Case: Chatterjee Petrochem Co.  Vs. Haldia Petrochemicals Ltd

On 21st March, 2012, the appellant Chatterjee Petrochem (Mauritius) Company (hereinafter referred to as ‘CPMC?) filed a request for arbitration in International Chamber of Commerce (ICC), Paris in relation to an agreement of restructuring which was entered into between CPMC, Government of West Bengal, West Bengal Industrial Development Corporation (in short ‘WBIDC?) and Haldia Petrochemical Limited (in short ‘HPL?) on 12th January, 2002. As per the Agreement, the Government of West Bengal was to cause WBIDC to transfer existing shareholding to CPMC to ensure that CPMC holds 51% of the total paid up capital of HPL. Clause 15 of the Agreement provides for reference of all disputes, in any way relating to the said Agreement or to the business of or affair of HPL to the Rules of the ICC, Paris2. The respondent HPL on the other hand, claims that the Arbitration Agreement contained in clause 15 of the Agreement dated 12th January, 2002 is void and/ or unenforceable and/or has become inoperative and/or incapable of being performed3. A dispute arose between the parties regarding the allotment of shares and the appellant filed Company Petition No. 58 of 2009 before the Company Law Board (in short ‘CLB?)on the grounds of oppression and mismanagement. The appellant also sought transfer of 155 million shares in favour of Chatterjee Petrochem (India) Pvt. Ltd. (in short ?the CPIL?), the Indian counterpart of CPMC as was decided in the Agreement4. The Company Petition was disposed of by the CLB by upholding the decision of the Company to allot 155 million shares by Indian Oil Corporation (in short ‘IOC?). The transfer of 155 million shares to CPIL by WBIDC was also confirmed. The CLB further directed the Government of West Bengal and WBIDC to transfer 520 million shares held by them in HPL to Chatterjee Groups5. The Government of West Bengal preferred an appeal against the said Order before the High Court of Judicature at Calcutta under the provisions of Section 10F of the Company?s Act, 1956. The High Court set aside the Order of the CLB on the ground that CPIL was not a member of HPL and the CLB could not have enforced its right under private contract entered into between CPIL and WBIDC for transfer of shares as the same could not be the subject matter of a petition under Section 397 of the Companies Act6. Aggrieved by the same, the appellant preferred appeal Nos. 5416-5419, 5420, 5437 and 5440 of 2008 before this Court. Vide judgment dated 30.09.2011, this Court held that the claim of the appellant transferring shares to IOC has changed the private character of the Company and was not an act of oppression on the part of the Company. According to this Court, the transfer of shares to IOC was a result of failure on the part of the appellant to infuse adequate funds into the Company by way of equity as promised and to participate in its rights issues. The Company was therefore, constraint to induct IOC as a member and the 155 million shares which was to be transferred to the appellant was instead transferred to the IOC. The relevant paragraph of the judgment reads as under:?103. The failure of WBIDC and GoWB to register the 155 million shares transferred to CP(I)PL could not, strictly speaking, be taken to be failure on the part of the Company, but it was the failure of one of the parties to a private arrangement to abide by its commitments. The remedy in such a case was not under Section 397 of the Companies Act. It has been submitted by both Mr. Nariman and Mr. Sarkar that even if no acts of oppression had been made out against the Company, it would still be open to the learned Company Judge to grant suitable relief under Section 402 of the Act to iron out the differences that might appear from time to time in the running of the affairs of the Company. No doubt, in the Needle Industries case, this Court had observed that the behaviour and conduct complained of must be held to be harsh and wrongful and in arriving at such a finding, the Court ought not to confine itself to a narrow legalistic view and allow technical pleas to defeat the beneficial provisions of the Section, and that in certain situations the Court is not powerless to do substantial justice between the parties, the facts of this case do not merit such a course of action to be taken. Such an argument is not available to the Chatterjee Group, since the alleged breach of the agreements referred to hereinabove, was really in the nature of a breach between two members of the Company and not the Company itself. It is not on account of any act on the part of the Company that the shares transferred to CP(I)PL were not registered in the name of the Chatterjee Group. There was, therefore, no occasion for the CLB to make any order either under Section 397 or 402 of the aforesaid Act. If, as was observed in M.S.D.C. Radharamanans case (supra), the CLB had given a finding that the acts of oppression had not been established, it would still be in a position to pass appropriate orders under Section 402 of the Act. That, however, is not the case in the instant appeals.?(emphasis laid by this Court)7. On this decision given by this Court, the appellant sought to invoke the arbitration clause contained in the agreement dated 12th January, 2002 and made a request for arbitration. The respondent no.1 on the other hand, filed a suit before the High Court of judicature at Calcutta praying that the arbitration clause in the agreement be declared as void.

