Supreme Court of India
SHYAM SUNDER AGARWALversusP. NAROTHAM RAO AND ORS.
- Citation
- 2018 INSC 633
- Decided
- 23 July 2018
- Disposal
- Disposed off
- Bench
- R F NARIMAN
Holding
Clause 12 is not an arbitration clause; the parties named as mediators were escrow agents and their decisions were limited to the transaction period, not binding arbitral awards.
Summary
The dispute arose from a 2005 Memorandum of Understanding for the sale of shares, where Clause 12 referred to "Mediators/Arbitrators" making decisions on breaches. The appellant contended that Clause 12 constituted an arbitration clause under the Arbitration and Conciliation Act, 1996. The Court examined Clauses 6, 8, 10, 11 and 12 and held that the so‑named mediators were in fact escrow agents tasked with holding documents and ensuring the transaction’s completion, and that the "decision" mentioned was a pro‑tem, limited function, not a binding arbitral award. Accordingly, Clause 12 did not satisfy the essential attributes of an arbitration agreement and could not be treated as an arbitration clause. The Court also criticised the appellant’s delay tactics and declined to exercise discretionary jurisdiction under Article 136, dismissing the appeal.
Issues considered
- Whether Clause 12 of the MOU constitutes an arbitration clause within the meaning of the Arbitration and Conciliation Act, 1996.
- Whether the parties’ conduct and the nature of the "Mediators/Arbitrators" affect the interpretation of Clause 12.
- Whether the Supreme Court should entertain the Special Leave Petition under Article 136 of the Constitution.
Legislation cited
- Arbitration and Conciliation Act, 1996s. 11
- Constitution of Indias. Article 136
Subjects
Arbitration clauseEscrow agentsArbitration and Conciliation ActSection 11Arbitration agreementArticle 136Memorandum of UnderstandingShare purchase
Judgment
[2018] 7 S.C.R. 1135 1135
SHYAM SUNDER AGARWAL A
v.
P. NAROTHAM RAO AND ORS.
(Civil Appeal No. 6872 of 2018)
JULY 23, 2018 B
[R. F. NARIMAN AND INDU MALHOTRA, JJ.]
Arbitration and Conciliation Act, 1996 – Memorandum of
Understanding (MoU)/Agreement executed between the parties for
sale and purchase of shares of a Company – Issue as to whether
Clause 12 of the said Agreement can be stated to be an arbitration C
clause – Held: On reading of various clauses it is clear that two
persons though, styled as Mediators/Arbitrators, are escrow agents
who were appointed to keep certain vital documents in escrow, and
to ensure a successful completion of the transaction contained in
the MOU – The very fact that they were referred to as “Mediators/ D
Arbitrators” and as “Mediators and Arbitrators” would show that
the language used is loose – The idea really was that the two named
persons do all things necessary during the implementation of the
transaction between the parties to see that the transaction gets
successfully completed – Clause 8 makes it clear that the idea was
to prevent disputes from occurring and to ensure smooth E
implementation of the Agreement – Object was not to adjudicate
disputes but to prevent them – Clause 12 has to be read in the light
of Clauses 8 and 11 of the MOU, and therefore, the expression
“decision” used in Clause 12 is only a pro tem decision, namely,
that the two escrow agents were to make decisions only during the F
period of the transaction and not thereafter – They were “functus
officio” after the transaction got completed – Wording of the
Agreement, is clearly inconsistent with the view that the Agreement
intended that disputes be decided by arbitration – Further, indeed,
three of the four purchasers of shares did not read Clause 12 as an
arbitration clause, but approached the Civil Court instead – G
Discretionary jurisdiction u/Art.136 not exercised – Constitution of
India – Art.136.
Disposing of the appeal, the Court
HELD: 1.1 On a conspectus of reading of Clauses 6, 8, 10,
11 and 12 it emerges that Mr. SR and Mr. GPR, though styled as H
1135
1136 SUPREME COURT REPORTS [2018] 7 S.C.R.
A Mediators/Arbitrators, were without doubt escrow agents who
were appointed to keep certain vital documents in escrow, and
to ensure a successful completion of the transaction contained in
the MOU. Indeed, the very fact that they were referred to as
“Mediators/Arbitrators” and as “Mediators and Arbitrators”
would show that the language used was loose – the idea really
B
was that the two named persons do all things necessary during
the implementation of the transaction between the parties to see
that the transaction gets successfully completed. Clause 8
expressly declared and confirmed “that for successful completion
of this transaction in order to avoid any further unforeseen
C litigations”, the two escrow agents were appointed. Clause 11
further made it clear that these two gentlemen were escrow
agents but shall not handover certain documents till the total
transaction is satisfactorily completed. Clause 12 has to be read
in the light of these Clauses of the MOU, and that, therefore, the
expression “decision” used in Clause 12 is only a pro tem decision
D
– namely, that the two escrow agents were to make decisions
only during the period of the transaction and not thereafter. They
were “functus officio” after the transaction got completed.
