R.F. Nariman, J.

1. These two appeals being Civil Appeal No. 5145 of 2016 by Avitel Signature Not Verified Digitally signed by INDU MARWAH Date: 2020.08.19 16:25:13 IST Reason: Post Studioz Ltd. [“Avitel India”] and its promoters [the “Jain family”], 1 and the cross appeal being Civil Appeal No. 5158 of 2016 by HSBC PL Holdings (Mauritius) Ltd. [“HSBC”], impugn the interlocutory judgment and order passed in the appeal under section 9 of the Arbitration and Conciliation Act, 1996 [“1996 Act”] dated 31.07.2014. To dispose of the said appeals, we refer to the facts in Civil Appeal No. 5145 of 2016. The brief facts necessary to appreciate the controversy that arises in the present case are as follows:

16.1.5. If within 14 days of a request from the other party to do so, a party fails to nominate an arbitrator, or if the two (2) arbitrators fail to nominate the third arbitrator within 14 days after the confirmation of the appointment of the second arbitrator, the appointment shall be made, upon request of a party, by the SIAC council in accordance with the Rules. 16.1.6. The parties waive any right to apply to any court of law and/or other judicial authority to determine any preliminary point of law and/or review any question of law and/or the merits, insofar as such waiver may be validly made. The parties shall not be deemed, however, to have waived any right to challenge any award on the ground that the tribunal lacked substantive jurisdiction and/or the ground of serious irregularity affecting the tribunal, the proceedings or the award to the extent allowed by the law of the seat of the arbitration.

16.1.7. Nothing in this Clause 16.1 shall be construed as preventing any party from seeking conservatory or interim relief in any court of competent jurisdiction. 16.1.8. Any award of the arbitration tribunal shall be made in writing and shall be final and binding on the parties from the day it is made and the parties agree to be bound thereby and to act accordingly. The parties undertake to carry out the award without delay.

3 16.1.9. During the conduct of any arbitration proceedings pursuant to this Clause 16.1, this Agreement shall remain in full force and effect in all respects except for the matter under arbitration and the parties shall continue to perform their obligations hereunder, except for those obligations involved in the matter under dispute, and to exercise their rights hereunder.

16.2. Costs The costs and expenses of the arbitration, including the fees of the arbitration and the Arbitration Tribunal, shall be borne equally by each Party to the dispute or claim and each Party shall pay its own fees, disbursements and other charges of its counsel, except as may be determined by the Arbitration Tribunal. The Arbitration Tribunal would have the power to award interest on any sum awarded pursuant to the arbitration proceedings and such sum would carry interest, if awarded, until the actual payment of such amounts. 16.3. Final and Binding It is agreed by the Parties that any award made by the Arbitration Tribunal shall be final and binding on each of the Parties that were parties to the dispute.

16.4. Application of Arbitration Act Save for section 9 , Part 1 of the Indian Arbitration and Conciliation Act, 1996 (the “ Arbitration Act ”), the provisions of Part 1 of the Arbitration Act shall not apply to the terms of this Agreement.”

(ii) On 06.05.2011, the aforesaid parties entered into a Shareholders’ Agreement [“SHA”] which defined the relationship between the parties after the SSA dated 21.04.2011 had been entered into. The SHA also contained an arbitration clause which was identical to the arbitration clause contained in the SSA. It is the case of HSBC that a representation had been made by Appellants No. 2-4 (the Jain family) 4 that the Appellants were at a very advanced stage of finalising a contract with the British Broadcasting Corporation [“BBC”] to convert the BBC’s film library from 2D to 3D. This contract was expected to generate a revenue of USD 300 million in the first phase, and ultimately over USD 1 billion. It is the further case of HSBC that this investment of USD 60 million was required by Avitel India to purchase equipment for Avitel Post Studioz FZ LLC [“Avitel Dubai”] to service the BBC contract (Avitel Dubai is a 100% subsidiary of Avitel Holdings Ltd., Mauritius [“Avitel Mauritius”], which, in turn, is a 100% subsidiary of Avitel India. Avitel India, Avitel Mauritius, and Avitel Dubai are collectively referred to as the “Avitel Group”).

(iii) In early April 2012, HSBC grew suspicious about the Avitel Group’s business of digitising films and Ernst & Young and KPMG Dubai were appointed to inquire into and return findings as to the business activities of the Avitel Group. It is the further case of HSBC that they discovered, thanks to certain preliminary findings of Ernst & Young and KPMG Dubai, inter alia, that the purported BBC contract was non-existent and was set up by the Appellants to induce HSBC into investing the aforesaid money of USD 60 million in the shares of Appellant No. 1. It is also HSBC’s case that though Avitel Dubai received the entire investment proceeds of USD 60 million on or about 10.05.2011, it 5 appeared that around USD 51 million were not used to purchase any equipment to service the BBC contract, but appeared to have been siphoned off to companies in which the Jain family had a stake.

(iv) As disputes arose between the parties, on 11.05.2012, notices of arbitration were issued by HSBC to the Singapore International Arbitration Centre [“SIAC”] to commence arbitral proceedings. On 14.05.2012, the SIAC appointed Mr. Thio Shen Yi, SC, as an Emergency Arbitrator pursuant to an application dated 11.05.2012. On 17.05.2012, the Appellants’ challenge to the appointment of the Emergency Arbitrator was considered by the SIAC and rejected. On 25.05.2012, the Appellants filed their response to the notices of arbitration.

(v) The Emergency Arbitrator then passed two Interim Awards dated 28.05.2012 and 29.05.2012, in the SSA and the SHA, respectively, in favour of HSBC, directing the Appellants and Avitel Dubai to refrain from disposing of or dealing with or diminishing the value of their assets up to USD 50 million, and permitting HSBC to deliver a copy of the Interim Awards to financial institutions in India and the UAE with which any of the Appellants hold or may hold or be signatory to accounts, together with a request that the financial institutions freeze such accounts consistent with the Interim Awards. On 27.07.2012, the Emergency Arbitrator made an amendment to Interim Awards dated 28.05.2012 and 6 29.05.2012 passed in the SSA and the SHA, respectively, granting further relief to HSBC by, inter alia, directing the Appellants and Avitel Dubai to cease and desist from prohibiting or inhibiting Ernst & Young and KPMG Dubai from conducting investigations into the financial affairs of Avitel Dubai and Avitel Mauritius.