Court's reasoning:
Answer to Point no.121. We are inclined to reject the submission made by the learned senior counsel on behalf of the respondents that the transfer of shares to CPIL instead of CPMC substantially changes the legal rights and responsibilities of the parties as per agreement referred to supra thereby, resulting in novation of contract22. It is nowhere mentioned in the letter dated 8th March, 2002 that transfer of shares to CPIL instead of CPMC extinguishes the old agreement dated 12th January, 2002 to nullity. In fact, in the letter dated 8th March, 2002, CPMC has been constantly mentioned as a guarantor. It is only to this extent the nature of agreement has changed23. It is argued by the learned senior counsel Mr. C.A. Sundaram, appearing on behalf of Respondent no.3 that the concurrent findings of facts on the prima facie case by the learned single Judge and the Division Bench of the High Court of Calcutta have held that there has been a novation of agreement between the parties to the principal agreement dated 12th January,2002 by the subsequent agreements dated 8th March, 2002 and 30th July, 200424. It has been held by the learned single Judge of the Calcutta High Court that:?……This is a case, where by express words the parties have altered their obligations by a new agreement on 8th March, 2002 with a term that the Courts in Kolkata ‘alone? would have jurisdictions. This was affirmed by the 30th July, 2004 agreement. This put an end to the arbitration, once and for all. Therefore, the arbitration clause in the 12th January, 2002 agreement was abrogated by the 8th March agreement. Abrogation of an arbitration agreement could not be made in clearer terms…?25. Further, the Division Bench of Calcutta High Court vide impugned judgment dated 12th January 2012, made the following observations:a. ) Agreement of 12th January 2002 was substituted by agreements of March 8, 2002 and July 30, 2004b.) Such a subsequent agreement completely extinguished the rights existing under the January 12, 2002 agreement and also destroyed the arbitration clausec.) Remedy is under Agreement of March 8, 2002 which does not provide for Arbitration but states that courts at Calcutta alone shall have jurisdictiond.) Agreement of March 8, 2002 is not an ancillary to agreement of January 12, 2002 but materially alters the same. The principle laid down in Chloro Controls Case (supra) does not apply. Real intention of the parties in the instant case was to substitute one agreement with another26. Clause 1 of the supplementary agreement dated 30th July, 2004 reads as under:?Pursuant to the said Principal Agreement GoWB has caused WBIDC to transfer to Chatterjee Petrochem (India) Private Limited (CPIL), an affiliate of CPMC Rs. 155 crores of shares from the shareholding of WBIDC existing on the date of principal agreement…?(emphasis laid by this Court)The abovementioned clause goes to show that CPIL is an affiliate of CPMC. This is to say, that by means of the letter dated 8th March,2002 CPMC becomes a guarantor whereas CPIL becomes the borrower. Therefore, the same does not change the rights and responsibilities of the parties under the agreement dated 12th January, 200227. Further, the letter written by CPMC to WBIDC along with the agreement dated 8th March, 2002 reads as follows:?…It is clarified that the aforesaid shall not prejudice any of our rights under the said Agreement dt. January 12, 2002 and all terms and conditions thereof shall continue to remain valid, binding and subsisting between the parties to be acted upon sequentially?(emphasis laid by this Court)The content of this letter goes to show that the agreement dated 12th January, 2002 remains the principal agreement while agreement dated 8th March 2002 remains a supplementary agreement which was meant for restructuring of HPL on urgency28. Further, and most importantly, the agreement entered into between the parties dated 30th July, 2004 states as follows:?WHEREAS the Parties hereto had entered into an agreement dated January 12, 2002 (hereinafter referred to as the principal agreement….?Also, the Agreement dated 30th July, 2004 which is based on shareholding issues, also notes through clause 6 that:?6. The Parties hereby agree, record and confirm that all other terms and conditions as contained in the said Principal Agreement shall remain binding, subsisting, effective, enforceable and in force between the parties.?