Edelweiss Asset Reconstruction Company Limited v. GTL Infrastructure Limited

12. Arb A (Comm) 7/2020 before this Court: GIL challenged the Order, dated 17th December, 2019, passed by the learned Arbitral Tribunal, before this Court, vide Arb A (Comm) 7/2020, which was dismissed by a learned Single Judge vide judgement dated 4th March,

2020.

13. OMP (Enf) (Comm) 23/2020 before this Court: GTL has applied, before this Court, for enforcement of the Order dated 17th December, 2019, vide OMP (Enf) (Comm) 23/2020. Edelweiss has sought impleadment in the said proceedings which are still pending.

14. Suit LD-VC 55/2020 before the High Court of Bombay: 14.[1] Edelweiss moved the High Court of Bombay, on its Original Side, by way of Suit LD-VC 55/2020. Edelweiss contended, in the said Suit, that, against liabilities owed by it to Edelweiss, or assets and receivables of GIL stood secured in favour of Edelweiss, under two Master Restructuring Agreements (“MRAs”) and a Trust and Retention Account (“TRA”) Agreement, executed between GIL and Edelweiss. As per these Agreements, contended Edelweiss, all assets and receivables of GIL were to be deposited in the TRA, over which Edelweiss exercised complete dominion. The MRA and TRA Agreement, it was contended, prohibited GIL from creating any security interest on any of its assets or any Escrow on any future cash flows. Even while acknowledging that the learned Arbitral Tribunal was uninformed of the existence of their MRA and TRA Agreement, or the fact that all assets and receivables of GIL stood secured in favour of Edelweiss, Edelweiss contended, nonetheless, that the learned Arbitral Tribunal could not have directed any payments to be made from the assets of GIL to GTL which would affect rights and remedies of the third party secured creditors. Reliance was placed, for this purpose, on the judgment of the Supreme Court in State Bank of India v. Ericsson India Pvt. Ltd[2]. 14.[2] Edelweiss, in the circumstances, sought interim directions from the High Court of Bombay, restraining crediting of the Demand Draft for ₹ 320 crores into the account of GTL. In the event that the amount already stood credited, interim directions to return the amount to GIL were sought. 14.[3] During the pendency of the suit, the demand draft was taken back by GIL and credited into the TRA Account of GIL. This fact was reported to the High Court of Bombay, and accepted by the High Court in the form of an undertaking from GTL in its order dated 5th May, 2020. In view thereof, Edelweiss did not press, before the High Court, its interim prayer. Recording this, the High Court, vide order dated 19th May, 2020, granted liberty to Edelweiss to apply for interim relief at a later stage, where the merits of the matter would be then examined. 14.[4] It is clear, therefore, that the High Court of Bombay, till date, has not examined, or returned any finding on, the merits of the issues before it in the suit filed by Edelweiss or expressed any view thereon, one way or the other.

15. Arb A (Comm) 13/2020 [the present appeal]

15.[1] Edelweiss also challenged the Order, dated 17th December, 2019, passed by the learned Arbitral Tribunal, before this Court, by means of Arb A (Comm) 13/2020, which was disposed of, on 18th November, 2020, vide the judgement of which review is presently sought. 15.[2] The case set up by Edelweiss before this Court in the present Arb A (Comm) 13/2020 is essentially the same as that set up before the High Court of Bombay in Suit LD-VC 55/2020. 15.[3] Before me, GIL and GTL, as the respondents in Arb A (Comm) 13/2020, contested the appeal of Edelweiss both on the maintainability as well as on merits. On maintainability, GIL and GTL contended that Edelweiss, not being a party before the learned Arbitral Tribunal, could not maintain an appeal under Section 37 of the 1996 Act. Additionally, it was contended that the order, dated 17th December, 2019, of the learned Arbitral Tribunal, had merged in the judgment dated 4th March, 2020, passed by the coordinate Bench in Arb A (Comm) 7/2020 and that, therefore, the order dated 17th December, 2019, of learned Arbitral Tribunal, could not be challenged all over again by Edelweiss. Needless to say, the GIL and GTL also contested the appeal of Edelweiss on merits. The judgment under review

16. By the judgment dated 18th November 2020, of which review is presently sought, this Court rejected both preliminary objections raised by GIL and GTL.