(vi) On 30.07.2012, HSBC filed Arbitration Petition No. 1062 of 2012 under section 9 of the 1996 Act in the Bombay High Court, inter alia seeking directions to call upon the Appellants to deposit a security amount to the extent of HSBC’s claim in the arbitration proceedings that had begun under both the SSA and the SHA.

(vii) On 03.08.2012, a learned Single Judge of the Bombay High Court passed an interim order under the section 9 petition, inter alia directing the Corporation Bank to allow the Appellants to withdraw a sum of INR 1 crore from their account on or before 09.08.2012, but not to allow any further withdrawals until further orders, till which time, the account was to remain frozen.

(viii) Meanwhile, the Appellants challenged the jurisdiction of the three- member Arbitral Tribunal comprising of Mr. Christopher Lau, SC as its Chairman, and Dr. Michael C. Pryles and Justice (Retd.) Ferdino I. Rebello as co-arbitrators [“Arbitral Tribunal”] set up under the auspices 7 of the SIAC. On 25.09.2012, the Arbitral Tribunal decided that this would be decided as a preliminary issue. On 17.12.2012, the Arbitral Tribunal passed a unanimous “final partial award on jurisdiction”, dismissing the jurisdictional challenge, and stating that since Singapore law governs the arbitration agreement, allegations of fraud and complicated issues relating to facts are arbitrable.

(ix) Meanwhile, in the section 9 petition pending before the Bombay High Court, an order was passed by a learned Single Judge dated 22.01.2014, in which the Appellants were directed to deposit any shortfall in their account with the Corporation Bank so as to maintain a balance of USD 60 million. The learned Single Judge gave prima facie findings that the seat of arbitration was at Singapore and that the arbitration agreement was governed by Singapore law; hence, arbitrability of the dispute at hand would be governed by Singapore law. It held that the unanimous “final partial award on jurisdiction” dated 17.12.2012, delivered by the Arbitral Tribunal in Singapore, upholding the jurisdiction of the Arbitral Tribunal to proceed, had not been challenged in Singapore by the Appellants, and further held that this being the case, since HSBC has a good chance of success in the final arbitral proceedings, the aforesaid order to deposit the shortfall in the account so as to maintain a balance of USD 60 million was passed. 8

(x) An appeal against the order of the learned Single Judge was disposed of by the impugned judgment and order of the Division Bench dated 31.07.2014, returning a prima facie finding that since Singapore law governs the arbitration agreement, there was no need to interfere with the findings of the learned Single Judge in this respect. Further, it was held that there is no estoppel in filing the present proceeding despite the Emergency Awards being passed in Singapore as the section 9 petition could be maintained on a plain reading of the arbitration agreement itself. It was further held that an issue of fraud in the context of sections 17 and 18 of the Indian Contract Act, 1872 [“ Contract Act ”] referred to want of free consent, and was a well- accepted ground that would vitiate the contract, rendering it voidable. After referring to various judgments of this Court, it was held that there was a distinction between the “suitability” and “arbitrability” of disputes, and on the facts of the present case, it could not be said that the dispute was not arbitrable because of an allegation of fraud made by HSBC. After then referring to the claim statement of HSBC before the Arbitral Tribunal at Singapore, it was held that the allegations of fraud and misrepresentation were primarily in the context of “fraud” and “misrepresentation” as defined in sections 17 and 18 of the Contract Act, thus establishing a civil profile of the disputes that had arisen between 9 the parties. However, after referring to certain judgments on interim mandatory injunctions, the High Court prima facie found that HSBC had carried out due diligence by engaging leading agencies like Ernst & Young and Clifford Chance. Also, it was held that the measure of damages that may ultimately be awarded may not be the amount of loss ultimately sustained by HSBC, but can at best be the difference between the price paid by HSBC in acquiring Avitel India’s shares and the price HSBC would have received had it resold the said shares in the market. This being the case, and an interim mandatory injunction being in the nature of equitable relief, the Division Bench was of the opinion that the interest of justice would be served if the Appellants are directed to deposit an additional amount equivalent to USD 20 million in its Corporation Bank account, so that the total deposit in the said account is maintained at half the said figure of USD 60 million, i.e., at USD 30 million. The appeal against the order dated 22.01.2014 was therefore partly allowed.

(xi) By a Final Award in the SSA dated 27.09.2014 [“Foreign Final Award”], the Arbitral Tribunal held as follows:

f. the Avitel Group's key customers Kinden, SPAC and Purple Passion as well as Avitel Dubai's key supplier, Digital Fusion, and key service provider, Highend, were all independent and legitimate companies;

g. the representations and warranties contained in Clauses 6.1 and 6.2 of the SSA and in Clauses 7.1, 7.3, 7.5 , 8, 10 and 11 of Schedule 3 of the SSA to be true, complete, accurate and not misleading;

21.3 Finds that the Respondents made the representations and/or warranties in order to induce the Claimant to invest in the First Respondent;

21.4 Finds that the Claimant did rely on the representations and/or warranties in making its investment in the First Respondent;

21.5 Finds that the representations and/or warranties referred to in paragraph 21.2 (a) to (g) above were false and/or misleading;

21.6 Finds that the Respondents made the representations and/or warranties referred to in paragraph 21.2 (a) to (g) 11 above knowing that these were false and/or without belief in their truth;

21.7 Finds that the Respondents are jointly and severally liable to the Claimant in tort for deceit;

21.8 Finds that the Respondents are jointly and severally liable to the Claimant for fraudulent misrepresentation under the Contract Act ;

21.9 Finds that the Respondents are jointly and severally liable to the Claimant for breach of warranty;

21.10 Finds that the Second, Third and Fourth Respondents are to jointly and severally indemnify the Claimant for the loss of its investment in the amount of USD 60 million as well as for the costs of and associated with this arbitration and associated court actions;

