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2020 DIGILAW 470 (DEL)

Bina Modi v. Lalit Modi

2020-03-03

RAJIV SAHAI ENDLAW

body2020
JUDGMENT : 1. Both suits seek the relief’s of, (i) declaration as null and void, inoperative, unenforceable and contrary to public policy of India of the arbitration agreement contained in Clause 36 of the Restated Trust Deed dated 9th April, 2014 (Trust Deed); (ii) declaration as null and void, unenforceable and contrary to public policy of India of the Application for Emergency Measures filed by defendant No.1 in both the suits and referred to as ICC Case No.25137/HTG(EA); (iii) permanent injunction restraining the defendant No.1 Lalit Modi, in both the suits, from prosecuting or continuing with the Application for Emergency Measures and/or from instituting or proceeding with any arbitration proceedings against the plaintiff/plaintiffs in both the suits, under Clause 36 of the Trust Deed; and, (iv) directing the International Chambers of Commerce to enforce the order passed in terms of the aforesaid prayers. 2. The suits, being in the nature of anti-arbitration injunction suits and, (A) a three Judge Bench of the Supreme Court in Kvaerner Cementation India Limited Vs. Bajranglal Agarwal (2012) 5 SCC 214 , followed by the undersigned in several judgments, having taken a view that “bearing in mind the very object with which the Arbitration and Conciliation Act, 1996 has been enacted and the provisions thereof contained in Section 16 conferring the power on the Arbitral Tribunal to rule on its own jurisdiction, including ruling on any objection with respect to existence or validity of the arbitration agreement, we have no doubt in our mind that the civil court cannot have jurisdiction to go into that question”; (B) the suits being accompanied with applications for interim relief seeking to restrain the defendant No.1 from instituting or continuing with ICC arbitration; and, (C) the counsel for the defendant No.1 having appeared on caveat to oppose the very admission of the suits, the senior counsels for the plaintiff/s and the senior counsels for the defendant No.1 were heard from 1030 hours to 1320 hours and again from 1600 hours to 1640 hours, orders on admission of suits were reserved on 27th February, 2020, when the suits had come up first before this Court. 3. 3. The facts, insofar as necessary on the aspect of maintainability of the suits, may be recorded as under: (i) Charu Modi (Charu), Lalit Modi (Lalit) and Samir Modi (Samir) are the children of K.K. Modi (KK) and Bina Modi (Bina); (ii) CS(OS) 84/2020 has been filed by Bina against Lalit, with Charu and Samir as proforma parties thereto; (iii) CS(OS) 85/2020 has been instituted by Charu and Samir against Lalit, with Bina as a proforma party thereto; (iv) both suits are otherwise identical and the counsels have been heard with reference to CS(OS) 84/2020; (v) the Trust Deed was executed at London by KK as settlor/managing Trustee and Bina, Lalit, Charu and Samir as Trustees, and in pursuance to oral family settlement recorded in the Oral Family Settlement dated 10th February, 2006 between them and in supersession of the earlier Trust Deed dated 10th February, 2006 (Original Trust Deed) of constitution of K.K. Modi Family Trust (Trust); (vi) Clauses 3.2, 3.3, 4 & 36 of the Trust Deed were/are as under: “3.2. In the event of Mr. K.K. Modi ceasing to be the Managing Trustee on his demise or in accordance with Clause 26 hereof, Miss. Bina Modi shall forthwith and without any further action assume the office of the Managing Trustee. 3.3 Save and except where it is specifically provided otherwise, both Mr. K.K. Modi and Mrs. Bina Modi as the Managing Trustees shall have the powers the day to day administration, execution and management of the Trust, the assets forming part of the Trust fund including Family Controlled Businesses, to execute all documents, writing, deeds agreements etc. that may be required to be executed for and on behalf of the Trust; to assign, sell, exchange, distribute or dispose of any of the properties or income or any part thereof of the Trust and generally all other powers in relation to the Trust. So long as Mr. K.K. Modi and after him, Mrs. Bina Modi continue to be the Managing Trustee, the Trust, the assets forming part of the Trust Fund including Family Controlled Businesses shall be administered, executed and managed in accordance with the decisions taken by them and powers exercised by them as provided in this Deed. Any decision taken by Mr. K.K. Modi and in his absence by Mrs. Bina Modi continue to be the Managing Trustee, the Trust, the assets forming part of the Trust Fund including Family Controlled Businesses shall be administered, executed and managed in accordance with the decisions taken by them and powers exercised by them as provided in this Deed. Any decision taken by Mr. K.K. Modi and in his absence by Mrs. Bina Modi in relation to the Trust, the Trust Fund, the Family Controlled Business and generally in relation to any matter for administration, execution, management of the Trust shall be final and binding on all parties concerned, including the Trustees and the Beneficiaries of the Trust. During their tenure as the Managing Trustees, none of the powers of the Board of Trustees shall become applicable and any power given to the Board of Trustees requiring either their unanimous consent or a majority consent shall become applicable and shall be exercised by the Board of Trustees only after both, Mr. K.K. Modi and Mrs. Bina Modi cease to be the Managing Trustees of the Trust and only in the event of there being no Managing Trustee, appointed under Clause 3.5.3 hereunder to manage the affairs of the Trust. 