DECCAN ASIAN INFRASTRUCTURE MAURITIUS INC PORT LOUIS MAURITIUS Vs. BPL COMMUNICATIONS LIMITED BANGALORE

JUDGEMENT

(1.) THIS is an appeal filed under Section 27 of the Arbitration and conciliation Act, 1996 (hereinafter referred to as 'the Act' ). Brief facts of the case are that the appellant-company is incorporated under the laws of Mauritius. In November 1997, the appellant-company and the first respondent-a Company incorporated in India along with other companies including respondents 2 to 8 executed a shareholders agreement dated 5-11-1997 at Hongkong for the objects and performance of obligations contained therein. The said agreement contained an arbitration clause which provided for arbitration to be held in London, United Kingdom in accordance with International Chamber of Commerce Rules. The original shareholders agreement dated 30-4-1997 was executed by the parties in Hongkong and the amended and restated shareholders agreement dated 5-11-1997 was executed in london. There is a dispute as to whether the shareholders agreement or the amended and restated shareholders agreement was executed in bangalore.

(2.) ON October 26, 2001, the appellant initiated the Arbitral proceedings under the ICC Rules in ICC reference No. 11827/pe/mw was brought against the first respondent herein and other respondents. The Arbitral Tribunal issued order for directions that established the timetable and framework for the remedies hearing in the Deccan arbitration. After the arbitration process started the first respondent herein filed AS No. 51/2003 before the lower Court and sought an interim order under Section 9 of the Act with a prayer to stay the arbitration proceedings which is going on in London. The lower Court granted such an order and against the same the present appellant filed m. F. A. No. 7750 of 2003 and this Court vacated the interim order granted by the lower Court and directed the continuation of the Arbitral proceedings. It is stated that order passed by this Court was taken up before the Hon'ble Supreme Court which did not interfere with the order passed by this Court. Thereafter, the arbitration proceedings appears to have continued at London and the Arbitral Tribunal passed a partial award on 20-8-2004 declaring that each of the respondents has breached and is in ongoing breach of the shareholders agreement. It declared each of the respondents other than the first respondent to be in breach of the purchase agreement. It ordered that the appellant's remedies were to be determined and damages to be assessed at a remedies hearing to be held at London on a date to be fixed further and directed a pre-hearing conference to discuss the scope, nature and approach to the remedies hearing to be held at London. The Arbitral Tribunal ordered that the respondents pay and be responsible jointly and severally for the appellants' reasonable and other costs to the date of partial award pertaining to Arbitral Tribunal's determination of liability issues.

(3.) THAT the pre-hearing conference was fixed for 15-10-2004 at the idrc in London and on that day despite having been duly summoned by the Arbitral Tribunal in accordance with the ICC Rules, neither the respondents nor their Counsel appeared and on that day the Arbitral tribunal issued order for directions No. 8 that established the timetable and framework for the remedies hearing.