application had been filed before

the Bombay High Court, an objection was taken by the non-applicant

that Apex Investments (Mauritius) Holding Private Limited being a

foreign company and claiming an arbitration along with Tata Group,

the Bombay High Court had no jurisdiction to entertain the

application under Section 11 (6). It was in pursuance of that

objection only that the Bombay High Court did not proceed further to

decide the application under Section 11 (6). The learned counsel

argues that this objection regarding the Apex Investments (Mauritius)

Holding Private Limited being foreign party, arose on the face of it,

but the merits of the case did not fall for consideration in Bombay

High Court and as such the issue of Apex Investments (Mauritius)

Holding Private Ltd. not being a party to shareholder agreement can

still be raised. The contention is not correct. The non-applicant

having raised an objection on the ground that the applicant Apex

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Investments (Mauritius) Holding Private Limited was a foreign

company, and, therefore, could not have filed an application before

Bombay High Court, cannot now turn around and say that Apex

Investments (Mauritius) Holding Private Limited was not a party to

the Arbitration Agreement. That will not be permissible. The learned

counsel points out that this objection was raised without prejudice,

would also be of no consequence, as having succeeded in stalling

the decision of the application under Section 11(6), it cannot now

raise the argument before this Court that Apex Investments

(Mauritius) Holding Private Limited was never a party. This

argument should have been addressed to the Bombay High Court, at

least in the alternative form. If in the affidavit before the Bombay

High Court filed on their behalf of the non-applicant had raised the

issue and still chose not to go into the issue whether Apex

Investments (Mauritius) Holding Private Limited was or was not a

party to the Shareholders Agreement, that will not be permitted to be

raised before this Court. In fact, in restricting to the jurisdictional

issue and in not perusing the issue of Apex Investments (Mauritius)

Holding Private Limited not being a party to the Shareholders

Agreement before Bombay High Court, the non-applicant

abandoned that issue. The argument is, therefore, rejected.

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37.Ultimately, considering the overall situation, it is held that the

application under Section 11(6) is liable to be allowed. In that view, the

following order is passed:

Hon’ble Dr. Justice A.S. Anand, former Chief Justice of India,

Hon’ble Mr. Justice Arun Kumar and Hon’ble Mr. Justice P.K.

Balasubramanyan, former Judges of the Supreme Court of India are

appointed as the Arbitrators. Their terms shall be decided by themselves.

…………………………J.

(V.S. Sirpurkar)

New Delhi;

July 09, 2008.

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Digital Performa

Case No. : Arbitration Petition No. 5 of 2007

Date of Decision : 09.7.2008

Cause Title : M/s Tata Industries Ltd. & Anr.

Versus

M/s. Grasim Industries Ltd.

Coram : Hon’ble Mr. Justice V.S. Sirpurkar

Judgment delivered by : Hon’ble Mr. Justice V.S. Sirpurkar

Nature of Judgment : Reportable

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