K. Kannan, J. - (1.) I. Array of parties.
(2.) THE parties are described as per their status in FAO No. 4297 of 2011. The said appeal is at the instance of M/s Telenor Asia Private Limited and Telenor Mobile Communications but hereafter they shall be called for merely Telenor unless context requires otherwise. The 5th Respondent is M/s Unitech Wireless Tamil Nadu Private Limited, which is the Appellant in FAO No. 4299 of 2011. Respondents No. 1 to 4 are the Indian Companies, who were the Petitioners originally before the District Court at Gurgaon under Section 9 of the Arbitration and Conciliation Act. II. The nature of s passed and the cause for fresh adjudication The appeals are against the orders passed on 15.6.2011 by the District Judge Gurgaon directing that the ex parte interim order passed on 1.3.2011 shall be effective till the duly appointed arbitrators deemed it necessary to modify during the pendency of arbitral proceedings as per the provisions of Section 17 of the Arbitration & Conciliation Act. By the ex parte order dated 1.3.2001 the Court had restrained the Appellants and the 5th Respondent to give effect to the resolutions that may be passed at the meeting of Board of Directors of the 5th Respondent scheduled to take place. The prayer in the petition was that the Board Resolution passed at the meeting held on 15.1.2011 relating to the rights offer and valuation of shares shall not be given effect to and restrain from tabling or approving the Business Plan dated 16.2.2011 without the consent of the Petitioners (Respondents 1 to 4 herein). The latter had an immediate bearing on the determination of prices of the shares at which the rights issues would come into operation.
(3.) M /s Telenor has 67.25% share in the equity hold with the 5th Respondent, while the Respondent Nos. 1 to 4 hold the remaining percentage of shares. The Share Holders Agreement (SHA) provided for an arbitral clause in case of dispute between parties amongst whom an agreement had been brought about and the final order passed by the District Judge, as we have seen before was cryptic and did not advert to the merits of contention between parties. The order dated 1.3.2011 was to be effective till 26.3.2011, but it was later extended on 23.4.2011 and ultimately held to be effective till the duly appointed Arbitrators thought it fit to nullify/ modify the directions by passing a specific order to that effect during the pendency of arbitral proceedings as per the provisions of Section 17 of the Act. In the appeals filed before this Court earlier in the cases referred to above, this Court again held that since two Arbitrators had already been nominated, one each by the respective parties and that it was only left for the nominated Arbitrators to selected the third Arbitrator, there was No. need to disturb the order passed by the District Court and the order would continue till any modification was done by the Arbitrators. In SLP taken to the Hon'ble Supreme Court in SLP No. 18870 of 2011, the Hon'ble Supreme Court set aside the order passed by the District Court and this High Court holding that final order could not have been passed without going into the merits of the case as advanced by the parties and accordingly allowed the appeals and remanded the matter to this Court for fresh disposal on merits by reasoned order. It directed that the trial Court's order dated 01.03.2011 would be in force for a period of three weeks from 15.07.2011 to enable the parties to approach this Court and seeks appropriate interim or final orders. The interim orders were subsequently directed to be extended till the final disposal of the appeal by an order dated 28.07.2011 and the case was taken up subsequently for final disposal with consent of both parties. III. Interim protection under Section 9 is final vis a vis the proceeding before the court and the adjudication has to be on merits;