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Law Web: Whether suit for anti arbitration injunction is maintainable?
i) The principles governing anti-suit injunction are not identical to those that govern an anti-arbitration injunction.
ii) Court's are slow in granting an anti-arbitration injunction unless it comes to the conclusion that the proceeding initiated is vexatious and/or oppressive.
iii) The Court which has supervisory jurisdiction or even personal jurisdiction over parties has the power to disallow commencement of fresh proceedings on the ground of res judicata or constructive res judicata. If persuaded to do so the Court could hold such proceeding to be vexatious and/or oppressive. This bar could obtain in respect of an issue of law or fact or even a mixed question of law and fact.
iv) The fact that in the assessment of the Court a trial would be required would be a factor which would weigh against grant of anti-arbitration injunction.
v) The aggrieved should be encouraged to approach either the Arbitral Tribunal or the Court which has the supervisory jurisdiction in the matter. An endeavour should be made to support and aid arbitration rather than allow parties to move away from the chosen adjudicatory process.
vi) The arbitral tribunal could adopt a procedure to deal with “re-arbitration complaint” (depending on the rules or procedure which govern the proceeding) as a preliminary issue.
2. The applicants before me are plaintiffs in a suit instituted by them for declaratory and permanent injunctive reliefs. In effect, the reliefs sought against the defendant both in the suit and the interlocutory application is to injunct the defendant from commencing arbitration proceedings.
3. The defendant, it appears, seeks to commence arbitration proceedings for claiming “incentive payments” under Clause 14 of the Securities Purchase Agreement dated 19.9.2012 (in short ‘SPA’). The plaintiffs via this suit and/or the instant interlocutory application seek to resist the arbitration action initiated by the defendant on the plea that it is, inter alia, barred by res judicata.
4. It is the plaintiff's stand that the controversy with respect to the reliefs which were claimed or could have been claimed was set at rest between the parties herein, which included its parent company, that is, NCC Limited (in short ‘NCC’) by virtue of an earlier award dated 24.1.2018.
6. Plaintiff No. 1, that is, Himachal Sorang Power Private Limited would be referred to as ‘HSPL’; Plaintiff No. 2, that is, TAQA India Power Ventures Pvt. Ltd. would be referred to as ‘TAQA’; and the Defendant, that is, NCC Infrastructure Holdings Limited would be referred to as ‘NCCL’.
7. Furthermore, unless the context requires me to state otherwise, the two plaintiffs and the defendant will be, collectively, referred to as parties.
8. Before I proceed further, it may be necessary to delve into the background in which the present proceeding has been instituted.
9. NCCL along with NCC, and an entity by the name: IL&FS Energy Development Company Limited (in short ‘IL&FS’) incorporated HSPL as a Special Purpose Vehicle (in short ‘SPV’).
10. HSPL was awarded a run of the river Power Project by the Government of Himachal Pradesh (hereafter referred to as ‘Power Project’). This Power Project was required to be set up on the Sorang tributary of the Sutlej river.
(i) NCCL held 94.92% of the shares; (ii) NCC held 0.08% of the shares; and (iii) the balance 5% shares were held by IL&FS.
12. The Power Project was required to have a generation capacity of 100 Mega Watt (‘MW’).
13. In order to execute the Power Project, between 2007-2010, HSPL entered into several sub-contracts. It appears that Abu Dhabi National Energy Company PJSC, an Abu Dhabi based company, which is in the business of generation, transmission and distribution of power in India (and is the holding company of TAQA) was exploring ways and means of investing in suitable projects.
14. It is in this background that in 2011, IL&FS approached NCCL and its holding company i.e. NCC, to invest in HSPL's Power Project.
15. This resulted in the SPA being executed between TAQA, NCCL, NCC and IL&FS. Broadly, the SPA envisaged that TAQA would purchase in two tranches the equity shares of the aforementioned three shareholders and in addition thereto, the entire lot of Fully Convertible Debentures (FCDs) held by NCCL and IL&FS.
16. It is not in dispute that TAQA has paid the entire consideration in respect of the equity shares and FCDs to NCCL, NCC and IL&FS.
(i) Insofar as NCCL and NCC were concerned, they were required to complete the works in all respects qua the Power Project by 31.3.2013. Under the SPA, this date is described as the Wet Commissioning Date (WCD). As would be evident, even though the SPA was executed at an earlier point in time, TAQA did not take over the responsibility of completing the Power Project as it was, perhaps, nearing completion, apart from other commercial and practical reasons which may have deterred it from taking a step in that direction.
(ii) The cost of the Power Project was capped at INR 890 Crores.
(a) INR 40 Crores which had been paid by NCCL, NCC and IL&FS as Sellers’ Subordinate Loan (SSL) to HSPL.
(b) INR 81.67 Crores which was paid by TAQA towards cost of achieving WCD by subscribing to FCDs at the time of initial acquisition of shares.
(c) INR 12.33 Crores which IL&FS was required to contribute towards achieving WCD.
18. It appears, even though IL&FS did not contribute the aforementioned amount, TAQA agreed to factor in the said amount in order to enable determination of project cost and cost overrun amounts as provided in the SPA.
19. Pertinently, if one were to take into account the aforementioned adjustments and add them up with INR 756 Crores, it would result in arriving at a cumulative figure of INR 890 Crores, which was the sum at which, as indicated above, the project cost was capped.
20. Importantly, under the SPA, any sum expended in excess of the capped project cost of INR 890 Crores was required to be reimbursed by NCCL and HSPL.
21. The record shows that the Power Project could not be made operational by 31.3.2013, as required under Clause 9.1.1 read with Clause 10.2.1 of the SPA. Given this circumstance, HSPL and TAQA served a pre-arbitration notice dated 4.7.2014 on NCCL and NCC, adverting therein to their claims, which, according to them, required adjudication via arbitration. In other words, via this notice, Clause 14 of the SPA was triggered by HSPL and TAQA.
22. NCCL vide reply dated 2.8.2014, repelled the assertions made in HSPL's and TAQA's notice. This apart, NCCL alluded to their counterclaims. Pertinently, while referring to its counterclaims, NCCL also made a specific claim for incentive payments.
23. Given this background, HSPL and TAQA on 31.12.2014, proceeded to file their Notice of Arbitration (NOA) with the Singapore International Arbitration Centre (in short ‘SIAC’).
24. It appears that TAQA, thereafter, issued a step-in notice dated 5.3.2014 and took control of the Power Project from NCCL. This was followed by HSPL and TAQA serving upon NCCL and NCC, the NOA, which they had filed with SIAC on 31.12.2014.
25. Via this notice, HSPL and TAQA indicated the name of their nominee Arbitrator. NCC and NCCL responded to the aforementioned notice vide their reply dated 23.1.2015. This was followed by a communication dated 30.1.2015, whereby, NCCL and NCC indicated the name of their nominee Arbitrator.
26. On 23.4.2015, the Registrar of Court of Arbitration, SIAC, acting in her capacity as the President under the relevant SIAC Rules, appointed the Presiding Arbitrator, who, in fact, had been nominated by the two co-arbitrators (hereafter referred to as ‘1st Arbitral Tribunal’).
27. The record shows that thereafter, HSPL and TAQA filed their Statement of Claim (SOC) on 20.7.2015 (as amended by Amendment by the SOC dated 06.9.2016). In response thereto, both NCCL and NCC filed their respective Statement of Defence (SOD) on 15.9.2015. It would be important to note that NCCL in its SOD also included its counterclaim.
28. Evidently, NCCL filed an application with the 1st Arbitral Tribunal for amendment of its counterclaims. The amendment sought was confined to introduction of an additional relief, which was referred to as d(A).
29. The 1st Arbitral Tribunal vide its order dated 12.11.2015, allowed the application, which resulted in the first amendment being brought about by NCCL in its Statement of Counterclaims. Thus, the first amended Statement of Counterclaims was lodged on 3.6.2016.
30. The record also shows that NCCL moved yet another application dated 18.7.2016 for amending its counterclaims. Via this application, leave was sought for incorporation of counterclaims referred to as (g), (h) and (i).
31. This application was also allowed by the 1st Arbitral Tribunal vide its order dated 2.9.2016. Resultantly, NCCL filed its second amended Statement of Counterclaims dated 7.9.2016.
32. HSPL, in turn, was given liberty to file its SOD to the amended counterclaims. Consequently, the SOD to the counterclaims dated 15.9.2015 followed by an additional SOD to the amended counterclaims dated 7.9.2016 was filed by TAQA and HSPL.
33. In the interregnum, while the arbitration proceedings were in progress before the 1st Arbitral Tribunal, TAQA successfully tested and commissioned Unit-1 of the Power Project.
34. The record reveals that the last date on which oral submissions were heard by the 1st Arbitral Tribunal was 26.1.2017. Thereafter, it appears, the 1st Arbitral Tribunal gave an opportunity for filing opening submissions and written submissions as also cost submissions.
35. On 2.6.2017, the 1st Arbitral Tribunal closed the proceedings in terms of Rule 28.2 of the SIAC Rules for consideration of the matter and rendering the award.
36. It appears that two days before the closure of the arbitral proceedings, that is, on 30.5.2017, NCCL and NCC wrote to HSPL that they neither had nor did they intend to lodge claims under the SPA other than those which had already been submitted to the 1stArbitral Tribunal.
37. The 1st Arbitral Tribunal, as indicated at the very outset, rendered its award on 24.1.2018.
38. HSPL and TAQA having obtained an award, whereby, certain sums were awarded in its favour, moved this Court by way of an enforcement petition on 9.3.2018, being: OMP(EFA)(COMM.) No. 1/2018. Besides this, it appears, contempt proceedings have also been filed by HSPL and TAQA against NCCL.
