Seeking injunctions to prevent Future Retail Limited from disposing of its assets, e-commerce giant Amazon argued in the Supreme Court that the FRL was colluding with Reliance to let the latter take over the former’s stores in breach of the former’s injunctions. ‘injunction.
Future Group, on the other hand, argued that it was facing severe financial difficulties which led to the termination of the leases of their stores, and the owners subsequently transferred the properties to the Reliance Group.
During the hearing, the Court asked if it could issue restraint orders without hearing from the owners. The Court will continue the hearing on Monday.
A bench comprising the Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli was hearing Amazon’s appeal against the Delhi High Court’s order that stayed proceedings in the Singapore Arbitration Court. In the appeal, he made a request to prevent the disposal of FRL assets. According to Amazon, the assets must continue to remain with FRL and operate with FRL until the matter is resolved by an arbitration tribunal.
Senior Advisor Gopal Subramanium, representing Amazon, argued that resuming arbitration is in the common interest of both parties and added that there can be no sudden transfer of assets to alter the status quo. He said more than 800 FRL stores have been evacuated and taken over by Reliance Group.
Responding to FRL’s claim that it had no money to pay the rent for their stores, Mr Subramanium said that in their own annual accounts signed in July 2021, they said they had enough money to play all the rentals and that there was no documentation to show that they couldn’t pay the rents.
Senior Lawyer Aspi Chinoy appearing for Amazon argued that the counter filing filed by FRL establishes that the transfer to stores at Mukesh Dhirubhai Ambani Group was a collusive and consensual act.
He added that although their case was that they could not pay the rent and had to surrender to the landlords, 800 of those leases were then turned over to the MDA Group and as tenants they allowed the same FRL to be the licensee.
“Is it possible remotely without collusion? I haven’t heard of such cooperative tenants in India,” Mr. Chinoy remarked.
Senior Attorney Harish Salve, appearing for FRL, informed the court that FRL still has 374 stores with it and the rest of the stores are with Reliance.
“Reliance has made deals with the landlords. We owe them 3000 crore in rent. Once this gets into IBC Section 7, this will all end. Nobody wants to do business with FRL because Section 7 can happen anytime. For 1400 crore Amazon destroyed a 2400 crore business.” Mr Salve said
“You said you have 374 stores. You say you haven’t paid for any of them. Are you in default?” the bench asked
“Hanging by a thread. My bank accounts are frozen. I can’t pay rent. has us,” Mr. Salve said.
Senior Lawyer Mukul Rohatgi appearing for Future Coupons Private Ltd argued that if leases cannot be honored and rent cannot be paid, landlords have the right to reclaim the stores. Objecting to Amazon’s plea in his application, Mr. Rohatgi argued that there can be no interlocutory order in an appeal where this issue does not arise.
“In February 2022, we could not find a solution to the NPA, the bank accounts were frozen. No one today is ready to give us anything today. 374 stores that we manage in one way or on another today we are managing. Most of the employees are gone. Amazon wanted to destroy us and they did,” Salve said.
Lead lawyer Rakesh Dwivedi, representing the consortium of banks, argued that no interim orders should be granted which would go against the interests of the banks and that their interests should not be harmed.
In the Future-Amazon dispute, lawyers for the American e-commerce giant Amazon had previously offered to have an informal dialogue with the Future Group to settle the dispute out of court.
Lead attorney Gopal Subramanium for Amazon later advised the court that the dispute could not be resolved through discussion.
Amazon also issued a public notice alleging that Future Group is about to allegedly allow the retail assets to be turned over to Reliance in violation of the arbitral tribunal’s orders and submissions made by the arbitral tribunal to the Supreme Court.
According to Amazon, FRL and its promoters made false representations to the Supreme Court that the retail assets would continue to vest in FRL until the plan of arrangement with Reliance was finally approved by the NCLT.
“These misrepresentations were knowingly made as FRL was about to allegedly authorize the handover of retail assets to MDA Group.” the public notice published by Amazon states
The notice warned parties who assist or cooperate with FRL in the transfer, assignment or disposition of its assets of the civil and criminal consequences provided by law.
The public notice stated that any attempt by Future Retail Ltd and its promoters to transfer/alienate/dispose of any of its retail assets is in breach of the binding orders of the arbitral tribunal, and the party aiding or cooperating in de such actions will be responsible for civil prosecution and criminal consequences under the law.
The bench consisting of CJI NV Ramana, Judge AS Bopanna and Hima Kohli was hearing a request for special leave filed by Amazon against the order of the Delhi High Court suspending arbitration proceedings in the Singapore court against Future Group .
The challenged Division Bench order also stayed the Single Judge’s order which dismissed Future Group’s plea challenging the two orders made by the Singapore Arbitral Tribunal which adjourned the hearing of Future’s plea requesting the termination of arbitration proceedings initiated by Amazon.
The High Court had also issued an opinion on the two appeals lodged by Future Retail Ltd. and Future Coupons Pvt. ltd. contesting the said order of the single judge and made it refundable on February 1, 2022.
In the High Court, Future Group, in its plea, had relied on an order issued by the Competition Commission of India on December 17, 2021, which suspended the approval given to Amazon’s deal with FutureGroup.
In the Supreme Court, Amazon argued that the contested interim order terminating an ongoing international commercial arbitration sitting in New Delhi under SIAC rules presided over by a distinguished arbitral tribunal and involving parties and experts from around whole is strikingly contrary to the provisions, intent and purpose of the Arbitration and Conciliation Act which emphasizes party autonomy and minimal judicial interference.
Observations by the Single Judge
The Court considered that it is not because the hearing of the request for termination was scheduled for a date after the hearing of the expert witnesses that the arbitral tribunal was not prepared to examine the said requests on the merits or that he ruled out the merits of the said requests.
The Court further noted that there was no prima facie indication that the Arbitral Tribunal had denied equal opportunities to the parties or that the Arbitral Tribunal had not been accommodating to the demands made by the FutureGroup.
Case Title: Amazon.com NV InvestmentHoldings LLC v Future Coupons Private Limited & Ors, Amazon.com NV Investment Holdings LLC v Future Retail Ltd & Or