Further, the “breaches” that were referred to in Clause 12 refer,
inter alia, to an undertaking given by the party of the first part
E which was contained in Clause 10, which, if breached, the escrow
agents have necessarily to decide on before going ahead with
the transaction. Therefore, when viewed as a whole, it is clear
that the two escrow agents were not persons who were to decide
disputes that may arise between the parties, whether before or
after the transaction is completed, after hearing the parties and
F
observing the principles of natural justice, in order to arrive at
their decision. A reading of the MOU as a whole leaves no manner
of doubt that the said MOU only invests the two gentlemen named
therein with powers as escrow agents to smoothly implement
the transaction mentioned in the MOU and not even remotely to
G decide the disputes between the parties as Arbitrators. [Paras 9,
10] [1142-H; 1143-A-F]
1.2 In the present case, it is clear that the wording of the
Agreement was clearly inconsistent with the view that the
Agreement intended that disputes be decided by arbitration.
H Indeed, three of the four purchasers did not read Clause 12 as an
SHYAM SUNDER AGARWAL v. P. NAROTHAM RAO 1137
AND ORS.
arbitration clause, but approached the Civil Court instead, A
strengthening the conclusion that the subsequent conduct of the
parties to the Agreement also showed that they understood that
Clause 12 was not an arbitration clause in the Agreement. Clause
8 of the MOU made it clear that the idea was to prevent disputes
from occurring and to ensure smooth implementation of the
B
Agreement, thereby making it clear that the object was not to
adjudicate disputes but to prevent them.[Paras 11, 12]
[1145-C, E]
1.3 The conduct of the appellant leaves much to be desired.
Having issued a notice for arbitration way-back on 24.05.2007,
there was no reason whatsoever to delay a Section 11, Arbitration C
and Conciliation Act, 1996 application for a period of two and a
half years until December, 2009. The appellant knew that Clause
12 could not possibly be construed as an arbitration clause, yet
somehow sought to delay the proceedings not joining his brethren
in the civil suit that was filed by them. Equally, his conduct during D
the pendency of the Section 11 petition leaves a lot to be desired.
Even before judgment was pronounced in the Section 11 petition
on 22.07.2011, the Appellant approached another forum, namely,
the Company Law Board on 16.06.2011, for reliefs based upon
the MOU. He, thereafter, continued with the Company Petition
which would have led this Court to believe that he was abandoning E
any further recourse against the judgment dated 22.07.2011, but
then on second thoughts, filed a Special Leave Petition with a
delay of 358 days against the judgment rejecting his Section 11
petition on 22.07.2011. During the pendency of the Special Leave
Petition as well, his conduct leaves much to be desired. On F
24.01.2017, he asked that his petition that was filed before the
Company Law Board be withdrawn not with the liberty to pursue
arbitration, as one would have expected, but with the liberty to
file a fresh company petition on the same set of facts. Thus, apart
from decision on merits, discretionary jurisdiction under Article
136 of the Constitution also not exercised. [Para 13] [1145-F-H; G
1146-A-B]
Bihar State Mineral Development Corporation v. Encon
Builders (I) (P) Limited (2003) 7 SCC 418 : [2003] 2
Suppl. SCR 812 – relied on.
H
1138 SUPREME COURT REPORTS [2018] 7 S.C.R.
A P. Dasaratharama Reddy Complex v. Government of
Karnataka and Another (2014) 2 SCC 201 : [2013] 14
SCR 579 ; K.K. Modi v. K.N. Modi (1998) 3 SCC
573 : [1998] 1 SCR 601 ; State of U.P. v. Tipper Chand
(1980) 2 SCC 341 – referred to.