39. NCCL had on its part laid a challenge to the award dated 24.1.2018 by initiating proceedings in the Singapore High Court. It appears, HSPL and TAQA have acted likewise.
40. Furthermore, during the course of the arguments, I was informed by the counsel for parties that the Singapore High Court has rejected the petitions of both sides.
41. Continuing with the narrative, on 1.10.2018, NCCL sent a communication to HSPL and TAQA seeking data qua Annual Deemed Generation and Metered Generation, if any, qua the Power Project to buttress its claim for incentive payments under the SPA. This communication, in fact, set the stage for the second round of litigation between the parties.
42. HSPL and TAQA vide their reply dated 12.10.2018 repelled the assertion made by NCCL in its notice dated 1.10.2018. In their reply, HSPL and TAQA have sought to repel the claim for incentive payments both on the ground of maintainability as well as on merits.
43. Undeterred, on 28.12.2018, NCCL filed their NOA with SIAC.
44. It is in this backdrop that on 8.1.2019, HSPL and TAQA received intimation from SIAC that NCCL had initiated the Second (2nd) arbitration proceedings. This communication of SIAC was suggestive of the fact that the arbitration proceedings initiated by NCCL is deemed to have commenced from 31.12.2018.
45. Alarmed by this development, HSPL and TAQA lodged the instant action, which came up before this Court for the first time on 10.1.2019. On that date, I had issued notice both in the suit as well as in the captioned interlocutory application. Furthermore, I had indicated that any steps taken henceforth in the arbitration proceedings initiated by NCCL would be subject to further orders of this Court in the present proceedings. In addition thereto, I had also laid emphasis on the fact that if any response was issued by HSPL and TAQA to SIAC in the context of their having received a communication that the arbitration proceedings qua them had commenced, the same would be without prejudice to their rights in the instant proceedings. The notice was made returnable on 18.1.2019.
46. On 18.1.2019, Mr. Nakul Dewan, Advocate, instructed by Dr. Amit George, Mr. Jai Sahai Endlaw, Ms. Neelu Mohan, Mr. Rishabh Dheer and Mr. Shivansh Soni, Advocates, entered appearance on behalf of NCCL.
47. Given the urgency in the matter, NCCL was given time to file its reply by 21.1.2019 vis-a-vis the captioned application. On the other hand, HSPL and TAQA were given time to file their rejoinder(s) by 23.1.2019. The matter was fixed for hearing on that very date, that is, 23.1.2019.
48. Since NCCL had filed its reply only on 22.1.2019, a request was made on behalf of HSPL and TAQA that the matter be postponed to 25.1.2019 to enable them to file their rejoinder(s) by 24.1.2019. The request was acceded to.
49. Thereafter, arguments in the matter were heard on 25.1.2019, 5.2.2019 and 6.2.2019. Orders in the application were reserved on 6.2.2019 upon conclusion of oral submissions by counsel for parties.
50. Arguments on behalf of HSPL and TAQA were addressed by Mr. Sandeep Sethi, learned Senior Counsel, instructed by Ms. Padmaja Kaul, Mr. Ketan Gaur and Mr. Praharsh Johrey, Advocate, while submissions on behalf of NCCL were advanced by Mr. Nakul Dewan.
(i) NCCL has attempted to lay claim to incentive payments, which purportedly arises out of the SPA. The claim made by NCCL is barred by principles of res judicata, waiver, and abandonment. The reason as to why NCCL's claim for incentive payments would encounter the abovestated legal impediments would be evident if one were to closely examine the conduct of NCCL before and during the progress of the 1st arbitration proceedings. In this behalf, reference was made to HSPL and TAQA's pre-arbitration notice dated 4.7.2014 and the reply thereto dated 2.8.2014 filed by NCCL, by which, inter alia, NCCL laid a claim for incentive payments.
(ii) Furthermore, reliance was also placed on communication dated 30.5.2017 addressed by NCCL and NCC to HSPL, whereby, NCCL and NCC appear to have conveyed to HSPL that they had no other claims under the SPA other than those qua which the matter was under consideration (at the relevant point in time) before the 1st Arbitral Tribunal.
(iii) Despite NCCL amending its statement of counterclaims, not once but twice, it chose not to make any claim for incentive payments.
(iv) Given these circumstances, NCCL's attempt, once again, at initiating arbitration proceedings on the same cause of action should not be permitted as it was vexatious, time consuming, and would involve expenses which HSPL and TAQA could well avoid.
(v) The aforesaid submissions were buttressed by referring to paragraphs 23, 25, 27, 28, 47(i)(d) and 132 of NCCL's SOD in the 1st arbitration proceedings.
(a) SSL; (b) Incentive Payments; (c) CER payment; and (d) Security Bond (I).
(v)(b) These adjustments had been quantified by NCCL at 30% of the purchase consideration. In this context, it was submitted that out of the four areas of adjustments referred to above, NCCL had, in fact, raised a counterclaim vis-a-visonly two aspects, that is, SSL and refund of encashed Security Bond (I).
(v)(c) The argument, thus, was that since the counterclaim was made for SSL and refund of encashed Security Bond (I), NCCL could have made a counterclaim for incentive payments as well, which, as the record would show, it failed to put forth in the 1st arbitration proceedings. As a matter of fact, it was contended that NCCL, instead of making a counterclaim, proceeded to treat incentive payments as a cap on its liability.
(vi) The relief sought for by NCCL for the payment of SSL in the sum of INR 26,66,66,667/- was based on the same cause of action and rationale which forms the basis of NCCL now lodging a claim for incentive payments.
(vi)(a) The basis for lodging a claim for SSL was that the Power Project would achieve the WCD by 31.3.2013; NCCL alone would bear the burden of any or all Cost Overrun Payments; and lastly, SSL would be paid only on the achievement of the Final Completion Date.
(vi)(b)In this behalf, reference was made to Clauses 9.1, 9.1.1, 9.1.4 and 9.8.1. Reference was also made to paragraph 14 of NCCL's Statement of Counterclaims in the 1st arbitration proceedings.
(vii) NCCL's stance that its cause of action for laying a claim to incentive payments could not have arisen till such time the 1st Arbitral Tribunal had returned a finding as to when in the given circumstances the WCD could actually have been achieved, is fallacious and contrary to established principles of law.
(vii)(a) The fact that the 1st Arbitral Tribunal in paragraph 254 and 255 of its award observed that the WCD could have been achieved by April, 2014 or latest by June, 2014 could not have given rise to a fresh cause of action, in law, in favour of NCCL. Findings returned by Arbitral Tribunals via awards and likewise, by Courts via judgments rendered by them cannot give rise to a fresh cause of action qua those who are parties to such awards and/or judgments.
(vii)(b) NCCL could have, if it wanted, laid a claim for incentive payments on account of Deemed Generation in the 1st arbitration proceedings itself. Had such a claim been made, the 1st Arbitral Tribunal, if found fit, would have allowed for incentive payments from April, 2014 or June, 2014. NCCL having failed to do so, it cannot be given, in a manner of speech, a chance to have a second bite at the cherry.
(viii) Given the aforesaid circumstances, NCCL should be restrained from burdening HSPL and TAQA with the costs and other attendant hassles of a second arbitration proceedings. In this behalf, balance of convenience is squarely in favour of HSPL and TAQA. In case the second (2nd) arbitration proceedings are allowed to continue, HSPL and TAQA would not only incur significant costs, but would also lose its right to choose its nominee Arbitrator, if it fails to act in that behalf by 25.1.2019. In this connection, reference is made to Rule 11.2 of the SIAC Rules.
(ix) Furthermore, the fresh claim made for incentive payments is also barred by limitation if regard is had to the following milestones.
(x) Under the SPA, the WCD was required to be achieved by 31.3.2013; TAQA stepped in to take over the project on 5.3.2014. NCCL issued its notice to lay claim to incentive payments only on 28.12.2018.
(xi) On merits as well HSPL and TAQA have a good case inasmuch as under Clauses 8 and 9 of the SPA, entitlement to incentive payments would arise only upon commissioning of the Power Project; an event which never occurred. Under the SPA, NCCL is to bear the burden of Cost Overrun payments, qua which the 1stArbitral Tribunal awarded a sum in excess of INR 90 Crores in favour of HSPL.
(xii) Given the aforesaid facts and circumstances, the Arbitration Agreement obtaining between the parties, which is incorporated in Clause 14 of the SPA has been rendered inoperative and/or incapable of being performed.
(i) NCCL which held shares in HSPL transferred the same to TAQA for a sum of INR 278.33 Crores. Under the SPA, NCCL was to bear the burden of Cost Overrun payments and pay the same to HSPL if it went over the threshold of INR 890 Crores.
(ii) NCCL had covenanted under the SPA that HSPL would complete the Power Project by 31.3.2013. While NCCL in consonance with Clauses 6.4.1.(b) and (c) and 6.6 of the SPA had received the sale consideration in respect of shares held in HSPL, which it sold to TAQA, the Cost Overrun payments beyond the threshold, adverted to above, had to be paid by NCCL after due adjustments were made. In this behalf, reliance was placed on Clauses 9.7, 9.8.1 and 9.10. The contention was that if adjustments were not made, which included sums owed towards incentive payments, the same had to be remitted to NCCL.
(iii) The liability of HSPL and TAQA to pay monies to NCCL towards incentive payments arose out of Clause 8 read with Clause 10.4.2 of the SPA. Incentive payments were deferred consideration as they were dependent on deemed generation of electricity by the Power Project after the Final Completion Date. It was suggested that incentive payments were envisaged as deferred consideration as there was a difference in the projection of water flow. In this behalf, reliance was placed on the term sheet, the extracts from the due diligence reports, draft project report and e-mails dated 5.4.2012 and 27.3.2012.