21.11 Finds that the Claimant in respect of its claim for fraudulent misrepresentation and its claim in tort for deceit is entitled to damages in the total amount of USD 60 million; 21.12 Finds that the Claimant is entitled to interest on the sum of USD 60 million from 6 May 2011 to the date of this Final Award at the rate of 4.25 % per annum;

21.13 Finds that the Claimant is entitled to its legal and other costs as well as the costs of the arbitration in the total amount of SGD 827,615.67 comprising of the following:

21.14 Finds that upon the Respondents’ paying in full and unconditionally the sums awarded to the Claimant in paragraphs 21.15, 21.16, 21.18, 21.19 below, the Claimant's Preference Subscription Shares and Equity Subscription Shares (as defined in the SSA) in Avitel India are to be cancelled forthwith;

21.15 Awards to the Claimant and Orders the Respondents to pay damages in the amount of USD 60 million in respect of which award the First, Second, Third and Fourth Respondents are jointly and severally liable; 12 21.16 Awards to the Claimant and Orders the Respondents to pay interest on the sum of USD 60 million from 6 May 2011 to the date of this Final Award at the rate of 4.25% per annum in respect of which award the First, Second, Third and Fourth Respondents are jointly and severally liable; 21.17 Orders in terms identical to the orders in the Interim Award (as amended by the Addendum and Amendment to Interim Award dated 15 June 2012 and by the Amendment to Interim Award dated 27 July 2012), which orders are to remain in force up to and including the date on which the Respondents comply with all other orders in this Final Award; 21.18 Awards to the Claimant and Orders the Respondents to pay the Claimant's legal and other costs amounting to USD 1,652,890.14 in respect of which award the First, Second, Third and Fourth Respondents are jointly and severally liable;

21.19 Awards to the Claimant and Orders the Respondents to pay all the costs of this arbitration in the total amount of SGD 827,615.67 as follows:

21.20 Declares the Second, Third and Fourth Respondents jointly and severally liable to indemnify the Claimant for the loss of its investment in the amount of USD 60 million together with interest thereon for the period and at the rate specified in paragraph 21.16 hereinabove and the Claimant's legal costs, related expenses as well as the costs of this arbitration as specified in paragraph 21.19 hereinabove; 21.21 Declares and Orders that upon the Respondents’ paying in full and unconditionally the sums awarded to the Claimant in paragraphs 21.15, 21.16, 21.18, 21.19 hereinabove and all costs arising out of and incidental to the cancellation of the Claimant's Preference Subscription Shares and Equity Subscription Shares (as defined in the SSA) in Avitel India, that the said shares be cancelled and that in this regard, the Parties take the requisite steps to 13 effect the said cancellation within 30 days of receipt of such payment.” Initially, this Foreign Final Award was challenged by the Appellants in a section 34 proceeding in the Bombay High Court. By a judgment dated 28.09.2015, the section 34 petition was dismissed as being not maintainable. An appeal under section 37 of the 1996 Act was dismissed on 05.05.2017. Meanwhile, HSBC moved the Bombay High Court on 15.04.2015 to enforce the Foreign Final Award in the SSA dated 27.09.2014, which enforcement proceedings are still pending.

2. Mr. Mukul Rohatgi, learned Senior Advocate and Mr. Saurabh Kirpal, learned counsel, appearing on behalf of the Appellants, took us through the Single Judge order and the Division Bench judgment, and then referred to the Indian law on the allegations of fraud made in arbitral proceedings, which, according to them, show that if the transaction entered into between the parties involve serious criminal offences such as forgery and impersonation, then it is clear that under Indian law, such dispute would not be arbitrable. In fact, they stated that a criminal complaint was filed by HSBC against the Appellants dated 16.01.2013, alleging offences under sections 420, 467, 468, read with section 120B of the Indian Penal Code, 1860, with the Economic Offences Wing, Mumbai [“EOW”], resulting in an FIR being registered. However, the EOW informed HSBC that a closure report was filed before the 14 concerned Magistrate in Mumbai. This closure report was then accepted. HSBC then filed a protest petition seeking rejection of the closure report, which was dismissed by the learned Magistrate on 05.05.2018. This order passed by the Magistrate was in turn challenged by HSBC in Writ Petition (Criminal) No. 5659 of 2018, which petition is still pending. They then argued that, ultimately, in enforcement proceedings in India, the gateways of section 48 of the 1996 Act have to be met. “The public policy of India” is contained in the judgments of this Court regarding serious allegations of fraud made in arbitral proceedings, and if HSBC cannot pass this gateway, then enforcing a foreign award in India would not be possible. It was from this prism that a prima facie case had to be made out under section 9 of the 1996 Act. They, therefore, attacked both the Single Judge order and the Division Bench judgment, stating that a prima facie case for enforcement of such foreign awards cannot possibly refer to the Singapore law on fraud being alleged in arbitral proceedings, but can only refer to Indian law. They further argued that the Division Bench of the Bombay High Court had relied upon a Single Judge judgment of this Court reported as Swiss Timing Ltd. v. Commonwealth Games 2010 Organising Committee, (2014) 6 SCC 677 [“Swiss Timing”] which had held the judgment in N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 [“N. Radhakrishnan”] per incuriam, vitiating the entire Division Bench 15 judgment. This is clear because a Single Judge judgment of this Court under section 11 of the 1996 Act has no precedential value as has correctly been held in State of West Bengal v. Associated Contractors , (2015) 1 SCC 32 [“Associated Contractors”]. Mr. Rohatgi also indicated that Mr. Christopher Lau, SC, the Chairman of the Arbitral Tribunal in the Singapore proceedings was biased, in that HSBC was a client of the firm to which he belonged, and this is one of the important grounds taken up in the section 48 proceeding which is pending in the Bombay High Court. He also sought to raise an argument (for the first time before us) that the award being insufficiently stamped could not be looked at and that this would also go to show that there is no prima facie case in order to sustain the interim mandatory orders passed by the Division Bench of the High Court. It was further added that Report No. 246 of the Law Commission of India on ‘ Amendment to the Arbitration and Conciliation Act, 1996 ’ of August 2014 [“246th Law Commission Report”] had recommended that a section 16(7) be added so as to do away with the ratio of N. Radhakrishnan (supra). However, Parliament thought it fit, when it passed the Arbitration and Conciliation (Amendment) Act, 2015 [“2015 Amendment Act”], not to incorporate such a section, showing that N. Radhakrishnan (supra) holds the field and that, therefore, serious questions of fraud raised, like in the present arbitral proceedings, would render such dispute inarbitrable. For this 16 proposition, they relied heavily on the House of Lords judgment in President of India and La Pintada Compania Navigacion S.A., [1985] A.C. 104 [“La Pintada”].

