TaxTMI 
TaxTMI 
2024 (3) TMI 1351
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....ra S. Bhadoriya, Rusheet Saluja, Sonam Mhatre, Amit Mishra, Sumer Dev Seth, Shreya Sethi, Riya Kumar, Advs., Harin P. Raval, Sr. Adv., Karan Bharihoke, Siddhant Sharma, Shreshtha, Advs., Nakul Dewan, Sr. Adv., Aditya Dewan and Parth Tiwari, Advs. JUDGMENT SACHIN DATTA, J. 1. The present petition has been filed by DLF Limited ("DLF"/ "petitioner") seeking appointment of a sole arbitrator to adjudicate the disputes between itself and PNB Housing Finance Limited ("PNBHFL"/ "respondent no.1"), Omkara Asset Reconstruction Company Limited ("Omkara"/"respondent no.2"), Joyous Housing Limited, ("JHL/ "respondent no.3"), Hubtown Limited ("Hubtown"/"respondent no.4"), Chinsha Property Private Limited ("Chinsha/"respondent no.5"), Twenty Five South Realty Limited ("Twenty-Five South"/"respondent no.6") and Akruti Nirman Private Limited ("Akruti/"respondent no.7"). Factual Background 2. DLF alongwith Hubtown and Chinsha have been shareholders in JHL, in the ratio of 37.5% (DLF Ltd.), 37.5% (Chinsha) and 25% (Hubtown). DLF had purchased 37.5% shareholding in JHL vide Memorandum of Understanding dated 15.04.2004. 3. In 2017, JHL had availed a loan of Rs. 800 Crores from PNBHFL ....
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.... shareholders of JHL to purchase 100% pledged shares of JHL, with a reserve price of Rs. 1075 crores. 7. DLF, in response to PNBHFL default notice vide its letter dated 10.11.2022 offered an amount of Rs. 1450 crores for "100% of the legal ownership of the pledged shares and 100% of the control of JHL". 8. Thereafter, for removal of the nominee directors of existing shareholders of JHL and replacing them with the nominee directors of PNBHFL an Extra-ordinary General Meeting ("EGM") was held on 09.03.2023 and a resolution was passed appointing directors nominated by PNBHFL. 9. Consequent to the decisions passed at the aforesaid EGM, Hubtown filed a company petition no. CP/85(MB)2023 in NCLT, Mumbai, under Sections 241 and 242 of the Companies Act, 2013 alleging oppression and mismanagement. In the said petition, vide order dated 14.03.2023 a status quo order to the extent of resolutions passed in the alleged gathering held on 09.03.2023, was passed. PNBHFL was not made a party in the said company petition. The said order was challenged in NCLAT by PNBHFL however, the status quo order was not interfered with and liberty was granted to PNBHFL to approach the NCLT. 10. On 0....
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....nder: "42. Prayer (b) is inchoate in view of Prayer (a) since the identity of the transferee is not known yet, in view of which, no order can be passed against the unknown transferees. However, it would be appropriate if pledged shares sold to a third party by Omkara are kept in a suspended animation by directing JHL not to recognise further sale, if any, undertaken by Omkara transferees. If any request is received by JHL by further transferees the same shall not be acted upon by JHL and further transferees shall not be recorded as members (shareholders) in the record of JHL. 43. Omkara is further directed to disclose the identity of the transferees to the petitioners, to whom it has sold the pledged shares, within a period of 7 days for the petitioners to take remedies that are available to them in law, against such transferees...." 17. The said order was assailed by PNBHFL, Omkara and Twenty-Five South before a Division Bench of this Court. After the judgement in the present petition was reserved, the said appeals were disposed of vide order dated 11.01.2024 passed in FAO(OS)(COMM) 218/2023 & Ors., as under: "17. Accordingly, the above-captioned appe....