(iv) In terms of Clause 9.7 of the SPA, if TAQA or HSPL was to issue a Cost Overrun payments notice, then, NCCL was required to make payments within a period of 14 days of the receipt of the said notice. In case NCCL failed to make the payments towards Cost Overrun, HSPL was required to adjust SSL to the extent of the Cost Overrun. If Cost Overrun exceeded the SSL, HSPL had the option to, inter alia, reduce and/or adjust the incentive payment.
(v) In this case, though, Cost Overrun payments exceeded the SSL, HSPL neither adjusted the incentive payments from the SSL, nor did it make adjustments to that extent from the cost overrun payments. This omission on the part of HSPL conferred a positive right on NCCL to receive an incentive payments after the Final Completion Date.
(vi) The award dated 24.1.2018 partially allowed the claims of HSPL and TAQA in terms of Clause 9.10 of the SPA. The 1st Arbitral Tribunal via the said award dated 24.1.2018, inter alia, held that the WCD could have been achieved latest by 30.6.2014. Notably, the 1st Arbitral Tribunal held that there was, in fact, no breach of the SPA by NCCL even though the WCD had not been reached by 31.3.2013. Thus, on account of failure of HSPL and/or TAQA in making incentive payments, based on the findings of the 1st Arbitral Tribunal in respect of the WCD, NCCL was forced to issue the NOA dated 28.12.2018 by which it sought to commence the 2ndarbitration proceedings.
(vii) The assertions made by HSPL and TAQA can be examined and adjudicated upon by a 2nd Arbitral Tribunal, which in law has primacy in this behalf. There is, in law, no fetter on a 2nd Arbitral Tribunal in determining issues which are related to the purported inoperability of the Arbitration Agreement. This exercise can be conducted by a 2nd Arbitral Tribunal either under Rule 28.2 or Rule 29 of SIAC Rules.
(viii) Furthermore, any jurisdictional challenge can then be tested before the concerned Court in Singapore under Section 10 of the International Arbitration Act (CHAPTER 143A).
(ix) The cause of action for laying a claim qua incentive payments could have arisen only after the 1st Arbitral Tribunal had determined the WCD. This position has also been accepted by HSPL and TAQA by making an assertion to that effect in paragraph 3.3(e) of the plaint. Since, HSPL and TAQA did not adjust the incentive payments while raising its claims for cost overrun payments, a positive cause arose in favour of NCCL to lay claim to incentive payments after determination of the WCD by the 1st Arbitral Tribunal.
(x) It was emphasized that HSPL and TAQA had not made due adjustments as required under the SPA. There was, therefore, no occasion for NCCL to raise a claim with respect to incentive payments in the SOD or in the Statement of Counterclaims lodged with the 1st Arbitral Tribunal.
(xi) In other words, the stand taken was that the claim for incentive payments now made was not barred by the principles of res judicata or constructive res judicataand that it was open for NCCL to raise such a claim as it was based on a separate and distinctive cause of action. In support of this submission, it was stressed that the claim now made for incentive payments would require evidence, which would be different from the evidence laid in the 1st arbitration proceedings.
(xii) Furthermore, it was contended that on the basis of the same rationale and logic, it could not be suggested that NCCL had abandoned its claim for incentive payments. The argument was that under the SPA, HSPL and TAQA were obliged to reduce and/or adjust their Cost Overrun claim.
(xiii) In this context, what was sought to be put forth was that a mere reference to incentive payments claim in a schedule attached to NCCL's letter dated 2.8.2014 would not constitute an abandonment in law. Abandonment requires a more resolute stand than a mere reference in respect in a pre-arbitration notice. Abandonment cannot occur when a claim has not legitimately arisen.
(xiv) The argument advanced on behalf of HSPL and TAQA that the claim for incentive payments had been waived in view of what was stated in communication dated 30.5.2017 was unsustainable for the following reasons: (i) First, TAQA was neither addressed nor mentioned even though it was jointly and/or severally liable in these proceedings. (ii) Second, the contents of communication dated 30.5.2017 cannot be construed as waiver in respect of a claim vis-a-vis which cause of action had not been arisen at that point in time.
(xv) Likewise, in respect of argument advanced that the claim for incentive payments was barred by limitation, it was submitted that the cause for such a claim had not arisen, as suggested, on 5.3.2014, when TAQA stepped in to take over the Power Project. In this context, it was submitted that the step-in right available to TAQA was unrelated to the Final Completion Date/WCD. The argument was that limitation for incentive payments could commence only from the date of the award.
(xvi) Qua the aspect of inoperability of the Arbitration Agreement, it was argued that arbitration agreements are not extinguished merely because arbitration qua one set of disputes stands concluded. It was stressed that the same Arbitration Agreement can operate vis-a-vis new claims as is sought to be done in the instant case by NCCL.
j) GMR Energy Limited v. Doosan Power Systems India Private Limited, Order dated 14.11.2017, passed in CS (Comm.) 447/2017 before the High Court of Delhi.
l) Union of India v. Khaitan Holdings (Mauritius) Limited, judgment dated 29.01.2019, paased in CS (OS) 46/2019 before the High Court of Delhi.
54. Having heard the learned counsel for the parties and perused the record, to my mind, the central issue which emerges in respect of this matter is as to whether or not NCCL could continue with the 2nd or a new arbitration. It is HSPL's and TAQA's submission that NCCL could have or ought to have raised its claim for incentive payments in the 1starbitration proceedings.
55. The fact that NCCL did not do so, according to HSPL and TAQA, the continuation of the 2nd arbitration is barred by law. In support of this submission, on behalf of HSPL and TAQA, principles such as res judicata, waiver, and abandonment have been put forth.
56. It was also contended that the arbitration agreement, which subsisted between the parties, (based on which the 1st arbitration proceedings was commenced, which concluded in an Award), had become inoperative and/or incapable of being performed.
57. This stand taken on behalf of HSPL and TAQA is sought to be supported on facts by adverting to various circumstances, which preceded the commencement of the 1starbitration proceedings as also on the defences raised in the 1st arbitration proceedings, which were considered and dealt with by the 1st Arbitral Tribunal while rendering its Award.
58. Insofar as the events which preceded the commencement of 1st arbitration proceedings are concerned, reference was made to the reply dated 02.08.2014 concerning the pre-arbitration notice dated 04.07.2014, served by HSPL and TAQA on NCCL and NCC. In the reply dated 2.8.2014, concededly, in Appendix B at serial No. 6, a claim on account of loss of incentive payments to the extent of INR 28,34,10,000 was made by NCCL.
59. The other communication, on which reliance was placed by HSPL and TAQA was the communication dated 30.05.2017. This communication was addressed by NCCL and NCC, inter alia, to its creditors, who had given notice of invocation of the pledge. The communication was also marked to HSPL and a prospective transferee company, one, Greenko Energies Private Limited, to whom, the pledged securities were intended to be transferred.
60. In this communication, NCCL and NCC indicated to its creditors that apart from the monies claimed by them from HSPL i.e. in two separate and independent arbitrations which included the 1st arbitration proceedings, they did not have any other claim against HSPL.
61. Likewise, reliance was placed by HSPL and TAQA on NCCL's pleadings filed before the 1st Arbitral Tribunal. The stand taken was that despite NCCL amending its counterclaims, not once, but twice, it chose not to make a claim for incentive payments. Reference was also made to certain specific paragraphs (to which I have alluded to hereinabove) in NCCL's SOD filed in the 1st arbitration proceedings.
62. Besides this, the stand of NCCL, which, according to HSPL and TAQA, was rejected by the 1st Arbitral Tribunal was also brought to fore. In particular, it was emphasized that HSPL and TAQA had indicated in no uncertain terms that its liability qua cost overrun payments was capped under the SPA and that in ascertaining the cap amount, adjustments, inter alia, had to be made qua incentive payments.
63. The contention was that NCCL had quantified the adjustments at 30% of the purchase consideration and that, in fact, it had raised a counterclaim qua two out of four amounts i.e. SSL and encashed Security Bond (I); a contention which was rejected by the 1st Arbitral Tribunal.
64. In other words, the contention was that the cause of action for adjustments of SSL and encashed Security Bond (I), if at all, was the same as which pertained to incentive payments. This argument was sought to be buttressed by referring to the fact that the basis for lodging a claim for SSL was the same as that which is now sought to be projected vis-a-vis incentive payments.
65. The record also discloses that NCCL does not dispute the fact that it did refer to incentive payments in Appendix B annexed to its communication dated 02.08.2014 or that it did take a stand vis-a-vis its creditors in the communication dated 30.05.2017 that its claims vis-à-vis HSPL were confined to those which were the subject matter of the 1starbitration proceedings.
66. The record also shows that the WCD, which was to be achieved by 31.03.2013, could not be achieved. As a matter of fact, there is no dispute that the Power Project did not get completed. What is also not disputed by NCCL is that it was liable to bear the burden of Cost Overrun payments beyond the threshold amount pegged at INR 890 crores, albeit, after adjustments being made in consonance with the provisions of the SPA.
67. Variance in the respective stands taken by parties, thus, falls in a narrow compass, which is that, according to NCCL, incentive payments were deferred consideration, which were dependent on Deemed Generation of electricity by the Power Project after the Final Completion Date had been achieved. In this behalf, NCCL places reliance on Clauses 9.0, 9.7 and 9.8.1 of the SPA. NCCL buttresses this stand by contending that since Costs Overrun payments exceeded the threshold amount, HSPL and/or TAQA was required to either return the amount or make the requisite adjustments. Since adjustments had not been made, a positive right had accrued in favour of NCCL to receive incentive payments after the Final Completion Date.
