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2024 SCC OnLine Bom 3233

In the High Court of Bombay

(BEFORE ARIF S. DOCTOR, J.)

Ashok Kumar Goel and Another … Petitioners;

Versus
Ebixcash Limited and Others … Respondents.
Commercial Arbitration Petition (L) No. 25579 of 2024
Decided on October 8, 2024
Advocates who appeared in this case:
Sharan Jagtiani, Senior Advocate (Nitesh Jain, Juhi Mathur, Sonia
Dasgupta, Ananyaa Jagirdar, Surbhi Agarwa and Atul Jain), for the
Petitioners;
Mayur Khandeparkar, Chetan Yadav, Allen Mathew and Pratibha
Tiwari, Advocates, for the Respondents.
The Judgment of the Court was delivered by
ARIF S. DOCTOR, J.— The captioned commercial arbitration petition
is filed under Section 9 of the Arbitration and Conciliation Act, 1996
(Arbitration Act) in which the petitioner seeks the following reliefs:
“(A) Direct Respondents 1-3 to deposit the sum of INR 145 crores
being 80% of the enhanced call price determined by the valuation
report dated 22-1-2024 issued by PwC, with this Hon'ble Court as
security, pending the hearing and final disposal of the arbitral
proceedings and enforcement of the arbitral award that may be
passed therein.
(B) In the alternative, direct Respondents 1-3 to furnish an
irrevocable bank guarantee of a nationalised bank, or such other
security, in favour of the Prothonotary, Bombay High Court for the
sum of INR 145 crore, being 80% the enhanced call price
redeemable by the petitioners upon the issuance of the final
award by the Arbitral Tribunal in SIAC Arbitration No. 80 of 2024
and up to the total sum of any amounts which the Tribunal orders
the respondents to pay to the petitioners.
(C) In furtherance of Reliefs A and B, order appointment of a Court
Receiver or such other person as this Hon'ble Court deems
appropriate as Court Receiver, to do all such things including to
take possession and control of all the immovable and movable
properties, present and future (including general fees, income,
rent, revenues, interest, other income, receivables, profits, etc.) of
the respondents including their equity interests in Schedule A and
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other properties disclosed by the respondents with full powers

under Section 94 and Order 40 Rule 1 of the Code including the
power to call for/demand, recover, take possession thereof and to
sell the same by public auction or by private treaty and to deposit
all receivables/sale proceeds in a separate account to be opened
and operated by the Court Receiver to be utilised as a deposit or
used as a collateral to procure a bank guarantee to the extent of
INR 145 in terms of the directors passed by this Hon'ble Court.
(D) In the further alternative, attach all saleable and unsecured
assets owned by Respondents 1-3 or over which Respondents l-3
exercise a disposing power, whether such assets are movable,
immovable, tangible, intangible, including but not limited to
securities, bank accounts, investments, valuables, etc. up to the
value of INR 145 crores.
(E) Pass an order of injunction restraining Respondents l-3 from, in
any manner dealing with, and/or encumbering and/or disposing
off, dissipating, and/or creating third-party rights and/or
alienating any of the moveable or immoveable properties or assets
owned or belonging to Respondents 1-3, including the assets
listed in Schedule A hereto, standing in the name of Respondents
1-3 or over which Respondents 1-3 exercise any disposing power.
(F) Direct the respondents to disclose all their assets on oath,
including providing further and bebetter particulars as to the
movable and immovable properties, along with details of all the
respondents' bank accounts and the monies lying therein,
receivables, shares held in any companies and any other interests
in any other entity including financial statements and list of all
assets of such entities, government securities, bonds, mutual
funds or other securities for money, lands, houses or other
buildings, goods, money, bank notes, cheques, bills of exchange,
properties, valuables, whether tangible or intangible or all other
saleable moveable and immovable properties belonging to the
respondents or over the profits of which the respondents have a
disposing power which they may exercise for their own benefit
whether the same may be held in the name of the respondents or
held by another person in trust for them or on their behalf.
(G) Grant ex parte ad interim reliefs in terms of prayers (E) and (F)
above.”
2. Before, however, adverting to the rival contentions it is necessary
to set out the following facts to give context to the rival contentions viz.
—
(i) The disputes between the parties arises out of a shareholders
agreement (SHA) dated 12-5-2017 by and under which the
respondents were to purchase the shareholding of the petitioner
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in Respondent 4 Company in the manner more particularly set out

