New Delhi, March 22 : Making his point on behalf of Future Retail in the case against Amazon, senior advocate Harish Salve said in the Delhi High Court on Monday that in the face of the Supreme Court order dated February 22 allowing NCLT proceedings to go on and in the face of the earlier stay granted by the Division Bench on February 8, Justice Midha’s order dated March 18 is contrary to the apex court’s order which ought to be stayed outright and immediately.
The Division Bench was pleased to immediately stay the order of Justice Midha dated March 18 in its entirety.
The stay will operate till the date of the next hearing, which has been fixed for April 30. The order has already been dictated by the Division Bench, which is expected to be uploaded on Monday.
Salve pointed out that Justice Midha was supposed to only give reasons for his order of February 2 in this order. But he has travelled beyond the scope and passed mandatory directions on prayers not argued in this order dated March 18.
Salve further drew the attention of the Division Bench to its order completely staying the operation, implementation and enforcement of Justice Midha’s earlier order until the next hearing. The order of the Division Bench had specifically allowed statutory authorities like SEBI, NCLT etc. to proceed further with the scheme in accordance with law.
Amazon had filed an SLP in the Supreme Court challenging the Division Bench order. The Supreme Court did not stay the order of the Division Bench, but only directed that NCLT proceedings will be allowed to go on but will not culminate in any final order of sanction of the scheme.
Salve pointed out that when the matter came up before the Division Bench, since the Supreme Court was seized on the matter pending before the Division Bench, the bench continued the stay and did not hear the matter further.
Salve further stated that Gopal Subramanian, the counsel for Amazon, while mentioning the matter before Supreme Court on March 18, informed the top court that in spite of Supreme Court’s order, the Division Bench continued the stay the February 26 order. The Supreme Court simply said that the matter will be heard on April 27 and did not interfere with the extension of stay.
Salve said in the light of the fact that the Supreme Court has allowed the NCLT proceedings can go on, Justice Midha could not have passed any orders directing the appellants to write to statutory authorities to recall the approvals already granted and bring the NCLT proceedings to a halt. Salve asserted that this could not have been done at all.
The entire matter, whether the emergency arbitrator’s order is valid and enforceable in Indian law, and whether Amazon can successfully initiate arbitration proceedings against Future Retail Limited etc. are all now pending to be heard by Justice Nariman in the Supreme Court on April 27.
In the teeth of the above, the order of Justice Midha dated March 18 will not lie, Salve said.
Senior advocate Rajiv Nayar at this stage interrupted and said that FRL’s appeal was not maintainable. Salve told the court that if Nayar is going to argue on maintainability, he will have to be given the first opportunity as the appellant to commence arguments. Again, he reiterated that Division Bench should not hear on merits at this stage.
Gopal Subramanian submitted that Amazon will be filing the order of Justice Midha with an application for directions. Salve said that Gopal Subramanian’s client can do whatever they want, but if that means FRL to withdraw the appeal, that will not be possible.
Amazon’s counsels pressed for not granting a stay on the ground that Supreme Court is seized of the matter. Nayar repeatedly tried to interfere with the court proceedings, while the order was being dictated, but the court did not pay any heed to him.
Justice Midha’s order said that all objections raised by FRL and other respondents are rejected with costs of Rs 20 lakh to be deposited with Prime Minister’s Relief Fund. FRL and other respondents have deliberately and willfully violated the interim order dated October 25, 2020. The assets of FRL and respondents No. 2 to 13 are attached. Show cause notice issued to respondents No. 3 to 13 to show cause why they be not detained in civil prison for a term not exceeding three months, it said.