68. In this regard, it was further stated on behalf of NCCL that the claim for incentive payments could have arisen only after the 1st Arbitral Tribunal determined the WCD. The fact that this stated position was correct was sought to be demonstrated by relying upon paragraph 3.3 (e) of the plaint filed in the accompanying suit.
69. What was, thus, sought to be re-emphasized was the fact that since HSPL and TAQA had not adjusted the incentive payments, there was no occasion for NCCL to have raised the claim either in the SOD or file a counterclaim in respect of the same in the 1starbitration proceedings.
70. With this foreground, what needs to be considered by me is whether I should grant an injunction, restraining NCCL from continuing with the 2nd arbitration proceedings.
71. The principles of law, which have been invoked by HSPL and TAQA to buttress its stand, are res judicata, waiver, and abandonment.
72. I must state at the outset that this is not a case of res judicata as there has been, in the given facts and circumstances, no determination by the 1st Arbitral Tribunal qua the issue pertaining to incentive payments. At best, what could be said in favour of HSPL and TAQA, is that, this is a case of constructive res judicata.
74. The doctrine has its roots in public policy. It, therefore, bars raising of an issue in a subsequent proceeding, which is directly and substantially in issue in an earlier proceeding between the same parties or between the parties claiming or litigating under the same title. Pertinently, the decision on which reliance is placed to invoke the doctrine of res judicata should be a decision of a Court of competent jurisdiction. It would, however, matter little if it is a Court of limited jurisdiction, that is, it is not competent to try the subsequent action or the action in which the issue has been raised subsequently. [See explanation VIII to Section 11 of the Code of Civil Procedure, 1908 (in short “CPC”) - principles analogous thereto should apply in arbitration proceedings].
75. Since, clearly, as indicated above, there was no decision on incentive payments, the bar, if any, which HSPL and TAQA can, if at all, claim is that NCCL could have or ought to have raised the issue of incentive payments. To my mind, what, in effect, HSPL and TAQA appear to contend is that NCCL should be estopped from raising the issue of incentive payments in the 2nd arbitration proceeding. The plea appears to be in the nature of an “estoppel by accord”. [See Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787/paras 29 to 32].
76. It is precisely in this context that Mr. Sethi also contended that the arbitration agreement between the parties had become inoperative or in the alternative is incapable of being performed.
77. It was Mr. Sethi's contention that if he is correct in submitting that the doctrine of res judicata applies, then, the arbitration agreement had become inoperative or incapable of being performed.
78. In support of this plea, Mr. Sethi had cited several judgments including the judgment of Division Bench of this Court in McDonalds case.
79. I shall be dealing with the judgments cited by Mr. Sethi including McDonald's casein the latter part of my judgment.
80. Suffice it to say, for the moment, that since the doctrine of res judicata simpliciter would not apply, this plea sensu stricto, as adverted to above, is unsustainable.
81. As to whether constructive res judicata would apply in this case, one would have to examine whether the issue at hand concerning incentive payments is a mixed question of fact and law and, therefore, would require, if not, a full-blown trial at least a mini-trial. If it does, then, perhaps, this Court is not the appropriate forum to deal with this plea.
82. This is, especially so, as what HSPL and TAQA, in effect, seek in terms of relief, both in the interlocutory application and the suit, is an anti-arbitration injunction. The Courts, ordinarily, have been very slow in granting injunctions whereby arbitration proceedings are brought to a standstill. The fundamental reason for this appears to be that the parties by entering into a contract would have necessarily agreed, as in this case, that all issues connected with or arising from the agreement entered into between them, would be tried by an Arbitral Tribunal duly constituted in terms of the agreement and, therefore, any sort of injunction granted by the Court would tantamount to aiding breach of the arbitration agreement.
83. Having said so, Courts have, in certain situations, granted injunctions where proceedings are vexatious and/or oppressive.
84. As indicated above, the width and amplitude available to the Court in an anti-arbitration agreement is much narrower as against where an anti-suit injunction is sought in a matter before it. NCCL has relied upon several documents to demonstrate, as I understand, that there was uncertainty with regard to discharge data and, therefore, there was an element of deferred consideration factored in the agreement obtaining between the parties, which included the incentive payments. Thus, the contention was that only when a clearer picture emerged with regard to water flow data would a cause of action have arisen for lodging a claim for incentive payments. In support of this plea, NCCL has relied upon the following documents: (i) term sheet dated 27.12.2011, executed by TAQA, NCCL and IL&FS; (ii) draft technical due diligence report dated March, 2012, prepared by SNC Lavalin; (iii) technical due diligence report dated August, 2012, prepared by SNC Lavalin; (iv) detailed project report dated April, 2005-Chapter 5; (v) e-mail dated 12.4.2012 addressed by NCCL to TAQA; (vi) e-mail dated 27.03.2012 issued by TAQA to JSL and (vii) e-mail dated 24.01.2012 from IL&FS to, one, Ms. Padma C. Rao.
85. The moot question, which arises, is that, would I, therefore, prevent commencement of the 2nd arbitration proceeding, if a trial is required as to whether or not NCCL could have awaited the decision of the 1st Arbitral Tribunal and, then, lodged a claim for incentive payments.
86. The instant Power Project is undisputedly a hydroelectric power project. The generation of electricity would necessarily depend upon Hydrology. Significantly, NCCL, inter alia, relies upon the Technical Due Diligence report to demonstrate that Sorang river flows were overestimated1. The aspect cannot be brushed aside lightly at this stage.
87. The other submission, which has been advanced quite vigorously on behalf of NCCL, is that even according to HSPL and TAQA, NCCL and NCC would be entitled to incentive payments as per the formula given under the SPA, once the Final Completion Date was achieved. NCCL contends that the 1st Arbitral Tribunal has arrived at a conclusion via its Award dated 24.01.2018 that the Power Project could have been completed latest by 30.06.2014 and that there was no breach of the SPA by NCCL only because of the fact that the WCD could not be achieved by 31.03.2013.
(ii) The assertions made by HSPL and TAQA in paragraph 3.3(e) of the plaint.
89. The aforesaid assertion made in the plaint and the observations of the 1st Arbitral Tribunal would show that the failure of NCCL to achieve the WCD by 31.03.2013 would only entail that it would have to indemnify TAQA for consequential losses caused under Clause 11.5 of the SPA. This aspect is also borne out upon reading the findings returned by the 1st Arbitral Tribunal in paragraph 3102 read with its summary of the result against claim (d)3 recorded in paragraph 390 of the Award dated 24.01.2018.
90. Therefore, NCCL appears to have pitched its case for a 2nd arbitration proceedings on its interpretation of Clauses 8 and 9 of the SPA read with observations made in paragraph 254(3) and 255 of the 1st Arbitral Tribunal's Award dated 24.01.2018.
91. Briefly put, NCCL's case appears to be that since the Final Completion Date could not be achieved, the incentive payments could be worked out on the basis of the Annual Deemed Generation, which in turn, is ascertainable solely on the basis of water discharge as set out in Schedule 3 of the SPA.
92. According to NCCL, in terms of Clause 3.1 of Schedule 3, TAQA was required to measure the water level data w.e.f. 28.02.2013. It is NCCL's case that TAQA proceeded on the basis that annual generation of electricity would be approximately 400 million kWh and therefore went on to reduce the purchase price from INR 480 crores to INR 360 crores with the balance amount to be paid as incentive payments in accordance with Clause 8 of the SPA.
93. Thus, as per NCCL, since the 1st Arbitral Tribunal has returned a finding that the WCD could have been achieved at the very earliest in April, 2014, it was entitled to incentive payments in the event of water being available to sustain Annual Deemed Generation of electricity of more than 400 million kWh. The payments, according to NCCL, were required to be made for a period of five (5) years.
94. In the alternative, NCCL takes the stand that if the WCD is taken as 30.06.2014 then the period of five (5) years will have to be taken from that date.
95. It is in this context that NCCL says that via its communication dated 01.10.2018, sent to HSPL and TAQA, while claiming incentive payments under Clause 8 of the SPA, it had requested them to furnish information concerning the Annual Deemed Generation and Metered Generation, if any, of the Power Project for each year commencing from April, 2014. NCCL claims that the actual measurement data, having not being supplied by HSPL and TAQA, it was unable to calculate the exact amount of its claim. However, NCCL appears to have now, based on historical data of 30 years, made an estimate, which is that, for the relevant period, Annual Deemed Generation of electricity would be in excess of 535 million kWh and, therefore, it would be entitled to claim monies in excess of INR 180 crores.
96. Given the aforesaid broad stand taken by the parties, I would be slow in holding, at this juncture, that the commencement of 2nd arbitration proceedings ought to be injuncted. The submission advanced on behalf of HSPL and TAQA that NCCL had, in fact, made a claim for incentive payments, as reflected in its communication dated 02.08.2014 (which was addressed to TAQA with a copy to HSPL), would not have me hold that since it was not followed through, it necessarily fell within the ambit of constructive res judicata. At times, initial bravado or, should I say, exuberance with regard to a possible claim that one party wishes to raise against another gets scaled down or excluded or excised upon sober cogitation in the matter.
97. Therefore, the fact that incentive payments were not included, though, counterclaims were amended twice over, would also not carry much weight in determining as to whether or not I should permit continuation of 2nd arbitration proceedings. My approach with regard to the contents of letter dated 30.05.2017 would, thus, be the same.
98. The reason that I take this line is on account of the provisions made in Rules 28.2 and 29.1 of the SIAC Rules. Briefly, Rule 28.2 enables an Arbitral Tribunal to rule, inter alia, not only on its own jurisdiction but also with regard to existence, validity or scope of the arbitration agreement.