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....insha. Disputes between the parties 23. The disputes sought to be raised by DLF inter alia include: a. The legal effect of the DLF's acceptance dated 10.11.2022 of the proposal made by PNBHFL vide letter dated 02.11.2022 read with letter dated 08.11.2022, to sell 100% shares of JHL, at an enterprise value (reserve price) of over Rs. 1075 Crores. b. The legal effect of PNBHFL proceeding to invoke the pledge and simultaneously seeking to assign the debt without responding to or repudiating DLF's aforesaid acceptance of the proposal of PNBHFL. c. Legal validity of Omkara's sale of only 75% of the pledged shares belonging to DLF and Chinsha, despite being made expressly aware of DLF's acceptance to purchase 100% of the shares of JHL at a price of Rs. 1450 Crores, well above the outstanding debt of PNBHFL/Omkara. d. Collusion between PNBHFL, Omkara, Hubtown, Twenty-Five South, and Akruti to defeat the rights of the DLF. e. Declarations, injunctions, losses, damages to which DLF is entitled to. Submissions of the Parties 24. Learned senior counsel for DLF has submitted that the arbitration clause within the SPA is d....
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....22 nor is not aggrieved by it. Therefore, any reliance placed on this MOU by Omkara is misplaced. It is again asserted that the offer to purchase JHL's shares was made in accordance with the provisions of the SPA. It is emphasized that the jurisdiction of the referral court is extremely limited. Once the existence of an arbitration clause is prima facie established, all issues and contentions raised by the parties are to be deferred for determination by the arbitral tribunal. Furthermore, it is argued that the inclusion of non-signatories in arbitration proceedings is contingent upon specific facts and can be justified under various legal theories and doctrines. It is emphasized that the Supreme Court has explicitly stated that the referral court should refrain from deciding whether a non-signatory is indeed a party to the arbitration agreement and should instead leave this determination to the arbitral tribunal. In support of these submissions reliance has been placed on Renusagar Power Co. Ltd. v. General Electric Co. (1984) 4 SCC 679, Black Law's Dictionary, National Insurance Co. Ltd. v. BogharaPolyfab (P) Ltd. (2009) 1 SCC 267, Vidya Drolia v. Durga Trading Corpn. (202....
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....e an assignee becomes successor to the signatory party's interests under the arbitration agreement and derives a derivative right to arbitrate and not an independent right to arbitrate. It is submitted that all claims therefore, whatever be their merits, are to be pursued against the assignee, post the assignment. In support of these submissions reliance has been placed on Cox & Kings (supra), Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re (supra), R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683 Union of India v. N. Murugesan and Ors. (2022) 2 SCC 25, Gurmeet Singh v. Essel Finance Business Loans Ltd. and Ors. 2020 SCC Online Bom 6369, BXH v. BXI [2020] SGCA 28, and Montedipe S.P.A and Anr. v. JTP-RO Jugotanker (The "Jordan Nikolov") [1990] 2 Lloyd's Rep 11. 27. Learned senior counsel for Omkara has submitted that DLF has concealed the MOU dated 27.10.2022 executed between the subsidiary of DLF and PNBHFL, which incorporated an alleged understanding to purchase the shareholding of the JHL by the subsidiary of DLF. It is submitted that disputes, if any, that have arisen between DLF and PNBHFL are u....
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....tion has been made against JHL in the present petition, and no dispute arises between JHL either with DLF or Chinsha which is required to be referred to arbitration. It is submitted that JHL was merely a confirming party to the SPA and had neither any right nor any obligation under the said agreement. It is submitted that disputes if any between JHL and DLF/Chinsha would arise under the Memorandum of Understanding and Shareholders Agreement both dated 15.04.2004, in respect of which DLF has already invoked arbitration. It is further submitted that under the SPA, DLF could have only redeemed its 37.5% pledged shares by paying the outstanding dues under the loan account. The SPA does not, and could not have contemplated a sale/purchase of shareholding of JHL and therefore the allegation of breach of alleged contract arrived at between PNBHFL and DLF under letters dated 02.11.2022 and 10.11.1022, does not result in any dispute under the SPA. 29. Learned senior counsel for Hubtown has submitted that even when an arbitration agreement exists, it does not prevent the court from declining a prayer for reference if the dispute in question does not correlate to the agreement. It is submi....