4. Meeting the Trustees upon Mrs. Bina Modi becoming Managing Trustee 4.1 Within 30 (thirty) days of the earlier of: a. Mrs. Bina Modi assuming the office of a Managing Trustee, or b. Mr. K.K. Modi vacating the office of the Managing Trustee and where Mrs. Bina Modi has predeceased Mr. K.K. Modi, a meeting of the Board of Trustees shall be convened by Mrs. Bina Modi, or if Mrs. Bina Modi is not a Trustee, the Board of Trustees shall meet, wherein the Board of Trustees shall decide unanimously, in relation to the Trust Fund (which includes the Family Controlled Businesses), whether: 4.1.1 to continue to own and manage all assets of the Trust Fund including the Family Controlled Businesses; or 4.1.2 to sell a part of the Trust Fund (including the Family Controlled Businesses) and continue to own and manage the remaining assets comprising of the Trust Fund; or 4.1.3 to sell the whole of the Trust Fund comprising of various assets including Family Controlled Businesses. The written consent of all Trustees to the decisions taken at the meeting would be required for the resolution to be unanimously passed for the purpose of this Clause 4.1. The written consent of all Trustees to the decisions taken at the meeting would be required for the resolution to be unanimously passed for the purpose of this Clause 4.1. 4.2 If the Board of Trustees is unable to take any decision as stated in Clauses 4.1.1 to 4.1.3 above unanimously, then the entire Trust Fund including all Family Controlled Businesses shall be sold off in the manner provided in Clause 11. 4.3 Notice of intent to dispose off Assets So long as Mrs. Bina Modi continues to act as a Managing Trustee, any decision to dispose of the Trust Fund (including Family Controlled Businesses), either under Clause 4.1.2 or under Clause 4.1.3, shall be taken only at the meeting convened by Mrs. Bina Modi in accordance with Clause 4.1 above, provided however that in the event that any Trustee is unable to attend the meeting personally and vote (including through video conferencing or other electronic means) his/her written approval to the decisions taken would have to be obtained for the purpose of passing the unanimous resolution will have to be obtained within 3 days thereof, failing which the resolution will not be deemed to have been passed unanimously. After both Mr. K.K. Modi and Mrs. Bina Modi cease to be the Managing Trustee, such decision shall be taken only at a meeting of the Board of Trustees which shall be convened specifically to decide on the action to be taken in terms of the options listed in 4.1.1, 4.1.2 and 4.1.3 above. Such a meeting shall be convened only once at the end of every three year period; the first period of three years to commence 30 days after both, Mr. K.K. Modi and Mrs. Bina Modi shall have ceased to be the Trustees. 4.4 The agenda for the meeting of the Board of Trustees mentioned in Clause 4.3 above, should include all relevant information in relation to the Trust Fund (including Family Controlled Business), the proposed business plans of the respective Family Controlled Businesses for the next 3 years, the tax and other implications etc. to give the Trustees adequate information to enable them to take the appropriate decision. Any decision unanimously taken by the Board of Trustees in and pursuant to any of the meetings convened under Clause 4.3 would be absolute, final and binding on all the parties. to give the Trustees adequate information to enable them to take the appropriate decision. Any decision unanimously taken by the Board of Trustees in and pursuant to any of the meetings convened under Clause 4.3 would be absolute, final and binding on all the parties. It is clarified that if the Board of Trustees cannot decide unanimously, then the business/asset of the Trust Fund proposed to be sold under the notice provided under clause 4.3 above, shall be disposed off in the manner provided under clause 11 hereof. 4.5 Decision to continue whole or part of the business After Mr. K.K. Modi vacates the office of the Managing Trustee and so long as the Trust continues to own and manage the whole or part of the Trust Fund including Family Controlled Businesses then: 4.5.1 Mrs. Bina Modi shall continue to be the managing Trustee and shall have complete authority to take all decisions on any matter relating to the Trust Fund including Family Controlled Businesses and her decisions shall be final and binding on all the Beneficiaries and Trustees provided that it has been agreed to continue to keep the Trust and not dispose of all the assets at the meeting to be held within 30 days in accordance with clause 4.1; and 4.5.2 Upon Mrs. Bina Modi ceasing to be the Managing Trustee, the Managing Trustee appointed unanimously in accordance with Clause 3.5.3 above and in his/her absence the CEO, if any, appointed in accordance with Clause 3.5.4 above, acting under supervision and direction of the Board of Trustees acting by majority consent, shall manage the Trust Fund. 4.6 In the event that it is decided to sell the whole or part of the Trust Fund including Family Controlled Businesses or in the absence of unanimity between the Trustees to continue to hold and operate the assets forming part of the Trust Fund including Family Controlled Businesses, the Trust Fund (or part thereof as decided by the Board of Trustees) shall be sold and the process of sale as described in paragraph 11 shall be followed. 