in Clauses 15.6 and 15.7 of the SHA. The SHA also contains an
arbitration clause that provides for arbitration in accordance with
the Singapore International Arbitration Chamber (SIAC) Rules in
the event of any disputes and differences arising between the
parties under the SHA.
(ii) Admittedly, disputes and differences between the parties arose
since the petitioner terminated the SHA and the respondent did
not comply with its obligations under clauses 15.6 and 15.7 of the
SHA. It was thus that an Arbitral Tribunal came to be constituted
as per the SIAC Rules.
(iii) The Arbitral Tribunal by an award dated 1-6-2023 (First award)
inter alia upheld the termination of the SHA and the obligation of
Respondents 1 to 3 to purchase the shares of the petitioner, the
Tribunal however rejected the valuation report submitted by
Deloitte on the ground that it lacked independence and directed
another independent valuer to carry out a fresh valuation. The
Arbitral Tribunal also vide an order dated 1-9-2023 (Cost award)
awarded the petitioners a sum of Rs 9 crores approximately as
costs. The petitioners thereafter filed two petitions under Section
49 of the Arbitration Act before the Delhi High Court for
enforcement of the first award and the cost award.
(iv) Thereafter, on 30-11-2023, the petitioner appointed Price
Waterhouse and Co. LLP (PwC) as the eligible valuer under the
SHA to determine the enhanced call price in respect of the
respondents' liability which had already been determined by the
first award .
(v) PwC on 2-1-2024, issued a valuation report determining the
enhanced call price at Rs 181 crores. The petitioners thus called
upon the respondents to make payment of the said amount
towards the petitioners' shareholding in Respondent 4. The
respondents, however, refused to make payment of the enhanced
call price on various grounds including disputing the
independence of the valuer i.e. PwC.
(vi) On 19-1-2024 the Delhi High Court in the enforcement Petitions
filed by the petitioners to enforce the first award and the cost
award, passed an order of status quo qua the assets of the
respondents as more particularly set out in the said petitions.
(vii) Since the respondents refused to make payment to the
petitioners at the enhanced call price the petitioners on 20-2-
2024, did the following; (i) invoked arbitration under SIAC Rules
in terms of Clause 20 of the SHA; and (ii) applied for emergency
interim relief under Schedule I of the SIAC Rules.
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(viii) By two separate orders dated 13-3-2024, the Delhi High Court
allowed both the petitions filed by the petitioners under Section
49 of the arbitration Act i.e. for enforcement of the first award as
also the cost award. Thus, both the first award and the cost award
have attained finality and have been recognised as being valid
under Indian law in accordance with Part II of the Arbitration Act.
These orders have not been challenged by the respondents.
(ix) On 14-3-2024 the emergency arbitrator vide its order (EA
decision) decided the application filed by the petitioner and
ordered and directed Respondents 1 to 3 to furnish an irrevocable
bank guarantee in the sum of INR 145 crores in favour of the
petitioners within a period of 14 days. This time expired on 28-3-
2023.
(x) The respondents thereafter made various
representations/assurances to the petitioners indicating that they
were making efforts to comply with the EA decision. The
respondents however represented to the petitioners that they
were unable to furnish a bank guarantee as directed, in view of
the order dated 19-1-2024 passed by the Delhi High Court by
which the assets of the respondents were injuncted from dealing
with their assets. The respondents thus on 16-4-2024 made an
application before the Delhi High Court for modification of the
order dated 19-1-2024 which came to be allowed in terms of the
order dated 1-5-2024.
(xi) Thereafter, on 31-5-2024, the respondents filed an application
to modify the emergency arbitrator's decision before the regular
Arbitral Tribunal by seeking substitution of the bank guarantee
with some other form of security. The reason for seeking such
substitution inter alia was that the banks in India were not
accepting the assets of the respondents as collateral security
because of the pending bankruptcy proceedings against
Respondent 4 in the United States.
(xii) Thereafter, a detailed hearing was held before the Arbitral
Tribunal and the Arbitral Tribunal on 24-7-2024 issued an order
(Tribunal's order) reviewing the emergency arbitrators' decision,
by which the Arbitral Tribunal rejected the respondents' request
for modification of the EA decision and directed the respondents
to provide security to the petitioners security in the form of bank
guarantee in the amount of Rs 145 crores within a period of 14
days.
(xiii) Since the respondents did not comply even with the Tribunal's
order, the petitioners on 13-8-2024 filed the present petition
under the provisions of Section 9 of the Arbitration and
Conciliation Act, 1996 seeking the reliefs extracted above.
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3. Mr Jagtiani, learned Senior Counsel appearing on behalf of the