99. Likewise, under Rule 29.1, a party can apply to an Arbitral Tribunal for early dismissal of a claim on the ground that it is manifest that the claim is without merit and/or is outside the jurisdiction of the Arbitral Tribunal. If, as is contended before me on behalf of HSPL and TAQA that the 1st Arbitral Tribunal, while adjudicating upon the claim and counterclaims raised has gone over the very same set of facts and grounds which are now sought to be trotted out by NCCL in support of the claim for incentive payments, it could seek a decision in terms of Rule 28.2 and/or Rule 29 of the SIAC Rules.
100. It would be, in my view, for the 2nd Arbitral Tribunal to fix the kind of hearing it wishes to have based on its sense of the nature and scope of the controversy at hand.
101. Insofar as this Court is concerned, a decision cannot be taken as to whether the second action would be barred on the ground of constructive res judicata without a trial. To my mind, it is undoubtedly a mixed question of fact and law. Thus, at this stage, to say that the arbitration agreement is inoperative and/or incapable of being performed would be, metaphorically speaking, putting the cart before the horse.
102. The other ground which was taken was that this was a case of waiver or abandonment also does not impress me. Waiver, as is ordinarily understood, occurs when a party gives up a claim, privilege, or right voluntarily i.e. consciously with knowledge of relevant facts. Abandonment, likewise, occurs when there is a relinquishment of a right or interest with the intention of the party concerned to never claim the same. (See: Black's Law Dictionary, 7th Edition, pages 1574 and 1). 52.1 In the instant case, the facts, as set out above, would show that it is NCCL's case that since it is still unaware of the actual data with regard to water flow (and at the commencement of the 1st arbitration with regard to when the WCD could have been achieved), it could not have waived or abandoned its right and/or interest.
103. Prima facie, these pleas, at this juncture, have merit.
104. For the same reason, I would be disinclined to accept the submission made on behalf of HSPL and TAQA that NCCL's claim was barred by limitation since TAQA had exercised its right of step-in on 05.03.2014. If the stand taken by NCCL before me is accepted in the 2nd arbitration proceedings, the fact that TAQA stepped in qua the Power Project on 05.03.2014 may not have much significance.
105. At this juncture, I may refer to judgment of the High Court of Justice Queen's Bench Division Commercial Court in the matter of Nomihold Securities Inc and Mobile Telesystems Finance SA,  EWHC 130 (Comm.).
106. The facts obtaining in Nomihold's case are somewhat pari materia to the instant case. In that case, the learned Judge was called upon to rule on two applications. First application was filed by the claimant— Nomihold to injunct the defendant (referred to in the judgment as MTSF) to discontinue or take all steps within its power to discontinue two arbitrations which had been triggered before the London Court of International Arbitration (‘LCIA’). Second, to rule upon a counter-application filed by the defendant/MTSF to stay Nomihold's application. Nomihold's case for injunction was pivoted on the fact that there had been a prior arbitration, which had resulted in an Award, and, therefore, the new arbitration triggered by the defendant/MTSF was barred by res judicata or at least on that basis the defendant/MTSF was precluded from raising a fresh claim on the ground of issue estoppel.
107. In that light, the learned Judge also considered the argument of the claimant— Nomihold, which was also, incidentally, an argument advanced by Mr. Sethi, that the second arbitration was initiated to avoid enforcement of the Award. On the other hand, the defendant/MTSF's stand before the Court was that it had complaints with regard to money laundering which required adjudication in the second or new Arbitration.
“39. Mr. Flynn contended that in this case the “matter” is to be characterised by the fact that Nomihold's essential complaints in its application are the re-arbitration complaints, and submitted that the parties agreed in the arbitration agreements that disputes and controversies about complaints of this kind should be arbitrated.
40. I accept that, if the New Arbitrations proceed, the tribunals would have power to reject MTSF's claims on the basis that they had merged in the Award because of res judicata or on the basis that MTSF has been precluded by issue estoppel from arguing disputed questions upon which its claims relied. (In H.E. Daniels Ltd. v. Carmel Exporters and Importers Limited,  2 QB 242 Pilcher J recognised that a tribunal might reject a claim that is debarred by the rule in Conquer v. Boot.) The application of the principle in Henderson v. Henderson to the circumstances of this case needs more consideration, although it was not disputed before me that, in proper cases, an arbitral tribunal could apply the principle or an analogous one to dispose of a case before it.
41. The principle of Henderson v. Henderson applies typically when a litigant in court proceedings complains about matters that could and should have been raised in earlier litigation. During and after the hearing before me there emerged an issue between the parties about whether MTSF's money laundering complaint could have been determined in the First Option Agreement Arbitration. Mr. Flynn submitted that it was only by agreement between the parties that the Tribunal took it upon itself to determine the SPA issue and it did not encompass the money laundering complaint: that complaint could not have been determined in the First Option Agreement Arbitration unless both parties and the Tribunal had so agreed. Nomihold argued that MTSF knew before the SPA Arbitration was brought the evidential basis for its money laundering complaint and could have raised it, had it wished to do so, in the SPA Arbitration from the start; that the First Option Arbitration included all disputes between the parties about whether the SPA was invalid and not performed; and that, had MTSF raised the money laundering complaint, the Tribunal would certainly have decided it. I do not need to decide this difference, I do not have all relevant material about any agreement between the parties that led to the Tribunal assuming the burden of deciding the SPA Issue, and in view of my decisions on the applications, I do not comment upon the merits of it: it might fall to be determined in the New Arbitrations and I should not trample upon such questions. However, in these circumstances I shall say something about the principle of Henderson v. Henderson in the context of arbitral proceedings.
42. The issue between the parties is whether MTSF can raise in the New Arbitrations matters that, as Nomihold asserts, it could and should have raised in the First Option Agreement Arbitration if it wished to raise them at all. The rule that a party will not be permitted to raise an issue that he could and should have raised in an earlier reference is well established and indeed ante-dates Henderson v.Henderson: see Smith v. Johnson, (1812) 15 East 213. However, where the previous dispute was determined in arbitration, the principle of Henderson v. Henderson has a narrower application than where it was determined in court proceedings: Mustill & Boyd, Commercial Arbitration (1989) 2nd Ed. p.412. The consensual nature of arbitration means that a tribunal determines disputes referred to it by the parties. It is because of this, as Mance LJ explained in Sun Life Assurance Co. of Canada v. Lincoln National Life Insurance Co,  EWCA Civ 1660, that the principle of Henderson v. Henderson applies in relation to previous arbitrations only if all parties to subsequent litigation (or their privies) have also been parties to the earlier reference (whereas the principle of Henderson v. Henderson can apply where the parties to the earlier and subsequent litigation are different: see Dexter v. Vieland-Boddy,  EWCA Civ 14 at para 49).
43. Similarly, as it seems to me, in so far as the principle of Henderson v.Henderson is to be regarded as an aspect of the courts’ power to control abuse of process (see Glencore International AG v. Exter Shipping Ltd.,  CLC 1090 at para 35), there is room for debate whether the consensual nature of arbitration gives scope for a tribunal to decide that the reference agreement to which it is itself a party (together with proper consequences of the reference) is an abuse of its own process. For present purposes it suffices to say that, at least where the question is whether a complaint could and should have been raised in an earlier reference, the principle recognised in Smith v. Johnson is available to a subsequent tribunal as a basis for rejecting the complaint, because it would be entitled to reject a complaint on the basis that it had been abandoned and the Smith v. Johnson principle is an aspect of the principle of abandonment: Excomm Limited v. Guan Guan Shipping (Pte) Limited (The “Golden Bear”),  1 L.LR 330, 343.
44. I agree with Mr. Flynn's submission, therefore, that, if the New Arbitrations proceed, the arbitrators in them would be entitled to determine Nomihold's contention based upon estoppel per rem judicatam, issue estoppel and what it calls the principle of Henderson v. Henderson (and might more exactly be called the doctrine of Smith v. Johnson). I cannot see, and it was not suggested, that there is any relevant difference between the ambit of the powers available to tribunals in the New Arbitrations to dispose of claims and the power that a court would have to dispose of complaints on the basis of argument such as Nomihold's re-arbitration complaints including the principle in Henderson v. Henderson.
50. As I have said, it is Nomihold's case that the New Arbitrations are part of what it calls MTSF's “enforcement war” to avoid the enforcement of the Award, and to challenge it in ways not contemplated by either the arbitration agreements or the 1996 Act; and that they are collateral attacks on the Award (such as described by Toulson LJ). It submits that, if this is so, the challenge to the New Arbitrations falls within the purview of the court's supervisory jurisdiction to protect the Award and to support its enforcement. I agree with that submission, and so, in my judgment, to the extent that the adjudication of Nomihold's application involves determining the re-arbitration complaints, the court is not precluded by the arbitration agreements from determining them for that purpose. They are not matters “to be referred to arbitration”, notwithstanding they in themselves are matters properly to be determined in a reference when raised in another context.
In what circumstances will the court make an anti-arbitration injunction?
55. Mr. Flynn acknowledged that there are circumstances in which the court will make an anti-arbitration injunction, but he submitted that the court will not restrain a party from having a matter arbitrated before a tribunal if there is no dispute that the parties are subject to a valid and binding arbitration agreement that a tribunal should determine a matter of that kind. He analysed the authorities relied upon by Mr. Beltrami with a view to demonstrating that since the 1996 Act the court has never made an anti-arbitration injunction in these circumstances, and I accept his analysis of them. I have referred to the Sheffield United case upon which Mr. Beltrami particularly relied and I accept that in that case there was a dispute about whether the parties had agreed to arbitration before the CAS.