36. 36. In the event of: (a) any question arising as to the true import or interpretation of this Deed or otherwise in relation to their execution or implementation; or (b) any difference of opinion amongst the Trustees touching the execution and exercise of any of the Trustees’ powers and provisions herein declared and contained or the true intent, meaning or construction of any of the clauses herein; or (c) or any dispute arising between the Settlor and the Trustees or between the Trustees inter se’ or between the Trustees and the Beneficiaries out of or in connection with any provision made in this Deed; or (d) breach of any provision of the Deed by any Trustee, any other non-defaulting Trustee or Beneficiary, as the case may be can give a notice of the breach along with the reasons thereof to the defaulting Trustee, Managing Trustee and the Secretary. In the absence of the Managing Trustee, such notice shall be given to all the other Trustees, the CEO and the Secretary of the Trust, apart from the defaulting Trustee. An opportunity shall be given to the defaulting partyies to rectify the breach within a period of 90 days from the date of the breach. The Trustees may try to amicably resolve the difference, dispute or breach of the provisions of the Deed as stated above. In case the dispute or the breach continues for a period of more than 90 days, then all such disputes shall be settled under the Rules of Arbitration of the International Chamber of Commerce, Singapore (“ICC”) by one or more arbitrators appointed in accordance with the said Rules. The arbitration will be governed in accordance with the laws of India and ICC will follow Indian law as the substantive law for deciding the dispute arising between the parties under/pursuant to this Deed. Each party shall bear its own cost of arbitration. The award given by the arbitrator shall be final and binding and will not be challenged in any court by any of the parties hereto. Each party shall bear its own cost of arbitration. The award given by the arbitrator shall be final and binding and will not be challenged in any court by any of the parties hereto. The Beneficiaries shall agree that by executing the Deed of Adherence they agree to and are bound by the provisions of this arbitration clause.”; (vii) KK passed away on 2nd November, 2019, leaving Bina as his widow and Lalit, Charu and Samir as his children; (viii) upon the demise of KK, dispute has emerged amongst the Trustees of the Trust; while Lalit contends that after the demise of KK, in view of lack of unanimity amongst the Trustees regarding sale of Trust assets, a sale of all assets of the Trust has been triggered and distribution to beneficiaries has to occur within one year thereof, Bina, Charu and Samir contend that on a true construction of the Trust Deed, no such sale has been triggered; (ix) on the demise of KK, in accordance with Clause 3.2 of Trust Deed, Bina on 5th November, 2019 wrote to the Secretary of the Trust to transfer in her name, the equity and preference shares jointly held by KK as the sole holder of those shares and that the equity and preference shares held by KK jointly with others, had to be also transferred in her name to be jointly held with the existing second holder, on behalf of the Trust; (x) Lalit, vide letter dated 13th November, 2019 to Bina, Charu and Samir requested for convening of a meeting of the Board of Trustees in terms of Clause 4.1 of Trust Deed; (xi) a meeting of the Board of Trustees was called on 30th November, 2019 at Waldorf Astoria Dubai; (xii) in the meeting held on 30th November, 2019 of the Trustees of the Trust, viz. Bina, Lalit, Charu and Samir, while Lalit expressed desire to sell the whole of Trust Fund comprising of various assets including family controlled businesses, in terms of Clause 6.2 of the Trust Deed, Bina, Charu and Samir decided to continue to own and manage all assets of the Trust Fund; the draft minutes of the meeting recorded that no unanimous decision was reached regarding the sale of assets of the Trust; (xiii) Bina, in an attempt to amicably settle, asked Lalit for a fair proposal; Lalit, in response thereto disputed the appointment of Bina as the President and the Managing Director of Godfrey Philips India Ltd. and Indofil Industries Ltd. in place of KK and also insisted on sale of assets of the Trust; (xiv) Lalit, on “without prejudice” basis, participated in the settlement talks but at every step kept on changing his stand and ultimately vide communication dated 27th January, 2020 alleged that Bina, Charu and Samir had breached the provisions of the Trust Deed; Lalit also released statements on social media to the effect that assets of K.K. Modi Family Trust including Godfrey Philips India Ltd. are for sale and also released certain confidential correspondence between Godfrey Philips India Ltd. and Jupiter Asset Management, a shareholder of Godfrey Philips India Ltd., in relation to the governance of Godfrey Philips India Ltd; (xv) after some other correspondence between the parties, Lalit on 18th February, 2020 filed an Application