(emphasis laid by this Court)The abovementioned clauses of the subsequent Agreements dated 8th March, 2002 and 30th July, 2004 go to show that there has been no alteration in the nature of rights and responsibilities of the parties involved in the contract. Consequently, there has been no novation of the contract29. It has been further argued by the learned senior counsel for the respondents that Section 5 of the A & C Act, which bars intervention by judicial authority in Arbitration Agreement will not be applicable to International Agreements such as the present case. We are inclined to reject this contention by placing reliance upon the legal principle laid down by this Court in Venture Global Engineering case (supra), the relevant paragraph of which reads as under:?25. …… In order to find out an answer to the first and prime issue and whether the decision in Bhatia International (supra) is an answer to the same, let us go into the details regarding the suit filed by the appellant as well as the relevant provisions of the Act. The appellant -VGE filed O.S. No. 80 of 2006 on the file of the Ist Additional District Court, Secunderabad, for a declaration that the Award dated 3.4.2006 is invalid, unenforceable and to set aside the same. Section 5 of the Act makes it clear that in matters governed by Part I, no judicial authority shall intervene except where so provided. Section 5 which falls in Part I, specifies that no judicial authority shall intervene except where so provided. The Scheme of the Act is such that the general provisions of Part I, including Section 5, will apply to all Chapters or Parts of the Act.?(emphasis laid by this Court)30. Further, it is pertinent to read Clause 7.5 of the Agreement dated 8th March, 2002 carefully. Clause 7.5 reads thus:?Jurisdiction: Courts at Calcutta alone shall have jurisdiction in all matters relating to this Agreement.?The phrase ‘this agreement? means the Agreement dated 8th March, 2002 which is essentially a supplementary Agreement and does not, by any mean, make the Principal Agreement dated 12th January, 2002 subject to the jurisdiction of the Court31. Therefore, we are of the opinion that both the learned single Judge and the Division Bench erred in arriving at the conclusion mentioned above and their findings are liable to be set aside. In the light of the case mentioned above and also on the basis of the clauses of the Principal Agreement dated 12th January 2002 and subsequent Agreements dated 8th March 2002 and 30th July, 2004, read with section 5 of the A&C Act, we are inclined to observe that the Arbitration clause in the Principal Agreement continued to be valid in view of clause no. 6 of the Agreement dated 30th July, 2004 and also by virtue of its mention in different parts of both the supplementary agreements dated 8th March, 2002 and 30th July, 2004. Therefore, the arbitration clause mentioned in Clause 15 of the Arbitration agreement dated January 12, 2002 is valid and the appellant is entitled to invoke the arbitration clause for settling their disputes. We, therefore, answer the point no.1 in favour of the appellantAnswer to Point nos.2 and 332. We answer point nos. 2 and 3 together since they are interrelatedIt is the claim of the respondent no.3 that the suit was filed by Respondent no. 1 under section 9 of CPC and not section 45 of the A&C Act. Respondent no.3 further placed reliance upon the decision of this Court in Ganga Bai v. Vijay Kumar & Ors. [(1974) 2 SCC 393] to hold that:?15. …There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of ones choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.?