petitioners, at the outset, submitted that though the EA decision was
termed an “emergency interim award ” the same was in fact only an
interim order and was not a final award as contemplated under Part II
of the Act. He then in support of his contention invited my attention to
para 8 of Schedule 1 of the SIAC Rules and pointed out that the same
made specific and distinct use of the words “award” and “order”. He
pointed out that the Supreme Court in Amazon.com NV Investment
1
Holdings LLC v. Future Retail Ltd. recognising this fact had specifically
noted that an emergency arbitrator's “award” was in fact an order. It
was thus his submission that the EA Decision would not be one which
was enforceable under Part II of the Arbitration Act and hence, the
petitioner would always have recourse to Section 9 of the Arbitration
Act by virtue of the proviso to Section 2(2) of the Arbitration Act.
4. Mr Jagtiani then fairly submitted that recourse to Section 9 of the
Arbitration Act was not available for the purpose of enforcing the orders
of an emergency arbitrator and/or Arbitral Tribunal, but this did not
mean that the court could not in an application filed under Section 9
independently assess the facts and grant interim relief if a case for the
grant of such reliefs was otherwise made out. In support of his
contention, he placed reliance upon the decision of the Delhi High Court
in Raffles Design International India (P) Ltd. v. Educomp Professional
Education Ltd.2
5. Mr Jagtiani did not dispute that the grant of interim reliefs was
entirely within the discretion of the court but submitted that given the
fact that party autonomy was the bedrock of arbitration, and the parties
having agreed to a procedure which contemplated the appointment of
an emergency arbitrator, the parties must then necessarily be bound by
the decision of the emergency arbitrator. In support of his contention,
that due deference must be given to the EA decision, he placed strong
reliance upon the judgment of the Supreme Court in Amazon.com NV
Investment Holdings LLC case1 which in the context of an emergency
arbitrators award, held as follows viz.— (Amazon.com case, SCC p. 252,
para 40-41)
“40. An emergency arbitrator's ‘award’ i.e. order, would
undoubtedly be an order which furthers these very objectives i.e. to
decongest the court system and to give the parties urgent interim
relief in cases which deserve such relief. Given the fact that party
autonomy is respected by the Act and that there is otherwise no
interdict against an emergency arbitrator being appointed, as has
been held by us hereinabove, it is clear that an emergency
arbitrator's order, which is exactly like an order of an Arbitral
Tribunal once properly constituted, in that parties have to be heard
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and reasons are to be given, would fall within the institutional rules
to which the parties have agreed, and would consequently be
covered by Section 17(1), when read with the other provisions of the
Act, as delineated above.
41. A party cannot be heard to say, after it participates in an
emergency award proceeding, having agreed to institutional rules
made in that regard, that thereafter it will not be bound by an
emergency arbitrator's ruling. As we have seen hereinabove, having
agreed to para 12 of Schedule 1 to the SIAC Rules, it cannot lie in
the mouth of a party to ignore an emergency arbitrator's award by
stating that it is a nullity when such party expressly agrees to the
binding nature of such award from the date it is made and further
undertakes to carry out the said interim order immediately and
without delay.”
Basis the above, Mr Jagtiani submitted that the parties having
vested jurisdiction in the emergency arbitrator, the respondents ought
not to be permitted to renege from the EA decision. He additionally
pointed out that the EA decision was rendered after following due
process and in respect of which, no grievance was even raised by the
respondents. It was thus his submission that this Court could and must
in the facts of the present case, give strong weightage to the EA
decision.
6. Mr Jagtiani then submitted that it was well-settled that Section 9
of the Arbitration Act was intended to structurally support arbitration.
He further pointed out that in the facts of the present case, both the
emergency arbitrator and the Arbitral Tribunal had reached their
respective conclusions after detailed hearings and had only thereafter
directed the respondents to furnish the petitioners security in the form
of a bank guarantee. He submitted that due deference must therefore
be given to these decisions by this Court. Mr Jagtiani then placed
reliance upon the judgment of this Court in Plus Holdings Ltd. v.
Xeitgeist Entertainment Group Ltd.3 and pointed out that this Court had
in that case granted ad interim relief based entirely upon the view
taken by the emergency arbitrator. It was this approach which he
submitted must be adopted and encouraged to structurally support
arbitration.
7. Mr Jagtiani then, from the EA decision pointed out that the
justification for directing the respondents to furnish a bank guarantee
and no other form of security, even though offered by the respondents
was expressly dealt with by the emergency arbitrator as follows viz.
“126(d). Pwc is one of the named independent valuers prescribed
in the SHA. Furthermore, the contractual definition does not
expressly require the independent valuer to be independent from the
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parties (which has been the focus of the respondents' objection).

Rather, the parties may have merely intended to record their
agreement that the valuation should not be done internally but by
one of the big four consultancy companies. In any event, the
respondents have not established (or even expressly asserted in
writing) any links between the claimants and PwC, but only between
pwc and themselves (which arguably should have made them more
rather than less comfortable with PWC's appointment).
(e) The claimants have the express right under Article 15.6 of the
SHA to make the appointment of the independent valuer This is
not a right shared with the respondents which have already lost
the first arbitration and which have been ordered to purchase
their shares.
(f) The sole arbitrator's decision not to issue an additional award
confirming the appointment of PWC does not preclude the
claimants from appointing PWC themselves as they are expressly
entitled to do under Article 15.6.
∗ ∗ ∗
(h) ln reality, the respondents did nothing. They neither challenged
the appointment formally through Article 20.1, nor cooperated
with PWC as it sought to discharge its function. It even asked to
be excluded from the communications with PWC, thereby
frustrating the effort of the claimants and PWC to conduct the
valuation transparently, independently of either side, and based
on all available information.
134. Having waited nearly four-and-a half years since first
discovering the respondents' breach of the SHA and triggering their
right to sell their shares to the respondents, the claimants should be
put into a position in which they cannot suffer irreparable harm
should one or more of the respondents collapse. This appears
distinctly possible following the demise of Ebix Inc. Ebix Singapore
not being a going concern without a letter of undertaking from the
bankrupt Ebix Inc (while Ebix Singapore completes the circle by
serving as a guarantor of Ebix lnc's credit facilities from its lenders
that amount to US$ 650 million and also continues to be a guarantor
under its restructuring support agreement executed with its
lenders); Ebix World not being a going concern without a letter of
assurance from Ebix India; and Ebix India having its IPO shelved
and two directors resigning recently (see the flow chart at Para 2
above).
∗ ∗ ∗
142. The balance of interests and relative hardships militates in
favour of the granting of relief in circumstances where the
respondents have admitted they are liable to purchase the shares;
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they have already delayed completing the share purchase by over