for Emergency Measures before the International Court of Arbitration (ICA) of the International Chambers of Commerce (ICC), impleading Bina, Charu and Samir as respondents thereto and seeking, (a) to restrain Bina from holding herself out as Managing Trustee of K.K.Modi Family Trust and in the alternative of suspension of powers and authority of Bina to hold the office of Managing Trustee of K.K.Modi Family Trust; (b) appointment of an administrator of the Trust Fund; (c) to restrain Bina, Charu and Samir from acting in relation to K.K.Modi Family Trust and from transferring, alienating or creating any encumbrance in relation to the assets, businesses and investments of the Trust Fund and from exercising voting rights in the K.K.Modi Family Trust controlled business forming part of the Trust Fund; and (d) suspension of Titus & Company as the Secretary of K.K. Modi Family Trust; (xvi) ICC has appointed one Mr. Matthew Sccomb as the Emergency Arbitrator and who, besides giving other directions, scheduled a preliminary call / meeting of the Emergency Arbitration proceedings on 22nd February, 2020; on 22nd February, 2020, Bina, Charu and Samir, without waiving any of their rights and objections, participated in the hearing before the Emergency Arbitrator and in the said hearing the Emergency Arbitrator issued procedural timelines and set a date for physical hearing of the Application for Emergency Measures on 7th March, 2020. 4. It is the pleading/contention of Bina, Charu and Samir, (i) Clause 36 of the Trust Deed providing for arbitration is not an Arbitration Agreement between the parties, and in the alternative, is null and void because of vagueness; no “Rules of Arbitration of the International Chamber of Commerce, Singapore” exist, the rules of arbitration under which ICC conducts institutional arbitration are referred to as the “Rules of Arbitration of the International Chamber of Commerce”; (ii) even if such a Clause was to be given effect, the same provides that the Arbitral Seat is in India; (iii) since all the signatories to the Trust Deed containing the impugned Arbitration Clause are Indian Nationals, having permanent residence in India, choice of foreign seat of arbitration is null and void, unenforceable and contrary to public policy; (iv) Clause 36 provides for the dispute to be decided in accordance with the laws of India; the law of India as enunciated in Vimal Kishor Shah Vs. Jayesh Dinesh Shah (2016) 8 SCC 788 is that disputes inter se Trustees or between Trustees on the one hand and beneficiaries on the other hand or between beneficiaries inter se, are not arbitrable and are subject to the exclusive jurisdiction of the Courts under the Indian Trusts Act, 1882 which is a complete Code for the purposes of the said disputes; (v) Vimal Kishor Shah supra represents the public policy of India and the issue of arbitrability goes to the root of the eventual enforceability of any award that may be passed and it would not be appropriate that the issue of arbitrability is left to be decided by the Arbitral Tribunal or by the Courts in Singapore or by the Emergency Arbitrator; (vi) such forums would also be forum non conveniens, oppressive, manifestly unfair, unreasonable and prejudicial to the interest of Bina, Charu and Samir; (vii) while hardships would be caused to Bina, Charu and Samir, who are all residents of India, in litigating in Singapore, no hardship would be caused to Lalit if were to file proceedings in India; (viii) Lalit has approached the ICC to evade the jurisdiction of this Court to decide the disputes because Lalit left India after he was accused of gross violations of Indian laws and a non-bailable warrant has been issued against him in proceedings under the Prevention of Money Laundering Act, 2002 pending against him. 5. Vimal Kishor Shah supra referred to in the plaints having held that disputes relating to Trust, Trustees and beneficiaries arising out of a Trust Deed and the Trusts Act are not capable of being decided by the arbitration tribunal despite existence of Arbitration Agreement to that effect between the parties, it was felt that the only question to be adjudicated was, whether the said objection to the very arbitrability of the dispute be permitted to be decided by the Arbitral Tribunal or notwithstanding the bar enunciated by the Supreme Court in Kvaerner Cementation India Limited supra, it is open to this Court to injunct arbitration commenced by Lalit at Singapore or injunct Lalit from proceeding with the said arbitration. 6. 6. Being aware of the long litigation between the earlier generation of the parties, before commencing hearing, I enquired from the senior counsels, whether not the disputes were easily resolvable and why should this generation also repeat the mistake of the earlier generation, which has cost the larger family of the parties dearly. However finding that the parties presently are not in a mood to settle, and are ready to litigate, attempt at that was not taken further. I however still implore the parties to instead of, settling after litigating for years giving regard to their relationship with each other, attempt amicable settlement even now, to nip this litigation in the bud. 7. Mr. Mukul Rohatgi Senior Advocate, before proceeding to address on the aforesaid controversy, has drawn my attention to Vidya Drolia & Ors. Vs. Durga Trading Corporation 2019 SCC OnLine SC 