Future Retail, Amazon file caveat petitions before Delhi High Court

Future Group and Amazon have filed separate caveat petitions before the Delhi High Court to avoid ex-parte orders over an interim award that has temporarily stayed the Future-Reliance deal.

Kishore Biyani-led Future Group filed a caveat petition before the Delhi High Court on November 2 requesting that it be heard if any plea is filed by the US e-commerce major.

"Let no order of any kind be passed... or any other petition and application, which may be filed by the petitioners/caveatee (Amazon.com NV Investment Holdings LLC) against the respondent/caveator - Future Retail Ltd, without due notice under section 148A of the code of civil procedure," Future Group said in the caveat petition, a copy of which was seen by PTI.

A copy of the caveat petition has already been served to Amazon, it said.

"You (Amazon) are requested to give at least 48 hours notice before moving any petition under section 9 of the Arbitration & Conciliation Act or any other application against the proposed respondent/caveator," it added.

Sources said Amazon has also filed a caveat to ensure that the high court does not pass an adverse order without the company's plea being heard.

Amazon declined to comment on the development.

In August this year, Future reached an agreement to sell its retail, wholesale, logistics and warehousing units to Reliance in a Rs 24,713 crore deal.

Amazon had moved the Singapore International Arbitration Centre (SIAC) arguing that Future Group had breached their contract. Amazon, in 2019, had bought a 49 per cent stake in one of Future's unlisted firms, Future Coupons Ltd, with the right to buy into flagship Future Retail after a period between 3 and 10 years. Future Coupons owns a 7.3 per cent stake in Future Retail.

On October 25, SIAC passed an interim award in favour of Amazon, with a single-judge bench of V K Rajah barring Future Retail from taking any step to dispose of or encumber its assets or issuing any securities to secure any funding from a restricted party. Amazon wrote to market regulator Sebi and stock exchanges, urging them to take into consideration the Singapore arbitrator's interim judgement.

On November 1, Future Retail Ltd (FRL) made a filing to the exchanges saying that the Singapore arbitrator's interim order against its deal with RIL is "not binding", and any attempt to enforce it will be "resisted".

Questioning the validity of the order, FRL said the order was passed in arbitration proceedings initiated by Amazon by invoking an arbitration clause in a contract to which it is not a party.

"The EA (Emergency Arbitrator) order is not enforceable under the provisions of the Arbitration and Conciliation Act, 1996 and is not binding on FRL. Any attempt on the part of Amazon to enforce the EA Order shall be resisted by FRL to the fullest extent available under Indian law. FRL is also in the process of taking appropriate legal action to protect its rights," the filing said.

As per the SIAC interim order, a three-member arbitration panel needs to be set up within 90 days with one judge each being appointed by Future and Amazon along with a third neutral judge.

In the filing on Sunday, FRL argued that it has been advised that "an Emergency Arbitrator has no legal status" under Part I of the Indian Arbitration and Conciliation Act 1996 and therefore, the proceedings are "void and Coram non judice".

The EA order having been passed by an authority without jurisdiction is a "nullity under Indian law", it had said.

The sources close to Amazon, however, said the SIAC interim order is not a foreign award but an Indian award, and emphasised that both Amazon and Future had agreed at the time of signing the deal that they would approach the SIAC for arbitration in case the need arose.

Amazon, Reliance and Walmart Inc's Flipkart are in a battle to gain market share in India, where millions of middle-class customers are newly adopting online purchases of food and groceries due to the Covid-19 pandemic.

The booming e-commerce market in the country will be worth $86 billion by 2024, according to research firm Forrester. The stakes are particularly high for Amazon, which believes India is a big growth market after shutting its online store in China last year.

The oil-to-telecom conglomerate Reliance has since September 9, sold an 8.48 per cent stake in its retail unit to investors such as Silver Lake, KKR and Mubadala for Rs 37,710 crore to expand its so-called new commerce venture, which uses neighbourhood stores for online deliveries of groceries, apparel and electronics.

Reliance Retail Ltd, whose retail operations already runs close to 12,000 stores, is looking to dislodge Amazon and Flipkart, which together control about 70 per cent of the online market in India.