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....insha, and consequently, there is no arbitration agreement between them. It is contended that Twenty-Five South's acquisition of 75% shares of JHL from Omkara stands as an independent transaction entirely separate and unrelated to the SPA. Additionally, it is asserted that DLF/Chinsha's right to redeem pledged shares is extinguished upon the actual sale. It is asserted that the criteria set forth by the Supreme Court to bind non-signatories to an arbitration agreement are not fulfilled in this case, as Twenty-Five South was not envisioned as a party to the arbitration agreement when SPA was executed. Furthermore, Twenty-Five South was not involved in the original negotiations, execution, or termination of the SPA, nor did it express any consent to be bound by the arbitration agreement at the time of entering into the SPA. It is further submitted that the assertion made by DLF/Chinsha regarding the interconnectedness of Hubtown, Twenty-Five South, and Akruti, and their portrayal as a single economic entity, is entirely baseless and misconceived. In support of these submissions reliance has been placed on PTC India (supra), Amit Jain v. Canara Bank 2022 SCC OnLine Del 3771, I....
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....lguera, SA v. Gangavaram Port Ltd. (2017) 9 SCC 729, Ameet Lalchand Shah & Ors. v. Rishabh Enterprises &Ors. (2018) 15 SCC 678, Cheran Properties Ltd. v. Kasturi & Sons Ltd.,(2018) 16 SCC 413 Reckitt Benckiser (India) (P) Ltd. v. Reynders Label Printing (India) (P) Ltd. (2019) 7 SCC 62, MTNL v. Canara Bank (2020) 12 SCC 767, and Sudhir Gopi v. Indira Gandhi National Open University & Anr. 2017 SCC Online Del 8345 Analysis and Findings The scope of the examination in these proceedings 32. At the outset, it is noticed that the scope of inquiry by a referral court in a petition under Section 11 of the A&C Act is confined to examination of the existence of an arbitration agreement. The referral proceedings are preliminary and summary and not in the nature of a mini-trial. Rarely as a demurrer, the referral court may decline reference when there is not even a vestige of doubt that the claim is non-arbitrable. If there is a slightest doubt, the rule is to refer the dispute/s to arbitration. Further, when contentions relating to non-arbitrability are plainly arguable, or when facts are contested, the court by default would refer the parties to arbitration. See: Vidya Drolia v. Du....
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....t to be left to the arbitral tribunal. This position of law can also be gauged from the plain language of the statute. 164. Section 11(6A) uses the expression "examination of the existence of an arbitration agreement." The purport of using the word "examination" connotes that the legislature intends that the referral court has to inspect or scrutinize the dealings between the parties for the existence of an arbitration agreement. Moreover, the expression "examination" does not connote or imply a laborious or contested inquiry. On the other hand, Section 16 provides that the arbitral tribunal can "rule" on its jurisdiction, including the existence and validity of an arbitration agreement. A "ruling" connotes adjudication of disputes after admitting evidence from the parties. Therefore, it is evident that the referral court is only required to examine the existence of arbitration agreements, whereas the arbitral tribunal ought to rule on its jurisdiction, including the issues pertaining to the existence and validity of an arbitration agreement. A similar view was adopted by this Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. xxx ....
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....bitral tribunal. The doctrine of competence-competence is intended to minimize judicial intervention at the threshold stage. The issue of determining parties to an arbitration agreement goes to the very root of the jurisdictional competence of the arbitral tribunal 166. In Vidya Drolia (supra), Justice N.V. Ramana (as the learned Chief Justice then was) held that the amendment to Section 8 rectified the shortcomings pointed out in Chloro Controls (supra) with respect to domestic arbitration. He further observed that the issue of determination of parties to an arbitration agreement is a complicated exercise, and should best be left to the arbitral tribunals: "239. [...] Jurisdictional issues concerning whether certain parties are bound by a particular arbitration, under group-company doctrine or good faith, etc. in a multi-party arbitration raises complicated factual questions, which are best left for the tribunal to handle. The amendment to Section 8 on this front also indicates the legislative intention to further reduce the judicial interference at the stage of reference." 167. In Pravin Electricals Pvt Ltd. v. Galaxy Infra and Engineering Pvt Ltd., a B....
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...., the expression "unless it prima facie finds" was inserted in Section 45. In view of the legislative amendment, the basis of the above holding of Chloro Controls (supra) has been expressly taken away. The present position of law is that the referral court only needs to give a prima facie finding on the validity or existence of an arbitration agreement. 170. In Deutsche Post Bank Home Finance Ltd. v. Taduri Sridhar, a two-Judge Bench of this Court held that when a third party is impleaded in a petition under Section 11(6) of the Arbitration Act, the referral court should delete or exclude such third party from the array of parties before referring the matter to the tribunal. This observation was made prior to the decision of this Court in Chloro Controls (supra) and is no longer relevant in light of the current position of law. Thus, when a non-signatory person or entity is arrayed as a party at Section 8 or Section 11 stage, the referral court should prima facie determine the validity or existence of the arbitration agreement, as the case may be, and leave it for the arbitral tribunal to decide whether the nonsignatory is bound by the arbitration agreement. 171. ....
