Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713

AVITEL POST STUDIOZ LTD. V. HSBC PI HOLDINGS (MAURITIUS) LTD

ISSUE:

Whether the Singapore Arbitration Tribunal has jurisdiction in the matter?
Whether the given matter concerning fraud can be governed under Singapore Laws?

RULE:

Section 9 of the Arbitration and Conciliation Act 1996 holds the interim measures by Courts for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
a) for an interim measure of protection in respect of any of the following matters, namely:
b) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
c) securing the amount in dispute in the arbitration;

FACTS:

HSBC PI Holdings is an investment holding company for the Asia Division of HSBC. HSBC PI Holdings pursued interim injunctive relief and related orders before the Bombay High Court in support of Singapore arbitration proceedings to compel Avitel(respondent) to deposit money or security to the extent of HSBC’s original investment of US$60 million in a failed project. HSBC had invested US$60 million in Avitel in order to acquire 7.80% of its shareholding
Both the parties signed a Share Subscription Agreement (SSA). The SSA stated that the agreement would be construed in accordance with the Indian laws and any arbitration proceedings to be conducted under the Singapore International Arbitration Centre (SIAC) Rules in Singapore. Further a dispute arose between the parties. HSBC had accused that the promoters of Avitel the Jain Family had induced HSBC to invest in Avitel by making a representation that Avitel was on the verge of finalising a contract with the BBC. An earlier meeting between the parties with a BBC representative, in order to provide supposed endorsement by the BBC of its contract with Avitel’s subsidiary, was discovered by HSBC to have been fraudulent. When HSBC discovered the contract to be fraudulent it approached SIAC arbitration proceedings against Avitel.
Arbitral proceedings were initiated, and a final award was passed in favour of HSBC inter alia holding the above allegations to be true. HSBC brought a petition before the Bombay High Court against Avitel demanding the deposit of HSBC’s original investment of US$60 million and y security for the investment that had disappeared. The matter was then heard before the Supreme Court of India.

HELD:

The Bombay High Court ruled in favor of HSBC and stated that the two parties had voluntarily chosen Singapore to be the seat of arbitration, and thus it was not incorrect for the arbitration proceedings to be held in Singapore under the Singaporean Law. The Court also held that the SIAC had the jurisdiction to deal with allegations of fraud.
The Court held that HSBC was entitled to seek interim measures against the Appellants, and ordered Avitel to pay compensation which would be decided by the SIAC.