3. Mr. Harish Salve, learned Senior Advocate appearing on behalf of the Respondent, HSBC, countered all these submissions by relying upon several judgments of this Court, including the recent judgment in Rashid Raza v. Sadaf Akhtar , (2019) 8 SCC 710 [“Rashid Raza”]. According to the learned Senior Advocate, this judgment has, with great clarity, explained the judgment in A. Ayyasamy v. A. Paramasivam , (2016) 10 SCC 386 [“Ayyasamy”], which in turn had explained N. Radhakrishnan (supra), as referring only to such serious allegations of fraud as would vitiate the arbitration clause along with the agreement, and allegations of fraud which are not merely inter parties, but affect the public at large. He argued that a reading of the pleadings in the present case would show that neither of these two tests has been met. He also copiously read from the Foreign Final Award dated 27.09.2014, which found not merely on impersonation, which was one small leg on which it stood, but also on siphoning off or diversion of a substantial portion of the USD 60 million paid by HSBC into companies owned or controlled by the Jain family. He said that these issues are predominantly civil law issues to be decided inter parties. He further argued that insofar as Mr. Christopher Lau SC’s 17 alleged bias is concerned, this was not the time or place to go into such allegations, which would only be fully met in the section 48 proceedings which are pending. He indicated that in any case, this Foreign Final Award was unanimous and consisted of two other arbitrators, Dr. Michael C. Pryles and Justice (Retd.) Ferdino I. Rebello, retired Chief Justice of the Allahabad High Court. He also asked us not to go into the stamping aspect of the Foreign Final Award inasmuch as it was raised here for the first time without any proper pleading; if properly pleaded, then his client would have had an opportunity to rebut the same to show that there was no insufficiency of stamp duty paid. Mr. Salve therefore supported the ultimate order of the learned Single Judge of the Bombay High Court, and said that the Division Bench ought not to have reduced the amount of USD 60 million to half, i.e., USD 30 million without any reasoning worth the name, particularly because the Foreign Final Award had held that the USD 60 million was to be paid by way of damages with interest and costs, the shares in HSBC’s name standing cancelled. Once it is clear that the aforesaid shares stood cancelled, it is clear that the 7.8% of the paid-up share capital of Avitel India that was held by HSBC reverts to Avitel India. This being the case, there would be no awarding of the difference between market value of the shares as on the date of breach and USD 60 million, as the shares are back in the hands of Avitel India.

4. Having heard learned counsel appearing on behalf of both the parties, the only real question that needs to be addressed in the section 9 proceedings is the extent to which HSBC could be said to have a strong prima facie case in the enforcement proceedings under section 48 which are pending before the Bombay High Court. If so, whether irreparable prejudice would be caused to HSBC if protective orders were not issued in its favour, and generally, whether the balance of convenience tilts in its favour and to what extent.

5. First and foremost, it is correct to state that this prima facie case would necessarily depend upon what is the substantive law in India qua arbitrability when allegations of fraud are raised by one of the parties to the arbitration agreement. The law on this point has its origins in a judgment under the Arbitration Act, 1940 [“1940 Act”], the predecessor to the 1996 Act, which repealed the 1940 Act. Thus, in Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak , [1962] 3 SCR 702 [“Abdul Kadir”], disputes arose out of an agreement between the parties, which contained an arbitration clause. Consequently, respondents no.1 and 2 filed an application under section 20 of the 1940 Act, as it then stood. This application was opposed by the appellant on four grounds before the Hon’ble Supreme Court. The fourth ground is important from our point of view and reads thus: 19

6. In N. Radhakrishnan (supra), differences between the partners of a firm were sought to be adjudicated in a civil suit filed by the respondents. The appellant filed an application under section 8 of the 1996 Act stating that as there was an arbitration clause between the partners, the matter should now be referred to arbitration. This Court, after considering the judgment in Abdul Kadir (supra), extracted one sentence from the said judgment at p. 714 as follows:

7. In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. , (2010) 8 SCC 24 [“Afcons”], this Court held as follows:

8. In Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. , (2011) 5 SCC 532 [“Booz Allen”], this Court decided that proceedings in rem, such as a mortgage suit filed under Order XXXIV of the Civil Procedure Code, 1908 (which was a proceeding in rem), would not be arbitrable. In a significant passage, this Court held:

Correspondingly, a judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide Black’s Law Dictionary.)

38. Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable.

39. The Act does not specifically exclude any category of disputes as being not arbitrable. Sections 34(2)(b) and 48(2) of the Act however make it clear that an arbitral award will be set aside if the court finds that “the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force”.” The Court then held, following Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. , (1999) 5 SCC 688, that similarly, winding up proceedings under the Companies Act, 1956 cannot be referred to arbitration (see paragraph 42). As against this, suits for specific 26 performance are arbitrable despite the fact that the court is vested with discretion to be exercised based upon principles laid down as to when not to decree specific performance (see paragraphs 43 and 44). The Court then concluded:

Further, the provisions of sections 5 and 16 of the 1996 Act were also not referred to. Section 5 of the 1996 Act states as follows:

10. The next judgment to be dealt with, chronologically speaking, is the judgment in Vimal Kishor Shah v. Jayesh Dinesh Shah , (2016) 8 SCC 788 [“Vimal Kishor Shah”]. To the six categories of exceptions to arbitrability of civil disputes, a seventh category has been added, namely, disputes arising under trust deeds governed by the Trusts Act, 1882 . Here, it was held that a consideration of the Trusts Act would show that the intention of the legislature was to confer jurisdiction only on civil courts for deciding disputes arising under the Trusts Act , which would amount to an implied bar on other proceedings including arbitral proceedings. The Court therefore found:

SBI Home Finance Ltd., (2011) 5 SCC 532 : (2011) 2 SCC (Civ) 781] which as held above cannot be decided by the arbitrator(s).” [This judgment was referred to with approval in Vidya Drolia and Ors. v. Durga Trading Corporation , 2019 SCC OnLine SC 358 at paragraph 30].

