IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on Delivered on
04.07.2018 23.07.2018

CORAM:

The Honourable Mr.Justice M.M.SUNDRESH

and
The Honourable Mr.Justice N.ANAND VENKATESH

Original Side Appeal Nos.170 to 175 and 206 to 210 of 2018

and C.M.P.Nos.9048 to 9053 and 10304 to 10308 of 2018

M/s SEI Adhavan Power Private Limited,

Menon Eternity, 10th Floor, New No.165,
Old No.110, St Mary's Road, Alwarpet,
Chennai-600 018,Tamil Nadu.
Represented by its authorised signatory
Mr.S.Sateesh ... Appellant in
O.S.A.Nos.170 to 175 of 2018

M/s SunEdison Solar Power India (Pvt.) Limited,

Menon Eternity, 10th Floor, New No.165,
Old No.110, St Mary's Road, Alwarpet,
Chennai-600 018,Tamil Nadu.
Represented by its authorised signatory
Mr.N.Ravindra ... Appellant in
O.S.A.Nos.206 to 210 of 2018

Vs.

1.M/s Jinneng Clean Energy Technology Limited,

No.1 Wenshui Economic Zone,
Lvliang, Shanxi Province, China,
Represented by its Authorised
Signatory Mr.Robert Pavrey

2.M/s SunEdison Energy Holding (Singapore) Pte. Ltd.,

11 Lorong 3 Toa Payoh,
B1k B Jackson Square,
4th Floor, Singapore 319579.
Represented by its Managing Director.

3.M/s Singapore International Arbitration Centre,

Represented by its Deputy Registrar Kevin Nash,
32, Maxwell Rd., #02-01, Maxwell Chambers,
Singapore 069 115. ... Respondents in all O.S.As.

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 Original Side Appeals are filed under Order XXXVI Rule 9 of
the O.S. Rules, 1956 read with Clause 15 of the Letters Patent
against the order dated 24.04.2018 passed in A.No.6462, 6461 &
6463 of 2017 and O.A.No.642, 643 & 644 of 2017 in C.S.No.502 of
2017 and A.Nos.479, 477 & 478 of 2018 and O.A.Nos.6 & 7 of 2018
in C.S.No.12 of 2018.

Prayer in A.No.6461 of 2017:

Application praying that this Hon'ble Court be pleased to

Revoke the leave granted in Application No.3270/17 in
C.S.D.No.20444/17.

Prayer in A.No.6462 of 2017:

Application praying that this Hon,ble Court be pleased to

refer the parties herein to arbitration in terms of clause 9 of
the non Disposal undertaking dated March 17, 2016 in accordance
with section 45 of the Arbitration and conciliation Act 1996.

Prayer in A.No.6463 of 2017:

Application praying that this Hon'ble Court be pleased to

reject the plaint in C.S.No.502 of 2017.

Prayer in O.A.No.642 of 2017:

Original Application praying that this Hon'ble Court to be

pleased to pass an order of ad interim injunction restraining
the first respondent/defendant from proceeding with the
arbitration against the applicant/plaintiff in arbitration case
no.ARB.94/17/AKB before the third respondent/defendant pursuant
to request for arbitration dated 11/04/2017 pending disposal of
the suit.

Prayer in O.A.No.643 of 2017:

Original Application praying that this Hon'ble Court be

pleased to pass an order of ad interim injunction restraining
the first respondent/defendant their men agents servants
attorneys assigns or any person claiming under or through him
jointly or severally from proceeding with and prosecuting the
arbitration proceeding or any other proceedings as against the
applicant /plaintiff arising out non disposal undertaking
dt.17.03.2016 entered into between the 1st & 2nd respondent
defendant pending disposal of the suit.

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 Prayer in O.A.No.644 of 2017:

Original Application praying that this Hon'ble Court be

pleased to pass an order of ad interim injunction restraining
the third respondent/defendant from administering the
arbitration proceedings pursuant to request dated 11.04.2017
from first respondent/defendant against the applicant/plaintiff
and others in arbitration case no.ARB094/17/AKB pending disposal
of the suit.