358, also holding that arbitrability of disputes arising under the Indian Trusts Act is excluded by necessary implication, reasoning that (i) under Section 34 of the Trusts Act, a Trustee, without instituting a suit, is entitled to apply by petition to Principal Civil Court of Original Jurisdiction for its opinion, advice or direction on any present questions respecting management or administration of Trust property; obviously the arbitral tribunal cannot possibly give such opinion, advice or direction; (ii) under Section 46, a Trustee who has accepted the Trust cannot afterwards renounce it except with the permission of the Principal Civil Court of Original Jurisdiction; this again cannot be subject matter of arbitration; (iii) Section 49 of the Trusts Act vests the jurisdiction in Principal Civil Court of Original Jurisdiction to control the exercise of power conferred on a Trustee, again making it clear that a private consensual adjudicator has no part in the scheme of the Act; (iv)Section 53 of the Trusts Act bars the Trustee from, without permission of the Principal Civil Court of Original Jurisdiction, buying or becoming mortgagee or lessee of the Trust property or any part thereof and which permission can also be granted only by an arm of the State; and, same is the position under Section 74 of the Trusts Act. 8. Mr. Rohatgi, Senior Counsel has next drawn attention to the dicta of the Division Bench of this Court in Mcdonald’s India Pvt. Ltd. Vs. Vikram Bakshi (2016) 232 DLT 394 . 8. Mr. Rohatgi, Senior Counsel has next drawn attention to the dicta of the Division Bench of this Court in Mcdonald’s India Pvt. Ltd. Vs. Vikram Bakshi (2016) 232 DLT 394 . The Division Bench was concerned with an appeal against an ad-interim anti-arbitration injunction granted by a Single Judge of this Court on the grounds of (a) the dispute subject matter of arbitration before the London Court of International Arbitration overlapping with the dispute pending before the Company Law Board; (b) the London Court of International Arbitration being a forum non conveniens since all parties save one were carrying on business in India, and, (c) the arbitration before the London Court of International Arbitration was oppressive and vexatious. The Division Bench, without noticing Kvaerner Cementation India Limited supra, held that anti-arbitration injunction can be granted in extreme circumstances, where the existence of the Arbitration Clause was in peril because of the “properly arguable” case of the agreement to arbitrate having been forged in order to defeat the proceedings properly brought before the Courts. It was held that the Courts have jurisdiction to determine the question as to whether the Arbitration Agreement was void or a nullity. However having so enunciated the law, the Division Bench held that the facts of that case did not qualify for injuncting the arbitral proceedings and thus vacated the stay of arbitral proceedings granted by the Single Judge. 9. Mr. Rohatgi Senior Counsel on the basis of the aforesaid, contended that the law laid down by the Larger Bench of this Court being, that anti-arbitration injunction suits are maintainable and the Court has the power to grant such injunctions, I need not hesitate on the said aspect and consider the case on merits. Mr. Rohatgi, Senior Counsel in this context also drew my attention to Union of India Vs. Vodafone Group PLC United Kingdom 2018 SCC OnLine Del 8842, also holding that there is no unqualified or indefeasible right to arbitrate and that the National Courts in India do have and retain the jurisdiction to restrain International Treaty Arbitrations which are oppressive, vexatious, inequitable or constitute an abuse of legal process. However, I may mention, that having held so, in the facts of that case also, injunction was declined. 10. However, I may mention, that having held so, in the facts of that case also, injunction was declined. 10. It was thus sought to be contended that it was not open to the undersigned, in view of Mcdonald’s India Pvt. Ltd. supra and Vodafone Group PLC United Kingdom supra, to foray into the question of maintainability of the suit. It was also contended that there is neither any express bar nor any implied bar to this Court exercising jurisdiction to grant injunction against arbitration or against a party, restraining such party from proceeding with the arbitration. It was argued that implied bar can be inferred only when a full machinery is available and which is not so in the present case. Else it was reminded that the Civil Courts have all-embracing jurisdiction, as held in Dhula Bhai Vs. State of Madhya Pradesh AIR 1969 SC 78 . 11. On merits, it was argued (i) that all the assets of the K.K.Modi Family Trust are in Delhi, India; (ii) the parties are residing in Delhi; (iii) Lalit has a permanent place of residence in Delhi; and, (iv) the procedural law as well as the substantive law to be applied for adjudication of disputes, is of India. 