SC bars NCLT from finalising orders allowing $3.4 bn Future-Reliance deal

A bench headed by Justice Rohinton Nariman also ordered that while the proceedings before NCLT can go on, they should not culminate in any final order of sanction of the scheme

The Supreme Court on Monday sought a response from Future Retail Limited (FRL) in a plea by e-commerce giant Amazon challenging the Delhi High Court order which had stayed the implementation of status quo direction passed by single-judge of the High Court with respect to the $3.4 billion Future-Reliance deal.

A bench headed by Justice Rohinton Nariman also said that while the proceedings before National Company Law Tribunal (NCLT) can go on, they should not culminate in any final order of sanction of the scheme.

“Issue notice. Dasti in addition. To come up after three weeks. Rejoinder to be filed two weeks thereafter. List thereafter,” the court ordered, according to law platform Bar & Bench. “Meanwhile, the NCLT proceedings will be allowed to go on but will not culminate in any final order of sanction of scheme.”

The apex court also clarified that the Division Bench of Delhi High will not proceed with the matter further after a Senior Counsel brought the same to the Court's attention.

This month Amazon moved the Supreme Court challenging the Delhi High Court order which had stayed the implementation of status quo direction passed by single-judge of the High Court for the Future-Reliance deal.

Jeff Bezos-led Amazon is locked in a legal dispute with Kishore Biyani-headed Future. It has alleged that the retail conglomerate violated an agreement with the American e-commerce firm by agreeing to sell its assets to Mukesh Ambani-owned Reliance Industries last year. Future denies any wrongdoing.

“Effectively, Supreme Court has issued notice to Future Retail and others on Amazon's plea against deal with Reliance Group and has restrained NCLT from passing final orders approving Future Retail scheme,” said Salman Waris, managing partner at technology law firm TechLegis Advocates and Solicitors.

He said the Singapore International Arbitration Centre (SIAC) Emergency Arbitration interim order formed the basis of Indian Supreme Court’s order. In the present circumstances Future Retail can move the Singapore arbitration tribunal to lift the interim stay the emergency arbitrator had imposed earlier last year.  “The court also sought written statements from Future Retail and directed the matter to be taken up after five weeks,” said Waris.

The Delhi High Court had stayed its single-judge direction to Future Retail Ltd (FRL) and various statutory authorities to maintain the status quo with regard to the Rs 24,713-crore ($3.4 billion) deal with Reliance Retail in a setback for Amazon, which has challenged the transaction. Amazon then filed the petition before the Supreme Court.

“Because the impugned interim common order passed by the Hon’ble High Court is illegal, and arbitrary apart from being without jurisdiction, therefore the same is liable to be set aside on this ground alone,” Amazon had said in its Special Leave Petition before the Supreme Court.

The petition had said the Hon’ble High Court has acted illegally and arbitrarily, firstly in failing to appreciate much less consider the oral submissions made by the Petitioner, and the catena (a series of things connected with each other) of judgments relied upon by the Petitioner. In taking upon itself to adjudicate the Appeal, even though it did not fall within the jurisdiction of the Hon’ble High Court, the petition said the Impugned Interim Common Order suffers from illegality and arbitrariness and is also against the principles of natural justice, equity and fair play.

The order under challenge and which had lifted the status quo on the Future-Reliance deal was passed by a Division Bench of the High Court in an appeal filed by FRL against the court's order related to protecting the rights of Amazon.

The division Bench had noted that FRL was not a party to an arbitration agreement with Amazon and prima facie the “group of companies” doctrine could not be invoked in the present case as the three agreements — Future Retail Shareholding Agreement (SHA), Future Coupons Pvt Ltd (FCPL) SHA, and FCPL Share Subscription Agreement — were distinct in nature.

The court had observed that there was no reason to seek a status quo order from the single judge. It stated that statutory authorities like the Securities and Exchange Board of India (Sebi) and the Competition Commission of India (CCI) could not be restrained from "proceeding in accordance with law".

Amazon’s petition had said the Division Bench failed to take note of the fact that repeated and brazen breaches of the EA (Emergency Arbitrator) Order were undertaken by all the Respondents. It had said Respondents had persisted with the applications relating to the impugned transaction between FRL and entities of the Mukesh Dhirubhai Ambani Group (“Impugned Transaction”) and obtained approvals on “false representations” by repeatedly suggesting to the statutory authorities that the EA Order was worthless and had made false claims that the Suit Order had effaced the EA Order.

In August 2020, the Future group struck a $3.4-billion asset sale deal with RIL. Amazon then sent a legal notice to Future, alleging that the deal breached an agreement with the e-commerce firm.

In 2019, Amazon had acquired a 49 per cent stake in Future Coupons (FCPL), the promoter entity of FRL, for about Rs 1,500 crore. The deal specified any disputes would be arbitrated under the Singapore International Arbitration Centre (SIAC) rules. An arbitration tribunal has been formed at the SIAC to look into the dispute. A final ruling by the arbitrator in the matter is pending.

Case timeline

August 2019: Amazon acquires a 49% stake in Future Coupons, the promoter entity of Future Retail, for about Rs 1,500 crore.

August 2020: Future Group strikes a $3.4-billion asset sale deal with RIL.

October 2020: Amazon sends legal notice to Future, alleging breach of the agreement.

October 2020: Amazon gets favourable ruling for its plea in Singapore International Arbitration Centre (SIAC) against the deal.

November 2020: Future moves Delhi HC against Amazon, alleges interference by US firm in the deal with RIL.

December 2020: Delhi High Court refuses to restrain Amazon from interfering in Future Retail’s deal with Reliance by writing to statutory authorities.

January 2021: Arbitration tribunal formed at the SIAC to look into the dispute.

January 2021: Delhi HC serves a notice on Future Retail (FRL), Reliance Retail, and the Biyanis, seeking their views on a plea by Amazon against some of the observations by a single judge Bench.

January 2021: Amazon files a petition in the Delhi HC, asking for the detention of Future Group’s founder and his family members.

February 2021: Delhi HC orders status quo on the deal

February 2021: Setback for Amazon as Delhi HC lifts status quo on the deal.

February 2021: Amazon moves SC challenging Delhi HC order that lifted status quo on the deal.

February 2021:SC bars NCLT from finalising orders allowing the deal, seeks response from Future.