Prayer in C.S.No.502/17:

The Plaintiff therefore prays for a Judgment and decree

against the Defendants to:

a) For a Permanent Injunction restraining the first

defendant from proceeding with the Arbitration against the
Plaintiff in Arbitration case No. ARB094/17/AKB before the third
Defendant pursuant to request for arbitration dated 11/04/17.

b) For a Permanent Injunction restraining the third

defendant from administering the Arbitration pursuant to request
dated 11/4/2017 from 1st defendant against the Plaintiff and
others in Arbitration case No.ARB094/17/AKB.

c)For Permanent injunction, restraining the first Defendant

their men, against, attorneys, servants, assigns or any of
pension claiming under or through him jointly or severally from
proceeding with and prosecuting the Arbitration proceeding or
any other proceedings as against the Plaintiff arising out of
the Non Disposal undertaking dated 17/3/2016 entered into
between the 1st & 2nd defendant.

d)for costs of the suit.

Prayer in A.No.479 of 2018:

Application praying that this Hon'ble Court be pleased to

refer the parties herein to arbitration in terms of clause 9 of
the Non Disposal undertaking dated March 17,2016 in accordance
with section 45 as the Arbitration & Conciliation Act 1996.

Prayer in A.No.477 of 2018:

Application praying that this Hon'ble Court be pleased to

Revoke the Leave granted to sue dated 18/12/2017 in A.O.No.4758
of 2017 in C.S.D.24371 of 2017.

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 Prayer in A.478 of 2018:

Application praying that this Hon'ble Court be pleased to

reject the Plaint in C.S.No.12/18.

O.A.No.6 of 2018:

Original Application praying that this Hon'ble Court be

pleased to pass an order of ad interim injunction restraining
the third Respondent/Defendant from administering the
Arbitration proceedings pursuant to request dated 11/04/2017
from first Respondent/Defendant against the Applicant/Plaintiff
and others in Arbitration Case No.ARB094/17/AKB pending disposal
of the suit.

O.A.No.7 of 2018:

Original Application praying that this Hon'ble Court be

pleased to pass an order of ad interim injunction restraining
the first Respondent/Defendant their men agents servants
attorneys assigns or any person claiming under or through him
jointly or severally from proceeding with an prosecuting the
Arbitration proceedings or any other proceedings as against the
Applicant/Plaintiff arising out of the Non Disposal undertaking
dt 17/03/2016 entered into between the 1st and 2nd
Respondent/Defendant pending disposal of the suit.

Prayer in C.S.No.12 of 2018:

The Plaintiff therefore prays for a Judgment and Decree

against the Defendants to;

a) For a permanent injunction restraining the 1st defendant

their men agents attorneys servants assigns or any person
claiming under or through him jointly or severally from
proceeding with and prosecuting the Arbitration Proceeding or
any other proceedings as against the plaintiff arising out of
the Non Disposal Undertaking dt. 17.3.2016 entered into between
the 1st and 2nd defendants;

b)For a permanent injunction restraining the 3rd Defendant

from administering the Arbitration pursuant to request dated
11/4/2017 from 1st Defendant against the Plaintiff and others in
Arbitration case No.ARB094/17/AKB;

c)for costs of the Suit.

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 For Appellants in : Mr.R.Venkatavaradan for
OSA.170 to 175 Mr.V.Srikanth
of 2018

For Appellants in : Mr.Vijay Narayan, Advocate General,

OSA.206 to 210 Assisted by M/s Shubharanjani Ananth
of 2018

For 1st Respondent : Mr.Sathish parasaran, S.C.,

in all O.S.As. Asst. by M/s Priyanka Shetty for
Mr.P.Giridharan, Mr.Dominic David,
Mr.S.Santhosh & Mr.H.Siddarth

COMMON JUDGMENT

M.M.Sundresh, J.

As all these original side appeals filed by the appellant

No.2 were disposed of by the learned single Judge through a
common order involving same fact and law, we propose to do the
same. For the sake of brevity, the appellant in O.S.A. Nos.170
to 175 of 2018 is taken as appellant No.1 and the appellant in
O.S.A. Nos.206 to 210 of 2018 is taken as appellant No.2. The
respondents are accordingly arrayed as such.