11. Now comes the important judgment in Ayyasamy (supra). Two separate judgments were delivered by a Division Bench of this Court. Sikri, J., after referring to the judgments in Abdul Kadir (supra), N. Radhakrishnan (supra), Swiss Timing (supra), and Booz Allen (supra), then referred to the 246 th Law Commission Report, in particular to paragraphs 50 and 51 thereof. He then held:

Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] as a judicial power, cannot be deemed to have precedential value and, therefore, it cannot be deemed to have overruled the proposition of law laid down in N. Radhakrishnan [N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 :

25. In view of our aforesaid discussions, we are of the opinion that mere allegation of fraud simpliciter may not be a ground to nullify the effect of arbitration agreement between the parties. It is only in those cases where the court, while dealing with Section 8 of the Act, finds that there are very serious allegations of fraud which make a virtual case of 33 criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by the civil court on the appreciation of the voluminous evidence that needs to be produced, the court can side-track the agreement by dismissing the application under Section 8 and proceed with the suit on merits. It can be so done also in those cases where there are serious allegations of forgery/fabrication of documents in support of the plea of fraud or where fraud is alleged against the arbitration provision itself or is of such a nature that permeates the entire contract, including the agreement to arbitrate, meaning thereby in those cases where fraud goes to the validity of the contract itself of the entire contract which contains the arbitration clause or the validity of the arbitration clause itself. Reverse position thereof would be that where there are simple allegations of fraud touching upon the internal affairs of the party inter se and it has no implication in the public domain, the arbitration clause need not be avoided and the parties can be relegated to arbitration. While dealing with such an issue in an application under Section 8 of the Act, the focus of the court has to be on the question as to whether jurisdiction of the court has been ousted instead of focusing on the issue as to whether the court has jurisdiction or not. It has to be kept in mind that insofar as the statutory scheme of the Act is concerned, it does not specifically exclude any category of cases as non-arbitrable. Such categories of non-arbitrable subjects are carved out by the courts, keeping in mind the principle of common law that certain disputes which are of public nature, etc. are not capable of adjudication and settlement by arbitration and for resolution of such disputes, courts i.e. public fora, are better suited than a private forum of arbitration. Therefore, the inquiry of the Court, while dealing with an application under Section 8 of the Act, should be on the aforesaid aspect viz. whether the nature of dispute is such that it cannot be referred to arbitration, even if there is an arbitration agreement between the parties. When the case of fraud is set up by one of the parties and on that basis that party wants to wriggle out of that arbitration agreement, a strict and meticulous inquiry into the allegations of fraud is needed and only when the Court is satisfied that the allegations are of serious and complicated nature that it would be more appropriate for the Court to deal 34 with the subject-matter rather than relegating the parties to arbitration, then alone such an application under Section 8 should be rejected.” Chandrachud, J., in a separate judgment, referred to the judgment in N. Radhakrishnan (supra) and then held:

The present legislation on the subject embodies a conscious departure which is intended to strengthen the efficacy of arbitration.

xxx xxx xxx

43. Hence, the allegations of criminal wrongdoing or of statutory violation would not detract from the jurisdiction of the Arbitral Tribunal to resolve a dispute arising out of a civil or contractual relationship on the basis of the jurisdiction conferred by the arbitration agreement.” He then cautioned against the use of N. Radhakrishnan (supra) as a precedent, and distinguished it as follows:

Maestro Engineers, (2010) 1 SCC 72 : (2010) 1 SCC (Civ) 12] does not subscribe to the broad proposition that a mere allegation of fraud is ground enough not to compel parties to abide by their agreement to refer disputes to arbitration. More often than not, a bogey of fraud is set forth if only to plead that the dispute cannot be arbitrated upon. To allow such a plea would be a plain misreading of the judgment in N. Radhakrishnan [N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 : (2010) 1 SCC (Civ) 12] . As I have noted earlier, that was a case where the appellant who had filed an application under Section 8 faced with a suit on a dispute in partnership had raised serious issues of criminal wrongdoing, misappropriation of funds and malpractice on the part of the respondent. It was in this background that this Court accepted the submission of the respondent that the arbitrator would not be competent to deal with matters “which involved an elaborate production of evidence to establish the claims relating to fraud and criminal misappropriation”. Hence, it is necessary to emphasise that as a matter of first principle, this Court has not held that a mere allegation of fraud will exclude arbitrability. The burden must lie heavily on a party which avoids compliance with the obligation assumed by it to submit disputes to arbitration to establish the dispute is not arbitrable under the law for the 36 time being in force. In each such case where an objection on the ground of fraud and criminal wrongdoing is raised, it is for the judicial authority to carefully sift through the materials for the purpose of determining whether the defence is merely a pretext to avoid arbitration. It is only where there is a serious issue of fraud involving criminal wrongdoing that the exception to arbitrability carved out in N. Radhakrishnan [N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 :

45.2. Allegations of fraud are not alien to ordinary civil courts. Generations of judges have dealt with such allegations in the context of civil and commercial disputes. If an allegation of fraud can be adjudicated upon in the course of a trial before an ordinary civil court, there is no reason or justification to exclude such disputes from the ambit and purview of a claim in arbitration. The parties who enter into commercial dealings and agree to a resolution of disputes by an arbitral forum exercise an option and express a choice of a preferred mode for the resolution of their disputes. The parties in choosing arbitration place priority upon the speed, flexibility and expertise inherent in arbitral adjudication. Once parties have agreed to refer disputes to arbitration, the court must plainly discourage and discountenance litigative strategies designed to avoid recourse to arbitration. Any other approach would seriously place in uncertainty the institutional efficacy of arbitration. Such a consequence must be eschewed.” After the statement of the law, the learned Judge referred to an instructive passage by Gary B. Born as follows:

Quite apart from what has been stated by us in paragraph 9 above, as to how N. Radhakrishnan (supra) cannot be considered to be a binding precedent for the reasons given in the said paragraph, we are of the view that the development of the law by this Court cannot be thwarted 41 merely because a certain provision recommended in a Law Commission Report is not enacted by Parliament. Parliament may have felt, as was mentioned by Lord Reid in British Railways Board and Herrington, 1972 A.C. 877 [House of Lords], that it was unable to make up its mind and instead, leave it to the courts to continue, case by case, deciding upon what should constitute the fraud exception. 1 Parliament may also have thought that section 16(7) , proposed by the Law Commission, is clumsily worded as it speaks of “a serious question of law, complicated questions of fact, or allegations of fraud, corruption, etc.” N. Radhakrishnan (supra) did not lay down that serious questions of law or complicated questions of fact are non-arbitrable. Further, “allegations of fraud, corruption, etc.” is vague. For this reason also, Parliament may have left it to the courts to work out the fraud exception. In any case, we have pointed out that dehors any such provision, the ratio in N. Radhakrishnan (supra), being based upon a judgment under the 1940 Act, and without considering sections 5 , 8 and 16 of the 1996 Act in their proper perspective, would all show that the law laid down in this case cannot now be applied as a precedent for application of the fraud mantra to negate arbitral proceedings. For the reasons given in this judgment, the House of Lords’ decision would have no application inasmuch as N. 1 This case is referred to in Lord Brandon’s judgment in La Pintada (supra) and distinguished at p. 130 of his judgment.

42 Radhakrishnan (supra) has been tackled on the judicial side and has been found to be wanting.

13. The judgment in Ayyasamy (supra) was then applied in Ameet Lalchand Shah v. Rishabh Enterprises , (2018) 15 SCC 678. After extracting paragraph 25 from Sikri, J.’s judgment and paragraph 48 of Chandrachud, J.’s judgment in Ayyasamy (supra), the Court held:

14. In a recent judgment reported as Rashid Raza (supra), this Court referred to Sikri, J.’s judgment in Ayyasamy (supra) and then held:

15. At this stage, it is necessary to deal with the broad statement of the law in Afcons (supra) and Booz Allen (supra). When Afcons (supra) refers in paragraph 27(iv) to “cases involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion, etc.”, this must now be understood in the sense laid down in Ayyasamy (supra) and Rashid Raza (supra). When it comes to paragraph 27(vi) in Afcons (supra), and paragraph 36(i) in Booz Allen 44 (supra), namely, cases involving prosecution for criminal offences, it is also important to remember that the same set of facts may have civil as well as criminal consequences. Thus, in K.G. Premshanker v. Inspector of Police , (2002) 8 SCC 87 [“Premshanker”], this Court had to answer a reference made to it as follows:

770, para 11) “11. As seen that the civil court after full-dressed trial recorded the finding that the appellant had not come into possession through the Company but had independent tenancy rights from the principal landlord and, therefore, the decree for eviction was negatived. Until that finding is duly considered by the appellate court after weighing the evidence afresh and if it so warranted reversed, the findings bind the parties. The findings, recorded by the criminal court, stand superseded by the findings recorded by the civil court. Thereby, the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summary trial for offences like Section 630. The mere pendency of 45 the appeal does not have the effect of suspending the operation of the decree of the trial court and neither the finding of the civil court gets nor the decree becomes inoperative.” (emphasis in original) After referring to sections 40 to 43 of the Indian Evidence Act, 1872, and the judgment in M.S. Sheriff v. The State of Madras , 1954 SCR 1144, this Court held:

16. In Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370 : 2005 SCC (Cri) 1101] this Court held as under:

17. In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn .) [(2009) 5 SCC 528] this Court considered all the earlier judgments on the issue and held that while deciding the case in Karam Chand [(1970) 3 SCC 694 : AIR 1971 SC 1244], this Court failed to take note of the Constitution Bench judgment in M.S. Sheriff [AIR 1954 SC 397 : 1954 Cri LJ 1019] and, therefore, it remains per incuriam and does not lay down the correct law. A similar view has been reiterated 49 by this Court in Vishnu Dutt Sharma v. Daya Sapra [(2009) 13 SCC 729 : (2010) 1 SCC (Cri) 1229] , wherein it has been held by this Court that the decision in Karam Chand [(1970) 3 SCC 694 : AIR 1971 SC 1244] stood overruled in K.G. Premshanker [(2002) 8 SCC 87 : 2003 SCC (Cri) 223 : AIR 2002 SC 3372].

18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration. ” To complete the review of case law on the subject, we may finally refer to Guru Granth Saheb Sthan Meerghat Vanaras v. Ved Prakash , (2013) 7 SCC 622, wherein this Court, after referring to the previous case law on the subject held as follows:

Secondly, in the facts of the present case there is no likelihood of any embarrassment to the defendants (Respondents 1 to 4 herein) as they had already filed the written statement in the civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil court will not at all prejudice the defence(s) of Respondents 1 to 4 in the criminal proceedings.”

16. In the light of the aforesaid judgments, paragraph 27(vi) of Afcons (supra) and paragraph 36(i) of Booz Allen (supra), must now be read subject to the rider that the same set of facts may lead to civil and criminal proceedings and if it is clear that a civil dispute involves questions of fraud, misrepresentation, etc. which can be the subject matter of such proceeding under section 17 of the Contract Act, and/or the tort of deceit, the mere fact that criminal proceedings can or have been instituted in respect of the same subject matter would not lead to 51 the conclusion that a dispute which is otherwise arbitrable, ceases to be so.

