[Page 1]
(For Condonation Of 13 Days' Delay In ... vs Vodafone Group Plc
& Anr on 14 August, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
$~VC-6 & 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS) 38/2018, C.M. No.23348/2018 (stay) & C.M.No.519/2020
(for condonation of 13 days' delay in filing reply
toC.M.No.49319/2019), C.M. No.49319/2019 (of the respondents for
withdrawal of oral statement)and C.M.No.14469/2020 (for directions)
UNION OF INDIA .... Appellant
Through: Mr.Chetan Sharma, ASG with
Mr.Kirtiman Singh, CGSC, Mr.Amit
Gupta, Mr.RVPrabhat, Mr.SahajGarg
and Mr.Anish Roy, Advocates
Versus
VODAFONE GROUP PLC & ANR. .... Respondents
Through: Mr. Harish Salve, Senior Advocate
with Ms. AnuradhaDutt,
Ms.FereshteSethna, Ms.EktaKapil,
Ms.GayatriGoswami,
Mr.Haaris Fazili, Mr.KunalDutt and
Mr.ShobhitAhuja, Advocates
+ RFA (OS) 45/2018
VODAFONE GROUP PLC UNITED KINGDOM & ANR. .... Appellants
Through: Mr. Harish Salve, Senior Advocate
with Ms. AnuradhaDutt,
Ms.FereshteSethna, Ms.EktaKapil,
Ms.GayatriGoswami,
Mr.HaarisFazili, Mr.KunalDutt and
Mr.ShobhitAhuja, Advocates
Versus
UNION OF INDIA .....Respondent
Through: Mr.Chetan Sharma, ASG with
Mr.Kirtiman Singh, CGSC, Mr.Amit,
Mr.RVPrabhat, Mr.SahajGarg and
Mr.Anish Roy, Advocates
Page 1 of 3
RFAS (OS) 38/2018 & 45/2018
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA ΜΕΝΟΝ
[Page 2]
ORDER
% 14.08.2020
1. We have heard the Additional Solicitor General (ASG) for close to two hours.
2. We may record, (A) that we have informed the senior counsel for Vodafone that the ASG had mentioned this matter yesterday, stating that these appeals as well as the appeal pending against thedecision in BinaModiVsLalitModi, 2020 SCC OnLine Del 901authored by one of us (Justice Rajiv SahaiEndlaw) sitting singly, should be heard together, since they entail the same question; (B) the senior counsel for Vodafone has stated that Bina Modi supraturned on Section 5 of the Arbitration and Conciliation Act, 1996, which is not applicable here,thushe would not be referring to Bina Modi supraat all;
(C) it is the contention of the ASG that the cause of action for the arbitration invoked under the NetherlandsBilateral Treaty and the arbitration invoked under the U.K. Treaty, is the same; (D) the senior counsel for Vodafone has confirmed that he is not disputing that the cause of action is the same;hehas howeverexplained that the second arbitration was invoked only because it was the plea ofUnion of India that the NetherlandsTreaty excludes taxation disputes and though Vodafone disputes the same, has invoked the U.K. Treaty, by way of abundant caution.
3. As per our understanding, the impugned judgment adjudicates two controversies i.e. (i) whether with respect to arbitration provided in investment treaties between two sovereign States, an anti-arbitration suit lies in domestic courts of one country; and, (ii) if the suit is maintainable, whether in the facts of the present case, anti-arbitration injunction was to be granted. While the Single Judge has held the suit to be maintainable, injunction sought by Union of India has been denied. The ASG today has apprised us of the factual scenario leading to the filing of the suit. We request him to, on the next date, address us on the legal issue of maintainability of the suit and if so, why the Single Judge has erred in denying the injunction.
4. The ASG, on enquiry states that he needs four hours more to conclude his arguments.
5. The counsel for Vodafone states that they need about 2-3 hours for theirarguments.
6. List for further hearing on 1st September, 2020; 7th September, 2020 and 14thSeptember, 2020.
RAJIV SAHAI ENDLAW, J ASHA MENON, J AUGUST 14, 2020/s