17. The submission of GIL and GTL that the Order, dated 17th December, 2019, of the learned Arbitral Tribunal, having merged in the judgement, dated 4th March, 2020, of this Court in Arb A (Comm) 7/2020, could not be subjected to challenge, all over again, by Edelweiss by means of the present appeal, was rejected by this Court, by holding that no such merger of the Order of the learned Arbitral Tribunal could be said to have taken place, as would non-suit Edelweiss in the present appeal. Reliance was placed, to so hold, on the judgments of the Supreme Court in Kunhayammed v State of Kerala[3], S. Shanmugavel Nadar v. State of Tamil Nadu[4], Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat[5] and Sneh Gupta v. Devi Sarup[6]. That issue does not, however, strictly hold relevance for the controversy at hand.

18. In upholding the locus standi of Edelweiss to maintain an appeal before this Court under Section 37 of the 1996 Act, despite having been a stranger to the arbitral process, and despite having elected to petition the High Court of Bombay vide Suit LD-VC 55/2020, this court concurred with the view expressed by the High Court of Bombay in Prabhat Steel Traders Pvt. Ltd. v. Excel Metal Processes Pvt. Ltd.7, which, in turn, relied on the decision of the Supreme Court in Chloro Control India Pvt. Ltd. v. Severn Trent

Water Purification Inc[8]. This court also relied on the following enunciation, in para 5 of the judgment of the Supreme Court in SBI[2] (on which reliance learned Senior Counsel for Edelweiss lay considerable emphasis during the course of arguments on the present Review Petition):

19. This Court went on, in para 37.14 of the judgement under review, to opine as under: “It stands to reason, therefore, that, as a person aggrieved, and affected, by such an order, the secured creditor has necessarily to be allowed to maintain an appeal, thereagainst, under Section 37 of the 1996 Act, rather than driven to filing a civil suit. Indeed, as was observed in para 73 of Prabhat Steel Traders Private Ltd.14, the very maintainability of a civil suit may be questionable.” Para 73 of the judgement of the High Court of Bombay in Prabhat Steel Traders14, I may note, reads thus: “I am not inclined to accept the submission of the learned counsel for the Respondent No.2 that the remedy of the petitioners would be to file a civil suit in addition to the remedy to obstruct the execution application if made by the successful party. In my view, the validity of the order of interim measures passed by the learned arbitrator even otherwise cannot be driven to institute a civil suit questioning the legality and validity of the order of interim measures passed by the learned arbitrator. Learned counsel for the respondent no. 2 could not dispute the proposition of law that the order of interim measures simplicitor could not have been challenged by the petitioners by challenging the validity of such order before a Civil Court.”

20. As a remedy of appeal, under Section 37 of the 1996 Act, was also available to third parties who were affected by the order passed by arbitral tribunal, this Court held that the appeal of Edelweiss was maintainable.

21. The Court proceeded, thereafter, to examine, on merits, the contention of Edelweiss that the learned Arbitral Tribunal could not have directed any monies, out of the assets of GIL, to be paid to GTL, in view of the assets standing secured in favour of Edelweiss. The clauses of the MRA and the TRA, were, to the extent relevant, extracted in extenso. In view thereof, this Court had found substance, in the contentions of Edelweiss, that the debts owed to it, by GIL, stood secured by way of a first charge over all of its movable assets, including operating cash flows, and that GIL was prohibited from creating, or permitting to subsist, any security interest or preferential arrangement on any of its assets. All monies of GIL were, as per the MRA and TRA Agreement, to flow into the TRA. This Court concurred, in the circumstances, with the contention of learned Senior Counsel for Edelweiss that the learned Arbitral Tribunal could not have directed transfer of any amount from GIL to GTL, as this would infract the covenants of the MRA and TRA Agreement. Indeed, had the learned Arbitral Tribunal been enlightened about the existence of the MRA and TRA Agreement, this Court expressed the view that, in all probability, such transfer might not have been directed. The proposition of law, enunciated in SBI[2], that an Arbitral Tribunal could not, in determining the issues before it, pass directions which prejudiced the legitimate rights of secured creditors, was reiterated. For these reasons, this Court observed that the directions, of the learned Arbitral Tribunal, to GIL, to deposit amounts in an Escrow account, to be maintained by GIL, could also not sustain.

