RICHMOND MERCANTILE LTD Vs. VINERGY INTERNATIONAL PVT LTD

JUDGEMENT

(1.) This Contempt Petition has been filed for breach of the orders dated 18.11.2016 (passed by S.J. Kathawalla, J.) and 13.01.2017 (passed by G.S. Patel, J.) in Chamber Summons No.1518 of 2016. The said Chamber Summons had been taken out by the Petitioner in execution of a foreign award dated 25.09.2014 which had attained finality by virtue of the enforcement Petition No.59 of 2015 filed under Section 47 of the Arbitration and Conciliation Act, 1996 being allowed vide order dated 01.07.2016 passed by this Court. The Respondent No.1 is the Judgment Debtor and the Petitioner is the Judgment Creditor under the said award.

(2.) A brief background of facts is necessary. The said award came to be passed by an arbitral tribunal in London, United Kingdom and under which certain sums were awarded to the Petitioner and payable by Respondent No.1. The challenge to the said award in the United Kingdom proved unsuccessful. On 18.12.2014, the Petitioner filed Arbitration Petition No.59 of 2015 for the enforcement of the award. Prior to this Court making the Arbitration Petition absolute and declaring the said Waghmare 2/31 CONP.69.17 in CHS.1518.16 in EXEL.1655.16.doc award enforceable as a decree of this Court, certain orders had been passed in Applications taken out in the Arbitration Petition, a few of which are necessary to mention. This Court by an order dated 04.05.2016 granted ad-interim relief in the Arbitration Petition restraining Respondent No.1 from in any manner selling, transferring, creating any third party rights, encumbrance or dealing in any manner with any of the Respondent No.1's assets. A Notice of Motion was taken out by Respondent No.1 with a view to exclude certain assets of Respondent No.1 which was in respect of certain quantity of bitumen and instead sought to replace this with an unencumbered property at Pali District, in Rajasthan. Pursuant to the Notice of Motion filed, this Court by an order dated 06.05.2016 observed that the Respondents had not come to the Court with clean hands and suppressed the fact that out of the seven assets in respect of which injunction has been granted, four assets were already encumbered. This Court directed an affidavit of disclosure to be filed by Respondent No.1. Accordingly, an affidavit of disclosure was filed by Respondent No.1 pursuant to the said order. Upon an application being filed by the Petitioner applying for certain security to be provided to secure the said award and an injunction restraining the Respondent No.1 from encumbering the property at Pali, Rajasthan which was still not encumbered, an order came to be passed by the learned Judge of this Court Waghmare 3/31 CONP.69.17 in CHS.1518.16 in EXEL.1655.16.doc recording a statement of Respondent No.1 that they have neither created nor will create any third party interest in the property (Pali property) which was the subject matter of the said Notice of Motion.

(3.) Thereafter, pursuant to a further application made by the Petitioner for disclosure and for injunction restraining the Respondent No.1 from in any manner dealing with the assets which they have disclosed in their affidavit of disclosure, this Court by an order dated 07.06.2016 arrived at a prima facie finding that the Respondents have committed violation of ad-interim order dated 04.05.2016 in that they have dealt with their assets i.e. bitumen, possession of which had been parted with in violation of order dated 04.05.2016. However, it is required to be noted that in the said order dated 07.06.2016, the learned Senior Counsel appearing for the Respondent No.1 had drawn this Court's attention to averments made in the Arbitration Petition No.59 of 2015 and submitted that it was to the knowledge of the Petitioner that the assets described in Exhibit-E to the Petition were encumbered by the Respondents. This Court by the said order granted the prayers in the Notice of Motion and it was made clear that if the Respondent No.1 furnished bank guarantee of Rs.50 crores within the time prescribed, injunction granted by this Court in terms of the prayers in the Notice of Motion shall stand vacated.