Ramesh Chandra Sankla Etc . VS. Vikram Cement Etc

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Ramesh Chandra Sankla Etc . VS. Vikram Cement Etc

The Judgement Information System "REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION PETITION NO. 5 OF 2007

M/s.Tata Industries Ltd. & Anr. .... Applicants Versus M/s.Grasim Industries Ltd.

JUDGMENT

V.S. SIRPURKAR, J 1. Two companies, first being M/s.Tata Industries Ltd., and the second being M/s. Apex Investments (Mauritius) Holding Private Limited (hereinafter referred to Applicant Nos.1 and 2 respectively) have approached this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") for appointment of the Arbitrator in a commercial dispute which has arisen between them and Grasim Industries Limited (hereinafter referred to as "the non- applicant"). Initially the applicants had approached Bombay High Court by way of an application under Section 11(6) of the Act, however, a stand was taken by the non-applicant that this would amount to an international

2 commercial arbitration and, therefore, it would be the Chief Justice of India alone who would have the powers to constitute the Arbitral Tribunal under Section 11(12) of the Act. It is, therefore, that the matter has come before this Court. The parties are ad idem on this jurisdictional issue that the jurisdiction to appoint the Arbitrator lies with the Chief Justice of India or as the case may be, his nominee.

2. There is no dispute between the parties that there is an arbitration agreement between the parties vide Clause 12.04 of the Shareholders Agreement dated 15.12.2000 and Clause 9 of the Share Transfer Agreement dated 1.6.2006. That issue need not, therefore, be dilated upon.

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

4. The only question to be decided, on which the parties have extensively argued, is whether there is a live arbitrable issue.

5. Following background facts would help to understand the controversy between the parties.

6. M/s.Tata Industries Limited (hereinafter referred to as "TIL") is a company incorporated under the Indian Companies Act, 1956 (Applicant No.1) while Apex Investments (Mauritius) Holding Private Limited (Applicant No.2) is a company incorporated under the Laws of Mauritius.

3 The Applicant No.2 has its registered office at Mauritius while non-applicant M/s.Grasim is also a company incorporated under the Indian Companies Act, 1956.

7. Tata Cellular Limited (hereinafter called the "TCL") had obtained a CMTS licence for Andhra Pradesh Circle on 19.12.2005. Similarly, Birla AT &T Communications Ltd. (hereinafter referred to as "BACL") which was a joint venture undertaking of A.V. Birla Group and AT&T Wireless Group held CMTS licences for Maharashtra and Gujarat Circles since 15.12.1995.

Tata Teleservices Limited (hereinafter referred to as "TTSL") was granted a basic service licence for Andhra Pradesh Circle on 4.11.1997. A Memorandum of Understanding was arrived at between AT&T Wireless Inc., AV Birla Group and Tata Industries Limited on 1st March, 2000 whereby they agreed to provide CMTS service through a single entity. As per this Memorandum of Understanding AT&T Wireless Inc., AV Birla Group and TIL agreed to provide services through a single entity or an alliance of entities and agreed to merge themselves to form IDEA Cellular Limited (hereinafter referred to as "IDEA"). The Memorandum of Understanding was entered into on 13.11.2000 by merging TCL with BACL.

8. A Shareholders Agreement came into existence on 15.12.2000 between AT&T Wireless Inc., AV Birla Group (through Grasim Industries Limited) and Tata Group through TIL. In this Agreement respective rights

4 and obligations of the parties for the merger/amalgamation of the TCL into BACL and modalities and functions of merged entities were re...

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