57. On the basis of Aikens J's judgment and Intermet FCZO v. Ansol Limited,  EWHC 226 in which Gloster J assumed that the court has power to grant an order to restrain the continuance of an arbitration, Jackson J said this in J. Jarvis & Sons Ltd. v.Blue Circle Dartford Estates Ltd,  EWHC 1262 (TCC) at para 39: “It is clear from two decisions of the Commercial Court (with which I respectfully agree) that the jurisdiction does survive [the enactment of the 1996 Act], but its exercise will be even more sparing than before”.
58. I do not, I think, need to set out the observations of Clarke LJ and Lord Phillips CJ to which Aikens J referred. Aikens J recognised that in view of them he should assume that the court may in proper circumstances restrain a party from having a matter arbitrated before a tribunal despite there being no dispute that the parties are subject to a valid and binding arbitration agreement that the tribunal should determine such matters. In view of the decisions of Aikens J, Gloster J and Jackson J, a fortiori I should so assume. However, the authorities emphasise the caution with which the court should intervene to restrain arbitral proceedings, and this is also emphasised by section 1 of the 1996 Act: see above.
59. Reference was made before me to the doctrine of Kompetenz-Kompetenz, the general principle that every court is entitled to examine its own jurisdiction (West Tankers Inc v. Allianz Spa (Case C-185/07) , ECR 1-663,  AC 1138 at para 57), and the similar principle recognised with regard to the powers of arbitral tribunals (Dallah Co. v. Ministry of Religious Affairs of Pakistan,  UKSC 46 at paras 84-85). It does not necessarily mean that tribunals have exclusive power or jurisdiction to do so, but, given the consensual nature of arbitration, its application is necessarily subject to the parties' agreement. Under the 1996 Act, the tribunal's jurisdiction to rule upon its own substantive jurisdiction is enshrined in section 30 and the court's power to determine it circumscribed by section 32, but these sections are not directly relevant for present purposes. Here the parties agreed to references under the rules of the LCIA, including rule 23.4 to which I have referred. It suffices to say that Mr. Flynn did not argue that it would be a breach of rule 23.4 or contravene that doctrine of Kompetenz-Kompetenz to grant Nomihold's application.
Is an anti-arbitration order just and convenient, and should the court exercise its discretion?
60. This leads to the question whether it is just and convenient to grant the order sought by Nomihold and whether I should exercise my discretion to grant it.
61. Nomihold argues that its application should be granted because it achieved the Award after a thorough and extensive arbitral process; because it is clear that MTSF has acted in breach of contract and threatens to do so, and it is starkly obvious that the New Arbitrations are an abuse; because damages are an inadequate remedy given that MTSF is not, as it accepts, in a position to satisfy the Award; and because the New Arbitrations are merely a device deployed by MTSF in the so-called enforcement war.
63. I must ask myself whether in these circumstances it would be right to restrain MTSF from pursuing the New Arbitrations. They raise the money laundering complaint that was not considered in the Award because it was not an issue presented to the Tribunal. On its face it is a complaint of the kind that the parties agreed should be determined by LCIA arbitration. If the New Arbitrations proceed, the tribunals appointed to them will have adequate powers to determine the re-arbitration complaints. I say no more about the complaints themselves other than that they do not seem to me as straightforward as Mr. Beltrami submitted, but the tribunals could adopt procedures to deal with the re-arbitration complaint as a preliminary issue. It is for them to decide whether to do so.
65. I do not overlook the costs that will be incurred in the New Arbitrations, even if Nomihold seeks and obtains a preliminary determination of its re-arbitration complaints, but this concern is to be assessed in the context of the sums involved in this dispute and its history.
109. [Also see another judgment of High Court of Justice Queen's Bench Division Commercial Court in the matter of Amtrust Europe Limited V. Trust Risk Group SpA,  EWHC 1927 (Comm.)].
111. In Ramasamy's case, the learned Single Judge granted an injunction for the reason that defendants No. 6 and 10 in that case, against whom injunction was sought by the plaintiffs, had instead of invoking the arbitration agreement, had taken recourse to multiple forums, which included institution of half a dozen police complaints and, therefore, had made the arbitration agreement inoperative.
112. It is this judgment which was upheld by the Division Bench of Madras High Court in C.G. Holdings Private Limited's case.
113. To my mind, these cases are clearly distinguishable.
114. Insofar as the judgment in Satish's case is concerned, the same also would have no application. Briefly, the question before the Court was whether an Award given under the Arbitration Act, 1940, which, in effect, brought about partition of immovable property of value exceeding Rs. 100/- required registration under Section 17 (1)(b) of the Indian Registration Act, 1908 (in short “Registration Act”). This question was considered by the Supreme Court in the context of two full Bench decisions rendered by the Patna High Court and Punjab and Haryana High Court. There, High Courts took the view that an Award did not require registration under the scheme of Arbitration Act, 1940 unless a decree was passed in terms of the Award. In other words, the Award, according to these judgments, had no legal effect till a decree was passed in terms of the Award. Thus, according to the Full benches of the Patna High Court and the Punjab and Haryana High Court, the Award simpliciter would not require registration as it fell within the ambit of the exception mentioned in Section 17(2)(vi) of the Registration Act.
115. The Supreme Court, however, based on its own judgment in the matter of Uttam Singh Dugal & Co. v. Union of India (where it held that the Award, once drawn up, has some legal force and was not a mere waste paper and if that be so, if it purports to or affects property within the meaning of Section 17(1)(b) of the Registration Act), held that an Award even before it morphed into a decree required to be registered.
116. It is in this context that the Court observed that, once, an Award is passed, the rights and liabilities of the parties in respect of the claims raised, can be determined only on the basis of the Award. To my mind, this judgment can have no application to the facts obtaining in the instant case for the reasons given hereinabove.
117. The judgment in the case of National Insurance Company would also have no application to the facts obtaining in the present case as that case dealt with the aspect of discharge of a contract on account of issuance of a full and final settlement receipt and/or accord and satisfaction. Clearly, that situation does not obtain in the instant case.
118. The judgment in Republic of India through Ministry of Defence v. Agusta Westland International Ltd.'s case was placed on record only to highlight the fact that a suit for anti-arbitration injunction was maintainable. This judgment emphasized the fact that while this power is available, it is to be exercised sparingly. One can hardly quibble with this proposition of law, which is also the observation made by me in the foregoing paragraphs of my judgment.
119. Likewise, the Supreme Court in its judgment rendered in World Sports Group's case, inter alia, came to the same conclusion, which is that the Court is not emasculated of its power to grant injunction wherever it deems fit.
120. Insofar as the judgment rendered by the Supreme Court in Chloro Controls India Pvt. Ltd. was concerned, reliance was placed on paragraph 131 which notices the principles statutorily set forth in Section 45 of the 1996 Act. The Court observes that one has to keep in mind, the provisions of Section 45 (where it applies), if one were to permit continuation of arbitration proceedings.
121. The judgment in Vodafone was cited for the same reason. Reliance was placed on paragraphs 110 and 111 of the judgment.
122. In the instant case, I have not been able to come to a conclusion that the arbitration agreement has been rendered null and void, inoperative or incapable of being performed. These expressions were used by Mr. Sethi in the context of very same facts which were put forth to expound the bar of res judicata, waiver, and abandonment. Since, I have held that a trial would be required the same reasoning would hold vis-à-visthis submission as well. Therefore, these judgments would have no applicability to the instant case.
123. The judgment of the Supreme Court in K.K. Modi's case would also not be applicable to the facts obtaining in the instant case. Observations made in paragraph 44 of this judgment, on which reliance was placed, inter alia, advert to re-agitation of issues which have already been decided. The Court, inter alia, observes that disputes which fall within the ambit of doctrine of res judicata, their re-agitation would amount to abuse of the process of the Court.
124. The question raised is whether at this juncture it is just and convenient to injunct the 2nd Arbitration proceeding by labeling it as an abuse of process, which clearly is a mixed question of law and fact and would require trial.
125. Since I have come to the conclusion that under the relevant SIAC Rules, the 2ndArbitral Tribunal could adjudicate upon this aspect, it cannot be said at this stage, especially, in the context of arbitration proceedings that triggering of 2nd arbitration proceedings is an abuse of process.
126. The jurisdiction, to my mind, as alluded to above, with regard to constructive res judicata and other legal pleas could justly and conveniently be adjudicated upon by the 2nd Arbitral Tribunal. Therefore, in my opinion, no case is made out for injunction by this Court.
128. Therefore, for the foregoing reasons, I find no merit in the captioned application. It is, accordingly, dismissed.
129. It, however, goes without saying that the nothing stated hereinabove, would impact the decision on merits by the 2nd Arbitration Tribunal. The 2nd Arbitral Tribunal would be free to consider all pleas raised before it by the parties, including those raised before me, in the mode and manner deemed fit.
130. There shall, however, be no order as to costs.
Although stream gauging of Sorang Khad is being done since 1996, the quality of the available discharge data is questionable. The observed discharge data shows an average run-off depth of around 3500mm which does not correlate with the precipitation characteristics of the project area. Incidentally, similar rivulets exist on either side of Sorang with almost parallel disposition. These streams are Babha Khad on the upstream of Ghanvi Khad on the downstream. These streams have been gauged for several years and hydro power stations exist on both of them. Analysis of the available data shows run-off depths of 2179 mm on Ghanvi 1861mm on Bhaba. In contrast, the measured discharge in Sorang khad yield a runoff of 3614 mm for the concurrent period. It is apparent that Sorang flows have been overestimated.