four years; the respondents have not complied with Lord Neuberger's
decisions on costs and nominal damages nor their undertaking to
cooperate with the independent valuer; there is a significant risk the
respondents may not be able to honour any award rendered in the
claimants' favour given their delays in paying the more modest sums
ordered by Lord Neuberger (and broader financial challenges); and
the respondents obfuscation has compelled the claimants to pursue
actions in multiple fora in Singapore and India.”
8. He then submitted that the respondents in the affidavit-in-reply
to the present petition has taken only the ground of maintainability and
did not raise a single grievance re the aforesaid findings as also did not
dispute that EA decision was after the parties were given a full and fair
opportunity of hearing. It was thus his submission that there was no
reason for this Court to not rely upon/adopt the reasoning, basis which
the EA decision was passed, instead of considering the matter de novo,
since no new factual basis was even asserted by the respondents which
this Court was required to consider.
9. Mr Jagtiani then without prejudice to the above, submitted that
even if the observations in the EA decision and the Tribunal's order
were not taken into consideration, and this Court was to consider the
matter de novo, an overwhelming case for the grant of interim relief as
prayed for had been made out by the petitioner, given the conduct of
the respondents. In support of this contention, he highlighted the
following viz.—
(i) That the respondents' obligation and liability to purchase the
shares of the petitioners was now final and established by the first
award and that the respondents had in various statutory filings as
also in their financial statements admitted their liability to
purchase the petitioners' shares in Respondent 4.
(ii) That the respondents had consistently failed to comply with as
also unreasonably delayed compliance with the obligation to make
payment of nominal damages and/or costs which had been
awarded in favour of the petitioner as also failure to make
payment of the respondents' share of arbitral fees.
(iii) That the respondents had made several assurances to the
petitioner that they would be complying with the EA decision,
despite which fact, they did not do so.
(iv) The respondents represented that they were unable to furnish
the bank guarantee since the respondents had been injuncted
from dealing with their assets by the Delhi High Court.
(v) That the respondents had infact even sought a modification of
the EA decision by seeking liberty to furnish other securities in
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place of having to furnish a bank guarantee.

(vi) That before the Arbitral Tribunal the respondents had relied
upon the bankruptcy proceedings which were then pending
against the ultimate holding company of the respondents i.e. one
Ebix Inc. to use that as a ground for not being able to comply
with the EA decision.
It was basis the above that Mr Jagtiani submitted that the
petitioners had made out a case for the grant of urgent ad interim and
interim relief as prayed for and that the same was essential as an
interim measure of protection to secure the amount in dispute in the
arbitration proceedings.
10. Mr Khandeparkar, learned counsel appearing on behalf of
Respondents 1, 2 and 4 at the outset raised a preliminary objection to
the very maintainability of the petition. He submitted that the petition
was not maintainable since what the petitioners were effectively
seeking was enforcement of the EA decision and Tribunal's order
without filing an enforcement petition under Section 49 of the
Arbitration Act.
11. Mr Khandeparkar submitted that the EA decision was not a
decision as contended by the petitioners but was in fact an award which
was required to be enforced under the provisions of Section 49 of the
Arbitration Act. In support of his contention, he placed reliance upon
Clause 1.3 of the SIAC Rules which he pointed out defined an award to
include “a partial interim or final award and an award of an emergency
arbitrator”. It was thus his submission that the EA decision was to be
enforced in the manner contemplated under Part II of the Arbitration
Act and that a petition under Section 9 of the Arbitration Act was thus
not maintainable.
12. Mr Khandeparkar then placed reliance upon the judgment of this
4
Court in Hyundai Heavy Industries Co. Ltd. v. Del Seatek India (P) Ltd.
to submit that this Court had held that an interim foreign arbitration
award and an interim cost award which were passed in an arbitration
held in London (England) under the Rules of the London Court of
International Arbitration (LCIA) were foreign awards within the
meaning of Section 44 of the Arbitration Act. He submitted that in the
present case, the petitioners had admittedly not filed any petition
under Section 49 of the Arbitration Act seeking recognition and/or
enforcement of the EA decision or Tribunal's order.
13. Mr Khandeparkar then from the decision of the Delhi High Court
2
in Raffles Design International India (P) Ltd. case pointed out that the
same in fact held that recourse to Section 9 was not available for the
purpose of enforcing the orders of the Arbitral Tribunal. It was basis
this he submitted that the present petition filed under Section 9 was
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not maintainable, since what the same sought was an enforcement of