22. Were the learned Arbitral Tribunal to have been apprised of the existence of the MRA and the TRA Agreement, this Court opined that no direction for transfer of any amount from the TRA could have been passed without hearing Edelweiss, in view of the law laid down in Chloro Controls[8] and Cheran Properties Ltd v. Kasturi & Sons[9], which had, in turn, been followed by this Court in Nirmala Jain v. Jasbir Singh10. Having said so, this Court, in para 49.11 of the judgement under review, clarified that it was refraining from expressing any opinion regarding the necessity of Edelweiss being heard by the learned Arbitral Tribunal, leaving that issue open for decision by the learned Arbitral Tribunal on Edelweiss approaching it in that regard.

23. Following on the above observations and findings, this Court disposed of Arb A (Comm) 13/2020 by modifying the order of the learned Arbitral Tribunal. This Court directed that the amount of ₹ 320 crores, which had already been deposited in the TRA, would continue to remain in the TRA and that any future amounts, if held by the learned Arbitral Tribunal to be payable by GIL to GTL, would, instead, be deposited in the TRA.

24. Having thus directed, this Court also went on to hold that any deposit, thus made, would be subject to further orders to be passed by the learned Arbitral Tribunal.

25. The present Review Petition, as already noted, seeks deletion of this concluding caveat. Rival submissions

26. Appearing for Edelweiss, Mr. Harish Salve and Mr. Neeraj Kishan Kaul, learned Senior Counsel, submit that, in the judgement under review, this Court had acknowledged the position that all assets and receivables of GIL were required to be deposited in the TRA and that Edelweiss enjoyed complete dominion over the TRA, under the MRA and TRA Agreement. There was no question, therefore, submits learned Senior Counsel, of subjecting monies in the TRA to any orders to be passed by the learned Arbitral Tribunal.

27. Particular exception has been taken, by Edelweiss, to the subjection by my judgment, of the amount of ₹ 320 crores, which was taken back by GIL and deposited in the TRA, subject to further orders 256 (2019) DLT 186 to be passed by the learned Arbitral Tribunal. Learned Senior Counsel contended that this money had been credited into the TRA suo motu by GIL, and not consequent to any direction passed by the learned Arbitral Tribunal. As such, contended learned Senior Counsel, the said amount could not be made subject to any further orders to be passed by the learned Arbitral Tribunal.

28. The subjection, of monies in the TRA, to further orders to be passed by the learned Arbitral Tribunal would, according to learned Senior Counsel, be directly in the teeth of the earlier observations contained in the judgement under review, to the effect that the learned Arbitral Tribunal had no jurisdiction to deal with amounts which were securely credited in favour of a third party. Drawing attention to the fact that, in the said judgement, this Court had expressed this view on the basis of the judgment of the Supreme Court in SBI[2], learned Senior Counsel for Edelweiss contended that the subjecting, of the amounts in the TRA, to further orders to be passed by the learned Arbitral Tribunal, would violate the law laid down in SBI[2]. The right of Edelweiss, over all incomes of GIL, which arose from the MRA and the TRA Agreement could not, it is emphatically submitted, be affected by any directions that the learned Arbitral Tribunal would come to pass and this position stands recognized in the judgement under review itself.

