Qatar Holding Llc vs Byju Raveendran

-1- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16TH DAY OF APRIL, 2025

BEFORE

THE HON'BLE MR JUSTICE ASHOK S.KINAGI

ARBITRATION PETITION-INTERIM MEASURE NO. 2 OF 2024

C/W

ARBITRATION PETITION-INTERIM MEASURE NO. 3 OF 2024

IN AP.IM No. 2/2024 BETWEEN:

QATAR HOLDING LLC A LIMITED LIABILITY COMPANY INCORPORATED IN THE QATAR FINANCIAL CENTER WITH LICENSE NO.0004 AND HAVING ITS PRINCIPAL PLACE OF BUSINESS AT OOREDOO TOWER (BUILDING 14) AL DAFNA STREET, (STREET 801) AL DAFNA Digitally (ZONE 61) DOHA QATAR, signed by REP. BY ITS AUTHORIZED REPRESENTATIVE, SUNITHA K S MILAN CHITALIA Location: ...PETITIONER HIGH COURT OF (BY SRI. UDAYA HOLLA, SR. COUNSEL FOR KARNATAKA SRI. HARISH B. NARASAPPA, SR. COUNSEL)

AND:

1. BYJUS INVESTMENTS PTE LTD A COMPANY INCORPORATED UNDER THE LAWS OF SINGAPORE WITH AN ADDRESS AT 30 CECIL STREET NO.19-08, PRUDENTIAL TOWER SINGAPORE 049712 REP. BY ITS AUTHORIZED SIGNATORY -2- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

2. BYJU RAVEENDRAN SON OF RAVEENDRA, AGED ABOUT 44 YEARS, IBC KNOWLEDGE PARK, 2ND FLOOR, TOWER D 4/1, BANNERGHATTA MAIN RAOD, BENGALURU KARNATAKA INDIA 560029 ...RESPONDENTS (BY SRI. PRAMOD NAYAR, ADVOCATE)

THIS AP.IM / ARBITRATION PETITION INTERIM MEASURE, IS FILED UNDER SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996 R/W RULE 9 OF THE ARBITRATION (PROCEEDINGS BEFORE THE COURTS) RULES, 2001 PRAYING TO A. PASS AN ORDER OF INJUCTION RESTRAINING RESPONDENT NO.1 INCLUDING ITS PARTNERS, OFFICERS, SERVANTS, AGENTS, AND ASSIGNS FROM, IN ANY MANNER DEALING/PARTING WITH, SELLING, CHARGING, PLEDGING, TRANSFERRING, DISPOSING OF, ALIENATING, OR ENCUMBERING, OR IN ANY MANNER CREATING ANY RIGHT, TITLE OR INTEREST IN ANY OF THEIR ASSETS, INCLUDING THE IDENTIFIED ASSETS, WHETHER RESPONDENT NO.1 IS INTERESTED IN THEM LEGALLY, BENEFICIALLY, OR OTHERWISE, UP TO THE VALUE OF USD 235,187,165,.78, UNTIL THE CONCLUSION OF THE ARBITRATION, AND FOR A PERIOD OF NINETY(90) DAYS THEREAFTER.

B. PASS AN ORDER DIRECTION RESPONDENT NO.1 TO DISCLOSE ON OATH FULL AND ACCURATE DETAILS OF ALL ITS ASSETS, INCLUDING THE VALUE, LOCATION AND FULL DESCRIPTION OF EACH OF SUCH ASSETS, AS MAY BE SUFFICIENT TO FULLY IDENTIFY THE SAME, WHETHER IN ITS OWN NAME OR NOT AND WHETHER SOLELY OR JOINTLY OWNED AND WHETHER RESPONDENT NO.1 IS INTERESTED IN THEM LEGALLY, BENEFICIALLY OR OTHERWISE

C. PASS AN ORDER GRANTING AD INTERIM AND INTERIM RELIEF IN TERMS OF PRAYER CLAUSES(A) AND (B) ABOVE.

D. COSTS OF THIS PETITION AND THE ORDER TO BE MADE THEREON BE PROVIDED FOR, AND ETC. -3- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

IN AP.IM NO. 3/2024 BETWEEN:

QATAR HOLDING LLC A LIMITED LIABILITY COMPANY INCORPORATED IN THE QATAR FINANCIAL CENTER WITH LICENSE NO.0004 AND HAVING ITS PRINCIPAL PLACE OF BUSINESS AT OOREDOO TOWER (BUILDING 14) AL DAFNA STREET, (STREET 801) AL DAFNA (ZONE 61) DOHA QATAR, REP. BY ITS AUTHORIZED REPRESENTATIVE MR. MILAN CHITALIA ...PETITIONER

(BY SRI. UDAYA HOLLA, SR. COUNSEL)

AND:

1. BYJU RAVEENDRAN SON OF RAVEENDRA, AGED ABOUT 44 YEARS IBC KNOWLEDGE PARK 2ND FLOOR, TOWER D, 4/1 BANNERGHATTA MAIN ROAD, BENGALURU, KARNATAKA, INDIA 560029

2. BYJU'S INVESTMENTS PTE. LTD., A COMPANY INCORPORATED UNDER THE LAWS OF SINGAPORE WITH AN ADDRESS AT 30 CECIL STREET NO.19-08, PRUDENTIAL TOWER SINGAPORE 04971 REP. BY ITS AUTHORIZED SIGNATORY. ...RESPONDENTS

(BY SRI. PRAMOD NAYAR, SR. COUNSEL)

THE ADVOCATE FOR THE PETITIONER HAS FILED THE ABOVE AP.IM/ ARBITRATION PETITION INTERIM MEASURE UNDER SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996 R/W RULE 9 OF THE ARBITRATION (PROCEEDINGS BEFORE THE COURTS) RULES, 2001 PRAYING TO A. PASS AN ORDER OF INJUCTION RESTRAINING RESPONDENT NO.1 INCLUDING -4- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

HIS SERVANTS, AGENTS, AND ASSIGNS FROM, IN ANY MANNER DEALING/PARTING WITH, SELLING, CHARGING, PLEDGING, TRANSFERRING, DISPOSING OF, ALIENATING, OR ENCUMBERING, OR IN ANY MANNER CREATING ANY RIGHT, TITLE OR INTEREST IN ANY OF THEIR ASSETS, INCLUDING THE IDENTIFIED ASSETS, WHETHER RESPONDENT NO.1 IS INTERESTED IN THEM LEGALLY, BENEFICIALLY, OR OTHERWISE, UP TO THE VALUE OF USD 235,187,165.78, UNTIL THE CONCLUSION OF THE ARBITRATION, AND FOR A PERIOD OF NINETY(90) DAYS THEREAFTER.

