FRL-RIL deal: SC judge offers to recuse; final hearing on November 23

Supreme Court judge Justice Hima Kohli on Thursday offered to recuse herself from hearing a batch of petitions arising out of the Amazon-Future Retail case, saying she and her family members have shares in Reliance Industries Ltd group firms, one of the interested parties to the litigation.

“We have no objection,” said a battery of lawyers appearing for parties including the US-based e-commerce giant Amazon, Future Retail Limited (FRL) and Future Coupons Private Ltd (FCPL).

“I and my family members have some shares in Reliance Industries Ltd and if you have any problem with this then I will recuse,” said Justice Kohli who was sitting on the bench presided over by Chief Justice N V Ramana.

The bench, which also comprised Justice A S Bopanna, then proceeded to hear the petitions and cross-petitions filed by the parties briefly before adjourning them for final hearing on November 23 through hybrid mode.

The top court was hearing a fresh petition of Future Group against the Delhi High Court's recent order declining its plea for stay on an arbitration tribunal decision refusing to interfere with the Singapore International Arbitration Centre's (SIAC) Emergency Award (EA) which restrained it from going ahead with the Rs 24,731 crore merger deal with Reliance Retail.

The bench was also hearing a counter plea by Amazon, seeking to restrain the regulators from approving the merger deal.

The top court issued formal notices on both the fresh petitions.

Meanwhile, the IDBI trusteeship also moved the apex court seeking to de-freeze Future Retail shares pledged to it and said the Delhi High Court has attached its shares.

Since the top court had barred the high court from proceeding with the case, the IDBI trusteeship has failed to access its shares, the lawyer said and was told by the bench that this aspect will also be taken up for hearing on November 23.

During the brief hearing, the bench suggested both the parties move the Delhi High Court in view of the fresh development in which the SIAC arbitral tribunal has rejected the FRL plea on October 21 and reiterated the EA's interim award.

“Your (FRL) earlier petition said that the arbitral tribunal at SIAC is hearing you and now it appears that you have lost there and the interim award has been confirmed...let the high court pass some orders,” the bench orally observed and later fixed the pleas for hearing after taking note of the submissions of the advocates concerned.

The bench said the last order was passed with the consent of the parties that the regulatory authorities will not approve the merger deal without prior nod from the top court.

The dispute over the merger deal has seen several rounds of litigations after SIAC passed the EA in favour of the US firm on October 25, 2020 staying the merger.

On October 21 this year, a duly-constituted panel of arbitrators at SIAC reiterated the decision of the EA.

Then on October 29, the Delhi High Court declined Future Group's plea for stay on the arbitration tribunal order refusing to interfere with the EA which restrained it from going ahead with the Rs 24,731 crore merger deal with Reliance Retail.

The high court sought response from Amazon which had challenged the merger before the SIAC, and listed the appeals by FCPL and FRL for further hearing on January 4, 2022.

FRL and FCPL move the top court recently against the order with fresh pleas.

Kishore Biyani and 15 others including FRL and FCPL have been embroiled in a series of litigations with Amazon, an investor in FCPL, over the deal with Reliance. Following the EA, subsequently, a three-member arbitral tribunal was constituted to decide the issues arising from the deal.

On September 9, the apex court had stayed for four weeks all proceedings before the high court in relation to the implementation of the EA and also directed statutory authorities like National Company Law Tribunal (NCLT), Competition Commission of India (CCI) and Securities and Exchange Board of India (Sebi) not to pass any final order related to the merger deal in the meantime.

Subsequently, the arbitration tribunal under the Singapore International Arbitration Centre (SIAC), on October 21, rejected the plea of FRL to lift the interim stay granted by its EA on October 25 last year, observing that "the Award was correctly granted".

Amazon had dragged Future Group to arbitration at SIAC in October last year, arguing that FRL had violated their contract by entering into the deal with rival Reliance.

The FRL and FCPL had moved the top court against the high court order of August 17 which said that it would implement the earlier order by its single-judge restraining FRL from going ahead with the deal in pursuance of the EA's award.

The high court had said that in the absence of a stay, it would have to enforce the order passed by its single judge, Justice J R Midha, on March 18.

On March 18, besides restraining FRL from going ahead with its deal with Reliance Retail, the court had imposed costs of Rs 20 lakh on the Future Group and others associated with it and ordered attachment of their properties.

On August 6, the Supreme Court gave the verdict in favour of Amazon and held that EA award, restraining the Rs 24,731 crore FRL-Reliance Retail merger deal, is valid and enforceable under Indian arbitration laws.

The apex court had also set aside the two orders of February 8 and March 22 of the division bench of the Delhi High Court order which had lifted the single-judge's orders staying the FRL-RRL merger.

A bench headed by Justice R F Nariman, since retired, had dealt with the larger question and held that an award of an EA of a foreign country is enforceable under the Indian Arbitration and Conciliation Act.