17. Section 17 of the Contract Act defines “fraud” as follows:

Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak3, or unless his silence is, in itself, equivalent to speech.” Section 10 of the Contract Act states that all agreements are contracts if they are made with the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Section 14 states that consent is said to be free when it is not caused inter alia by fraud as defined in section 17 . Importantly, the section goes on to say that consent is said to be so caused when it would not have been given but for the existence, inter 2 Cf. S. 238, infra.

3 See S. 143 , infra.

52 alia, of such fraud. Where such fraud is proved, and consent to an agreement is caused by fraud, the contract is voidable at the option of the party whose consent was so caused. This is provided by section 19 of the Contract Act which reads as follows:

4 It is important to note that the exception in section 19 does not apply to fraudulent misrepresentation as the words “by silence” alone go with the word “fraudulent”, thus not applying to cases of fraudulent misrepresentation. In John Minas Apcar v. Louis Caird Malchus , AIR 1939 Cal 473, the concurrent judgments of Derbyshire, C.J. and Lort Williams, J. referred to a passage from Sir Frederick Pollock and Sir Dinshah Mulla, in their work on the Contract Act, 6 th Edition, which said:

Thus, fraud that is practiced outside of section 17 of the Contract Act, i.e., in the performance of the contract, may be governed by the tort of deceit, which would lead to damages, but not rescission of the contract itself.5 5 In State of Tripura v. Province of East Bengal, Union of India , 1951 SCR 1, in a separate concurring judgment, Mukherjea, J. went into what in English law was considered as a tort (see pp. 44-49). The learned Judge concluded as follows:

(ii) a series of payments was then made by Avitel Dubai as follows:

c. on 9 June 2011 the Avitel Dubai Account was debited in the amount of USD 10 million which amount was then credited to a different Emirates NBD bank account which is also held in the name of Highend. On 27 July 2011 this amount was transferred to a further Emirates NBD account in the name of Digital Fusion. This sum was thereafter transferred to Cralton Capital Commercial Broker Services LLC (“Cralton") which appears to be a broking and investment company [Witness Statement of Mr. van Schalkwyk, at para.17(b) (iii)] in respect of which company Mr. Boban Idiculla is the sole signatory to its bank account with Emirates NDB [Witness Statement of Mr. van Schalkwyk, at fn. 9];

d. on 13 June 2011 and 14 June 2011, the Avitel Dubai Account was debited in the amounts of USD 10 million and USD 5 million respectively which amounts were credited to an Emirates NBD account held in the name of Digital Fusion.

On 19 July 2011 and 26 July 2011, Digital Fusion's account was debited in the amounts 63 USD 5 million and USD 10 million respectively which amounts were credited to an Emirates NBD account held in the name of Cralton. The account records of Cralton held with Emirates NBD show that the transfers in July 2011 totalling USD 25 million were used to make various transfers, fixed term deposits and investments between Cralton, Highend, Digital Fusion and SPAC [Witness Statement of Mr. van Schalkwyk, at para.17(b)(iv)];

e. on 23 February 2012, the Avitel Dubai Account was debited in the amount of USD 8 million which amount was credited to the Emirates NBD account held in the name of Highend. On 28 February 2012, this account was debited in the amount of USD 7.48 million which was credited to a different Emirates NBD account held in the name of SPAC. A further debit in the amount of USD 500,000 occurred on 28 February 2012 which sum was routed through two different Emirates NBD accounts, one held in the name of DejaVu FZ-LLC and one in the name of Al Jalore Trading FZE, before this sum was finally credited to a Dubai Multi Commodities Centre entity, namely Emerald DMCC [Witness Statement of Mr. van Schalkwyk, at para.17(b)(v)];

f. Mr. van Schalkwyk understands that between 18 April 2012 and 29 April 2012, there was a further transfer from the Avitel Dubai Account of USD 8.5 million. However, he has been unable to ascertain to which account(s) these funds have been transferred to [Witness Statement of Mr. van Schalkwyk, at para.18].” It then found that the following admitted facts would show that most of the representations made by the Avitel Group and the Jain family to HSBC were false in that:

i. In total, USD 59.72 million of the Claimant's USD 60 million investment have been transferred out of Avitel Dubai's bank accounts and into bank accounts the majority of which are controlled by the Jain Family;

j. the domain names for Kinden, SPAC, Highend and Digital Fusion had been registered by Mr. Hrishi Jain;

k. on 28 January 2012, the websites for Kinden, SPAC, Highend and Digital Fusion had been transferred from the hosting site "rediffinalpro.com " to "rirev.com", the same hosting site which had been utilized by Avitel Dubai since 28 June 2011. Each 65 website was thereafter re-registered employing a proxy service called "Domains By Proxy, LLC”, which provides anonymity to the owners of websites on the internet.” As a result thereof, issue (iv) was answered stating:

While the Tribunal accepts this, this hearing which was scheduled for and to be held in Singapore together with the substantial delay in seeking a postponement of the November 2013 Oral Hearing was not satisfactorily explained. The Respondents also sought an adjournment on the grounds, inter alia, of their inability to engage counsel. However, it appears to the Tribunal that during this period (i.e. from the time when they sought an adjournment up to the date of the November 2013 Oral Hearing), they were able to. The Tribunal also points out that although the Respondents at various stages ceased to be represented by lawyers, the letters written and signed by Mr. Yogesh Garodia either on behalf of the First Respondent or on behalf of all Respondents or the letters signed by the First Respondent (through Mr. Yogesh Garodia) Second, Third and Fourth Respondents, during this period were written in legal terminology including the employment of legal Latin maxims. The Respondents’ applications for re-scheduling the hearing dates in the Tribunal's view must be viewed against the background of the failure of the Respondents to comply with the orders of the Emergency Arbitrator in proceedings in Singapore in which the Respondents had been represented by both Indian and Singapore counsel and provided evidence. All of the above are suggestive to the Tribunal of an attempt to delay these proceedings. 20.2 The Respondents provided no witness statements and did not adduce any oral evidence before this Tribunal although the Tribunal accepts that they did so in the proceedings before the Emergency Arbitrator, namely in Mr. Yogesh Garodia’s Witness Statement. In reaching its findings and its decisions, this Tribunal has considered fully the Respondents’ numerous submissions and Mr. Yogesh Garodia's Witness Statement as well as the documentary evidence. The Claimant provided evidence from a number of witnesses and also documentary evidence. As the Respondents did not attend the November 2013 Oral Hearing, the Tribunal tested the evidence of the Claimant's witnesses by asking a number of questions. The Tribunal finds each of the Claimant's witnesses to be credible and it accepts their evidence part of which is corroborated by the documentary evidence submitted by the Claimant Including an email from Ms. Sarah Jones, General Counsel at the 70 BBC, dated 4 May 2012 confirming, inter alia, that the BBC had not entered into a contract with Avitel India, that Mr. John Linwood had not attended a meeting on 19 April 2011 with Mr. Anthony Bernbaum but at the same time was in an internal meeting with BBC staff.