B. PASS AN ORDER DIRECTION RESPONDENT NO.1 TO DISCLOSE ON OATH FULL AND ACCURATE DETAILS OF ALL ITS ASSETS, INCLUDING THE VALUE, LOCATION AND FULL DESCRIPTION OF EACH OF SUCH ASSETS, AS MAY BE SUFFICIENT TO FULLY IDENTIFY THE SAME, WHETHER IN ITS OWN NAME OR NOT AND WHETHER SOLELY OR JOINTLY OWNED AND WHETHER RESPONDENT NO.1 IS INTERESTED IN THEM LEGALLY, BENEFICIALLY OR OTHERWISE.

C. PASS AN ORDER GRANTING AD INTERIM AND INTERIM RELIEF IN TERMS OF PRAYER CLAUSES(A) AND (B) ABOVE

D. COSTS OF THIS PETITION AND THE ORDER TO BE MADE THEREON BE PROVIDED FOR, AND ETC.

THESE PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.03.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI -5- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

CAV ORDER

These petitions are filed under Section 9 of the Arbitration

and Conciliation Act, 1996 read with Rule 9 of the

Arbitration(Proceedings before the Court) Rules, 2001.

2. The Petitioner is a company duly incorporated under

the laws of Qatar and has its principal place of business at

the address as mentioned in the cause title. The Petitioner

makes investments in companies world wide with the

objective of capital formation for the investee companies,

to generate long-term capital appreciation for itself. The

petitioner entered into a Cash-Settled Option Transaction

pursuant to a long-form confirmation letter dated 7th

September, 2022 with respondent No. 1 to part-finance

the acquisition by the letter of 17,891,289 equity shares

("Aakash Shares") of a public limited company named

Aakash Educational Services Limited having its registered

office at Bengaluru (Aakash).

2.1. Respondent No. 1 is a company incorporated

under the laws of Singapore. Respondent No. 1 is an -6- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

investment vehicle of Respondent No. 2; it is a wholly-

owned subsidiary of Byju's Global Pte. Ltd., an entity

registered under the laws of Singapore ("Global"), in which

Respondent No. 2 is the sole shareholder. Respondent No.

1 is also an affiliate of and owns shares in, a company

called Think & Learn Private Limited ("T&L"), which is co-

founded and majority-owned by Respondent No. 2.

2.2. On 7th September, 2022, Global executed a Share

Security Agreement in favour of the Petitioner, to secure

the Transaction. Respondent No. 2 is an Indian national,

and is a co-founder of the ed-tech platform named BYJU

which is owned and operated by T&L. Respondent No. 2

executed a Deed of Personal Guarantee in favour of the

Petitioner on 7th September, 2022 regarding the

obligations of respondent No.1 under the confirmation

letter (personal guarantee). The Petitioner filed these

petitions under Section 9 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred as the

"Arbitration Act") seeking specific interim measures of

protection for respondent no.1's breaches of its obligations -7- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

under the Transaction. The arbitration clause relevant for

the purposes of the present petition is Clause 13 of the

Confirmation Letter read with the ISDA Master Agreement.

On 7th March, 2024, the petitioner invoked arbitration

under the Singapore International Arbitration Centre

(hereinafter referred to as 'SIAC') Rules against the

respondents in accordance with, and obtained an interim

award dated 28th March, 2024 passed by the Emergency

Arbitrator appointed by SIAC on 8th March, 2024. The

Emergency Arbitrator passed an Award restraining the

respondents until the conclusion of the Arbitration or until

further order from dealing in, parting with, selling,

charging, pledging, or in any other way, disposing of or

encumbering any of their assets, up to the value of USD

235,187,165.78.

2.3. Respondent No.2 on 18.4.2024 disclosed certain

assets of Respondent No.1 and himself, by way of an

affidavit filed by him in the arbitration, in partial

compliance with the Emergency Arbitrator's direction in

the Emergency Arbitrator award. These disclosures further -8- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

evidence the malafides of the respondents. Respondent

No.2 has failed to specify the value of any of the disclosed

assets. It is contended that, the respondents breaches,

and their conduct in transferring/encumbering/disposing of

their assets, which would inevitably result in the

frustration of the petitioner's claim in the arbitration. The

petitioner is constrained to approach this Court seeking

urgent protective interim relief restraining respondent

no.1, including its partners, officers, agents, servants etc.

from, in any manner dealing with, transferring, selling,

disposing of the alienating, encumbering or creating any

rights, title, interest inter alia, the assets, more

particularly listed in the schedule to the present petition. It

is contended that the Arbitral Tribunal has not yet been

constituted. In the absence of the constitution of the

Arbitral Tribunal, the petitioner is left with no other

efficacious remedy in India than to approach this Hon'ble

Court Hence, prays to allow the petitions.

3. Respondents No.1 and 2 filed the statement of

objections. In the statement of objections, it is contended -9- NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

that the petitions and I.A.s arise in context of an

Arbitration between the parties. The Arbitration is seated

in Singapore, and is conducted as per the arbitration rules

of SIAC. The petitioner commenced the Arbitration in

accordance with the Arbitration Agreement contained in

certain financing documents, i.e., the confirmation letter

and Deed of personal guarantee, executed between the

parties. It is contended that the contractual framework

between the parties includes an English law governed by

the "confirmation letter" between the petitioner and

respondent no.1 and a deed of personal guarantee was

executed by respondent no.2 in favour of the petitioner,

both dated 7.9.2022. These agreements were to facilitate

a loan of USD 150 Million given by the petitioner to

respondent no.1, which was to be repaid in accordance

with the confirmation letter. The financing documents

each contained an arbitration clause which provide for

disputes to be referred to arbitration, seated in Singapore,

to be conducted in accordance with the Singapore

International Arbitration Centre Rules (SIAC Rules). - 10 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

4. The arbitration clause was invoked as the disputes

arose between the parties, with the petitioner alleging

various breaches of the confirmation letter by respondent

no.1. The petitioner on 27.02.2024 issued a notice of

termination of the confirmation letter to the respondents

on the basis of various alleged events of default. The

petitioner issued a demand notice on 4.3.2024 under the

Deed of Personal Guarantee. On 7.3.2024, the petitioner

commenced the Arbitration by filing its notice of

arbitration with the SIAC Registrar. At the same time, the

petitioner also filed an application for urgent emergency

reliefs in accordance with the Emergency Arbitration

procedures under the SIAC Rules. The respondents refuted

the petitioner's allegations and disputed the termination

notice.