B Case Law Reference
[2013] 14 SCR 579 referred to Para 5
[1998] 1 SCR 601 referred to Para 5
(1980) 2 SCC 341 referred to Para 11
C [2003] 2 Suppl. SCR 812 relied on Para 12
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6872
of 2018.
From the Judgment and Order dated 22.07.2011 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in Arbitration Application
D
No. 112 of 2009.
Guru Krishnakumar, Amit Sibal, Sr. Advs., M. Srinivas R. Rao,
Abid Ali Beeran P., Mrs. Sudha Gupta, D. Bharat Kumar, Nitish Bandari,
Tadimalla Bhaskar Gowtham, Aman Shukla, Sayooj Mohandas M., Abhijit
Sengupta, Rana S. Biswas, Sunil Kr. Sharma, Ms. Sharmila Upadhyay,
E T. Srinivasa Murthy, Senthil Jagadeesan, Ms. Suriti Chowdhary,
K.S. Mahadevan, Krishna Kumar R.S, Ms. Swati Bansal, Rajesh Kumar,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
F R. F. NARIMAN, J. 1. Leave granted.
2. The present dispute arises out of a Memorandum of
Understanding (MoU)/Agreement executed between the parties dated
08.12.2005 for sale and purchase of shares of a Company called M/s
Mancherial Cement Company Private Limited of which all the parties
G are Directors. The bone of contention in the present proceedings is as
to whether Clause 12 of the said Agreement can be stated to be an
arbitration clause.
3. Heard the learned Senior Counsel appearing for the parties at
considerable length.
H
SHYAM SUNDER AGARWAL v. P. NAROTHAM RAO 1139
AND ORS. [R. F. NARIMAN, J.]
4. Mr. Guru Krishnakumar, learned Senior Advocate, appearing A
on behalf of the Appellant has brought to our notice the said MOU in
which he relies, in particular, upon Clause 12. According to him, the
language of the said clause is language that leads inevitably to the
conclusion that the said clause is an arbitration agreement. The word
“decision” is used; the word “Mediators/Arbitrators” is used; the
B
expression “any breaches” is used; and the “decision” is to be final and
binding on all parties to the said Agreement. Based on these words, in
particular, the learned Senior Advocate argues that the three essentials
of an arbitration clause have been met, namely, that there must be disputes
between the parties which have to be adjudicated upon by giving the
parties a hearing, at the end of which there is a decision which is final C
and binding between the parties. He also argued that the MOU read as
a whole would not militate against his argument given the words used in
Clause 12.
5 The learned Senior Advocate then relied upon a judgment of
this Court in P. Dasaratharama Reddy Complex vs. Government of D
Karnataka and Another, (2014) 2 SCC 201, and distinguished judgments
cited therein by stating that in the arbitration clause that was considered
in that case, it was clear that clauses of earlier judgments of this Court
either spoke of a preliminary decision which was then subject to a final
decision by a Court or spoke of decisions that had to be rendered only
“for the time being”. According to him, his case was entirely different, E
and therefore, he would squarely fall within the parameters laid down by
the judgment in K.K. Modi vs. K.N. Modi, (1998) 3 SCC 573.
6. Mr. Amit Sibal, learned Senior Advocate on behalf of the
Respondent Nos. 1 to 4, is at pains to point out that the MOU, read as a
whole, makes it clear that the expression “Mediators/Arbitrators” is used F
loosely. In fact, the two gentlemen said to be arbitrators, Mr. K. Sudhakar
Rao and Mr. Gone Prakash Rao, are escrow agents who have with
them the custody of three sets of documents to ensure successful
implementation of the MOU. He relied strongly upon Clauses 6, 8, 10
and 11 and stated that these must be read along with Clause 12 so that it
G
is clear that the expression “decision” must be read only with “during
the period of entire transaction” and has reference to breaches that may
occur under Clause 10, as parties of the first part undertake to substitute
personal guarantees given by parties of the second part with personal
guarantees of their associates, and that if this is not done, then a “decision”
