Tata Sons today told the Delhi High Court that it has every intention of paying the arbitral award of $1.17 billion in favour of Japanese telecom major NTT Docomo, but has been unable to do so due to lack of permission from the Reserve Bank of India (RBI).
Even as Tata Sons made the submission before Justice S Muralidhar, RBI contended in the court that the shareholding agreement between the two companies permitting transfer of funds abroad was illegal as it violated Foreign Exchange Management Act (FEMA) Regulations.
“It is not a question of permission, it is prohibition,” the lawyer for RBI said while seeking intervention by the central bank of India. However, Tata Sons said its agreement with Docomo was perfectly consistent with Indian laws.
The court, thereafter, issued notice to Docomo and Tata on RBI’s plea seeking intervention and listed the matter for hearing on December 21.
The issue pertains to the exit of Docomo from the two companies’ joint venture, Tata Teleservices Ltd (TTSL), for alleged breach of agreement by Tata and enforcement of the damages awarded by the London Court of International Arbitration (LCIA) in favour of the Japanese company for the same.
The matter had gone to arbitration as Tata was unable to find a buyer for Docomo’s 26.5 per cent stake in TTSL for 50 per cent of the acquisition price, which came to around Rs 58.45 per share, and the Japanese company was not willing to accept the “fair market value”, of Rs 23.44, that the Indian company was willing to pay as per the shareholding agreement.
Under the agreement, either Tata had to find a buyer for Docomo’s shares at 50 per cent of acquisition price or buy its shares at fair market value, both leading to transfer of funds outside India which RBI has termed as illegal.
During the hearing, Tata said it wants to make payment as its reputation is at stake but at the same time does not want to “fall foul” of FEMA regulations. It also said that it has deposited the entire amount with the court which shows it was willing to pay it.
The court, however, wondered why Tata did not challenge the refusal by RBI if its reputation was at stake and said it was the obligation of the Indian company to explore some alternative structure to ensure payment to Docomo.
“Otherwise, it would mean if you invest money in India, you cannot take it back,” the court said when Tata said one alternative solution was to pay the money in India instead of transferring it out of the country.
Tata said that before going to arbitration, it had sought RBI’s permission for paying an amount equal to 50 per cent of acquisition price and while the central bank had initially agreed, the Ministry of Finance had asked RBI to stick to its extant regulations and not give any special permission.
Thereafter, on award of damages, which was the same amount as was to be paid if the shares were bought at 50 per cent of acquisition price, it had again approached RBI for permission and the central bank had refused, the Indian company said.
Docomo, however, questioned the need for Tata going to RBI for permission before arbitration and contended that it was done so as to tell LCIA that it cannot go ahead with tranfer of funds abroad. Tata disputed the contention.
In November 2009, Docomo had acquired 26.5 per cent stake in TTSL for about Rs 12,740 crore. The two had also agreed that in case Docomo exits the venture within five years, it will be paid a minimum 50 per cent of the acquisition price through purchase of its shares by a buyer who would be found by Tata.
The other option was Tata purchasing the shares at fair market value.
LCIA had awarded damages of $1.17 billion in favour of Docomo for Tata’s alleged breach of the agreement regarding buying of the Japanese company’s stake on its exit.
Docomo moved the Delhi High Court for enforcement of the award after Tata cited refusal of permission by RBI to make the payment.
Docomo, in a recent affidavit, had said that RBI’s permission was not required for paying the damages.