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....rovisions of the Arbitration and Conciliation Act, 1996 and any statutory amendments thereof. The proceeding of Arbitration Tribunal shall be conducted in English language. Each party shall bear cost of representing its case before the Arbitrator. Costs and charges of arbitrator to be shared equally unless/otherwise provided for in the award." 36. It can be seen that the arbitration clause is widely worded and any dispute "arising out of" or "in connection with" or "the performance of" the SPA is to be referred to arbitration thereunder. Given the width of the arbitration agreement, it cannot be said that the various facets with regard to which DLF has sought to raise disputes are unconnected with the SPA. 37. At this stage, this Court is not required to conduct an in-depth inquiry as to whether the disputes sought to be raised by the petitioner/DLF afford any valid cause of action to the petitioner on the basis of the provision of SPA or not. This is an aspect which necessarily requires an in-depth examination on merits and necessarily required to be gone into by a duly constituted arbitral tribunal. 38. The contention of the learned senior counsel for the Hubtown and Omk....
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....of action, parties and prayers." 22. Also, in MTNL v. Canara Bank, (2020) 12 SCC 767, it was observed as under: "9.5. A commercial document has to be interpreted in such a manner so as to give effect to the agreement, rather than to invalidate it. An "arbitration agreement" is a commercial document inter partes, and must be interpreted so as to give effect to the intention of the parties, rather than to invalidate it on technicalities." 23. In A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386, Dr. D.Y. Chandrachud, J. in his separate opinion observed that: "53. The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle." 24. In Govind Rubber Ltd. v. Louids Dreyfus Commoditi....
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....decided by one tribunal and issues as to its meaning or performance decided by another, they must say so expressively. Otherwise, they will be taken to have agreed on a single tribunal for the resolution of all such disputes." 27. With regard to the view taken in some older authorities to the effect that the arbitration clauses must be interpreted restrictively, it is stated by Gary B. Born in International Arbitration : Law and Practice, Third Edition as under: "The "restrictive" presumption is generally explained on the grounds that arbitration is a derogation from otherwise available access to civil justice and the "natural judge" of the contract, and that such derogations must be construed narrowly. Thus, in an older decision, a French appellate court declared that "[t]he arbitration agreement must be strictly interpreted as it departs from the norm-and in particular from the usual rules as to the jurisdiction of the courts." 'This restrictive interpretative presumption is archaic and out of step with the ordinary intentions of commercial parties; it is generally not applied in contemporary decisions." 40. As such, the existence of a valid arbitration a....
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.... relieve the assignor of his liabilities not does it, anyway as regards matters preceding the notice of assignment, affect the rights of the other party or parties against the assignor..." 45. A Constitution Bench of the Supreme Court in Khardah Co. Ltd. v. Raymon& Co. (India) (P) Ltd., (1963) 3 SCR 183 has held as under: "...There was considerable argument before us on the question as to assignability of a contract. The law on the subject is well settled and might be stated in simple terms. An assignment of a contract might result by transfer either of the rights or of the obligations thereunder. But there is a well-recognised distinction between these two classes of assignments. As a rule obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties." 46. Prima facie, despite assignment of the SPA to Omkara, PNBHFL would be a necessary pa....
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....o take any consent of the Pledgors." (Clause 14 of Share Pledge Agreement-PNBHFL Reply-Document 5 @pg.-157) 10. By virtue of the Assignment Agreement dated August 18, 2023, PNBHFL has assigned the SPA to Omkara on "as is where is, and whatever there is basis without any recourse to the Assignor" (clause 2.1(b) r/w definition of "Financing Document") (Assignment Agreement-PNBHFL Reply-Document 26 @pg.-373-429) 50. By virtue of the fact that Omkara is admittedly an assignee of PNBHFL and since by virtue of the definition PNBHFL has been defined in the SPA as "PNB Housing Finance Limited, ... (hereinafter referred to as the "Lender", which expression shall unless repugnant to the context or meaning thereof include its successors assigns)." accorded in the SPA itself, it is a party to the arbitration agreement contained in the SPA. There is no impediment to the impleadment of Omkara in the proposed arbitration proceedings. 51. The law is also well settled that where there is an assignment of a contract containing an arbitration agreement, the assignee will be bound by the arbitration agreement. The assignee would take both the benefit and burden of the arbitration agreem....