5. It is contended that the Arbitral Tribunal is

constituted. An Emergency Arbitrator was appointed. The

Emergency Arbitrator allowed the parties to participate in

the proceedings. The Emergency Arbitrator has passed an

award on 28.3.2024. The said Emergency Award passed - 11 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

by the Emergency Arbitrator was enforced by the

Singapore High Court, and the respondent had already

complied with the Emergency Arbitrator's Award, and the

Emergency Arbitrator's Order (as converted into the order

of the Singapore High Court)

6. Pursuant to the enforcement of the Emergency

Arbitration Award by the Singapore High Court, the

respondents were required to disclose their assets to the

petitioner. Pursuant to the order passed by the Singapore

High Court, the respondents furnished sworn affidavits of

respondent no.2 to the petitioner's counsel, setting out the

details of all the assets of the respondents. The

petitioner's counsel wrote to the respondents' counsel,

alleging deficiencies, and inconsistencies in the First

Disclosure Affidavit, wherein the affidavit did not disclose

the value of the respondents' assets. The respondents'

counsel responded to the petitioner's counsel by E-mail

dated 29.4.2024, clarifying the matters vide Annexure-

R.2. It is contended that the respondents have already

complied with the Emergency Arbitration Order and Award. - 12 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

It is contended that, under the Arbitration Agreement, in

the Financing Documents, the parties had agreed to refer

the disputes between them, to an Arbitral Tribunal

comprising of three arbitrators. The Arbitral Tribunal is

been constituted and the parties to the agreement have

already presented their case before the Arbitrator. It is

contended that, in view of the Arbitral Tribunal being

constituted, the petitioner cannot obtain efficacious relief

from this Court. He also contended that the application

filed by the petitioner is not maintainable, after the

Arbitral Tribunal is constituted. It is contended that the

petitioner has no reason to consider interim relief from the

Arbitral Tribunal to be inefficacious as the Arbitral Tribunal

cannot pass an award against a person who is not a party

to the Arbitration. It is contended that the reliefs sought

by the petitioner as sought in the proceedings have to be

sought before the Emergency Arbitrator. Substantially, the

same is the reliefs; it seeks in the captioned petitions.

Hence, on these grounds, prays to dismiss the petitions. - 13 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

7. The petitioners filed a rejoinder to the statement

of objections filed by respondents No.1 and 2. It is

contended that, the arbitration has commenced in the

Singapore International Arbitration Centre is foreign

seated and International Commercial Arbitration. Section

2(2) of the Arbitration Act permits a party to approach the

High Court under Section 9 of the Arbitration Act even if

the place of arbitration is outside India, subject to an

agreement to the contrary. It is contended that the

respective agreements between the petitioner and the

respondents explicitly permit the petitioner to approach

the Courts under Section 9 of the Arbitration Act in India,

for interim measures. The petitioner has a cause of action

under Section 9 of the Arbitration Act regarding the

Emergency Arbitrator Award. It is contended that, under

Section 9, the Court can independently apply its mind to

the reliefs sought by the petitioner, and thereafter, grant

reliefs after satisfying itself. It is contended that, the

constitution of the Arbitral Tribunal in a foreign-seated

arbitration does not take away the petitioner's right to - 14 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

approach the High Court under Section 9 of the Arbitration

Act. This is because the Section 9 remedy is also a

mechanism to enforce the Emergency Arbitrator Award.

Therefore, it is the only efficacious remedy available to the

Petitioner. Hence, on these grounds, prays to allow the

petitions.

8. Heard Sri Udaya Holla, learned Senior counsel for the

petitioner and Sri.Harish B Narasappa, learned Senior

counsel for the petitioner; and Sri.Pramod Nayar, learned

Senior counsel for the respondents.

9. Sri Udaya Holla, learned Senior Counsel for the

petitioner, submits that, the Emergency Arbitrator Award

does not exclude the Aakash Shares from the purview of

the freezing order regarding the respondents' assets,

granted in favour of the petitioner. He also submits that

the operative portion of the Emergency Arbitrator Award

states that the Respondents, whether by themselves, their

agents or servants or howsoever otherwise, are restrained

from dealing in, parting with, selling, charging, pledging,

or in any other way disposing of or encumbering any of - 15 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

their assets, whether the respondents are interested in

them legally, beneficially or otherwise, up to the value of

US$235,187,165.78 until the conclusion of this Arbitration

or until further orders. He submits that the Emergency

Arbitrator Award specifically covers all assets of the

Respondents, insofar as that they are legally, beneficially,

or otherwise owned by them. The portion of the transcript

immediately after the portion relied upon by the

respondents notes that Byju Raveendran is the 100%

owner of Beeaar, due to which the relief sought relating to

Aakash shares, which are beneficially owned by

respondent no.2 won't be futile. He submits that the

Emergency Arbitrator noted that, the respondent No.2's

actions were not in the ordinary course of business and

there were added factors which give rise to the risk of

dissipation. On this basis, the Emergency Arbitrator Award

was passed for all assets that were legally, beneficially or

otherwise, owned by the respondents.

(Emphasis supplied) - 16 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

10. He further submits that, Byju Raveendra beneficially

owns the Aakash shares. Beeaar currently holds the

Aakash shares and Beeaar is wholly owned by respondent

no.2 since 100% of Beeaar's shares are held by

respondent No.2. Respondent No.2 has declared himself

as the beneficial owner of the Aakash Shares as per

Section 90 of the Companies Act, 2013. This is also

confirmed by Aakash's BEN-2 form filing, which states that

while Beeaar holds the 17,891,289 equity shares in

Aakash, the beneficial owner of these shares is respondent

No.2. He submits that the Byju beneficially owns Aakash

shares, and are, therefore, covered within the ambit of the

EA Award. He submits that the High Court, under Section

9 of the Arbitration Act has the jurisdiction to grant an

injunctive relief regarding the shares of a company that is

incorporated within its jurisdiction. Further, to buttress his

arguments, he places reliance on the following judgments:

1. PASL Wind solutions Private Ltd v. GE Power Conversion India Pvt Ltd [(2021) 7 SCC 1]; - 17 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

2. Raffles Design International India Pvt Ltd & Anr. v. Educamp Professional Education Ltd and Ors [2016 SCC ONLINE DEL 5521];

3. Shanghai Electric Group Co. Ltd v. Reliance Infrastructure Ltd [2022 SCC ONLINE DEL 2112];

4. Arvind Constructions Co.(P) Ltd v. Kalinga Mining Corporation and Others [(2007) 6 SCC 798];

5. Essar House Private Ltd v. Arcelar Mittal Nippon Steel India Ltd [2022 SCC ONLINE SC 1219];

6. Niko Resources Ltd v. Union of India and Anr [2001 SCC ONLINE DEL 615]

Hence, prays to allow the petitions.

11. Per contra, the learned counsel for the respondents

submits that, the petitions are filed on the ground that,

no arbitral Tribunal was constituted. He submits that, the

Arbitral Tribunal is constituted. Hence, the petitions filed

under Section 9 of the Arbitration and Conciliation Act is

not maintainable. He also submits that the Aakash shares

could not have been the subject matter of the

Emergency Arbitrator Award. He further submits that the

Aakash Shares are now held by a third party, not a party - 18 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

to the present proceedings or the SIAC Arbitration. He

submits that this Court has no jurisdiction to pass orders

on behalf of an entity that, is not a party before this Court.

