Bocimar International.N.V. v. Emirated Trading Agency Llc

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated :24.10.2016 Coram THE HONOURABLE MR. JUSTICE RAJIV SHAKDHER O.P.Nos.546 to 549 of 2015 Bocimar Internationa N.V.

Antwerp, Belgium Rep. By its PoA Agent, Ms.Regina Beevi, 55, Anna Salai, Valancherry, Guduvanchery, Kanchipuram District-603 202.

.. Petitioner in all O.Ps'

v.

1.Emirates Trading Agency LLC Ascon House, Salahuddinn Road, P.O Box 5239, Dubai, UAE.

2.West Asia Maritime Limited, Bhuharia Towers, Sixth Floor, 4, Moores Road, Chennai, Tamil Nadu - 600 006.

3.ETA Port Operations and Rapid Transport System Limited, Bhuharia Towers, Sixth floor, 4, Moores Road, Chennai, Tamil Nadu - 600 006.

4.ETA Engineering Private Limited, 5, Moores Road, Chennai, Tamil Nadu - 600 006.

.. Respondents in all O.Ps'

Original Petitions filed under Sections 44, 47, 48 and 49 of the Arbitration and Conciliation Act, 1996, to set aside the awards dated 16.05.2013, 07.03.2013, 20.12.2012 and 15.02.2013 respectively, be deemed

to be a decree of this Court and to pass a direction to enforce and execute the said Award as a decree in favour of the petitioner as against the First respondent along with the cost in entirety and costs of this petition. For Petitioner : Mr.Nakul Dewan For respondents : No appearance for R1 (In all O.Ps') Mr.M.S.Krishanan, SC for Mr.Srinath Sridevan for R2 to R4 COMMON ORDER Original Petitions filed under Sections 44, 47, 48 and 49 of the Arbitration and Conciliation Act, 1996, to set aside the awards dated 16.05.2013, 07.03.2013, 20.12.2012 and 15.02.2013 respectively, be deemed to be a decree of this Court and to pass a direction to enforce and execute the said Award as a decree in favour of the petitioner as against the First respondent along with the cost in entirety and costs of this petition. For Petitioner : Mr.

Nakul Dewan For respondents : No appearance for R1 (In all O.Ps') Mr.M.S.Krishanan, SC for Mr.Srinath Sridevan for R2 to R4 COMMON ORDER 1.These are the four petitions filed, effectively, under Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 to enforce four awards.

2. O.P.No.546 of 2015 has been filed to enforce the award dated

16.05.2013; O.P.No.547 of 2015 has been filed to enforce the award dated 07.03.2013; O.P.No.548 of 2015 has been filed to enforce the award dated 20.12.2012, as corrected by the award dated 15.02.2013; and O.P.No.549 of 2015 has been filed to enforce the award dated 15.02.2013 (hereafter collectively referred to as awards).

3. The aforementioned awards have been passed against respondent No.1. As noticed, on the previous date, respondent No.1 is not represented.

3.1. The record shows that, in the proceedings held on 14.03.2016, the then counsel for respondent No.1, had sought leave of the Court to withdraw from the matter based on the instructions received from his client i.e., respondent No.1.

3.2. There is no appearance on behalf of respondent No.1, today. As indicated above, the position was no different on the previous date. 3.3. The record also shows that on 11.03.2016, a memo of withdrawal of vakalatnama was filed on behalf of respondent No.1 by Mr.Anand Sasidharan, advocate.

3.4. In these circumstances, the objections filed on behalf of respondent No.1 in the form of counter affidavit are not pressed before me.

4. Accordingly, the aforementioned Original Petitions are allowed. Consequently, in terms of Section 49 of Arbitration and Conciliation Act, 1996, the aforementioned awards will be deemed to be decrees in law. O.A.Nos.540, 542 to 544 and 762 to 769 of 2015 and A.Nos.4903 to 4922 of 2015 and A.Nos.2936 to 2939 of 2016

5. I am informed, that insofar as respondent Nos.2,3 and 4 in Original Petitions are concerned, they are also arrayed as parties, in the same order, in the captioned applications as, respondent No.1, holds shares in each of these entities. This aspect of the matter is not disputed by the counsel appearing for respondent Nos.2 to 4. Insofar as respondent No.2 is concerned, I am informed by the counsel for respondent Nos.2 to 4, that respondent No.1 holds an equity stake of 36.33%. Similarly, as regards respondent No.3, respondent No.1 holds 99.34% shares. Insofar as respondent No.4 is concerned, respondent No.1 holds 12.81% shares. Therefore, as regards, enforcement proceedings, vis-a-vis, the equity shares held by respondent No.1 in respondent Nos.2 to 4 are concerned, it should, for the moment, no difficulty for the applicant.

6. Therefore, counsel for the applicant/petitioner will be at liberty to enforce the awards, as regards the equity shares of respondent No.1 in the following two entities, i.e., respondent Nos. 2 and 3. However, as regards respondent No.4, it is the contention of the learned counsel for the applicant/petitioner that via a collusive proceedings initiated before the

Company Law Board (now National Company Law Tribunal [NCLT]), a dispute came to be generated with regard to the share holding of respondent No.1, in respondent No.4.

6.1. Learned counsel for the applicant/petitioner says that prior to the dispute raised, before the CLB/NCLT respondent No.1 held, albeit directly, 23.83% equity shares in the respondent No.4 and that, thereafter, respondent No.4 by using the device of a rights issue diluted respondent No.1's equity stake to 12.81%.

7. Therefore, having regard to the above, for the moment, the applicant/petitioner will be free to enforce the awards with respect to whatsoever is available in the form of equity stake of respondent No.1 in respondent Nos.2 to 4. As regards its claim to a larger equity stake in respondent No.4, the applicant/petitioner will have liberty to file a fresh petition, albeit, in accordance with law.

8. The applications, are accordingly, disposed of.

9. At this stage, counsel for the applicant/petitioner expressed an apprehension, which is, that respondent No.4 may, in the meanwhile dissipate its assets, whereby, equity stake held by respondent Nos.1 in respondent No.4, may get impacted.

10. I am told that, NCLT in the proceedings involving respondent

Nos.1 and 4, on 26.04.2016, passed an order, whereby, broadly, it gave leave to respondent No.4 to sell its assets.

11. In these circumstances, respondent No.4, is directed to file an affidavit with the Court; thereby, apprising the Court of the factum of sale of assets and the receipt of monies, if any, upon conduct of sale. A copy of the said affidavit will be furnished to the counsel for the applicant/petitioner 24.10.2016 vsm Note: Issue order copy on 26.10.2016 RAJIV SHAKDHER, J.

vsm O.P.Nos.546 to 549 of 2016

24.10.2016 http://www.judis.nic.in