the Emergency award .
14. Mr Khandeparkar then without prejudice to the aforesaid
submitted that the present petition was also not maintainable, since
the application of Part I of the Arbitration Act had been excluded by the
parties. In support of his contention, he invited my attention to Clause
20.1 of the SHA and pointed out that the same expressly provided that
the Arbitration was to be in accordance with the SIAC Rules basis which
he submitted that the parties had excluded the application of Part I of
the Arbitration Act. In support of his contention, he placed reliance
upon the judgment of the Supreme Court in BGS SGS SOMA JV v.
NHPC Ltd.5 and Imax Corpn. v. E-City Entertainment (India) (P) Ltd.6 in
support of his contention that once parties had consciously agreed that
the juridical seat of the arbitration was to be Singapore, then it was no
longer open to them to contend that the provisions of Part I of the
Arbitration Act would be applicable. It was on this basis that he
reiterated that in the present case Article 20 of the SHA specifically
stipulated that the seat and venue of arbitration would be Singapore
and the SIAC Rules would apply, the parties had excluded the
applicability of Part I of the Arbitration Act.
15. He then without prejudice to the above, fairly pointed out that
Rule 30.3 of the SIAC Rules provided for a request for interim relief to
be made by party prior to the constitution of the Tribunal or in
exceptional circumstances. He then submitted that in the facts of the
present case, it was not open to the petitioners to content that the
present petition was maintainable under Rule 30.3 since; (a) Rule 30.3
provided for recourse to the judicial authority only in exceptional
circumstances; (b) the petition did not make out a case of exceptional
circumstances and (c) that the petitioners had admittedly not
approached this Court taking recourse to Article 30.3 of the SIAC Rules
but had done so under Clause 19.1 of the SHA. He, then pointed from
Clause 19.1 that the same specifically provided that the jurisdiction of
the courts in Mumbai was “subject to Article 20 of the SHA”. It was
thus his submission that once the parties had elected to invoke Article
20 of the SHA the jurisdiction of this Court under Part I of the
Arbitration Act was clearly ousted.
16. Mr Khandeparkar then placed reliance upon a judgment passed
by learned Single Judge of the Delhi High Court in Ashwani Minda v. U-
7
Shin Ltd. to submit that the Delhi High Court had in the said case held
that a Section 9 petition was not maintainable in respect of an
international seated arbitration if parties by an agreement expressly or
impliedly excluded the applicability of Section 9. He also pointed out
from the said judgment that the same held that the legislative intent of
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Arbitration Act was to provide an efficacious alternate relief in the

Indian Court where the Tribunal is either not constituted or is otherwise
unable to grant efficacious relief. He submitted that the parties having
chosen the Tribunal, the seat and the applicable rules and the forum to
seek interim reliefs cannot now revise their choice in the manner that
the petitioners were now attempting to do. He pointed out that the
decision of Single Judge in Ashwani Minda case7 was upheld by the
Division Bench and was subsequently confirmed by the Supreme Court.
17. It was basis the above that he submitted that the petition under
Section 9 could not be filed, and the proper recourse would have been
for the petitioner to have filed a petition for enforcement of the EA
award under Part II of the Arbitration Act. He submitted that the
enforcement petition being an efficacious remedy, there was no
exceptional circumstances which necessitated the filing of the present
petition. He further submitted that there was no provision in the SIAC
to challenge the award of the emergency arbitrator and that final
arguments in the arbitration between the parties were concluded and
the final award was expected on or before 29-10-2024. It was thus that
he submitted the petition be dismissed.
18. Mr Khandeparkar then in the alternative and without prejudice to
the above submitted that even in the event that this Court finds that
the petition is maintainable, the same would have to be considered
afresh in view of the provisions of Indian law and dehors the findings
rendered by the emergency arbitrator as also Arbitral Tribunal in the
Tribunal's order. He submitted that the entire basis on which relief had
been sought for in the present petition was the EA decision and the
Tribunal's order. He submitted that it was not open to this Court to
place reliance upon the same since the very issue of valuation was one
which was pending consideration before the Arbitral Tribunal. He then
submitted that respondents had refused to accept the sum of INR 145
crores being 80% of the enhanced call price determined by the
valuation report dated 22-1-2024 fixed by PwC, since he submitted
that PwC was not an independent valuer. He then submitted that the
arbitration proceedings pending between the parties was to be
concluded on or before 29-10-2024 and thus it was his submission that
the valuation of the shares was not having been finally determined, no
order could be presently passed basis the valuation of the shares done
by PwC.
19. He then submitted that the order dated 13-1-2024 passed by
the Delhi High Court in the execution application filed by the petitioner
would show that the petitioners had only sought enforcement of the
cost award and the first award was not yet recognised. It was thus his
submission that the respondents obligation to purchase the petitioners'
shares in Respondent 4 had not yet been crystallised nor quantified as
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a debt and thus there was no existing debt due as on date. He also
then submitted that the shares were still held by the petitioners,
however the valuation of the shares was yet to be adjudicated and
determined finally. He thus submitted that no order in the nature of an
attachment before judgment or to secure the value of the said shares
could be presently passed, especially since the shares were held by the
petitioners. He submitted that if this Court were to grant relief on the
basis of the valuation of PwC, it would mean that this Court had
accepted the valuation report which was specifically under challenge.
20. Mr Khandeparkar then also submitted that the very ground on
which the EA award was passed did not subsist today. He pointed out
that the application filed before the emergency arbitrator was on the
basis that Ebix Inc. i.e. the ultimate holding company of the
respondents was undergoing liquidation/bankruptcy proceedings in the
United States. He, however, submitted that the Chapter 11 bankruptcy
proceedings against Ebix Inc. had since come to an end in the month of
August, which fact was made known to the petitioner by the
respondents' advocates vide their email dated 1-7-2024. He submitted
that the petitioners had deliberately suppressed the fact that the
bankruptcy proceedings against Ebix Inc. no longer subsisted on the
date when the petition was filed. He then also submitted that the
petitioners' submissions regarding the petitioners' conduct was also
highly exaggerated and distorted since it was based on mere ipse dixit
of the petitioners inter alia that the respondents were in financial
distress.
21. Mr Khandeparkar then also pointed out that the list of assets of
the respondents set out in Schedule A was more than 10 times the
value of the claim of the petitioners and that the said assets were not
encumbered. He submitted that the petitioners' claim to seek a deposit
of the amount and/or in the alternative, a bank guarantee was nothing
more than an attachment before judgment as contemplated under
Order 38 Rule 5 CPC. He then placed reliance upon the judgment of a
Division Bench of the Delhi High Court in Skypower Solar India (P) Ltd.
v. Sterling and Wilson International FZE8 to point out that the order
directing a party to furnish a bank guarantee would fall under Order 38
Rule 5 CPC and therefore the tests applicable to the grant of reliefs
under Order 38 Rule 5 CPC would have to be met before such order can
be passed.
22. Mr Jagtiani dealing with the preliminary objections raised by Mr
Khandeparkar submitted that the same were entirely misconceived. He
first invited my attention to Section 2(2) of the Arbitration Act and
point out that a plain reading of the same made expressly clear that
Section 9 would apply to international commercial arbitrations, even if
the arbitration was outside India. He thus submitted to accept the
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respondents contention that Section 9 would be excluded simply