(emphasis supplied by this Court)Therefore, the learned senior counsel appearing on behalf of respondent no. 3 places reliance upon this decision to contend that the Calcutta High Court (exercising its ordinary original jurisdiction) has the jurisdiction (territorial as well as pecuniary) to entertain the present suit under section 9 of CPC and grant of such interim injunctive relief as it deems fit under Order 39 Rules 1 and 2 of the CPC is permissible in law33. We are inclined to reject this contention raised by the learned senior counsel appearing on behalf of Respondent no. 3. A careful reading of the decision leaves no doubt in the mind as has been held in Ganga Bai?s case (supra) that:?15. …There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of ones choice……?(emphasis laid by this Court)34. The learned senior counsel for respondent no. 3 further places reliance upon the Constitution Bench decision of seven Judges in SBP & Co. v. Patel Engineering Ltd. & Anr. [(2005) 8 SCC 618] wherein it was held that:?19…..When the defendant to an action before a judicial authority raises the plea that there is an arbitration agreement and the subject matter of the claim is covered by the agreement and the plaintiff or the person who has approached the judicial authority for relief, disputes the same, the judicial authority, in the absence of any restriction in the Act, has necessarily to decide whether, in fact, there is in existence a valid arbitration agreement and whether the dispute that is sought to be raised before it, is covered by the arbitration clause….?(emphasis laid by this Court)35. We have already held that the Principal Agreement dated 12th January, 2002 continues to be in force with its arbitration clause in place. We have also mentioned, while answering point no. 1, that section 5 of the A&C act will be applicable to Part II of the Act as well. The Agreement dated 12th January, 2002 remains valid and the arbitration clause, with all fours, will be applicable to the parties concerned to get their disputes arbitrated and resolved in the Arbitration as per the Rules of ICC. The contention raised by the learned senior counsel for Respondent no.2, Mr. K.K. Venugopal regarding the maintainability of the suit while examining the interlocutory order in the appeals, is therefore, untenable in law36. The fact that CPIL, which initially was a non-signatory to the Agreement does not jeopardize the arbitration clause in any manner. In this connection, we are inclined to record an observation made in the three Judge Bench decision of this Court in Chloro Controls India Pvt. Ltd. (supra), wherein it was held as under:?107. If one analyses the above cases and the authors views, it becomes abundantly clear that reference of even non-signatory parties to arbitration agreement can be made. It may be the result of implied or specific consent or judicial determination. Normally, the parties to the arbitration agreement calling for arbitral reference should be the same as those to the an action. But this general concept is subject to exceptions which are that when a third party, i.e. non- signatory party, is claiming or issued as being directly affected through a party to the arbitration agreement and there are principal and subsidiary agreements, and such third party is signatory to a subsidiary agreement and not to the mother or principal agreement which contains the arbitration clause, then depending upon the facts and circumstances of the given case, it may be possible to say that even such third party can be referred to arbitration.?(Emphasis laid by this Court)37. The respondent no.1 has filed a suit seeking two remedies against the appellants: firstly, that the Arbitration Agreement contained in Clause 15 of the Agreement dated January 12, 2002 is void and/or unenforceable and/or has become inoperative and/or incapable of being performed, and secondly, the respondent no.1 sought permanent injunction restraining the appellant herein from initiating and/ or continuing with the impugned Arbitration proceedings bearing case no. 18582/ARP pursuant to the Impugned Arbitration Agreement contained in clause 15 of the Agreement dated January 12, 2002 and the Request for Arbitration dated March 21, 2012 and the communication dated April 02, 2012 issued by defendant no. 8 in the Arbitration proceedings connected therewith and incidental theretoSince, we have already held that the arbitration clause is valid, suit filed by the respondent no.1 for declaration and permanent injunction is unsustainable in law and the suit is liable to be dismissed