12. It was also contended that the Arbitration Clause is vague and in the year 2014, when the Trust Deed was executed there was no ICC Singapore. Copy of dicta of the Single Judge of the High Court of Calcutta in the Board of Trustees of the Port of Kolkata Vs. Louis Dreyfus Armatures SAS 2014 SCC OnLine Cal 17695 injuncting the respondent therein from proceeding with the arbitral proceedings against the petitioner therein, was also handed over. 13. Before Dr. Abhishek Manu Singhvi, Senior Counsel appearing on behalf of Lalit commenced his arguments, I drew his attention to the amendment to Section 8 of the Arbitration Act, with effect from 23rd October, 2015 i.e. after the pronouncement of Kvaerner Cementation India Limited supra, a judgment of 21st March, 2001, though reported after eleven years, as 2012 (5) SCC 714, limiting the power of the judicial authority to refer the parties to arbitration unless the judicial authority finds that prima facie no valid Arbitration Agreement exists. It was enquired from him that if owing to Vimal Kishor Shah and Vidya Drolia supra, there is no valid Arbitration Agreement between the parties, why Kvaerner Cementation India Limited supra should continue to hold the fray. It was enquired, whether not the said amendment to Section 8 is indicative of the legislative intent, to not vex the parties by compelling them to arbitrate and take objections to arbitrability before the Arbitral Tribunal, when it was writ large that the disputes were not arbitrable. 14. Dr. It was enquired, whether not the said amendment to Section 8 is indicative of the legislative intent, to not vex the parties by compelling them to arbitrate and take objections to arbitrability before the Arbitral Tribunal, when it was writ large that the disputes were not arbitrable. 14. Dr. Singhvi, Senior Counsel argued, (i) that Section 8 contained in Part I of the Arbitration Act applied only to domestic arbitration and not to International Arbitration; (ii) that the Rules of ICC Arbitration provide for the objection, as raised here to arbitrability, being raised before the Arbitral Tribunal; (iii) that the present is not a Part I Arbitration but a Part II Arbitration because the Seat of Arbitration is outside India; (iv) that the Original Trust Deed was executed at New Delhi and provided for arbitration at Delhi; however in the Trust Deed executed at London, the parties intentionally opted for arbitration of ICC; attention is invited to Section 2(2) of the Arbitration Act, providing for Part I provisions to apply where the place of arbitration is in India; (v) once the Arbitration Clause is undisputed, it is the Arbitral Tribunal alone which should decide objections as to arbitrability; (vi) that Section 8, being for Part I arbitrations, and the subject arbitration hereof being not a Part I arbitration, the amendment thereto is irrelevant; (vii) even otherwise, the amendment to Section 8 only requires the Court to satisfy itself of the “existence”, as distinct from “interpretation” of the Arbitration Agreement; (viii) in the present case, the existence of the Arbitration Clause is not in dispute and has been admitted in the plaint itself; (ix) that Clause 4 of the Trust Deed required a meeting of the Trustees to be held within 30 days of Bina becoming the Managing Trustee and Clause 4.1 provides that if the Board of Trustees is unanimously unable to take any decision as stated in Clauses 4.4.1 to 4.1.3, then the entire Trust Fund including the family controlled businesses shall be sold in the manner provided therein; (x) once no unanimous decision has been arrived at, the K.K.Modi Family Trust is hollow and the assets earlier held by Trust are being held by the Trustees as tenants-in-common; (xi) since the sale of the assets has been triggered, the Trust has ceased to exist; and, (xii) this is also evident from Clause 4.5.1 of the Trust Deed which provides for Bina to continue as Managing Trustee and to have complete authority to take all decisions “provided that it has been agreed to continue to keep the Trust and not dispose of all the assets at the meeting to be held within 30 days in accordance with Clause 4.1”; upon no agreement to continue the Trust having been arrived at, as evident from the minutes of the meeting dated 30th November, 2019 of the Trustees, Bina ceased to be the Managing Trustee of the Trust. 15. Attention was drawn by Dr. Singhvi, Senior Counsel to my judgment dated 3rd July, 2018 in CS(OS) No.1769/2003 titled Bharti Tele-Ventures Ltd. Vs. DSS Enterprises Pvt. Ltd. wherein I have referred to my earlier judgments in Roshan Lal Gupta Vs. Parasram Holdings Pvt. Ltd. (2009) 157 DLT 712 , Spentex Industries Ltd. Vs. Dunavant SA, 2009 SCC OnLine Del 1666 (RFA(OS) No.69/2009 preferred whereagainst was dismissed on 29th August, 2009), Shree Krishna Vanaspati Industries (P) Ltd. Vs. Virgoz Oils & Fats Pte Ltd. 2009 SCC OnLine Del 1665, M. Sons Enterprises Pvt. Ltd. Vs. Suresh Jagasia 2011 SCC OnLine Del 82 and Ashok Kalra Vs. Akash Paper Board Pvt. Ltd. 2013 SCC OnLine Del 3299, all holding a suit for declaration of invalidity of Arbitration Agreement or of arbitration commenced, and for permanent injunction to restrain arbitration, to be not maintainable and also referring to A.Ayyasamy Vs. A. Paramasivam (2016) 10 SCC 386 , though not directly concerned with the issue, but citing Kvaerner Cementation India Limited supra with approval. It was contended that A.Ayyasamy supra is post-amendment to Section 8 of the Arbitration Act, though it was admitted that the same does not notice the said amendment. 16. Dr. Singhvi also drew attention to the recent judgment dated 10th December, 2019 of the Supreme Court in BGS SGS Soma JV Vs. NHPC Ltd. 2019 SCC OnLine SC 1585, on the aspect of Seat and “venue” of Arbitration and to Chatterjee Petrochem Company Vs. Haldia Petrochemicals Ltd. 2014 (14) SCC 574, also referred to by me in Bharti Tele-Ventures Ltd. supra, declining the relief of declaration as null and void of the Arbitration Clause, but after holding the Arbitration Clause to be valid. 