because the place of arbitration was Singapore, was not only contrary
to a plain reading of proviso to Section 2(2) of the Arbitration Act but
would also result in rendering the 2015 amendment to the Arbitration
Act nugatory.
23. He pointed out that the preliminary objection as raised by the
respondent had been considered and rejected in a catena of
judgments9 including of this Court. He then from the judgment of this
Court in Ultra Deep Subsea Pte Ltd. v. Hindustan Oil Exploration Co.
10
Ltd. pointed out that this Court had expressly held as follows, viz. :
(Ultra Deep case, SCC OnLine Bom para 20)
“20. As can be seen from these decisions, to oust the jurisdiction
of this Court under Section 9, there must be a specific agreement
between the parties which would indicate a clear intention to oust
the jurisdiction of this Court to grant relief under Section 9 of the
Arbitration Act. In the facts of the present case, I have already
opined that merely because the parties agreed that the arbitration
would be conducted in London and would be governed by the English
law, would not amount to an ‘agreement to the contrary’ as
contemplated in the proviso to Section 2(2) of the Arbitration Act. In
this view of the matter, I find no substance in the first argument
canvassed by Mr Andhyarujina and the same is accordingly
rejected.”
Basis the above he submitted that Clause 20.2 of the SHA could by
no stretch of imagination mean that the parties had agreed to exclude
Part I of the Arbitration Act, since the same admittedly did not contain
any such agreement to specifically oust Part I of the Arbitration Act.
24. He then submitted that in the facts of the present case, there
was admittedly no express agreement to exclude the applicability of
Part I of the Arbitration Act between the parties either in Clause 20 of
the SHA or elsewhere in the SHA. He submitted that the respondents'
reliance upon the decision of the Supreme Court in BGS SGS Soma
case5 was entirely misplaced, since the issue before the Supreme Court
was not the applicability the proviso to Section 2(2) of Arbitration Act
but was in respect of the seat of arbitration in case of domestic
arbitration to determine as to which court the challenge to the award
would lie. He submitted that similarly the judgment of Imax Corpn.
6
case on which reliance was placed by the respondents was also equally
misplaced since the issue pertained to the challenge of foreign award
under Section 34 of the Arbitration Act and was not in context of the
applicability of Section 9 to foreign seated arbitrations in view of the
proviso to Section 2(2) of the Arbitration Act.
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25. He then submitted that even the second preliminary objection