29. Not being a party to the arbitration agreement between GIL and GTL, learned Senior Counsel for Edelweiss contended that Edelweiss could not be thrust into the arbitral quagmire. Edelweiss’ claim against GIL was correctly being prosecuted by Edelweiss before the High Court of Bombay, by way of original civil proceedings. The rights and liabilities between Edelweiss and GIL, submits learned Senior Counsel, would have to be thrashed out in the said proceedings, and could not be made subject matter of the arbitral proceedings between GIL and GTL, to which Edelweiss is a stranger. The consequence of the impugned subjection, by this Court, of the amount deposited in the TRA to further orders to be passed by the learned Arbitral Tribunal, submits learned Senior Counsel with some discomfiture, would be that Edelweiss would necessarily have to approach the learned Arbitral Tribunal, even while its suit against GIL is pending before the High Court of Bombay. In other words, Edelweiss would be compelled to approach a forum which had no jurisdiction to deal with the monies in the TRA, instead of the forum which had jurisdiction to do so, which it had rightfully approached. Mr. Salve especially contended that the 1996 Act did not empower any Court to compel a party to participate in an arbitral proceeding, arising from an agreement to which it was a stranger.

30. As against this, Mr. Parag Tripathi and Mr. Rajiv Nayar, learned Senior Counsel for GIL and GTL emphasised, in the first instance, the limited parameters of review jurisdiction. What Edelweiss was essentially seeking to obtain, by means of the present Review Petition, was an additional relief, beyond what had been granted by this Court vide its judgement under review. That, submitted learned Senior Counsel, is completely impermissible. Equally misconceived, according to learned Senior Counsel for the respondents, is the contention of Edelweiss, that it could not be forced to approach the learned Arbitral Tribunal, for orders on how to deal with monies in the TRA. Having, in the first instance, filed a suit before the High Court of Bombay, learned Senior Counsel contended that Edelweiss had, willy-nilly, involved itself in the arbitral exercise by invoking Section 37 of the 1996 Act. Having done so, learned Senior Counsel submitted that Edelweiss could not now seek to distance itself from the arbitral proceedings and the orders passed therein.

31. On merits, too, Edelweiss has, according to Mr. Nayar and Mr. Tripathi, no legs to stand on. The Order, dated 17th of the learned Arbitral Tribunal, which had been modified by this Court was, even as this Court has held, interlocutory in nature, and would, even for that reason, have to abide by the final Award to be passed by the learned Arbitral Tribunal. What had been modified by this Court were, therefore, only interim directions passed by the learned Arbitral Tribunal. If, therefore, this Court had subjected the directions, thus modified, to further orders to be passed by the learned Arbitral Tribunal, no error, whatsoever, exists therein, much less any error apparent on the face of the record.

32. Edelweiss is, according to learned Senior Counsel for the respondents, accurately aggrieved by the fact that this Court did not, as Edelweiss sought in its appeal, set aside, wholesale, the Order dated 17th December, 2019, of the learned Arbitral Tribunal. The present review proceedings cannot, according to learned Senior Counsel, be used as an avenue to obtain relief which, though Edelweiss had sought in its appeal, was not granted by this Court. Edelweiss cannot, to put it pithily, seek, in review, a modification of the judgement of this Court to the effect that the relief, sought in its Section 37 appeal, be granted in its entirety, where this Court had consciously not chosen to do so. The learned Senior Counsel submitted that, in taking such a view, this Court was entirely justified, as it was not adjudicating, finally, on the competing rights of GTL and GIL, vis-à-vis each other or vis-à-vis Edelweiss. The impugned judgement, according to learned Senior Counsel, effectively balances the interests of GTL and Edelweiss, and does not call for any change or modification, much less review.