is to be taken by the escrow agents as to what to do next. H
1140 SUPREME COURT REPORTS [2018] 7 S.C.R.
A 7. Mr. Sibal also pointed out that three other purchasers of shares,
who were sailing in the same boat as the present Appellant, had gone to
the Civil Court and had filed O.S. No. 241 of 2017, which has since been
dismissed in default. He also points out that the entire exercise before
us is a mala fide exercise by the Appellant to hedge his bets by first
issuing a notice in 2007 under the said MOU as if the said MOU contained
B
an arbitration clause, but following it up only two and a half years later
by filing a Section 11 petition in December 2009. He also stated that
while the Section 11 petition was pending, the Appellant had filed a
Company Petition No. 49 of 2011 on 16.06.2011 in which he asked for
reliefs that flow directly out of the said MOU. This Company Petition
C was again withdrawn by him on 24.01.2017 in order to file a fresh
Company Petition on the same set of facts, thereby showing or indicating
willingness to continue with the remedy in company law as against the
remedy in arbitration. He also pointed out to us that his own clients had
gone in a Company Petition to the Company Law Board, and had
succeeded in the Company Petition by getting the necessary reliefs on
D
16.03.2016 as the Appellant was in no mood, from the very beginning, to
implement the terms of the MOU. We are told that an appeal is pending
before the High Court, having been filed by the Appellant against the
aforesaid order. He also argued that he was seriously prejudiced by the
fact that the Appellant continues to hedge his bets and, in fact, filed a
E Special Leave Petition against the impugned order, belatedly, with a delay
of 358 days. According to Mr. Sibal, therefore, not only is it clear that
the MOU does not contain any arbitration clause but equally, given our
discretionary jurisdiction under Article 136, we ought not interfere in the
facts of this case.
F 8. Having heard the learned Senior Counsel for the parties, it is
necessary to first set out some of the clauses of the MOU executed
between the parties. Clause 3 declares that the parties have reached a
settlement, as a result of which certain shares have to be sold in the
Company, so that the internal disputes within the Company may end, in
order that the Company purchase certain assets of yet another Company.
G Equally, Clauses 6, 8, 10, 11 and 12 are of importance and are set out
herein below:-
“6. The parties of 1st part hereby handed over 9 cheques favouring
Sri P. Narotham Rao as detailed below to Sri K. Sudhakar Rao
S/o Late Sri K. Madhava Rao, R/o Plot No.7, UBI Colony, Road
H
SHYAM SUNDER AGARWAL v. P. NAROTHAM RAO 1141
AND ORS. [R. F. NARIMAN, J.]
No.3, Banjara Hills, Hyderabad and Sri Gone Prakash Rao S/o A
Gone Chalapathi Rao R/o Transport Guest House, Tarnaka,
Hyderabad Mediators/Arbitrators.
Particulars of Cheque Amount
Date Ch. No. Bank & Branch Holder B
Name
09.12.2005 450547 Andhra Bank, St. John’s EM Rs.25,00,000/-
High School Branch,
Karimnagar of S. Hareender
Rao
C
09.01.2006 450543 Andhra Bank, St. John’s EM Rs.78,12,500/-
High School Branch,
Karimnagar of S. Hareender
Rao
09.01.2006 450444 HDFC Bank, Himayathnagar Rs.78,12,500/-
Branch, Hyderabad of Shyam D
Sunder Agarwal
09.02.2006 450544 Andhra Bank, St. John’s EM Rs.78,12,500/-
High School Branch,
Karimnagar of S. Hareender
Rao
E
09.02.2006 450445 HDFC Bank, Himayathnagar Rs.78,12,500/-
Branch, Hyderabad of Shyam
Sunder Agarwal
09.03.2006 450545 Andhra Bank, St. John’s EM Rs.78,12,500/-
High School Branch,
Karimnagar of S. Hareender F
Rao
09.04.2006 450546 Andhra Bank, St. John’s EM Rs.78,12,500/-
High School Branch,
Karimnagar of S. Hareender
Rao
G
09.04.2006 450447 HDFC Bank, Himayathnagar Rs.78,12,500/-
Branch, Hyderabad of Shyam
Sunder Agarwal
xxx xxx xxx
H
1142 SUPREME COURT REPORTS [2018] 7 S.C.R.
A 8. The parties hereinabove declare and confirm that for successful
completion of this transaction in order to avoid any further
unforeseen litigations, both the parties hereby mutually appointed
Sri K. Sudhakar Rao S/o Sri Late Sri K. Madhava Rao, R/o Plot
No.7, UBI Colony Road No.3, Banjara Hills, Hyderabad and Sri
Gone Prakash Rao S/o Gone Chalapathi Rao R/o Transport Guest
B
House, Tarnaka, Hyderabad as mediators and arbitrators to whom
the above cheques as well as all other following documents are
handed over and the same will be under their custody till
satisfactory completion of the entire transaction as per the terms
and conditions contained herein.