2 310. Clause 9.1.1 of the SPA sets out one of the assumptions made by the Parties. Clause 9.1.1 is not a provision which requires performance of any obligation by NCCIHL. Therefore, the question of ‘breach’ of 9.1.1 as such does not arise. However, Clause 10.2.1 contains a covenant by NCCIHL undertaking to achieve WCD by 31 March 2013 and therefore, failure of NCCIHL to achieve WCD by 31 March 2013 would entitle TAQA to be indemnified for the losses caused as a consequence, under Clause 11.5 of the SPA.
Claim (d) Nil Relief Sought: Declaration that the Respondents are in breach of Clause 9.1.1 read with Clause 10.2.1 of the SPA.
Award: It is declared that NCCIHL failed to achieve Wet Commissioning by 31.3.2013, and therefore TAQA is entitled to be indemnified for the losses under Clause 10.2.1 read with Clause 11.5. [vide paragraph 310 of the Award]. It is declared that NCC is not liable to indemnify HSPL under Clause 10.2.1 of the SPA [vide paragraph 127 of the Award].

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Summary: This case deals specifically with the issue of whether or not the emergency aid exception to the warrant requirement of the Fourth Amendment extends to police action undertaken to render emergency assistance to animals. In this particular case, police officers were called to defendant’s property after a neighbor reported that two of defendant’s dogs were deceased and a third dog looked emaciated after being left outside in inclement weather. After showing up to the defendant’s home, police contacted animal control who immediately took custody of all three dogs, despite defendant not being present. The court held that the emergency aid exception did apply to the emergency assistance of animals because it is consistent with public policy that is “in favor of minimizing animal suffering in a wide variety of contexts.” Ultimately, the court determined that the emergency aid exception could be applied to emergency assistance of animals if an officer has an “objectively reasonable basis to believe that there may be an animal inside [the home] who is injured or in imminent danger of physical harm.” The matter was remanded to the District Court for further proceedings consistent with this opinion.
1. Factual background and prior proceedings. We summarize the facts found by the motion judge. On January 2, 2011, the defendant called police to her home to serve a restraining order on her husband. The home was surrounded by a six-foot tall *748 privacy fence, reinforced by tarps, plastic strips, and plywood. Entry to the property was secured by a padlocked gate in the fence.
While at the defendant's home, police officers noticed dogs in the front yard that were “in bad shape” and “in need of help.” Officers asked the defendant to whom the dogs belonged and whether they were being cared for. The defendant responded that the dogs belonged to “the Duncan[s]” and that she was taking care of them. The officers did not follow up on the state of the dogs at that point, nor did they call an animal control officer to the residence.
On January 8, 2011, the defendant's neighbor telephoned police to report two deceased dogs on the defendant's property and a third “emaciated” dog. In the intervening six days, it had snowed intermittently; the weather on that day was “bleak, snowy, and freezing.” The defendant's neighbor greeted police when they arrived at the defendant's home at approximately 3:15 p.m. The neighbor informed the officers that she had gone to the defendant's home to retrieve a borrowed snow shovel; no one responded to her arrival, but she heard a dog barking and looked through or over the privacy fence and saw what she knew to be the defendant's dogs. Two apparently were deceased.
The officers heard a dog “whimpering and very hoarsely and weakly barking as if it had almost lost its voice, noting that it sounded like an animal in distress.” In order to get a better view into the yard, they stepped on a nearby snowbank that was several feet in height. Inside the yard, they saw two motionless dogs, apparently frozen and leashed to the fence, partially inside and partially outside a doghouse. A third dog, alive but emaciated, was leashed to the fence and barking. The officers did not see any food or water laid out for the dogs.
Due to the padlocked gate, police were unable to access the front door of the house. Instead, they engaged the siren, emergency lights, and air horn of their **472 police cruiser to alert the residents of their presence, to no avail. One officer also directed another at the police station to use the local water and sewer directory to reach the registered owner of the property. These efforts were unsuccessful. Pursuant to police protocol for handling *749 animal-related emergencies, officers then contacted the fire department to remove the padlock on the gate and enter the yard. After police gained entry to the yard, they contacted animal control; an animal control officer arrived and took custody of the three dogs. All of the responders cleared the premises by 4:56 p.m.
On April 19, 2011, a complaint issued in the District Court charging the defendant with three counts of animal cruelty pursuant to G.L. c. 272, § 77. The defendant subsequently filed a motion to suppress observations by police and physical evidence that gave rise to the charges. After an evidentiary hearing, the judge allowed the motion, ruling that “[o]ur courts have not as yet applied the emergency exception to animals.”2 The judge determined also that police had probable cause to believe that the crime of animal cruelty had been committed. However, the judge reported the following question of law, pursuant to Mass. R.Crim. P. 34: “Does the ‘pure emergency’ exception to the warrant requirement extend to animals?” Trial was continued pending resolution of the reported question.
2. Discussion. a. Emergency aid exception to the warrant requirement. “The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment [to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights] [were] designed to circumscribe by the general requirement of a judicial determination of probable cause.” Commonwealth v. Peters, 453 Mass. 818, 819, 905 N.E.2d 1111 (2009), quoting Commonwealth v. DeJesus, 439 Mass. 616, 619, 790 N.E.2d 231 (2003). The emergency aid doctrine comprises one entry in that “narrow category” of cases where an exception to the warrant requirement is justified. Commonwealth v. Young, 382 Mass. 448, 456, 416 N.E.2d 944 (1981), S.C. 399 Mass. 527, 505 N.E.2d 186 (1987). This exception “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in *750 imminent danger of physical harm.”3 Commonwealth v. Peters, supra at 819, 905 N.E.2d 1111, and cases cited. Such scenarios present one type of “exigent circumstance” that obviates the need for a warrant, see **473 Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), in part because it would be impracticable to obtain a warrant under the circumstances. See Commonwealth v. Forde, 367 Mass. 798, 800–801, 329 N.E.2d 717 (1975). In addition, “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Commonwealth v. Snell, 428 Mass. 766, 774, 705 N.E.2d 236, cert. denied, 527 U.S. 1010, 119 S.Ct. 2351, 144 L.Ed.2d 247 (1999), quoting Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
Although the broader “exigent circumstances” exception generally requires a showing of probable cause, such a showing is not necessary in emergency aid situations, because the purpose of police entry is not to investigate criminal activity.4 See Commonwealth v. Entwistle, 463 Mass. 205, 214–215, 973 N.E.2d 115 (2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 945, 184 L.Ed.2d 736 (2013); J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law §§ 14–1[a], 14–1[c][vi] (2012–2013). Instead, a warrantless entry “must meet two strict requirements. First, there must be objectively reasonable grounds to believe that an emergency exists.... Second, the conduct of the police following the entry must be reasonable under the circumstances....” (Citations omitted.) Commonwealth v. Peters, supra at 823, 905 N.E.2d 1111. *751 Where these two conditions have been satisfied, warrantless entry into a home is permissible.
The scope and nature of any such public interest can be discerned from “legislative enactments and the policies reflected in them,” which are “relevant as we consider the boundaries of the judicially established exceptions to the warrant requirement.” State v. Fessenden, 258 Or.App. 639, 648–649, 310 P.3d 1163, review granted, 354 Or. 597, 318 P.3d 749 (2013). Our statutes evince a focus on the prevention of both intentional and neglectful animal cruelty.5 See, e.g., G.L. c. 272, § 77. In addition to outlawing intentional acts of cruelty against animals, such as torture, mutilation, and overworking, G.L. c. 272, § 77, makes it a crime for the custodian of an animal to “unnecessarily fail[ ] to provide it with proper food, drink, shelter, sanitary environment, or protection from the weather.” In a 2012 enactment, An Act Further Regulating Municipal Animal Control, St. 2012, c. 193(act), the Legislature **474 took steps to protect dogs in particular, by prescribing the duration and conditions under which they may be restrained outside. See G.L. c. 140, § 174E (requiring, inter alia, that dogs confined outside be provided with clean water and appropriate shelter).
A web of other statutes also regulates human interaction with animals, for example, by prohibiting certain means of putting animals to death; imposing restrictions on railroad corporations that transport animals; and restricting the use of animals in scientific experimentation. See G.L. c. 272, §§ 80E, 80G, *752 81. As part of the 2012 act, the Legislature authorized judges to consider the welfare of household pets when issuing protective orders; judges “may make a finding, based upon the totality of the circumstances, as to whether there exists an imminent threat of bodily injury to” a pet, and shall notify law enforcement officials if such a finding is made. G.L. c. 209A, § 11. This public policy promoting the humane treatment of animals, as reflected in the statutes of the Commonwealth, “is a basic source of law when no previous decision or rule of law is applicable.” Commonwealth v. Yee, 361 Mass. 533, 538, 281 N.E.2d 248 (1972).
In light of the public policy in favor of minimizing animal suffering in a wide variety of contexts, permitting warrantless searches to protect nonhuman animal life fits coherently within the existing emergency aid exception to the warrant requirement, intended to facilitate official response to an “immediate need for assistance for the protection of life or property” (emphasis supplied). Commonwealth v. Snell, supra at 774, 705 N.E.2d 236, quoting Commonwealth v. Bates, 28 Mass.App.Ct. 217, 219, 548 N.E.2d 889 (1990). It is therefore reasonable “to render aid to relatively vulnerable and helpless animals when faced with people willing or even anxious to mistreat them.” State v. Bauer, 127 Wis.2d 401, 409, 379 N.W.2d 895 (Ct.App.1985). See Commonwealth v. Entwistle, supra at 213, 973 N.E.2d 115, quoting Commonwealth v. Townsend, 453 Mass. 413, 425, 902 N.E.2d 388 (2009) (“the ‘ultimate touchstone’ of both the Fourth Amendment and art. 14 is reasonableness”).