33. Chagrin was also expressed, by learned Senior Counsel for GIL and GTL, to Edelweiss having moved the present Review Petition, after failing to obtain the very same relief in IA 1272-2021, whereby clarification of the judgement under review had been sought. Thus, submits learned Senior Counsel, Edelweiss was using the Review Petition to have a second bite at the cherry, which was not permissible in law. Analysis

34. Having heard learned Senior Counsel for both sides at considerable length, I am of the considered opinion that the present review petition deserves to be dismissed on a number of grounds.

35. In the first place, there is no provision, in the 1996 Act, for review of an order passed under Section 9. The power of review, it is well settled, is not inherent, but has to emanate from statute. No Court or authority has an inherent power to review its orders. Learned Senior Counsel for Edelweiss had drawn my attention to certain decisions which hold that, as a court of record, the High Court is obligated to ensure that its record is correct and is in proper order. To my mind, the proposition has really nothing to do with the power of review. The power to keep the record of the court correct and in proper order is essentially to ensure that there are no errors of record which continue to remain uncorrected. A prayer to review a decision, in my view, would not be covered by such a dispensation.

36. A second ground, on which the Review Petitioner stands disentitled to relief in the present review petition, is the fact that it had earlier approached this Court for clarification, vide IA 1272- 2021, adopting the stand that there was no want of clarity in the judgement under review. That application adopted a stand that it was clear, from the judgement, that the absolute right of Edelweiss, to deal with the monies of GIL in the TRA, stood confirmed and protected by this Court even so, it was submitted that GIL had written to Edelweiss, refusing to allow Edelweiss to deal with the monies deposited in the TRA, as they had been directed by the learned Arbitral Tribunal to be paid by GIL to GTL. In the circumstances, the application sought a clarification, to the effect that GIL could deal with all amounts in the TRA of its own account.

37. Vide order dated 3rd February, 2021, this Court had dismissed the application on the ground that Edelweiss could not, simultaneously, adopt a stand that the judgement of this Court was clear and that it needed clarification. Clarification, it was pointed out, was to be given only of orders which were wanting in clarity. Once Edelweiss was clear about the import of the judgement of this Court, no application for clarification would lie, merely in order to explain the judgement to GIL/GTL.

38. The present review petition seeks the very same relief which was sought in the aforesaid clarification application. Even on that ground, therefore, the present review petition may not be maintainable.

39. Even on merits, it is impossible to accept the stand of the petitioner.

40. The only direction, to which learned Senior Counsel for Edelweiss takes exception, and of which they seek deletion, is the subjection, of the deposits made by GIL in the TRA, consequent to directions issued by the learned Arbitral Tribunal, till further orders to be passed by the learned Arbitral Tribunal.

41. The contention, of Mr. Salve, that the amount of ₹ 320 crores had not been deposited in the TRA consequent to the directions of the learned Arbitral Tribunal, is not strictly correct. This amount, in fact, is part of the amount of ₹ 440 crores which, by the order dated 17th December 2019, had been directed by the learned Arbitral Tribunal to be paid to GTL. A demand draft for the said amount, was also issued by GIL in favour of GTL. It was for that reason that, in its interim application before the High Court of Bombay, in the suit preferred by it, Edelweiss had sought that the Demand Draft be returned to GIL. No occasion arose for the High Court to adjudicate on this prayer, as the said demand draft was taken back by GIL and the amount was deposited in the TRA.

42. Irrespective of, and de hors the right of Edelweiss to deal with the assets of GIL, deposited in the TRA, in my view, there was no justification for the Demand Draft for ₹ 320 crores, issued by GIL in favour of GTL by way of compliance with the Order dated 17th December, 2019 of the learned Arbitral Tribunal, to have been taken back by GIL, in the absence of any order, of the High Court of Bombay or of any other Court, or even of the learned Arbitral Tribunal, so directing. Once the learned Arbitral Tribunal had directed the amount of ₹ 320 crores to be paid by GIL to GTL, and that direction had not been disturbed by any court – either by this Court or by the High Court of Bombay or even by the learned Arbitral Tribunal itself – GIL could not have, of its own accord, taken back the demand draft and deposited the money in the TRA.