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....ative capacity, that is through the party to the arbitration agreement, to participate in the agreement; third, the persons claiming through or under do not possess an independent right to stand as parties to an arbitration agreement, but as successors to the signatory parties' interest; and fourth, mere legal or commercial connection is not sufficient for a non-signatory to claim through or under a signatory party." Impleadment/joinder of the non-signatories in the proposed arbitration proceedings 52. It has been strenuously contended on behalf of the respondent no.6/Twenty-Five South that title to the pledged shares acquired by the respondent no.6 is independent of the underlying rights and obligations under SPA. In the written submissions filed on behalf of the respondent no. 6, it has been contended as under: "4. ....... a. ....... b. Once the shares (75%) were held in dematerialized form, on the invocation of the Pledge by PNB, the same came to be recorded in the beneficial ownership of PNB, and hence the right to transfer/sell/assign the same vested in PNB in terms of Section 10(3) of the Depositories Act, 1996. c. Upon assignment....
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....plied to bind non-signatories to an arbitration agreement. It has been observed therein as under:- "103.1. The first theory is that of implied consent, third-party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities. 103.2. The second theory includes the legal doctrines of agent-principal relations, apparent authority, piercing of veil (also called "the alter ego"), joint venture relations, succession and estoppel. They do not rely on the parties' intention but rather on the force of the applicable law." 57. In the present case, the petitioner/DLF has sought to invoke non-consensual theories as enumerated in para 103.2 of the Chloro Controls (supra), for seeking impleadment of respondent Nos. 6 and 7 in the proposed arbitration. 58. Reliance placed by counsels of the respondent Nos. 6 and 7 on observations made in Cox & Kings (supra), to contend that neither of the said parties had shown any intent or implied consent towards being a party to the arbit....
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....the separateness of corporate personality is found opposed to justice, convenience, and public interests. In Balwant Rai Saluja v. Air India, this Court cautioned that the principle of piercing the corporate veil should be applied in a restrictive manner and only in scenarios where it is evident that the subsidiary company was a mere camouflage deliberately created by the holding company for the purpose of avoiding liability. It was further observed that the intent of piercing the corporate veil must be such that would seek to remedy a wrong done by the holding company. In the context of arbitration, the principle of piercing the corporate veil has been sparingly used because it disregards the intention of the parties by emphasizing on the overriding considerations of good faith and equity to bind the non-signatories to an arbitration agreement. 93. Moreover, since the companies in a group have separate legal personality, the presence of common shareholders or directors cannot lead to the conclusion that the subsidiary company will be bound by the acts of the holding company. The statements or representations made by promoters or directors in their personal capacity would ....
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.... equity considerations include alter ego/piercing the corporate veil, estoppel, succession, and apparent authority. The formulation of these principles, whether consensual or non-consensual, is not new. They are derived from general principles of contractual law and corporate law." 60. Theoretically, in a given case non-signatories may be bound with the arbitration agreement on the basis of both the consensual and non-consensual theories. After piercing the corporate veil of a company, it may be found that the shareholder or parent corporation had in fact impliedly consented to the arbitration agreement. The decision to join a non-signatory oft rests on more than one factor. 61. In Shapoorji Pallonji (supra), this court has reviewed the case laws where the courts have compelled non-signatories to arbitrate by disregarding their corporate facade or where the courts have found the signatory to be an alter ego of the non-signatory or vice versa. Relevant extracts of the said decision are as under: "28. There exists another set of cases where the Courts have compelled non-signatories to arbitrate by disregarding their corporate facade or where the Courts have found the s....