17. Mr. Haldia Petrochemicals Ltd. 2014 (14) SCC 574, also referred to by me in Bharti Tele-Ventures Ltd. supra, declining the relief of declaration as null and void of the Arbitration Clause, but after holding the Arbitration Clause to be valid. 17. Mr. C.A. Sundaram, Senior Counsel also appearing for Lalit, in response to my query qua Section 8 of the Arbitration Act, contended (i) that the reliefs claimed in the plaints in the present suits are of declaration of the Arbitration Agreement and the arbitration commenced as null and void and of permanent injunction to restrain arbitration; (ii) that Section 8 is not attracted in the present suit; Section 8 applies when on action is brought in a matter which is the subject matter of an Arbitration Agreement and it is not so here; thus Section 8 does not apply; (iii) that in the present suit, there is no dispute before the Court which is subject matter of arbitration and the only claim is of the declaration of the Arbitration Agreement as null and void; (iv) thus there is no need for Lalit to apply under Section 8; (v) alternatively, the amendment to Section 8 requires the Court to only prima facie satisfy itself of the “existence” as distinct from “scope” of the Arbitration Agreement; (vi) in the present case the Arbitration Agreement is not in dispute; (vii) reliance is placed on Hema Khattar Vs. Shiv Khera 2017 (7) SCC 716 , where the Court dealt with the plea of the Arbitration Agreement ceasing to exist for the reason of the main contract in which the arbitration agreement was incorporated, having been terminated, and held that the arbitration agreement continued to exist; (viii) reliance was also placed on Bhushan Steel Ltd. Vs. Singapore International Arbitration Centre 2010 SCC OnLine Del 2236 relying on Kvaerner Cementation India Limited supra and Roshan Lal Gupta supra holding, that once it is held there is a valid Arbitration Agreement between the parties, a suit for declaration that the Arbitral Tribunal has no jurisdiction or for permanent injunction to restrain arbitration would not be maintainable; (ix) the ICC Rules are akin to Section 16 of the Arbitration Act; and, (x) that Kvaerner Cementation India Limited supra has recently been cited with approval in National Aluminum Company Ltd. Vs. Subhash Infra Engineers Pvt. Ltd. 2019 SCC OnLine SC 1091 holding that if the plaintiff therein wanted to raise an objection with regard to existence or validity of the Arbitration Agreement, it was open for it to move an application before the Arbitrator but with such plea he cannot maintain a suit for declaration and injunction. 18. Mr. C.A. Sundaram, senior counsel further contended that the plea of the plaintiff, of the disputes, owing to the dicta of this Court in Vimal Kishor Shah and Vidya Drolia supra, being not arbitrable, can also be decided by the Arbitral Tribunal. However to satisfy this Court that, notwithstanding Vimal Kishor Shah and Vidya Drolia supra, the disputes urged before the Arbitral Tribunal are arbitrable, attention was invited to Section 5 of the Trusts Act to contend that when the Trust is in relation to immovable property provisions thereof i.e. the Trusts Act, are applicable only when the writing is registered. It is contended that though the Trust is with respect to immovable as was movable properties, but is not registered in India. It is again emphasised that the Trust Deed itself was executed at London and it is contended that the Indian Trusts Act does not apply. It is argued that though all the said questions arise for adjudication but today the question is, who is to decide the said questions, whether the Arbitral Tribunal or the Courts in India. 19. Mr. C.A. Sundaram, senior counsel also invited attention to the case of Lalit before the Arbitral Tribunal in the Application for Emergency Measures, particularly to paragraph 124 thereof where it is pleaded that “The Trust Deed has, upon the death of KK Modi, created an identity between interests of Trustees and Beneficiaries, in that, each of the Trustees is also a beneficiary of its branch. There is now a contractual relationship between the parties to the Trust Deed and those deriving an interest through them, in that the rights of Trust Fund have devolved, and the beneficiaries are each tenants in common with defined interest in the Trust Fund (including the businesses)” and to paragraph 125 as “Each of the Branches has an equal interest in the corpus of the Trust Fund, and upon the expression of intention to sell the assets (which includes all businesses and investments), the entrustment has come to an end, with each of them now contractually bound, including under and through the aegis of Deeds of Adherence (by those who were minors at the time of execution of Restated Trust Deed in 2014), to act in accordance with the procedure set forth in the Trust Deed”. It is argued that the disputes cannot be decided under the Indian Trusts Act and the bar of jurisdiction of Vimal Kishor Shah and Vidya Drolia supra does not apply. 