TaxTMI 
TaxTMI 
2015 (1) TMI 1511
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....(for short "MIV India") was to be purchased by the Petitioner from the Respondents for a sum of US$ 3.17 million. Under the LRA the Petitioner was to be given the right to use "products" as defined in the LRA. Both the agreements contained identical Dispute Resolution clauses, which, inter alia, contemplated settlement of disputes arising out of and from the Agreements through a process of Arbitration. In view of the identity of the language of the relevant clauses providing for Arbitration in the two agreements it will be suffice to extract herein below Clause 9 of the SPA: "9. DISPUTE RESOLUTION 9.1 In the case of any dispute arising out of or in connection with this Agreement or its performance, including any question regarding its existence, validity or termination, either the Seller or the Purchaser (as the case may be) shall issue a notice to the other Party stating the nature of the dispute (the "Dispute Notice") and the Parties shall first attempt to reach an amicable settlement through mutual consultations and conciliations between their respective senior officers. If however, the Parties are unable to reach an amicable settlement within 30 (thirty) Business Days from ....
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....rsement of their legal counsel, whether solicitors, barristers and/or attorneys; and (h) The provisions contained in this Section shall survive the termination or expiration of this Agreement." 2. The Petitioner claims that the disputes between the parties have arisen in the following facts: 3. Under Clause 2.2 of the SPA the Petitioner was entitled to receive the Shares free from any encumbrances and receive full and clear ownership as the sole legal and beneficial owner of such Shares subject to payment of consideration. 4. Under Clause 6.1 of the SPA "MIV Canada" was required to transfer the shares to the Petitioner free from all encumbrances whereas Under Clause 4.1(g) of the LRA on consummation of the Share transactions the Petitioner was entitled to grant of licence. According to the Petitioner there were gross misrepresentations by the second Respondent acting on behalf of the first Respondent. Specifically it is stated that on 12th July, 2011 the Petitioner was informed by a United States attorney that an injunction had been granted by District Court in Massachusetts, United States of America, against the Respondents restraining them, inter alia, from transferring any sh....
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....itioner, the aforesaid action of the Respondents were in contravention of Clause 6.1 (c and d) of the SPA and Clause 4.1 (c and g) of the LRA. Accordingly, a dispute notice was issued on 4th October, 2013, calling upon the Respondents to expeditiously clear their dues as per the judgment and resolve the dispute as well as allot the pending shares. Having received no response to the dispute notice, the Petitioner issued a Notice of Arbitration on 16th October, 2013, appointing Mr. Justice S.H. Kapadia, a former Chief Justice of India, as their nominee arbitrator. Subsequent to the said appointment, the Petitioner has been noticed by one Mr. Alan Lindsay claiming to be an assignee of the rights of RHO against the Respondents and MIV India of an entitlement to receive a sum of US$ 850,000. Legal action for recovery of the aforesaid sum of money was threatened in the event of the claim remaining unpaid. 8. It is in the aforesaid circumstances that the two applications have been filed Under Section 11(6) of the Arbitration Act for appointment of Arbitrators) on behalf of both the Respondents. 9. According to the Petitioner, the second Respondent is an alter-ego of the first Respondent....
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....edings may continue with respect to the other parties, even if this creates a risk of conflicting decisions. ............. ............. ............. 107. If one analyses the above cases and the authors' views, it becomes abundantly clear that reference of even non-signatory parties to an arbitration agreement can be made. It may be the result of implied or specific consent or judicial determination. Normally, the parties to the arbitration agreement calling for arbitral reference should be the same as those to the action. But this general concept is subject to exceptions which are that when a third party, i.e. non-signatory party, is claiming or is sued as being directly affected through a party to the arbitration agreement and there are principal and subsidiary agreements, and such third party is signatory to a subsidiary agreement and not to the mother or principal agreement which contains the arbitration clause, then depending upon the facts and circumstances of the given case, it may be possible to say that even such third party can be referred to arbitration." 10. The Respondents have not appeared before this Court in spite of service being effected by courier a....