He submits that since the Arbitral Tribunal has been

seized of the dispute, the jurisdiction to determine the

beneficial ownership vests only with the Arbitral Tribunal

and not under Section 9 of the Arbitration and Conciliation

Act. He submits that the EA Award is detailed and well-

reasoned. It is an accepted position that no application has

been moved by either the petitioner or the respondents to

clarify/modify/supplement the EA Award. The petitioner

has enforced the Emergency Arbitration Award in

Singapore, and the same has attained the status of a

decree passed by a court of law. The respondents have

complied with the Emergency Arbitration Award and filed

the requisite disclosure affidavits pursuant to the

Emergency Arbitration Award. By filing the present

petitions under Section 9 of the Act of 1996, the petitioner

has sought reliefs over and above, what was contemplated

in the Emergency Arbitration Award, and the petitioner is - 19 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

attempting to modify/supplement or better the scope of

the Emergency Arbitration Award, which is legally

untenable. The competent forum to approach in such a

situation, as per the SIAC Rules, is the duly constituted

Arbitral Tribunal. It is a settled position of law in India

that the Court cannot sit in appeal over an emergency

award passed in a foreign seated arbitration. To buttress

his argument, he has places reliance on the following

judgments, and accordingly, prays to dismiss the petitions.

1. Arcelar Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd [(2022) 1 SCC 712];

2. Ashwani Minela v. U Shin Ltd [ 2020 SCC ONLINE DEL 721];

3. Jaya Industries v. Mother Dairy Calcutta and Anr [2023 SCC ONLINE Cal. 2051];

4. Pacific Development Corporation Ltd v. DMRC Ltd [2023 SCC ONLINE DEL 521];

5. Ganga Prasad Memorial Trust and Anr. v. DHK Eduserve Limited [2024 : AHC : 76378-DB]

6. Welspun Enterprises Ltd v. Kasturi Infra projects (P) Limited [2024 SCC ONLINE DEL 4849];

7. M. Ashraf v. Kasim V.K., [2018 SCC ONLINE KAR 4913]; - 20 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

8. Kundan Lal v. Jagan Nath Sharma [1962 SCC ONLINE AII 38];

9. Sunita Garg v. Scraft Product (P) Limited and Ors [2023 SCC ONLINE DEL 2668];

10. Fedders Electric and Engineering Ltd v. Srishi Constructions [2023 SCC ONLINE DEL 2356];

11. Asad Mueed and Anr v. Hammad Ahmed and Others [2023 SCC ONLINE DEL 820];

12. A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani [1961 SCC ONLINE SC 16]

13. Uphealth Holdings INC v. Global Healthcare Systems Pvt Ltd and Ors [2023 SCC ONLINE CAL 2442]; 14. RKD Niraj JV v. Union of India and Ors [2024 SCC ONLINE CAL 4027];

15. Manbhupinder Singh Atwal v. Neeraj Kunarpal Shah [2019 SCC ONLINE GUJ 6871];

16. Natrip Implementation Society v. IVRCL limited [2016 SCC ONLINE DEL 5023];

17. Sanghi Industries Ltd v. Ravin Cables Ltd [2022 SCC ONLINE SC 1329];

18. Skypower Solar India (P) Ltd v. Sterling and Wilson International FZE [2023 SCC ONLINE DEL 7240];

19. Shoney Sanil v. Coastal Foundations (P) Ltd. [2006 SCC ONLINE KER 38];

20. Asma Lateef v. Shabeer Ahmed [(2024) 4 SCC 696];

21. Ashwani Minda v. U.-Shin Ltd [2020 SCC ONLINE SC 1123]. - 21 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

12. Per contra, learned Senior counsel for the petitioner,

in reply, submits that the petitioner has sought a relief

under Section 9 of the Act, and the interim application

that, are in furtherance of the Emergency Arbitrator

Award. No attempt has been made by the petitioner to

modify the EA award. In the event, the petitioner has an

independent right under Section 2(2) of the Arbitration Act

r/w. Section 13b of the ISDA Agreement (Master

Agreement) and clauses 17.3 to 17.7 of the Personal

Guarantee to approach the High Court for interim reliefs

under Section 9 of the Arbitration Act, 1996. He submits

that this Court has jurisdiction to entertain the petitions

filed by the petitioner, and he prays to restrain the

respondents from parting with or disposing of or alienating

or creating encumbrance on all the assets, including the

Aakash shares. Hence, on these grounds prays to allow

the petitions. - 22 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

13. Perused the records, and considered the

submissions of the learned counsels for the parties.

14. The point that arises for consideration is,

"Whether the petitioner has made a grounds to grant an interim injunction restraining the respondents from creating any charge over the assets of respondents' Company ?"

15. It is not in dispute that the petitioner provided US $

150 Million to respondent No.1 to part finance the

purchase of 17,891,289 shares under a long-form

confirmation letter, which was executed between the

petitioner and respondent No.1, supplementing/amending

the 2002 ISDA Master Agreement. As a security for the

US $ 150 Million, respondent No.2 had undertaken that

the Aakash shares would not be disposed of and/or

alienated which provides as follows :

Section 5(a)(ii) of the confirmation letter :

"ii) Paragraph (i) above does not apply to:

(A) any sale, lease, transfer or other disposal of T&L Shares for the purpose of funding the payment of the Mandatory Exchange Amount, the Option Cash - 23 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

Settlement Amount or any other amount due to Party A under or in connection with any Transaction Document;

(B) the conversion and/or exchange of the Aakash Shares into T&L Shares pursuant to the Framework Agreement;

(C) any Excluded Transfer (provided that in the case of an Excluded Transfer to a holding company not already listed, all or substantially all of the T&L Shares are intended to be transferred to such holding company and an IPO completes within the period stipulated by the Calculation Agent acting reasonably and provided further that Party B receives shares in the relevant transferee entity in connection with such Excluded Transfer corresponding to the T&L Shares subject to the Excluded Transfer and contemporaneously therewith);

(D) any sale, lease, transfer or other disposal of any assets other than Security Assets or Funded Shares provided that the proceeds of such sale, lease, transfer or other disposal are applied by Party B towards the repayment of its Specified Indebtedness;

or

(E) any sale, lease, transfer or other disposal of Aakash Shares provided that at a time substantially contemporaneously as such sale, lease transfer or other disposal, Party B acquires T&L Shares intended to be funded by the Initial Exchange Amount or the proceeds of a Parallel Transaction."

As per the confirmation letter, the respondent no.2

has to repay US $ 300 million to the petitioner by March

31st 2025, the end of the term under the transaction. - 24 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

Respondent No.1 provide a personal guarantee up to US

$300 Million to secure the respondent no.2's obligation

under the transaction. Respondent No.2 purchased 1,

78,91,289 shares in Aakash on 21.9.2022.

16. The dispute between the parties arises about

respondent No.1's alleged failure to comply with its

obligations under the ISDA agreement, giving rise to

multiple events of default under the ISDA agreement and

entitling the petitioner to terminate the transaction and to

demand the payment of early termination amount in the

sum of US $235,187,165.78 thereby also engaging

respondent no.2 liability under the personal guarantee.