20.3 In summary, the Tribunal finds that the Jain Family (namely the Second, Third and Fourth Respondents) engaged in a deliberate and dishonest scheme to induce the Claimant (part of HSBC) to invest in Avitel India (namely the First Respondent). The Claimant placed the investment because it had been advised by the Jain Family (making the representations also on behalf of Avitel India), verbally, in writing and in the SSA itself, that Avitel India was about to and from 2 August 2011 had signed a contract with the BBC, for the BBC to use the services of Avitel India. This was false. Not only had a contract not been negotiated, let alone signed with the BBC, but the BBC had no knowledge of it. 20.4 The misrepresentations and deception of the Respondents included the arrangement of a meeting between a representative of HSBC and a person who was falsely held out by the Respondents and purported to be the Chief Technical Officer of the BBC and who falsely purported to corroborate the Respondents’ misrepresentations. The representations were made prior to the conclusion of the SSA and in the SSA itself. They were made knowingly to be untrue and were fraudulent.” As a result thereof, it was found that HSBC, in respect of its claim for fraudulent misrepresentation, and its claim in tort for deceit, is entitled to damages in the total amount of USD 60 million plus interest and costs as awarded. The final declaration made in the Award then reads:

21.19 hereinabove and all costs arising out of and incidental to the cancellation of the Claimant’s Preference Subscription Shares and Equity Subscription Shares (as defined in the SSA) in Avitel India, that the said shares be cancelled and 71 that in this regard, the Parties take the requisite steps to effect the said cancellation within 30 days of receipt of such payment.”

21. There can be no doubt whatsoever after reading the issues and some of the material findings in the Foreign Final Award that the issues raised and answered are the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be started and may have failed is of no consequence whatsoever. We, therefore, hold on a conspectus of these facts, and following our judgments, that the issues raised and answered in the Foreign Final Award would indicate:

22. Thus, a reading of the Foreign Final Award in this case would show that a strong prima facie case has indeed been made out as the Award holds the BBC transaction as a basis on which the contract was entered into and the USD 60 million paid by HSBC, which would clearly fall within fraudulent inducement to enter into a contract under section 17 of the Contract Act. Such a contract would be voidable at the instance of HSBC. Also, the findings on the siphoning off of monies that were meant to be allocated for the performance of the BBC contract would attract the tort of deceit. The measure of damages for such fraudulent misrepresentation is not the difference between the value of the shares on the date of making the contract and the value HSBC would have received, if it had resold those shares in the market, after the purchase. As has been held in the judgments stated hereinabove, the measure of such damages would be to put HSBC in the same position as if the contract had never been entered into, which is, the entitlement to recover the price paid for the shares and all consequential losses. This being the case, it is difficult to accede to the Division Bench’s finding as to the measure of damages in such cases.

23. So far as the other points raised by M/s. Mukul Rohatgi and Saurabh Kirpal are concerned, we wish to say nothing, as any finding on these points even prima facie would prejudice the section 48 proceedings pending in the Bombay High Court. So far as the appeal of HSBC is concerned, we are of the view that it has substance in that the USD 60 million that was to be kept aside vide the Single Judge’s order, was fair and just in the facts of the case in that it is only the principal amount without any interest or costs that is ordered to be kept aside. Further, the reduction of USD 60 million to USD 30 million by the Division Bench is not justified given our finding on the measure of damages in the facts of this case.

24. It is clarified that any finding made on facts in this judgment is only prima facie for the purpose of deciding the section 9 petition. We have held that HSBC has made out a strong prima facie case necessitating that USD 60 million, being the principal amount awarded to them, is kept apart in the manner indicated by the learned Single Judge of the Bombay High Court. The balance of convenience is also in its favour. It is clear that in case HSBC was to enforce the Foreign Final Award in India in accordance with section 48 of the 1996 Act, irreparable loss would be caused to it unless at least the principal sum were kept aside for purposes of enforcement of the award in India. Accordingly, we 74 dismiss Civil Appeal No.5145 of 2016 filed by Avitel India and the Jain family, and allow Civil Appeal No.5158 of 2016 filed by HSBC. Civil Appeal No. 9820 of 2016

25. In this case, the Appellant is an angel investor in the shares of Avitel India. By a letter dated 04.07.2016, the Appellant herein expressed his concern on the observations and the freezing of the company’s bank account by the Bombay High Court vide orders dated 22.01.2014 and 31.07.2014. The Appellant attended a meeting of the Board of Directors of Avitel India on 11.07.2016, in which the Chairman of the company, i.e., Mr. Pradeep Jain, explained to the Appellant in some detail as to the proceedings filed by HSBC against the company and the orders passed by the Arbitrators and Courts therein. The Chairman expressed a view that, ultimately, they were likely to succeed in this litigation. The Appellant stated that he was not satisfied with this point of view and asked for the return of the money invested along with interest at the rate of 12% per annum. The Chairman stated that the amounts invested by the Appellant were in equity shares, which were the fixed capital of the company, and any return of such investment is not permissible in law. The Appellant then stated the following, which is recorded in the Minutes of the Board Meeting dated 11.07.2016: 75

…………..………………J. (R. F. Nariman) ……..……………………J. (Navin Sinha) New Delhi August 19, 2020.