raised by the petitioners that the EA decision was required to be
enforced under Part II was also equally untenable. He reiterated that
the EA decision was not a final award but was only in the nature of
interim relief to protect and/or secure the petitioner's claim pending the
final arbitral award. He pointed out that the decision of this Court in
4
Hyundai Heavy Industries Co. Ltd. case upon which reliance was
placed by the respondents, though the same pertained to an interim
foreign arbitration award was of no avail, since it finally determined a
part of the dispute in that case.
26. He then pointed out that the respondents' contention that the
petitioners had suppressed documents in respect of US bankruptcy
proceedings was not only baseless but was also reckless and mala fide.
He first pointed out that as per the respondents' own pleaded case, the
email dated 1-7-2024 only indicated that the lenders of Ebix Inc. had
approved a Chapter 11 plan (first amended plan) for the purchase of
the shares and assets of Ebix Inc. by a consortium of Eraaya Lifespaces
Limited, Vikas Lifecare Limited and Vitasta Software India Private
Limited and that the transaction was stated to be completed at the end
of July 2024. He took pains to point out that the email did not in any
manner indicate that the plan was submitted to the bankruptcy court,
or that it was accepted by the bankruptcy court or that Ebix Inc. was
out of bankruptcy.
27. He then pointed out that it was the email dated 1-7-2024, that
the respondents had alleged that the petitioners had been informed
that Ebix Inc. had exited bankruptcy proceedings and therefore the
respondents' contention in this regard was demonstrably at odds with
their own pleaded case. He then submitted that the order dated 2-8-
2024 passed by the US Bankruptcy Court, by which the Chapter 11
plan was approved was infact annexed to the petition. It was thus that
he reiterated that the respondents' contention of suppression was mala
fide and reckless and was only to mislead the court.
28. Mr Jagtiani then also pointed out that the respondent's offer to
furnish other forms of security had not only been considered and
rejected by the Arbitral Tribunal but was also a complete red herring.
He submitted that a bank guarantee was the most appropriate form of
security since (i) the respondents had admitted their liability to
purchase the petitioners' shareholding in Respondent 4 at the enhanced
call price before various regulators and the court as also that; (ii) two
different proceedings vested with jurisdiction by the parties (i.e. the
emergency arbitrator and the Arbitral Tribunal) had found it appropriate
to grant the petitioners liquid security and (iii) the respondents had
despite various assurances and representations failed to furnish the
bank guarantee as also make payment of the amounts awarded as
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costs.
29. After having heard learned counsel at great length and having
considered their rival contentions as also the case law upon which
reliance was placed, I find that the petitioner has made out a case for
the grant of interim reliefs. I say so for the following reasons viz.
(A) First, I find that the first preliminary objection of the
respondents i.e. that the EA decision was an award and therefore
was required to be enforced under the provisions of Part II of the
Arbitration Act is entirely devoid of any merit. In my view, to
determine whether such decision/award is a final decision or
award, what is crucial is the substance of the decision/award and
not merely its nomenclature. In other words, one has to see
whether such a decision/award has finally determined and/or
disposed of the lis or any part of the lis between the parties. In
the present, it was not even the respondents' case that the EA
decision has finally determined any part of the lis between the
parties which is pending adjudication in the arbitration
proceedings. Hence, by no stretch of imagination and/or ingenuity
can it be said that the EA decision is an arbitral award as
contemplated under Part II, which would have to be or is in fact
even capable of being enforced under Part II of the Arbitration
Act.
(B) Additionally, I must note that the SIAC Rules as pointed out by
Mr Jagtiani make specific and distinct use of the words “award”
and “order”. I am also fortified in my view that the decision of an
emergency arbitrator and Tribunal's order were orders and not
awards, despite its nomenclature, in view of the observation made
by the Supreme Court in Amazon.com NV Investment Holdings
LLC case1. Second, I find the respondents' next contention i.e.
that parties had by virtue of Clause 20 of the SHA excluded the
applicability of Part I i.e. Section 9 of the Arbitration Act is equally
untenable and devoid of merit. Clause 20 of the SHA merely
provides for arbitration under the provisions of SIAC in the event
of any dispute and/or claim arising between the parties in
connection with or in relation to the SHA. Admittedly, there is no
express exclusion of Part I of the Arbitration Act either in Clause
20 or for that matter any other clause of the SHA. Proviso to
Section 2(2) in plain terms specifically provide for the applicability
of Section 9 to international commercial arbitrations subject to an
agreement to the contrary. Hence, absent any express agreement
in writing entered into between the parties to exclude Part I of the
Arbitration Act, to accept the contention of Respondents would be
in the teeth of proviso to Section 2(2) and effectively render the
same nugatory.
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(C) I am fortified by my view from the findings of this Court in Ultra

Deep Subsea Pte Ltd.10 wherein it was expressly held in the
context of exclusion of Section 9 to foreign seated arbitrations,
that, “there must be a specific agreement between the parties
which would indicate a clear intention to oust the jurisdiction of
this Court to grant relief under Section 9 of the Arbitration Act”
clear, unequivocal and unambiguous. This is plainly lacking in the
present case. Clause 20 of the SHA does not contain any such
agreement to exclude Part I, much less any clear, unequivocal
and unambiguous intention. Also, this contention has been taken
9
and negated in a catena of judgments of the Supreme Court,
Delhi High Court, Calcutta High Court and of this Court as I have
also noted above.
(D) Third, the respondent's reliance upon the judgments of the
5 6
Supreme Court in BGS SGS SOMA case and Imax Corpn. case
are plainly misconceived since the said judgments do not deal
with the issue of the applicability of Section 9 to international
commercial arbitration in context of the proviso of Section 2(2) of
the Arbitration Act. The issues which fell for consideration in both
the said judgments were in respect of Section 34 of the
Arbitration Act and the question of the applicability of the proviso
to Section 2(2) of the Arbitration Act did not fall for determination
in either of the said cases. Equally, the judgment of Division
Bench of Delhi High Court in Ashwani Minda case7 would also not
be applicable to the present case, since the said judgment infact
did not examine the correctness of finding of judgment of Single
Judge of Delhi High Court qua the applicability of Part I of the
Arbitration Act to foreign seated arbitration, on the contrary the
said judgment kept the issue of applicability of Part I of the
Arbitration Act in cases of foreign seated arbitration, expressly
open.
(E) Fourth, there can be no dispute that the grant of relief under
Section 9 of the Arbitration Act is a discretionary relief and is to
be exercised keeping in mind the well-settled principles for the
grant of such interim relief. However, equally, the object and
intention of Section 9 of the Arbitration Act is to support
arbitration and not defeat and/or permit parties to detract from
the very process of arbitration. Therefore, party autonomy being
the bedrock of arbitration, this would necessarily apply from the
agreement to the rendering of the final arbitral award. In the
present case, the parties having agreed to arbitration under the
SIAC Rules, and procedure contemplated thereunder would
therefore be bound by the EA decision. Crucially no dispute and/or
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grievance has been raised by the respondent in the reply filed qua
either the EA decision and/or the fairness of procedure of the
emergency arbitrator. The only ground taken in the affidavit-in-
reply to oppose the present petition is maintainability.
(F) Fifth, I have perused the EA decision, which is well reasoned,
detailed and rendered after an extensive hearing given to parties.
The respondents have not so much has attempted raise any
grievance qua the merits of the EA decision before me. Hence, I
find no reason not to accept the findings as recorded in the EA
decision. I find that it is such an approach that will support
arbitration and ensure its effectiveness. I am fortified in my view
by the judgment of the Supreme Court in Amazon.com NV
Investment Holdings LLC case1 wherein the Supreme Court
specifically held that once a party agrees to institutional rules,
such as the SIAC Rules, and participates in an emergency
arbitration proceeding, it cannot later claim that the emergency
arbitrator's ruling is non-binding or invalid. The party is bound by
the emergency arbitrator's award and must comply with it
immediately, as they have explicitly agreed to its binding nature
and the obligation to carry out the interim order without delay.
(G) Sixth, I find that in the facts of the present case, even without
placing reliance upon the EA decision the petitioners have made
out a very strong case for the grant of interim reliefs given the
obstructionist stand/conduct of the respondents which is clearly
only to defeat and/or delay the enforcement of the orders passed
in the arbitration. I say so because, viz.:
(i) Both the first award and the cost award have attained finality.
The respondents liability and/or obligation to purchase the
petitioner's shares in Respondent 4 at the enhanced call price,
is thus today final and binding upon the respondents. Crucially,
the respondents did not oppose the petitions for enforcement
of the first award and the cost award filed in the Delhi High
Court.
(ii) It is not in dispute that PwC is infact one of the independent
valuer prescribed under Clause 1.1 of the SHA to determine the
enhanced call price, thus even on merits I find that the
opposition to the valuation by PwC on the ground of
independence or otherwise is plainly untenable and is clearly
an argument of desperation.
(iii) Further, the respondents have even post the EA decision
represented that they intended to abide and/or comply with
the same.
(iv) That the respondents infact informed the petitioners vide
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email dated 6-4-2024 that they were precluded from furnishing