43. I fail to see, therefore, how, Edelweiss can, in the present petition, rely on the deposit of ₹ 320 crores in the TRA, or seek to contend that the said deposit was not consequent to the orders passed by the learned Arbitral Tribunal. In fact, the taking back, by GIL, of the Demand Draft, might even tantamount to contempt of the order passed by the learned Arbitral Tribunal on 17th December 2019 though, on this point, i.e. I do not venture any final opinion. In any event, Edelweiss can hardly seek to capitalize on the fact that the Demand Draft had, suo motu, been taken back by GIL and deposited in the TRA, in the teeth of the directions issued by the learned Arbitral Tribunal on 17th December, 2019 which, till then, remained undisturbed.

44. I cannot, therefore, subscribe to the contention, advanced by learned Senior Counsel for Edelweiss, that the deposit of ₹ 320 crores in the TRA was not as per the directions of the learned Arbitral Tribunal and could not, therefore, be subjected to further orders to be passed by it.

45. Be that as it may, the issue in the present case is whether the subjecting, by this Court in the judgement under review, of the monies deposited in the TRA, consequent to directions passed by the learned Arbitral Tribunal, to further orders to be passed by the learned Arbitral Tribunal, deserves to be reviewed. The contention advanced by learned Senior Counsel for Edelweiss, is that the said caveat, as entered by this Court, suffers from an error apparent on the face of the record. My attention has been invited to the observations, contained by this Court, in the judgement under review, relying on SBI[2], to the effect that the learned Arbitral Tribunal could not have exercised jurisdiction over the assets of GIL which were, as per the terms of the MRA and TRA Agreement, to be deposited in the TRA. Having so held, learned Senior Counsel emphatically contended that it was not open to this Court to subject the monies in the TRA to further orders to be passed by the learned Arbitral Tribunal, as this would amount to conferring jurisdiction, on the learned Arbitral Tribunal which, as per the judgement under review, the learned Arbitral Tribunal does not possess.

46. This argument, in my considered opinion, essentially, misses the wood for the trees. The subjecting, by this Court, of the amount deposited in the TRA to further orders to be passed by the learned Arbitral Tribunal, applies only to amounts deposited in the TRA which, according to the learned Arbitral Tribunal, are payable by GIL to GTL. The learned Arbitral Tribunal has held the said amounts to be payable by GIL to GTL, and, therefore, directed the said payment to be made. That GTL is also a creditor of GIL is, therefore, a finding of the learned Arbitral Tribunal. The amount of ₹ 440 crores was directed to be paid, by the order dated 17th December 2019 of the learned Arbitral Tribunal to GTL following the finding that the liability of GIL, to GTL, in that regard, was not in dispute.

47. Significantly, while concluding its Order dated 17th December, 2019, the learned Arbitral Tribunal has itself made its directions subject to further orders to be passed in the arbitral proceedings. This, clearly, is but axiomatic, as the directions of the learned Arbitral Tribunal were passed at the interlocutory stage. In reiterating the said position, I fail to understand how this Court can be said to have committed an error at all, much less an error apparent on the face of the record.

48. The position may be simply viewed thus. In the arbitral proceedings, GTL claims, from GIL, an amount of ₹ 650 crores. It is against this claim, the merits of which the learned Arbitral Tribunal is presently adjudicating, that the learned Arbitral Tribunal directed, at an interim stage subject to further orders to be passed by it, the payments envisaged by the Order dated 17th December, 2019. The learned Arbitral Tribunal, in so directing, also observed that ₹ 400 crores was not a “sum presently in dispute” within the meaning of Order VIII Rules 3, 4 and 5 of the CPC. No interference, with these observations and findings, was sought by Edelweiss, before this Court.