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....; xxx xxx 61. In Fisser v. Int'l Bank 282 F.2d 231, 238 (2nd Cir. 1960), the Court analysed the situation in which a claimant alleged that the respondent is just an alter ego of its mother company. It held that, if there is a valid arbitration agreement between the claimant and respondent, but respondent is a mere puppet of the mother company, such corporate mother must be bound by arbitration as well. 62. Similarly, in Builders Federal (Hong Kong) v. Turner Const. : 655 F. Supp. 1400, 1406 (S.D.N.Y. 1987), the court considered a construction case involving a foreign project where the sub-contractors sought to compel the American corporate parents to enter arbitration abroad of a dispute involving claims against the main contractor. The Court considered that the allegations that the parent corporation exercised dominan....
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....tances of the case, this Court is of the view that it would be apposite to compel Indiabulls to arbitrate as there is sufficient material to show that Elena is its alter ego. This is evident from the fact that Elena's name has been mentioned in parenthesis against the name of Indiabulls in the LoA. The shareholding pattern confirms that Indiabulls does exercise complete control as a shareholder over Elena. The fact that the officials of Indiabulls acted on behalf of Elena also indicate that Indiabulls exercises substantial and dominant direct control over the affairs of Elena." 62. In the present case, it has been contended on behalf of the petitioner that the assignment in favour of Omkara was not bona fide but only an elaborate collusive device contrived by Hubtown to takeover 100% shareholding of the JHL, through companies closely linked to Hubtown, which were its proxy/alter ego, and which virtually constituted a single economic entity with Hubtown. It is contended that in pursuance of such collusion, Omkara, without rejecting DLF's acceptance of PNBHFL's offer in the SPA default notice dated 02.11.2022 (despite being put to notice of the same vide DLF's lett....
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....the court only has to determine the prima facie existence of an arbitration agreement. If the referral court cannot decide the issue, it should leave it to be decided by the arbitration tribunal. The referral court should not unnecessarily interfere with arbitration proceedings, and rather allow the arbitral tribunal to exercise its primary jurisdiction. In Shin-Etsu Chemical Co Ltd. v. AkshOptifibre Ltd., this Court observed that there are distinct advantages to leaving the final determination on matters pertaining to the validity of an arbitration agreement to the tribunal: 74. [...] Even if the Court takes the view that the arbitral agreement is not vitiated or that it is not valid, inoperative or unenforceable, based upon purely a prima facie view, nothing prevents the arbitrator from trying the issue fully rendering a final decision thereupon. If the arbitrator finds the agreement valid, there is no problem as the arbitration will proceed and the award will be made. However, if the arbitrator finds the agreement invalid, inoperative or void, this means that the party who wanted to proceed for arbitration was given an opportunity of proceedings to arbitration, and the ....
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....n account thereof. However, the same would require an intricate factual inquiry, which can only be done in the proposed arbitration proceedings. 67. Further, on a prima facie conspectus, for the purpose of these proceedings, the various transactions with which the petitioner is aggrieved viz alleged illegal invocation of the pledge, alleged assignment of the SPA, alleged illegal sale of pledged shares by Omkara and the consequent issuance of shares to respondent no.7 on the strength of the shareholding acquired from Omkara, can be said to be all intertwined transactions/inter-related transactions entitling the petitioner to invoke the direct benefit/intertwined estoppel theory. However, while referring the parties to arbitration, this Court is not rendering any conclusive finding with regard thereto and instead finds it apposite to leave it to the arbitral tribunal to make the final determination on this issue. This is mandated not only in view of the observations made in Cox & Kings (supra) but also in view of the observations made in Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re, (supra) wherein it h....
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....n Vidya Drolia (supra), it has been held as under: "239...Jurisdictional issues concerning whether certain parties are bound by a particular arbitration, under group-company doctrine or good faith, etc., in a multi-party arbitration raises complicated factual questions, which are best left for the tribunal to handle. The amendment to Section 8 on this front also indicates the legislative intention to further reduce the judicial interference at the stage of reference." 69. In these circumstances, at this stage, this Court is inclined to refer respondent Nos. 6 and 7 to arbitration, however, granting liberty to the said respondents to raise appropriate jurisdictional objections as regards substantive existence of the arbitration agreement qua the said respondents. All contentions of the said respondents in this regard shall be duly considered by the arbitral tribunal. Other issues raised by the Respondents 70. Apart from the aforesaid aspects, learned senior counsel for the respondents have raised various other extremely germane and relevant issues as regards the merits of the disputes sought to be raised by the petitioner. In particular, it has been contended that:....