a bank guarantee, since their assets were attached by the
orders passed by the Delhi High Court in the enforcement
petitions filed by the petitioner for enforcement of the first
award and the costs award .
(v) The respondents have by their conduct accepted the EA
decision to secure the petitioners' claim since the respondents
infact moved the Arbitral Tribunal not against any finding
and/or observation of the emergency Arbitrator in the EA
decision but only sought substitution of the bank guarantee
with other means which would cause less prejudice to the
respondents. The request for substituting bank guarantee were
rejected as shares offered instead of bank guarantee would not
have been easily marketable and were susceptible to
diminution in value.
(vi) The respondents then filed the application for modification of
status quo order before the Delhi High Court to vacate the
interim order dated 19-1-2024 by which the respondents were
restrained from dealing with their assets.
Though the respondents have placed reliance upon the judgment of
the Delhi High Court in Skypower Solar India (P) Ltd. case8. I find that
the same would have no application in the facts of the present case for
two reasons; (i) since the Supreme Court has in Essar House (P) Ltd. v.
11
Arcellor Mittal Nippon Steel India Ltd. has expressly held that in
exercise of the powers to grant interim relief under Section 9 of the
Arbitration Act, a court was not strictly bound by the provisions of the
Civil Procedure Code, 1908 and (ii) this Court has also in J.P. Parekh v.
Naseem Qureshi12 after placing reliance upon the judgment of the
11
Supreme Court in Essar House (P) Ltd. case held that obstructionist
conduct of the party would be material fact to consider while granting
interim relief. It is thus that I find that a fit case, for the grant of
interim reliefs has been made out given the respondents' obstructionist
conduct.
30. Hence for the aforesaid reasons I find that the petitioners have
made out a case for the grant of interim reliefs in terms of prayer
clauses (b), (e) and (f).
31. The commercial arbitration petition is thus disposed of. List the
matter for compliance on 22-10-2024.
———
1
Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 : (2022)
1 SCC (Civ) 384
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2
Raffles Design International India (P) Ltd. v. Educomp Professional Education Ltd., 2016
SCC OnLine Del 5521

3
Plus Holdings Ltd. v. Xeitgeist Entertainment Group Ltd., 2019 SCC OnLine Bom 13069

4
Hyundai Heavy Industries Co. Ltd. v. Del Seatek India (P) Ltd., 2022 SCC OnLine Bom 11571

5
BGS SGS SOMA JV v. NHPC Ltd., (2020) 4 SCC 234 : (2020) 2 SCC (Civ) 606

6
Imax Corpn. v. E-City Entertainment (India) (P) Ltd., (2017) 5 SCC 331 : (2017) 3 SCC
(Civ) 133

7
Ashwani Minda v. U-Shin Ltd., 2020 SCC OnLine Del 1648

8
Skypower Solar India (P) Ltd. v. Sterling and Wilson International FZE, (2023) 6 HCC (Del)
702

9
Shanghai Electric Group Co. Ltd. v. Reliance Infrastructure Ltd., 2022 SCC OnLine Del
2112, Chemex Oil (P) Ltd. v. Seastarr International (P) Ltd., 2022 SCC OnLine Cal 4034,
Aircon Feibars FZE v. Heligo Charters (P) Ltd., 2017 SCC OnLine Bom 631, Pasl Wind Solutions
(P) Ltd. v. GE Power Conversion (India) (P) Ltd., (2021) 7 SCC 1

10
Ultra Deep Subsea Pte Ltd. v. Hindustan Oil Exploration Co. Ltd., 2021 SCC OnLine Bom
5481

11
Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel India Ltd., 2022 SCC OnLine SC 1219

12
J.P. Parekh v. Naseem Qureshi, 2022 SCC OnLine Bom 6716

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