Rolls On is a leader in the Automobile Industry in Singapore. It is one of the pioneers in the luxury automobile segment in the global market. It has garnered a reputation of manufacturing impeccable quality automobile engines. For a long period of time Rolls On has sought to penetrate the Market of Republic of Windia, but no substantial prospects emerged for a decade.
Pushpak Enterprise Limited (PEL) on the other hand, is a prodigy in automobile segment in Windia. PEL is incorporated in Bangalore, Windia. It was envisioned by a great philanthropist and businessman, i.e. Ravana. Ravana is also the CEO and Chairperson of PEL. PEL enjoys a strong confidence in Windian community as the vehicles manufactured by PEL are known to be sturdy and reliant.
On 21st June 2021, Rolls On came into contact with Ravana in Delhi (Windia) for possible business acquisition. However, Ravana felt that any acquisition by an outsider would result in increase in the price of automobiles, and further it will make it difficult for the commoners to afford a four wheeler in Windia. Ravana went back to Bangalore and discussed the proposal with the Board of Directors of PEL. The proposal was rejected by the board as well. Therefore, Ravana returned to Delhi and rejected all the bear hug proposals made by Rolls On to acquire PEL. In the subsequent meeting on 21st July 2021 Rolls On expressed its idea of sharing advanced technology of manufacturing of automobile engines to Ravana if he chooses to agree to a joint business venture with Rolls On. Ravana felt that this was the right opportunity to grasp as this technology transfer would eventually result in Windian capacity to indigenously manufacture international level cars at affordable prices. Ravana took the proposal to Bangalore for approval of Board of Directors of PEL. This time the Board of Directors approved the proposal.
In view of the discussion that took place on 21st July 2021, a special purpose vehicle, Future World Cars Limited (FWCL), was incorporated in Bangalore. It was agreed that Rolls On would provide all advanced machinery for the production of cars and, Ravana and PEL would provide required land and manufacturing unit for the operations of FWCL. All preparations were made by Rolls On, PEL and Ravana to carry out the joint operations. It was agreed that PEL would have 35% shareholding in the venture and 35% shareholding would remain with Rolls On and 30% will remain with rest of the Windian investors. It was also agreed that PEL will have 3 directors on the board of FWCL and 4 directors will be appointed by Rolls On and 2 directors will be appointed by rest of the Windian investors on the board of FWCL. This Shareholders Agreement was entered into between Rolls On, FWCL, PEL and Ravana. The said Shareholders Agreement (as provided in the Annexure 1) was also incorporated in the Articles of Association of FWCL. The said agreement also stated that the IPRs transferred by Rolls On to FWCL shall not be used by Ravana, PEL or any other member of the FWCL except Rolls On and FWCL itself. In lieu of transfer of the IPRs, Rolls was provided a Right of First Refusal under the said agreement. It provided that any share of FWCL, including the shares held by PEL and other Windian Investors, cannot be sold to anyone unless the shares are first offered to Rolls On. In case Rolls on refuses to buy those shares, then the subsequent price at which the shares are sold to anyone else should not be less than the price at which the shares were offered to Rolls On. Consequently, a manufacturing plant was set up at Kumkum District in Bangalore State to carry out the operations of FWCL. The Kumkum district was famous for its diverse flora and fauna.
The operations of FWCL went on smoothly for a year. However, on 25th July 2022 an NGO by the name People’s Odin raised an alarm against the detrimental effect of operation of companies like FWCL on the flora and fauna of Kumkum district. In light of the same Pollution Control Board took action against such companies in Kumkum district. Out of 50 such companies 10 companies including FWCL were fined Rs. 100 cr for the damages caused to the flora and fauna. Moreover, they were asked to move their operations out of Kumkum. Notably, the founder of the NGO was none other than Sita, the daughter of Ravana. The decision of Pollution Control Board was appealed by FWCL in the National Green Tribunal (NGT). However, no relief was granted by the NGT and the request to set aside the decision of Pollution Control Board was rejected.
In light of the legal development and financial burden faced by FWCL, a request was made to Rolls On to provide requisite funds in order to let FWCL survive. However, Rolls On refused to infuse anymore funds into FWCL. A board meeting was held in 20th November 2022, wherein possible solution to resolve the impending problem was discussed by FWCL. Meanwhile, an offer was made by PEL to acquire 30 percent shares of Windian Investors of FWCL. This offer was made by PEL in order to meet the financial requirements of FWCL and consequently PEL promised to meet the legal cost imposed on the company and the cost to relocate the factory plant unit of FWCL. The majority of the directors of FWCL agreed to the proposal on 21st November 2022. Rolls On, enraged by the actions of Ravana and PEL, approached several governmental authorities including Competition Commission of Windia (CCW). Rolls On argued before the competition commission that the actions of PEL and FWCL appear to be anti-competitive and in violation of Shareholders Agreement and also in violation of Articles of Association of FWCL. It was also alleged that the action of PEL and Windian Investors appears to be oppressive and hence in violation of Companies Act 2013. However, the CCW rejected the claims of Rolls On regarding the anti-completive behavior of FWCL and PEL. In respect of the other claims, the CCW did not answer the other questions as they were outside the jurisdiction of CCW
Rolls On sent a notice of Dispute to PEL, Ravana and FWCL on 5th December 2022 as per Annexure II. As per the Arbitration Agreement and according to the SIAC (Singapore International Arbitration Centre) rules an emergency arbitration was sought by Rolls On. SIAC appointed a sole arbitrator to act as emergency arbitration tribunal. The arbitral proceedings were conducted by the emergency arbitrator through Video Conferencing where representatives of Rolls On were sitting in Singapore and Representatives of FWCL, PEL and Ravana were sitting in Delhi. Rolls On stated before the emergency arbitration tribunal that FWCL should not be allowed to go ahead with the sale of shares to PEL as it is against the Shareholders Agreement which was even incorporated in the Articles of FWCL. It was also argued that the action of FWCL amounts to violation of Shareholders Agreement regarding the exclusive use of IPR by FWCL & Rolls On. Rolls On further alleged that this is a scheme devised by PEL and Ravana in collaboration with People’s Odin NGO to cause legal trouble to the company in order to let PEL to acquire controlling shares in the company. The collective action of FWCL, PEL, Ravana and People’s Odin amounts to a fraudulent act. By acquiring controlling shares of FWCL, PEL can use IPR of FWCL which would clearly violate the said agreement. Rolls On further alleged that the action of PEL along with Windian Investors amounts to oppression and mismanagement.