2. Heard Mr.R.Venkatavaradan for Mr.V.Srikanth, learned

counsel appearing for the appellant in OSA. Nos.170 to 175 of
2018 and Mr.Vijay Narayan, learned Advocate General, Assisted
by M/s Shubharanjani Ananth, learned counsel appearing for the
appellant in OSA. Nos. 206 to 210 of 2018 and Mr.Sathish
parasaran, learned Senior Counsel assisted by M/s Priyanka
Shetty for Mr.P.Giridharan, Mr.Dominic David, Mr.S.Santhosh and
Mr.H.Siddarth, learned counsel appearing for the first
respondent in all the appeals and perused the written
submissions filed on 12.07.2018.

3. Facts in brief

3.1. The appellants and respondent No.2 constitute a single

Economic Entity namely Sun Edison Group of Companies along with
M/s Sun Edison Energy Holding (Singapore) Private Limited
(Respondent No.2). The appellant No.1 is an Indian Company
involving itself in the process of constructing a 50 MW AC power
plant at Virudhunagar Village, Tamil Nadu referred as “project”.

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 M/s Sun Edison Energy Holding (Singapore) Private Limited
(Respondent No.2) was holding 99.99% of the aggregate equity
capital in the appellant No.1. The appellant No.1 had engaged
the appellant No.2 as the contractor to provide certain
construction related services qua the Project. The appellant
No.2, in turn, entered into a sub contract qua supply of modules
to the respondent No.1 in pursuant to the mutually agreed
contracts executed vide purchase orders issued by respondent
No.2 - M/s Sun Edison Energy Holding (Singapore) Private
Limited in favour of respondent No.1. The respondent No.1
raised certain invoices which were pending payment from the
respondent No.2 with the appellant No.2. Thus, the appellants
and the respondent No.2 are intrinsically connected to each
other.

3.2. Under those circumstances, the respondent No.2 executed

a Non Disposal Undertaking in favour of the respondent No.1. The
facts narrated above were reiterated in the aforesaid document
executed on 17.03.2016. This Non Disposal Undertaking was with
respect to the shares held by the respondent No.2 with the
appellant No.1. This document was prepared by one Mr.Pasupathy
Gopalan being the President of respondent No.2. Incidentally,
he controlled all the operations of the appellant No.1 as well.

3.3. In the aforesaid document, the respondent No.1 was

referred as “Sun Edison”, the respondent No.2 as the
“Contractor”, the appellant No.1 as the “company” and the
appellant No.2 as the “client”.

3.4. While defining invoices, it was made clear that they

mean, the invoices issued pursuant to the sub contract
agreements and others added to the Annexure by mutual agreement
by appellant No.2 and respondents 1 and 2. The payment
obligation was defined as that of the appellant No.2 to the
respondent No.1 qua the invoices raised.

3.5. Accordingly, the respondent No.2 gave an undertaking,

which shall stand valid until the complete discharge of the
Payment Obligations by the appellant No.2, to hold and retain
atleast 24% of the equity in the appellant No.1 company.
Thus, without prior approval of the respondent No.1 and until
the complete and full discharge of the payment obligations,
there shall not be any encumbrance by way of a transfer etc.
This undertaking was meant to be terminated automatically upon
receipt of the complete payment of the invoices by appellant
No.2 or the respondent No.2 to the respondent No.1.

3.6. The appellants are functioning from the same office.

All the group of companies belonging to the Sun Edison
correspond through the same E-mail ID. The respondent No.2 as

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 per the undertaking appointed the appellant No.1 as its Agent
to receive and acknowledge any notice by way of writ in
connection with the undertaking. The undertaking also confirms
its obligation as binding upon its successors and permitted
assigns. It was also agreed that neither the respondent No.2
nor the appellant No.1 shall assign or transfer any interest in
its rights benefits etc., under the Undertaking without prior
written consent of the respondent No.1. The law of Singapore
is to be applied.