17. Respondent No.2 is the founder of Think and Learn

Private Ltd., an Educational Technology Company in

Bengaluru, India, and he being major shareholder,

acquired an interest in the Company called Aakash

Educational Services Ltd. The original co-founders of

Aakash is one Mr J C Chaudhry and Mr Aakash Chaudhry.

The T&L and the Blackstone Entities entered into an Option - 25 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

Agreement dated 30 July 2022 granting respondent No.1

the option to acquire the part of the Blackstone Entities

shares in Aakash, amounting to 26.8% of Aakash's total

share capital price of around US$270 million. The source

for acquiring 26.8% stakes in Aakash came from three

different sources. Pursuant to the ISDA Agreement, the

petitioner agreed to advance an Initial Exchange Amount

of US$150 million to Investments to part-finance the

purchase of a certain number of shares in Aakash, which

would convert upon completion of the Merger into 50,561

T&L Shares. Respondent No.2 executed a personal

guarantee to set out the Aakash merger, and conversion

process for respondent No.1. The condition mentioned in

the personal guarantee is that, if Aakash shares have not

been exchanged pursuant to the merger of Aakash and

T & L Private Ltd. by 3.10.2022, then, respondent No.2

shall take the necessary action to procure the issuance of

series F CCCP shares in T & L to respondent no.1 in

exchange for Aakash shares held by respondent no.1. The

transaction documents were executed. The plan merger - 26 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

between T & L and Aakash failed to take place, and the

respondent, did not acquire an additional 50,561

unencumbered T & L shares. The petitioner requested the

respondents, detailed information, and relevant

documentary evidence concerning those matters, i.e.,

copies of the register of shareholder of Aakash as well as

confirmation by the following day that, the respondents

would abide by their obligation, and would not enter into

any transaction affecting the Aakash shares. On 5.2.2024,

the Solicitor sent a letter to the respondent requesting

inter alia, an undertaking by them that they would not

dispose of their shares either T & L or Aakash.

18. From the perusal of the informal list of Aakash

shareholders and an informal capitalisation table in

relation to T & L, respondent no.1 was not listed as a

shareholder in the list. However, BEEAAR was shown as a

shareholder having a 16% stake (diluted from 26.8%).

According to the list, the Manipal Group held a 39.94%

stake in Aakash. In response to the petitioner's repeated

requests for signed non-disposal undertakings regarding - 27 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

the holding in Aakash and T & L shares, respondent No.1

provided the petitioner with a signed non disposal

undertaking regarding the shares held by respondent no.1.

The petitioner immediately drew respondent No.2's

attention to the fact that the document was not signed,

and full details of the shares were not completed in the

documents.

19. Respondent No.2 replied through E-mail that, he

corrected the number of shares held by respondent no.1,

although the figure of 1,42,996 series F CCCP shares in T

& L was unchanged from the original draft prepared by the

petitioner. The respondents due to non-disposal

undertaking given to the petitioner, the petitioner

terminated the transaction based on the occurrence of

several events of default, and demanded early termination

amount to US $235,187, 165.78 in accordance with the

ISDA agreement and called upon the respondents to pay

the amount on or before 1.3.2024. The respondents have

not paid the said amount. The petitioner invoked the

arbitration clause, and approached the Emergency - 28 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

Arbitrator at Singapore International Arbitration Centre.

The Emergency Arbitrator, after perusing the records

produced by the parties, has passed an award, which

reads as under :

"(1) Subject to the provision by the Claimant of the undertaking set out in paragraph (3) below, the Respondents, whether by themselves, their agents, or servants or howsoever otherwise, are restrained from dealing in, parting with, selling, charging, pledging or in any other way disposing of or encumbering any of their assets, whether the Respondents are interested in them legally, beneficially or otherwise, up to the value of US$235,187,165.78, until the conclusion of this arbitration or until further order, save that this injunction shall not prohibit the Respondents from:

1. spending such sums as are reasonably necessary for legal advice and representation at a rate to be agreed between the Claimant and the Respondents; and

ii. dealing with or disposing any of their assets in the ordinary and proper course of business, provided that any disposals be at fair market value and the proceeds of such disposal remain subject to the injunction and their identity be disclosed to the Claimant.

(2) Subject to the provision of the undertaking referred to in paragraph (3) below, the Respondents shall disclose, under a sworn affidavit, to the Claimant, full and accurate details of all their assets, whether in their own name or not and whether solely or jointly owned and whether the Respondents are interested in them legally, beneficially or otherwise, within 21 days from the date of this Award. - 29 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

(3) The Claimant shall forthwith provide the Respondents with an undertaking in the following terms:

"If the Arbitral Tribunal in SIAC ARB093/24/RHM later finds that this order has caused loss to the Respondents or either of them and decides that the Respondents or either of them are to be compensated for that loss, the Claimant undertakes to comply with any order the Arbitral Tribunal may make."

(4) The legal costs of the Application are initially apportioned such that the Respondents shall pay the Claimant the sum of SGD 800,000.00 in respect of its legal costs of the Application, subject to the power of the arbitral tribunal to finally determine the apportionment of such costs.

(5) The costs of arbitration in relation to the Application are initially apportioned such that the Respondents shall bear in full such costs of arbitration to be determined by the Registrar of the SIAC Court at the conclusion of the arbitration, subject to the power of the arbitral tribunal to finally determine the apportionment of such costs.

20. After passing of the award by the Emergency

Arbitrator dated 28.3.2024, the petitioner approached the

Singapore High Court for an enforcement of the

Emergency Award passed by the Emergency Arbitrator,

wherein the Singapore High Court passed an order

enforcing the Emergency Arbitrator's award vide order - 30 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

dated 1.4.2024. The petitioner has given an undertaking

as set out in Schedule I to the order of the Singapore High

Court.

21. Pursuant to the order passed by the Singapore

High Court, respondent No.2 filed an affidavit on

18.4.2024 disclosing the assets and liabilities, and also

shares held by respondent No.1. Which discloses that

respondent no.2 is holding 17,891,289 ordinary shares in

Aakash Educational Services Ltd. The petitioner Solicitor

issued a communication dated 23.4.2024 to the

respondents' Solicitor stating that, the respondents have

failed to comply with the disclosure orders i.e., the un

notarised affidavit filed by respondent No.2, signed on

18.4.2024, is deficient, inadequate; and utterly lacking as

to the extent, value and location and details of the

respondents' assets, and it is also stated that the

respondents have not disclosed the value of the assets' list

therein. It is stated that respondent No.2 has suppressed

the shares, and the value of shares in the Aakash shares. - 31 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

22. Respondent No.2 has submitted a supplementary

affidavit as per Annexure-N. He has stated that he is the

director of respondent No.1, and is authorised to make s

supplementary affidavit on behalf of respondent No.1 in

SIAC ARB No.93/24. He has taken a contradictory stand

in the supplementary affidavit stating that he had set out

all the shares he owned, and he had inadvertently omitted

to list out the fact that he also owned 1000 ordinary (fully

paid up) shares in 'Byju holdings 2 Pte. Ltd.' and that he

had inadvertently omitted BIPL (respondent no.1) as a non

operating entity with no assets. He had inadvertently listed

out 17,891,289 ordinary (fully paid up) shares in Aakash

Educational Services Ltd as BIPL's (respondent No.1's)

assets. This is erroneous, and the Aakash shares are not,

in fact, part of the respondent's assets.