49. It is not, therefore, as though the learned Arbitral Tribunal directed payments to be made by GIL to GTL, vide its Order dated 17th December, 2019, ex gratia. The directions were predicated on the claim of GTL against GIL, forming subject matter of the arbitral proceedings, the merits of which are yet to be determined. The directions were, therefore, made expressly be subject to further orders to be passed by the learned Arbitral Tribunal. In reiterating the said direction, I cannot see how it can be contended that this Court committed an error apparent on the face of the record.

50. Edelweiss claims to have preferential rights over all assets of GIL, which were mandatorily to be deposited in the TRA. In fact, the stand advocated by Mr. Salve was that, if the learned Arbitral Tribunal was of the view that GIL owed monies to GTL, those monies would have to be sourced elsewhere, but could not be sourced from the assets of GIL in the TRA. That, however, is not an aspect on which this Court has expressed any opinion in the judgement under review. No opinion, in that regard, can be expressed in the present review proceedings, either.

51. GTL, in the arbitral proceedings, claims that GIL owes monies to it. Edelweiss, likewise, contended that GIL owes monies to it, which is why the assets of GIL stand secured in its favour, and all receivables of GIL are required to be deposited in the TRA. To all intents and purposes, therefore, GTL and Edelweiss are both competing creditors of GIL. Their inter se rights, over the assets of GIL, are not subject matter of the proceedings before me. The only issue under consideration, in Arb A (Comm) 13/2020 was whether, in view of the covenants of the MRA and the TRA Agreement, the learned Arbitral Tribunal could have directed monies to be paid by GIL to GTL. Observing that Edelweiss was, indeed, a secured creditor of GIL, this Court merely modified the directions issued by the learned Arbitral Tribunal, to the effect that the amounts to be paid to GTL, as directed by the learned Arbitral Tribunal, would not be paid directly to GTL, but would be deposited in the TRA. In directing so, this Court merely deferred to the covenants of the MRA and the TRA, which secured the right of Edelweiss over the assets of GIL. As to whether that right would trump over the claim of GTL, against GIL, is not an aspect on which this Court was called upon to express any opinion, nor has it done so.

52. Expression of any opinion on the right of Edelweiss against GIL, vis-à-vis the right of GTL against GIL, would clearly be in excess of the jurisdiction vested in this Court under Section 37 of the 1996 Act, sitting in appeal over the Order dated 17th December, 2019, of the learned Arbitral Tribunal. Those rights have to be ventilated independently. As to whether that ventilation would be before the learned Arbitral Tribunal, or the High Court of Bombay, or any other forum for that matter, is not an aspect with which I am required to be concerned with, least of all in the present review petition.

53. All that I have held is that monies which, according to the learned Arbitral Tribunal, were to be paid by GIL to GTL, would have to be deposited in the TRA, in view of the TRA Agreement and MRA. Inasmuch as they are monies over which the right of GTL stands recognized by the learned Arbitral Tribunal, their deposit in the TRA would necessarily have to abide by further orders to be passed by the learned Arbitral Tribunal. No occasion arises, therefore, for me to revisit the said observation, as is sought by the Review Petitioner/ Edelweiss.

54. Having said that, it shall always be open to Edelweiss to approach the learned Arbitral Tribunal and advance the very same pleas which it has advanced before me. It is open to Edelweiss to contend, before the learned Arbitral Tribunal, that it has a preferential right over the assets of the GIL in the TRA and should be conferred absolute right to deal with all monies of GIL deposited in the TRA. In fact, I see no reason why, instead of doing so, Edelweiss should have moved the present Review Petition. As a secured creditor of GIL, Edelweiss ought, in fact, in my view, to approach the Arbitral Tribunal and advance the pleas, on merits which it has chosen to advance before me. If it chooses to do so, needless to say, the learned Arbitral Tribunal would decide the application of Edelweiss on its own merits, uninfluenced by any observations contained in the present judgment.

55. In view thereof, no ground exists, to review the judgment passed by me.

56. The review petition is accordingly dismissed, with no orders as to costs.

C. HARI SHANKAR, J.