3.7. The undertaking contains an arbitration agreement. It

is governed by International Chamber of Commerce (ICC) Rules.
The Tribunal shall comprise of three Arbitrators. The
appellants and the respondent No.2 acting together shall
appoint one, respondent No.1 as Contractor shall appoint another
and thereafter, both the Arbitrators in turn and in consultation
with each other appoint the third preceding one. The seat of
arbitration is “Singapore International Arbitration Centre”
viz., respondent No.3. The following clauses contained in the
undertaking are apposite.

WHEREAS:

A) WHEREAS, SEI Adhavan Power Privatge Limited,

an Indian company having its office at menon
Eternity, 10th Floor, New No.165 Old No.110, St
Mary's Road, Alwarpet, Chennai-600 018, India
(hereinafter referred to as the “Company” which
expression shall unless repugnant to the context
or meaning thereof,include its successors and
permitted assigns), is the process of
constructing a 50 MW AC plant at Virudhunagar
Village, Tamil Nadu the “Project”);

B) SunEdison holds 99.99% of the aggregate Equity

capital in the Company.

C) The Company has engaged SunEdison Solar Power

India Private Limited (the “Client”) as a
contractor to provide certain construction
related services in connection with the Project.
The Client has sub-contracted a part of the
supply of modules to the Contractor purusant to
mutually agreed contracts executed vide Purchase
Order No.924112, No.927415 and No.927420 issued
by SunEdison to the Subcontractor.(“Sub Contract
Agreements”).

D) Certain Invoices (as defined later) raised by

the Contractor under the Sub Contract Agreements

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 are currently pending payments from the Client.
NOW, THEREFORE, SunEdison, currently holding
99.99% of the total issued and paid up Equity
share capital of the Company, in consideration of
the premises set forth herein and other good and
valuable consideration, receipt of which is
acknowledged.

2. SUNEDISON'S UNDERTAKING

2.1. Save for as set out herein or specifically

permitted by the Contractor, SunEdison shall
until the complete discharge of the Payment
Obligations by the Client continue to legally and
beneficially hold and retain at least 24% (Twenty
Four percent) of the equity in the Company as
more specifically described in Annexure 2 ("NDU
Shares") free of any Security Interest, and
shall not, without prior approval from the
Contractor, until the complete and full discharge
of the Payment Obligations, sell, transfer,
assign, dispose of, pledge, charge or create any
Security Interest on the NDU Shares in favour of
any person (including to Terra Form Global
("GLBL") or any of its affiliates pursuant.
2.2. Provided the limitation set out in this
Clause 2 shall not prevent SunEdison or shall
require SunEdison from obtaining any consent from
the Contractor for creating any Security Interest
over all or a part of NDU Shares in favour of
project finance lender(s), and upon such
creation, the undertaking set out herein shall
automatically get subordinated to the newly
created Security Interest in favour of the
project finance lenders.
2.3. All obligations under this Undertaking shall
automatically terminate upon receipt of the
complete payment of the Invoices by the Client or
SunEdison.
4. NOTICES:
....................
4.8. Without prejudice to any other mode of
service allowed under any relevant law, SunEdison:
(a) irrevocably appoints the Company as
its agent to receive and acknowledge on its
behalf service of any writ, summons, order,
judgment, notice or other legal process in
connection with this Undertaking; and
(b) agrees that the failure by a process

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 agent to notify SunEdison of the process will
not invalidate the proceedings concerned.
5.1. Binding Obligations:
SunEdison confirms that its obligations under
this Undertaking shall be binding upon its
successors and permitted assigns.

7. Changes to the Parties:

Neither SunEdison nor the Company shall
assign or transfer any interest in its rights,
benefits and/or obligations under this
Undertaking without the prior written consent of
the Contractor.

9. Arbitration:

(a) If one party to this Undertaking gives the

other party a notice stating that a dispute has
arisen (a "Dispute Notice"), and such parties are
unable to resolve the dispute amicably within 30
(thirty) days of service of the Dispute Notice
(or such longer period as the parties may
mutually agree), then the Dispute shall be
referred to arbitration at the end of such 30
(thirty) days period ("Arbitration Reference") in
accordance with the terms set out in this section
9.

(b) The arbitration proceedings shall be governed

by the provisions of Rules of Conciliation and
Arbitration of the International Chamber of
Commerce for the time being in force ("ICC
Rules").