23. The respondent no.2 took a contradictory stand in

the supplementary affidavit vide Annexure-N. A litigant

can take a different stand at different times, but cannot

take a contradictory stand in the same case. A party

cannot approbate and reprobate on the same facts, and - 32 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

take inconsistent shifting stands. The doctrine of election

is based on the rule of estoppel-the principle that one

cannot approbate and reprobate inheres in it. The doctrine

of estoppel by election is one of the species of estoppel in

pais (or equitable estoppel), a rule in equity. Taking

inconsistent pleas by a party makes its conduct far from

satisfactory. A party should not blow hot and cold by

taking inconsistent stands, and prolong proceedings

unnecessarily. The said view is supported by the Hon'ble

Apex Court in the case of Suzuki Parasrampuria Suiting

Private Limited vs. Official Liquidator of Mahendra

Petrochemicals Limited (in liquidation) and Others

reported in (2018) 10 SCC 707.

24. The perusal of the award passed by the

Emergency Arbitrator discloses that the Emergency

Arbitrator has passed an award restraining the

respondents from encumbering any of the assets where

the respondents are interested in them legally or

beneficially or otherwise.

(Emphasis supplied) - 33 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

25. Rule 2(h) of the Companies (Significant Beneficial

Owners) Rules, 2018 (hereinafter referred to as 'SBO

Rules') defines the term "significant beneficial owner",

which reads as follows:

"2(h) "significant beneficial owner" in relation to a reporting company means an individual referred to in sub-section (1) of section 90, who acting alone or together, or through one or more persons or trust, possesses one or more of the following rights or entitlements in such reporting company, namely:-

(i) Holds indirectly, or together with any direct holdings, not less than ten per cent. of the shares;

(ii) Holds indirectly, or together with any direct holdings, not less than ten per cent. of the voting rights in the shares;

(iii) Has right to receive or participate in not less than ten per cent. of the total distributable dividend, or any other distribution, in a financial year through indirect holdings alone, or together with any direct holdings;

(iv) Has right to exercise, or actually exercises, significant influence or control, in any manner other than through direct holdings alone:

Explanation 1. For the purpose of this clause, if an individual does not hold any right or entitlement indirectly under sub-clauses (i), (ii) or (iii), he shall not be considered to be a significant beneficial owner.

Explanation II. For the purpose of this clause, an individual shall be considered to hold a right or entitlement directly in the reporting company, if he satisfies any of the following criteria, namely.- - 34 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

(i) the shares in the reporting company representing such right or entitlement are held in the name of the individual;

(ii) the individual holds or acquires a beneficial interest in the share of the reporting company under sub-section (2) of section 89, and has made a declaration in this regard to the reporting company.

Explanation III. For the purpose of this clause, an individual shall be considered to hold a right or entitlement indirectly in the reporting company, if he satisfies any of the following criteria, in respect of a member of the reporting company, namely:-

(i) Where the member of the reporting company is a body corporate (whether incorporated or registered in India or abroad), other than a limited liability partnership, and the individual,-

(a) Holds majority stake in that member; or

(b) Holds majority stake in the ultimate holding company (whether incorporated or registered in India or abroad) of that member;

(ii) Where the member of the reporting company is a Hindu Undivided Family (HUF) (through karta), and the individual is the karta of the HUF;

(iii) Where the member of the reporting company is a partnership entity (through itself or a partner), and the individual,-

(a) Is a partner; or

(b) Holds majority stake in the body corporate which is a partner of the partnership entity; or - 35 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

(c) Holds majority stake in the ultimate holding company of the body corporate which is a partner of the partnership entity.

(iv) Where the member of the reporting company is a trust (through trustee), and the individual,-

(a) is a trustee in case of a discretionary trust or a charitable trust;

(b) is a beneficiary in case of a specific trust;

(c) is the author or settlor in case of a revocable trust.

(v) Where the member of the reporting company is,-

(a) a pooled investment vehicle; or

(b) an entity controlled by the pooled investment vehicle, based in member State of the Financial Action Task Force on Money Laundering and the regulator of the securities market in such member State is a member of the International Organization of Securities Commissions, and the individual in relation to the pooled investment vehicle,-

(A) is a general partner; or

(B) is an investment manager; or

(C) is a Chief Executive Officer where the investment manager of such pooled vehicle is a body corporate or a partnership entity.

Explanation IV. Where the member of a reporting company is,

(i) a pooled investment vehicle; or

(ii) an entity controlled by the pooled investment vehicle, - 36 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

based in a jurisdiction which does not fulfil the requirements referred to in clause (v) of Explanation III, the provisions of clause (i) or clause (ii) or clause (iii) or clause (iv) of Explanation III, as the case may be, shall apply.

Explanation V. For the purpose of this clause, if any individual, or individuals acting through any person or trust, act with a common intent or purpose of exercising any rights or entitlements, or exercising control or significant influence, over a reporting company, pursuant to an agreement or understanding, formal or informal, such individual, or individuals, acting through any person or trust, as the case may be, shall be deemed to be 'acting together'.

Explanation VI. For the purposes of this clause, the instruments in the form of global depository receipts, compulsorily convertible preference shares or compulsorily convertible debentures shall be treated as 'shares'.

(i) "significant influence" means the power to participate, directly or indirectly, in the financial and operating policy decisions of the reporting company but is not control or joint control of those policies.]

(2) Words and expressions used in these rules but not defined and defined in the Act or in Companies (Specification of Definitions Details) Rules, 2014 shall have the meanings respectively assigned to them in the Act and the said Rules.

26. Rule 3 and 4 of the said Rules reads as follows :

"3 Declaration of significant beneficial ownership under section 90.-(1) On the date of commencement of the Companies (Significant Beneficial Owners) Amendment Rules, 2019, every individual who is a significant beneficial owner in a reporting company, shall file a declaration in Form No. BEN-1 to the - 37 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

reporting company within ninety days from such commencement.

(2) Every individual, who subsequently becomes a significant beneficial owner, or where his significant beneficial ownership undergoes any change shall file a declaration in Form No. BEN-1 to the reporting company, within thirty days of acquiring such significant beneficial ownership or any change therein.

Explanation. Where an individual becomes a significant beneficial owner, or where his significant beneficial ownership undergoes any change, within ninety days of the commencement of the Companies (Significant Beneficial Owners) Amendment Rules, 2019, it shall be deemed that such individual became the significant beneficial owner or any change therein happened on the date of expiry of ninety days from the date of commencement of said rules, and the period of thirty days for filing will be reckoned accordingly."