C a) Above referred 9 cheques
b) The share certificates along with the duly signed transfer
deeds pertaining to 22,40,000 equity shares of parties of 2nd part
and their associates.
D xxx xxx xxx
10. The parties of 1st part further agree and undertake to substitute
the personal guarantees given by the parties of 2nd part with the
personal guarantors of their associates with M/s Andhra Bank
within two months from the date of this document.
E 11. Till the total transaction is satisfactorily completed and till entire
sale consideration is paid and till the personal guarantees of parties
of 2nd part are substituted by the personal guarantees of the
Associates of parties of First Part with M/s Andhra Bank, the
above named Arbitrators/Mediators shall not hand over the share
F certificate with duly signed share transfer deeds in respect of the
shares of the parties of 2nd part to the parties of 1st part.
12. It is further agreed that any decision to be taken by said
Mediators/Arbitrators during the period of entire transaction in
the event of any breaches committed by either of the parties shall
be final and binding on all the parties hereinabove.”
G
9. What emerges on a conspectus of reading of these clauses is
that Mr. Sudhakar Rao and Mr. Gone Prakash Rao, though styled as
Mediators/Arbitrators, are without doubt escrow agents who have been
appointed to keep certain vital documents in escrow, and to ensure a
successful completion of the transaction contained in the MOU. Indeed,
H
SHYAM SUNDER AGARWAL v. P. NAROTHAM RAO 1143
AND ORS. [R. F. NARIMAN, J.]
the very fact that they have been referred to as “Mediators/Arbitrators” A
and as “Mediators and Arbitrators” would show that the language used
is loose – the idea really is that the two named persons do all things
necessary during the implementation of the transaction between the
parties to see that the transaction gets successfully completed. This
becomes even clearer when Clauses 8 and 11 are seen minutely. Clause
B
8 expressly declares and confirms “that for successful completion of
this transaction in order to avoid any further unforeseen litigations”, the
two escrow agents have been appointed. Clause 11 further makes it
clear that these two gentlemen are escrow agents but shall not handover
certain documents till the total transaction is satisfactorily completed.
10. We agree with Mr. Sibal that Clause 12 has to be read in the C
light of these Clauses of the MOU, and that, therefore, the expression
“decision” used in Clause 12 is only a pro tem decision – namely, that
the two escrow agents are to make decisions only during the period of
the transaction and not thereafter. He has correctly contended that, to
use a well-known latin expression, they are “functus officio” after the D
transaction gets completed. Further, the “breaches” that are referred to
in Clause 12 refer, inter alia, to an undertaking given by the party of the
first part which is contained in Clause 10, which, if breached, the escrow
agents have necessarily to decide on before going ahead with the
transaction. Therefore, when viewed as a whole, it is clear that the two
escrow agents are not persons who have to decide disputes that may E
arise between the parties, whether before or after the transaction is
completed, after hearing the parties and observing the principles of natural
justice, in order to arrive at their decision. A reading of the MOU as a
whole leaves no manner of doubt that the said MOU only invests the
two gentlemen named therein with powers as escrow agents to smoothly F
implement the transaction mentioned in the MOU and not even remotely
to decide the disputes between the parties as Arbitrators.
11. This Court in P. Dasaratharama Reddy Complex (supra)
referred to a large number of decisions of this Court in order to distinguish
between clauses that were arbitration clauses and clauses that either G
led to expert determinations or were otherwise not arbitration clauses.
For example, in para 17 of the judgment, the case of State of U.P. vs.
Tipper Chand, (1980) 2 SCC 341 is referred to, in which this Court
held that the Superintending Engineer was really vested with supervision
of the execution of the work and administrative control which would not
H
1144 SUPREME COURT REPORTS [2018] 7 S.C.R.
A render the clause an arbitration clause. Equally, the Court relied
extensively on K.K. Modi (supra), which again made it clear that the
Chairman of the IFCI, who is to decide all disputes in respect of
implementation of the agreement and whose decision will be final and
binding, could not be construed to be an arbitration clause, inter alia, for
the reason that the clause does not invest the Chairman IFCI with quasi
B
judicial powers to decide disputes between the parties, as it was only in
respect of implementation of the agreement between the parties. Para
22 of the judgment is important, and sets out from K.K. Modi (supra) as
to what are the valid pre-requisites for a valid arbitration agreement.