On the other hand, it was argued by Ravana, PEL and FWCL that as per the Windian Law no restriction on Transferability of shares can be imposed in a public company and therefore the agreement is not valid, even if the arbitration agreement survives then too, the Shareholders agreement as well as the Articles of Association of FWCL cannot be enforced under Windia Law.
The emergency arbitration tribunal passed an award in favour of Rolls On. The Arbitral Tribunal held that the proper law applicable to Arbitration is the law of Singapore and such Shareholders Agreements are valid and enforceable in Singapore. Therefore, the Arbitral Award concluded that there was an oppressive behaviour by PEL and Windian Investors against Rolls on and the action of attempt to sell the shares to PEL by FWCL was in violation of the Shareholders Agreement and Articles of FWCL. The emergency arbitration tribunal passed the following award, “the shareholders agreement and articles of the company are binding and hence PEL, Ravana and FWCL are bound by the abovementioned documents, and therefore the emergency tribunal holds that no sale of shares as per the proposal agreed on 21st November 2022 is possible to PEL. Also, as per
Rolls On sought to enforce the emergency arbitration award before the Commercial Division of Delhi HC. In response to this FWCL, Ravana and PEL opposed the enforcement before the court.
The Commercial Division of Delhi High Court framed the following issues:
Issues
- a). Whether the Commercial Division of Delhi HC of Windia can enforce the emergency Arbitration Award?
- b). Whether the dispute is arbitrable as it relates to Oppression and Mismanagement, and fraud?
- c). Whether damages can be claimed by Rolls On against FWCL, PEL and Ravana.
Note:
- The laws of the Republic of Windia are PariMateria with India
- CCW is Competition Commission of Windia. This organization is similar to Competition Commission of India (CCI) and has same legislative provisions and rules as applicable to CCI
Annexure I
Shareholders Agreement
This agreement is entered into between Ravana (Party 1), PEL (Party 2), Rolls On (Party 3) and FWCL (Party 4) on 30th day of August 2021. The parties have resolved to accept the following terms
Article I: Restricted Use of IPR
It is hereby agreed between Party 1,2,3 & 4 that the IPR and technology transferred by Party 3 to Party 4 cannot be used by anyone else except party 3 & 4. And no action shall be taken by Party 1, 2 & 3 to cause transfer of such right to Party 1 & 2 or to anyone else.
Article II: RoFR
It is hereby agreed between Party 1,2,3 & 4 that any share of Party 4, including the shares held by Party 2 and other Windian Investors, cannot be sold to anyone unless the shares are first offered to Party 3. In case Party 3 refuses to buy those shares, the subsequent price at which the shares are sold to anyone else should not be less than the price at which the shares were offered to Party 3.
Article III: Liquidated Damages
- Any violation of the agreement herein made by the parties in the Article I and II will result in a penalty of 10 Cr plus any profit made or any potential gain that may arise on behalf of party making such violation plus any loss suffered by Party 3 as a consequence of such violation.
- Any penalty imposed by the arbitral tribunal shall only be imposed according to the report of an independent valuer.
Article IV: Dispute Resolution
Any or all dispute that may arise under this agreement shall be resolved by Arbitration as per the arbitration agreement provided in the Annexure II.
Party 1, 2, 3 & 4 hereby give their consent to abide by the terms of this agreement.
Annexure II
Arbitration Agreement
This agreement is entered into between Ravana (Party 1), PEL (Party 2), Rolls On (Party 3) and FWCL (Party 4) on 30th day of August 2021. The parties have resolved to accept the following terms
Article I: Disputes
The parties agree that any dispute Arising out of the Agreement mentioned under Annexure I (Shareholders Agreement) will be submitted to Arbitration in the manner prescribed under Article II of this Agreement.
Article II: Appointment of Arbitrator
If any dispute as mentioned in Article I arises then it must be resolved by an Arbitral Tribunal set up by SIAC (Singapore International Arbitration Centre) as per (SIAC Rules 2016) which is hereby appointed as designated Institution under this article. The SIAC shall appoint a sole arbitrator to resolve the dispute between the parties herein mentioned.
Article III: Place of Arbitration
The place of arbitration shall be mutually decided by the parties according to their convenience.
Article IV: Removal of Difficulty
Any matter not stated here, regarding the arbitration procedure, and deemed necessary shall be resolved by the designated institution.
Party 1, 2, 3 & 4 hereby give their consent to abide by the terms of this agreement.