In addition to promoting life-saving measures, the ability to render such assistance vindicates the legislative framework for preventing cruelty to animals, particularly the provision regulating the conditions under which dogs may be kept outside. See G.L. c. 140, § 174E. Indeed, it would be illogical and inconsistent to permit the prosecution of dog owners for exposing their dogs to conditions that “could injure or kill [them]” in ill-equipped yards, G.L. c. 140, § 174E (f ) (1), only after the harm to animal life has taken place, while hindering the ability of police proactively to prevent such injury. Furthermore, the inclusion of animals within the ambit of the emergency aid exception enables trained personnel, such as police or animal control officers, to respond to animal emergencies, rather than lay people. In the absence of such trained professionals rendering *753 care and assistance, untrained citizens may attempt to intervene, potentially causing further harm to the animal, to themselves, or to other members of the community, should an injured animal end up loose on public streets.
This conclusion accords with that of courts in other jurisdictions that have considered the issue, including the highest courts of the District of Columbia and Montana, which have held that “needless suffering and death” of animals is an “exigent circumstance[ ] justifying the warrantless search for and rescue of the animals.” State v. Stone, 321 Mont. 489, 498, 92 P.3d 1178 (2004). Accord Tuck v. United States, 477 A.2d 1115, 1120 (D.C.1984). See also State v. Goulet, 21 A.3d 302, 311–315 (R.I.2011) (affirming denial of motion to suppress where entry permissibly aimed to preserve life of dog that homeowner threatened to shoot); Hegarty v. Addison County Humane Soc'y, 176 Vt. 405, 410, 848 A.2d 1139 (2004), citing Siebert v. Severino, 256 F.3d 648, 657 (7th Cir.2001) (“Exigent circumstances are a well-established exception to the warrant requirement, ... even in cases involving the seizure of animals”). Acknowledging that “[s]tandards of decency have evolved,” People v. Chung, 185 Cal.App.4th 247, 258 n. 4, 110 Cal.Rptr.3d 253 (2010), quoting Graham v. Florida, 560 U.S. 48, 85, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Stevens, J., concurring), these courts have recognized *754 a public interest “in the preservation of life in general and in the prevention of cruelty to animals in particular.” Tuck v. United States, supra at 1120.
The emergency aid doctrine remains a narrow exception to the warrant requirement. Its application to nonhuman animals does not expand the exception or alter the essential framework for determining when a warrantless police search of the home is permissible under it. As in instances involving humans, there must be objectively reasonable grounds to believe that an emergency exists, and police conduct following entry must be reasonable under the circumstances. See Commonwealth v. Peters, supra at 823, 905 N.E.2d 1111. However, when the exception applies to nonhuman animals, there are additional considerations to be taken into account. When there is an objectively reasonable belief that an emergency exists involving human life, i.e., that a person “is injured or in imminent danger of physical harm,” id. at 819, 905 N.E.2d 1111, nothing further ordinarily is necessary to justify a warrantless police entry. In contrast, where nonhuman animal life is similarly imperiled, other factors appropriately enter the calculus in determining whether such entry is justified.
One such factor that other courts have looked to is whether the animal's condition was caused by human abuse or neglect. See Davis v. State, 907 N.E.2d 1043, 1050 (Ind.Ct.App.2009) (“circumstances of animal cruelty [by humans] may create exigent circumstances to permit a warrantless search of the curtilage”). As against the countervailing norm of privacy within **476 one's home, there is an especially strong societal interest, suggested by the legislative enactments discussed supra, in avoiding injury to animals inflicted by humans; a concern with preventing harm to animals, no matter what the source, does not find the same support. Although true emergencies that do not arise as a result of any human action may befall animals, the threshold for police entry in such situations will be considerably higher.
Other considerations that courts have weighed include the species of the animal in need, State v. Fessenden, 258 Or.App. 639, 649, 310 P.3d 1163, review granted, 354 Or. 597, 318 P.3d 749 (2013); the nature of the privacy interest at issue, DiCesare v. Stout, U.S.Ct.App., No. 92–7116, 1993 WL 137110 (10th Cir. Apr. 23, 1993); whether any efforts were *755 made to obtain the consent of the property owner prior to making entry onto the property, Suss v. American Soc'y for the Prevention of Cruelty to Animals, 823 F.Supp. 181, 187 (S.D.N.Y.1993); and the extent of the intrusion, including any damage done to the property. Id. (warrantless action to save cat unreasonable where, inter alia, exterior building wall was demolished). Inevitably, of course, there will be countless and varied iterations of emergency aid scenarios involving animals, and these factors do not purport to be exhaustive. The reasonableness of the search must be determined on a case-by-case basis upon consideration of the totality of the circumstances.
1 We acknowledge the amicus briefs on behalf of the Commonwealth from the Attorney General and the District Attorneys for the Norfolk, Berkshire, Bristol, Hampden, Middle, Northern, Northwestern, Plymouth, and Suffolk Districts; Massachusetts Chiefs of Police Association, Inc.; Animal Control Officers Association of Massachusetts; Animal Legal Defense Fund, Animal Rescue League of Boston, National District Attorneys Association, and Association of Prosecuting Attorneys; Humane Society of the United States and Best Friends Animal Society; and American Society for the Prevention of Cruelty to Animals.
2 Concluding that the status of the emergency aid exception as applied to animals was unclear, the judge made no express finding regarding whether an emergency situation did, in fact, exist on the afternoon in question.
3 Although the emergency aid exception to the warrant requirement is “closely related” to the so-called community caretaking exception, Commonwealth v. Knowles, 451 Mass. 91, 96, 883 N.E.2d 941 (2008), the latter has been applied almost exclusively in situations involving searches or seizures of automobiles. See, e.g., Commonwealth v. Mateo–German, 453 Mass. 838, 842–843, 906 N.E.2d 970 (2009) (police officer acted pursuant to community caretaking function when he checked on vehicle that had abruptly slowed down on highway and had run out of gasoline); Commonwealth v. Evans, 436 Mass. 369, 373, 764 N.E.2d 841 (2002) (“The trooper, as part of his community caretaking responsibilities, appropriately decided to check the status of the vehicle” that was idling in breakdown lane).
4 Exceptions involving other types of exigent circumstances are similarly inapplicable here. For example, this case does not involve the possibility of the imminent destruction of evidence. Cf. Commonwealth v. Ortiz, 435 Mass. 569, 574, 760 N.E.2d 282 (2002) (“circumstances justified the warrantless entry and search under the destruction of evidence exigency” where unruly crowd threatened to rush crime scene and undermine its integrity).
5 “Cruelty in this context is ‘[s]evere pain inflicted upon an animal ... without any justifiable cause.’ ” Commonwealth v. Zalesky, 74 Mass.App.Ct. 908, 909, 906 N.E.2d 349 (2009), quoting Commonwealth v. Lufkin, 89 Mass. 579, 7 Allen 579, 581 (1863). It excludes activities involving the killing of an animal for legally sanctioned purposes, such as hunting and food production. See, e.g., G.L. c. 94, §§ 119–125; G.L. c. 131, § 5.
6 Where an animal's condition has been inflicted lawfully, see note 5, supra, the emergency aid exception will not apply. Cf. State v. Fessenden, 258 Or.App. 639, 649, 310 P.3d 1163, review granted, 354 Or. 597, 318 P.3d 749 (2013).
7 In one rendering, the motion judge had phrased the reported question as “whether the situation presented to the police on January 8th was a ‘pure emergency’ and, if so, whether an emergency exception to the warrant requirement should be recognized for the protection of animals.” We answer only the reported question of law, not the question of fact. See Commonwealth v. Bankert, 67 Mass.App.Ct. 118, 120, 852 N.E.2d 132 (2006), citing Commonwealth v. Giang, 402 Mass. 604, 608, 524 N.E.2d 383 (1988).


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G.R. No. L-7307 May 19, 1955 - PACITA ORTIZ v. COURT OF APPEALS ET AL.
G.R. No. L-7595 May 21, 1955 - TEODORA DEMORAR v. HON. JUDGE ROMAN IBAÑEZ ET AL.
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G.R. No. L-7518 May 27, 1955 - ATOK-BIG WEDGE MINING CO., INC. v. HON. MODESTO CASTILLO ET AL.
G.R. No. L-7752 May 27, 1955 - SEC. OF AGRI. AND NAT. RESOURCES, ET AL. v. HON. JUDGE, CFI OF MLA., ET AL.
G.R. No. L-7248 May 28, 1955 - AMADO BERNARDO v. HON. COURT OF APPEALS, ET AL.
G.R. No. L-8040 May 28, 1955 - VICENTE K. LAY v. ROCES HERMANOS INC., ET AL.
G.R. No. L-7708 May 30, 1955 - JOSE MONDANO v. FERNANDO SILVOSA, ET AL.
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G.R. No. L-6707 May 31, 1955 - R. F. & J. ALEXANDER & CO., LTD., ET AL. v. JOSE ANG, ET AL.
G.R. No. L-7338 May 31, 1955 - PREMIERE PRODUCTIONS, INC., v. PHIL. MOVIE PICTURES WORKERS ASSN.
G.R. No. L-7358 May 31, 1955 - NATIONAL LABOR UNION v. AGUINALDO’S ECHAGUE, INC.
G.R. No. L-7376 May 31, 1955 - FRANCISCO MARIANO v. APOLONIO DE LOS SANTOS, ET AL.
G.R. No. L-7614 May 31, 1955 - CONRADO POTENCIANO v. NAPOLEON DINEROS, ET AL.
G.R. Nos. L-7771-73 May 31, 1955 - PHIL. MOVIE PICTURES WORKERS’ ASSN. v. PREMIERE PRODUCTIONS, INC.

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