“22. One of the questions formulated by this Court was whether
C Clause 9 of the memorandum of understanding constituted an
arbitration agreement and whether the decision of the Chairman,
IFCI constituted an award. The two-Judge Bench first culled out
the following attributes of an arbitration agreement:
“17. … (1) The arbitration agreement must contemplate that the
D decision of the tribunal will be binding on the parties to the
agreement,
(2) that the jurisdiction of the tribunal to decide the rights of parties
must derive either from the consent of the parties or from an
order of the court or from a statute, the terms of which make it
E clear that the process is to be an arbitration.
(3) the agreement must contemplate that substantive rights of
parties will be determined by the agreed tribunal.
(4) that the tribunal will determine the rights of the parties in an
F impartial and judicial manner with the tribunal owing an equal
obligation of fairness towards both sides.
(5) that the agreement of the parties to refer their disputes to the
decision of the tribunal must be intended to be enforceable in law
and lastly,
G (6) the agreement must contemplate that the tribunal will make a
decision upon a dispute which is already formulated at the time
when a reference is made to the tribunal.
18. The other factors which are relevant include, whether the
agreement contemplates that the tribunal will receive evidence
H
SHYAM SUNDER AGARWAL v. P. NAROTHAM RAO 1145
AND ORS. [R. F. NARIMAN, J.]
from both sides and hear their contentions or at least give the A
parties an opportunity to put them forward; whether the wording
of the agreement is consistent or inconsistent with the view that
the process was intended to be an arbitration, and whether the
agreement requires the tribunal to decide the dispute according to
law.”
B
In the present case, it is clear that the wording of the Agreement,
as has been held by us above, is clearly inconsistent with the view that
the Agreement intended that disputes be decided by arbitration. Indeed,
three of the four purchasers did not read Clause 12 as an arbitration
clause, but approached the Civil Court instead, strengthening our
conclusion that the subsequent conduct of the parties to the Agreement C
also showed that they understood that Clause 12 was not an arbitration
clause in the Agreement.
12. Equally, the decision in Bihar State Mineral Development
Corporation vs. Encon Builders (I) (P) Limited, (2003) 7 SCC 418
was referred to, and what is important in that judgment is that a clause D
which is inserted in an Agreement for the purpose of prevention of a
dispute will not be an arbitration agreement. In the present case, Clause
8 of the MOU makes it clear that the idea was to prevent disputes from
occurring and to ensure smooth implementation of the Agreement, thereby
making it clear that the object was not to adjudicate disputes but to E
prevent them.
13. Mr. Sibal’s contention that the conduct of the appellant leaves
much to be desired is also correct. We are of the view that having
issued a notice for arbitration way-back on 24.05.2007, there was no
reason whatsoever to delay a Section 11 application for a period of two F
and a half years until December, 2009. The appellant knew that Clause
12 could not possibly be construed as an arbitration clause, yet somehow
sought to delay the proceedings not joining his brethren in the civil suit
that was filed by them. Equally, his conduct during the pendency of the
Section 11 petition leaves a lot to be desired. Even before judgment was
pronounced in the Section 11 petition on 22.07.2011, the Appellant G
approached another forum, namely, the Company Law Board on
16.06.2011, for reliefs based upon the MOU. He, thereafter, continued
with the Company Petition which would have led us to believe that he
was abandoning any further recourse against the judgment dated
H
1146 SUPREME COURT REPORTS [2018] 7 S.C.R.
A 22.07.2011, but then on second thoughts, filed a Special Leave Petition
with a delay of 358 days against the judgment rejecting his Section 11
petition on 22.07.2011. During the pendency of the Special Leave Petition
as well, his conduct leaves much to be desired. On 24.01.2017, he
asked that his petition that was filed before the Company Law Board be
withdrawn not with the liberty to pursue arbitration, as one would have
B
expected, but with the liberty to file a fresh company petition on the
same set of facts. All this leads us to observe that, apart from the
decision on merits, our discretionary jurisdiction under Article 136 of the
Constitution also should not be exercised in favour of such a person.
14. The appeal is disposed of accordingly.
C
Divya Pandey Appeal disposed of.
D
E
F
G
H
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