20. Mr. C.A. Sundaram, senior counsel has also drawn attention to the time table drawn up by the Emergency Arbitrator and has handed over a copy of the communication of the representative of Bina to the Emergency Arbitrator to the effect that pending the determination of these suits, Bina “will of course continue to participate fully” in the emergency arbitration proceedings. It is thus argued that no case for grant of even any interim relief, if at all the suits are held to be maintainable, is made out and at best it can be ordered that award, if any of the arbitrator will not be given effect to. 21. Mr. C.A. Sundaram, senior counsel has lastly referred to Imax Corporation Vs. E-city Entertainment (India) Pvt. Ltd. (2017) 5 SCC 331 to contend that the present arbitration does not qualify as a domestic arbitration. 22. Mr. Mukul Rohatgi, senior counsel, in rejoinder has stated that Bina was served with notice of emergency arbitration on 21st February, 2020 and was required to respond the very next day. It is contended that there is no agreement to arbitrate in Singapore and from the arbitration clause, it is evident that the Arbitration Act will apply. It is contended that as per the arbitration clause, even curial law is the law of India. It is contended that there is no agreement to arbitrate in Singapore and from the arbitration clause, it is evident that the Arbitration Act will apply. It is contended that as per the arbitration clause, even curial law is the law of India. It is argued that the arbitration clause does not say that the seat of arbitration is in Singapore. It is again contended that there is no ICC, Singapore. It is further argued that ICC has an office in India as well and once the seat of arbitration is not defined in the arbitration agreement, it has to be determined from the bundle of facts. It is also argued that the venue of arbitration has to be a place of convenience. Reference is made to Enercon (India) Limited Vs. Enercon GMBH (2014) 5 SCC 1 where it was held that when all the parties are Indian, the venue of the arbitration proceedings at London is not convenient. It is contended that since the seat of arbitration has not been agreed to be at Singapore and is not at Singapore, Part I of the Arbitration Act will apply. It is argued that Part II of the Arbitration Act applies only to International Commercial Arbitration and the present arbitration, all the parties whereto are nationals of and/or habitually resident of India, does not qualify as an International Commercial Arbitration within the meaning of Section 2(1)(f) of the Arbitration Act. It is thus contended that the principle of Section 8 of the Arbitration Act would apply. Attention is drawn to Section 2(3) of the Arbitration Act, which provides that Part I shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. It is contended that Vimal Kishor Shah and Vidya Drolia supra qualify as “other law for the time being in force” within the meaning of Section 2(3) of the Arbitration Act, under Article 142 of the Constitution of India and the disputes cannot be resolved by arbitration. It is contended that thus, within the meaning of Section 8, it has to be held that there is no valid arbitration agreement. It is contended that the Trust Deed is of the year 2014 i.e. of prior to Vimal Kishore Shah supra and when, as per the parties” understanding, the disputes were arbitrable. It is contended that thus, within the meaning of Section 8, it has to be held that there is no valid arbitration agreement. It is contended that the Trust Deed is of the year 2014 i.e. of prior to Vimal Kishore Shah supra and when, as per the parties” understanding, the disputes were arbitrable. However, Supreme Court subsequently in the year 2016 in Vimal Kishor Shah supra held disputes arising out of the Trust Act to be not arbitrable and added to the same to the list of non-arbitrable disputes as laid down in Booz Allen and Hamilton Inc. Vs. SBI Home Finance Limited (2011) 5 SCC 532 . It is argued that invocation of arbitration by Lalit is invalid. It is further argued that the arbitration proceedings qualify as vexatious and oppressive, within the meaning of McDonald’s India Private Limited supra. Principle of forum non-conveniens is also invoked and it is contended that the arbitral award, even if any, will be in-executable because it would be contrary to public policy. It is further contended that Kvaerner Cementation India Limited supra does not qualify as precedent, as contains no discussion and no reasoning. It is argued that in fact, the facts on which it was pronounced are also not disclosed and the same in any case, does not notice Section 2(3) of the Arbitration Act. 23. Mr. Mukul Rohatgi, senior counsel, with respect to the contention of Mr. C.A. Sundaram, senior counsel, on Section 5 of the Indian Trusts Act has contended that, (a) the Trust deed also relates to movable properties and the value of immovable properties therein is a pittance in value in comparison to the value of movable properties; it is emphasized that a Trust with respect to movable properties does not require any registration; (b) that once it is the contention of Lalit that the Trust Deed is not valid, Lalit also cannot rely on the same; attention in this regard is drawn to the Application for Emergency Measures filed by Lalit and it is contended that Lalit himself is relying on the same; (c) on an interpretation of the Trust Deed, it cannot be said that the Trust has disappeared. Thus, it is contended that the disputes arise out of the Trust Deed.