4. Return of significant beneficial owners in shares. Upon receipt of declaration under rule 3, the reporting company shall file a return in Form No. BEN-2 with the Registrar in respect of such declaration, within a period of thirty days from the date of receipt of such declaration by it, along with the fees as prescribed in Companies (Registration offices and fees) Rules, 2014."

27. A perusal of Rule 3 of the SBO Rules

contemplates that, every individual, who is a significant

beneficial owner in a reporting company, shall file a - 38 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

declaration in Form No. BEN-1 to the reporting company

within ninety days from the commencement.

27.1 Pursuant to Sub Rule (1) of Rule 3 of the said

Rules, respondent no.2 has filed Form No.BEN-1 on

15.5.2023, wherein the name of the significant beneficial

owner is shown as respondent No.2 Annexure-P discloses

the company's name as Aakash Educational Services Ltd.

and the significant beneficial owner is respondent No.2.

Rule 4 states that upon receipt of the declaration under

Rule 3, the reporting company shall file a return in Form

No.BEN-2 with the Registrar in respect of such declaration,

within thirty days from the date of receipt of such

declaration by it, along with the fees as prescribed in

Companies (Registration offices and fees) Rules, 2014.

Pursuant to Rule 4 of the said Rules Aakash Educational

Services Ltd., submitted a Form in BEN-2 showing the

name of respondent no.2 as the significant beneficial

owner. - 39 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

28. Though, the petitioner has filed these petitions

on the ground that the Arbitral Tribunal is not yet been

constituted, in the absence of constitution of Arbitral

Tribunal, the petitioner is left with no other efficacious

remedy in India than to approach the Court by way of the

present petition. It is brought to the notice of this Court

that the Arbitral Tribunal is constituted, and the

proceedings are currently in progress.

29. To consider the case on hand, it is necessary to

examine Section 9 of the Arbitration and Conciliation Act,

1996, which reads as follows :

"9. Interim measures, etc., by Court - (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court--

(i) For the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii) For an interim measure of protection in respect of any of the following matters, namely:--

(a) The preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) Securing the amount in dispute in the arbitration; - 40 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

(c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) Interim injunction or the appointment of a receiver;

(e) Such other interim measure of protection as may appear to the Court to be just and convenient,

and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

(2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

(3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.

29.1. Section 9(1) enables the parties to an arbitration

agreement to approach the appropriate court for interim - 41 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

measures before the commencement of the arbitral

proceedings, during arbitral proceedings or at any time

after the making of an arbitral award, but before it is

enforced and in accordance with Section 36 of the

Arbitration Act. The bar of Section 9(3) operates where the

application under Section 9(1) had not been entertained

till the constitution of the Arbitral Tribunal. Of course, it

hardly need be mentioned that even if an application

under Section 9 had been entertained before the

constitution of the Tribunal, the Court always has the

discretion to direct the parties to approach the Arbitral

Tribunal, if necessary, by passing a limited order of interim

protection, particularly when there has been a long time

gap between hearings and the application has for all

practical purposes, to be heard afresh, or the hearing has

just commenced and is likely to consume a lot of time.

30. The Hon'ble Apex Court in the case of Arcelor

Mittal Nippon Steel India Limited vs. Essar Bulk

Terminal Limited reported in (2022) 1 SCC 712 has

held that, with the law as it stands today, the Arbitral - 42 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

Tribunal has the same power to grant interim relief as the

Court, and the remedy under Section 17 is as efficacious

as the remedy under Section 9(1). There is, therefore, no

reason why the Court should continue to take up

applications for interim relief, once the Arbitral Tribunal is

constituted, and is in seisin of the dispute between the

parties, unless there is some impediment in approaching

the Arbitral Tribunal, or the interim relief sought cannot

expeditiously be obtained from the Arbitral Tribunal.

Further, in the case of Natrip Implementation

Society v. IVRCL Limited, reported in 2016 SCC

OnLine Del 5023 the Hon'ble Delhi High Court held as

under:

"18. It is also well settled that the granting of orders under section 9 of the Act are discretionary in nature and equitable considerations would apply for grant of such orders. Thus, orders as prayed under section 9(1) of the Act would be granted only if it is necessary and equitable." - 43 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

In the case of Manbhupinder Singh Atwal v. Neeraj

Kumarpal Shah, reported in 2019 SCC OnLine Guj 6871 the

Hon'ble Gujarat High Court held as follows:

"7. The proceedings under Section 9 are not appellate proceedings. Nor Section 9 of the Act can be converted or used as an appeal when the Arbitral Tribunal is available to look into the merits for the similar prayers which is pending in this case, or in a given case could be made to the Tribunal, under Section 17 of the Act. 8. The whole arbitral dispute is pending consideration before the Arbitral Tribunal. The interim measures prayed for by the applicant has a necessary interaction to the aspects of main controversy. The issues relate to main controversy and the question of interim measures prayed for have to be decided in that light and context. Therefore when the dispute is already before the Arbitral Tribunal, the proper and expedient remedy for interim protective measures is, in all ordinary circumstances, under Section 17 of the Act. It is before the Arbitral Tribunal that the dispute between the parties regarding interim protection could be better appreciated and adjudicated". - 44 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

In the case of Sunita Garg v Scraft Product (P)

Limited & Ors., reported in 2023 SCC OnLine Del

2668, the Hon'ble Delhi High Court held as under:

"12. According to Section 9(3) of the Act, 1996 the remedy under Section 9 can be availed after the commencement of the Arbitral Tribunal only if the Court is of the view that remedy cannot be efficaciously rendered by the Arbitral Tribunal. Thus, it must be exercised only in exceptional cases."

31. Admittedly, in the instant case, the Arbitral Tribunal

is constituted. The proceedings are currently in progress.

The petitioner can approach the Arbitral Tribunal, and seek

an interim relief. The petitioner, instead of seeking for an

interim relief before the Arbitral Tribunal, has continued

this proceeding even after constituting the Arbitral

Tribunal. Hence, this Court is of the opinion that, in view

of the subsequent development i.e., the Arbitral Tribunal

has already been constituted, the parties have appeared

before the Arbitral Tribunal, and the proceedings are

pending before the Arbitral Tribunal, the petitioner can - 45 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

approach the Arbitral Tribunal, and can make an

application seeking for an interim measure. The petitioner

can also seek for clarification and modification of the

Emergency Arbitrator's Award. The Tribunal may

reconsider, modify or vacate any interim order or award

issued by the Emergency Arbitrator, including a ruling on

its on jurisdiction. The Tribunal is not bound by the

reasons given by the Emergency Arbitrator. Any interim

order or award issued by the Emergency Arbitrator was, in

any event, ceases to be binding if the Tribunal is not

constituted within 90 days of such order or award or when

the Tribunal makes a final order if the claim is withdrawn.

32. In view of the said provision, the petitioner can

seek a clarification from the Emergency Arbitrator

regarding the significant beneficial owner, whether the

injunction granted by the Emergency Arbitrator covers the

shares of Aakash or the petitioner can approach the

Arbitral Tribunal and seek an interim relief. This Court

granted interim orders, and the same was extended from - 46 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

time to time to safeguard the interest of the petitioner. If

the said interim orders are continued for limited purpose,

no injustice would cause to the respondents. However, a

liberty is reserved to the petitioner to make necessary

application before the Emergency Arbitrator, seeking

clarification or before the Arbitral Tribunal, seeking an

interim relief.

33. Learned senior counsel Sri. Uday Holla places

reliance on the following judgments:

i) PASL WIND SOLUTIONS PRIVATE LIMITED v/s GE POWER CONVERSION INDIA PRIVATE LIMITED reported in (2021) 7 SCC 1, wherein, the Hon'ble Apex court has held that, a proviso inserted to Section 2(2) which only makes it clear that where, in an arbitration which takes place outside India, assets of one of the parties are situated in India and interim orders are required qua such assets, including preservation thereof, the courts in India may pass such orders. The factual matrix of this case is different from the case on hand. This case revolves around the question as to whether an award made at a forum outside India, to which the New York Convention applies, can be said to be a Foreign Award and enforceable as such. This case does not deal with Emergency Arbitrator's Award and subsequent constitution of - 47 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

Arbitral tribunal. Accordingly, this case does not apply to the case on hand.

ii) Raffles Design International India Private Limited & Anr. V/s Educomp Professional Education Limited & Ors reported in 2016 SCC OnLine Del 5521, wherein, the Delhi High Court has held that, a party seeking interim measures cannot be precluded from doing so only for the reason that it had obtained a similar order from an arbitral tribunal, that the question whether the interim orders should be granted under section 9 of the Arbitration Act or not would have to be considered by the courts independent of the orders passed by the Arbitral Tribunal, and that the court can independently apply its mind and grant interim relief in cases where it is warranted. Also held that, a court would be unfettered by the findings or the views of the Arbitral Tribunal. To the contrary, in Para 99, the Delhi High Court has held that the Emergency Award cannot be enforced under the Arbitration Act. Though, this case is similar to the case on hand, in this case the parties had expressly agreed that seeking interim order from the courts would not be incompatible with the arbitration proceedings, and moreover, in this case, an application to set aside the Award passed by the Emergency Arbitrator was filed under Para 7 to Schedule I of the SIAC Rules. Hence, this case is not aptly applicable to the case on hand.

iii) Shanghai Electric Group Co. Ltd v/s Reliance Infrastructure Ltd. Reported in 2022 SCC OnLine Del 2112, wherein, the Delhi High Court held that, the applicability of Section - 48 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

9 stands excluded by choosing foreign seated arbitration cannot be countenanced. An award of emergency arbitrator cannot be enforced directly since there is no provision corresponding to Section 17 for enforcing the interim orders and the meaningful provisional reliefs could be granted by the courts of competent jurisdiction in India. The remedy under Section 9 can be invoked notwithstanding the constitution of Arbitral Tribunal. A party can invoke the jurisdiction of the Court under Section 9 of the Act on the basis of location of the assets. In this case, however, the Arbitral Tribunal was constituted, and though, the court held that, Section 9 application is maintainable. The court dismissed the petition on the ground of not satisfying the ingredients of interim injunctions and kept all the contentions of the parties open before the Arbitral tribunal already constituted. Hence, this case does not apply to the present case as this case does not deal with EA Award, and subsequent constitution of Arbitral Tribunal.

iv) ARVIND CONSTRUCTIONS CO. (P) LTD. V/s KALINGA MINING CORPORATION AND OTHERS reported in (2007) 6 SCC 798, the Hon'ble Apex court held that, the court entertaining an application under Section 9 of the Act shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it and that the general rules that govern the court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application under Section 9 of the Act. There is also the principle that when a power is conferred under a special statute and it is conferred on an ordinary court of the land, without laying down any special - 49 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

condition for exercise of that power, the general rules of procedure of that court would apply and that the exercise of power under Section 9 of the Act must be based on well recognized principles governing the grant of interim injunctions. The case quoted above is not applicable to the case on hand, as this case does not deal with Emergency Arbitrators Award or the Foreign Seated Arbitration. It merely states that, section 9 application must be entertained taking into consideration the well recognized principles governing the grant of interim injunctions.

v) Essar House Private Limited v/s Arcellor Mittal Nippon Steel India Limited reported in 2022 SCC OnLine SC 1219, wherein, the Hon'ble Apex court held that, the proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realization of an impending Arbitral Award is not imperative for grant of relief under Section 9 of the Arbitration Act. A strong possibility of diminution of assets would suffice. To assess the balance of convenience, the Court is required to examine and weigh the consequences of refusal of interim relief to the applicant for interim relief in case of success in the proceedings, against the consequence of grant of the interim relief to the opponent in case the proceedings should ultimately fail. Since, the case on hand revolves around a question, whether the Award passed by the Emergency Arbitrator includes the Shares of Aakash, however the Arbitral Tribunal is constituted subsequent to the E A Award, the relief sought before this Hon'ble court is same as that of the relief before the Emergency Arbitrator, and the Emergency Arbitrator has passed an Award, no question of - 50 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

assessing the consequence of refusal of interim relief would arise. Accordingly, this case is not applicable to the case on hand.

vi) Niko Resources Ltd v/s Union of India & Anr. Reported in 2001 SCC OnLine Del 615, wherein, the Delhi High Court held that, it cannot be disputed that the three basic legal principles of existence of prima facie case, balance of convenience and irreparable loss and injury have always to be taken into account before any interim order is passed either under Order 39 Rules 1 and 2 or under Section 9 of the Act. While the aforesaid principles cannot be given a go-bye the power to grant interim measures of protection under Section 9 of the Act is wider in view of the phraseology used in Section 9 of the Act. This case does not apply to the instant case, as this case does not deal with Emergency Arbitrators Award / Subsequent constitution of Arbitral Tribunal or with the foreign seated Arbitration. It merely states that, the ingredients of Order 39 Rule 1 and 2 have to be looked into before granting an interim order under section 9. In the present case, as the Arbitral Tribunal is already constituted and the parties have appeared before it and participated in its proceedings, the question of looking into the ingredients of granting interim order does not arise. Hence, this case is not aptly applicable to the case on hand.

34. In view of the above discussion, I answer the

point for consideration in the negative and proceed to pass

the following order : - 51 - NC: 2025:KHC:16148 AP.IM No. 2 of 2024 C/W AP.IM No. 3 of 2024

ORDER

i) The petitions are rejected;

ii) However, the liberty is reserved to the petitioner

to make necessary application either before the

Emergency Arbitrator, seeking clarification or

before the Arbitral Tribunal, seeking interim relief.

In the meantime, the interim orders, undertaking

and status-quo, shall continue for a period of three

months.

In view of the disposal of the petitions, all pending

applications are disposed of.

Sd/-

(ASHOK S.KINAGI) JUDGE

rs