(c) For the purpose of such arbitration, the

arbitral Tribunal shall comprise 3 (three)
arbitrators. SunEdison, Company and Client
(acting together) shall appoint an arbitrator,
and the Contractor shall appoint one arbitrator
within 15 days of Arbitration Reference. The two
arbitrators so appointed shall, in consultation
with each other, appoint the third presiding
arbitrator within a period of 15 (fifteen) days
thereafter.

(d) The arbitration proceedings shall be held at

Singapore International Arbitration Centre. The
arbitration proceedings shall be in English
language. The award shall be substantiated in
writing. The arbitral Tribunal shall also

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 determine and decide the cost of arbitration
proceedings. The award shall be binding on the
disputing parties subject to applicable Laws and
the award shall be enforceable in any competent
court of law. The provisions of this Clause shall
survive the termination of this Agreement."

3.8. Contrary to the undertaking, the shares were sold by

the respondent No.2. Thus, the respondent No.1 invoked the
arbitration clause. When notices were issued in terms of Clause
9 of the undertaking, it was received by the appellants inter
alia contending that they are not parties to the undertaking.
Not stopping with that, the appellants approached this Court and
filed C.S.Nos.502 of 2017 and 12 of 2018 seeking the following
relief.
a. Permanent injunction, restraining the 1st
respondent, from proceeding with the arbitration
against the Appellant in arbitration case
No.ARB94/17/AKB, before the 3rd respondent,
pursuant to the request for arbitration, dated
11.04.2017;
b. for permanent injunction, restraining the 3rd
respondent, from administering the arbitration
pursuant to request dated 11.04.2017 from the
1st respondent, against the appellants and others
in arbitration case No.ARB94/17/AKB;
c. for permanent injunction, restraining the 1st
respondent or anybody acting under them, from
proceeding with and prosecuting the arbitration
proceedings or any other proceedings, as against
the Plaintiff, arising out of the Non Disposal
Undertaking (hereinafter referred to as NDU)
dated 17.3.2016, entered into between the 1st
and 2nd respondents;
d. for costs of the suit.”
3.9. Pending suits, applications have been filed seeking
the below mentioned interim reliefs.
“a. Interim injunction restraining the 1st
respondent from proceeding with the arbitration
against the appellant in arbitration case
No.ARB/094/17/ARB before the 3rd defendant,
pursuant to the request of arbitration dated
11.4.2017, pending disposal of the suit.
b. interim injunction, restraining the 1st
respondent or anybody acting under them from
proceeding with or prosecuting the arbitration
proceedings arising out of the Non Disposal
Undertaking dated 17.3.2016, entered into
between the 1st and 2nd respondents, pending
disposal of the suit.

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 c. interim injunction, restraining the 3rd
respondent from administering the arbitration
proceedings pursuant to the request, dated
11.4.2017, from the 1st respondent against the
appellant and others in arbitration case
No.ARB/094/17/ARB, pending disposal of the
suit.”

3.10. The respondent No.1 filed applications viz.,A.No.6461

of 2017 seeking to revoke the leave granted in A.No.3270 of
2017, A.No.6463 of 2017 - to reject the plaints and A.No.6462 of
2017 – to refer the parties to arbitration.

3.11. The learned single Judge, by a common order allowed

the applications filed by the respondent No.1 and thus,
dismissed that of the appellants. Aggrieved, the present
original side appeals are filed before us.

4. Submissions of the Appellants:

4.1. The learned counsels for the appellants would submit

that the appellants are not parties to the Non Disposal
Undertaking. They are separate and distinct legal entities.
Their knowledge cannot be inferred. They did neither sign nor
authorise the undertaking. Mr.Pasupathy Gopalan proposed the
undertaking on behalf of the respondent No.2 alone, in his
capacity as the President of specific operations. Similarly,
Mr.Vinay Bhatia signed the undertaking only on behalf of the
respondent No.2 notwithstanding he being a Director with one
of the appellants viz., the appellant No.1. Thus, the inter se
relationship between the aforesaid persons on one hand and the
appellants on the other would not create a binding agreement.
There is no relief that can be claimed against the appellants.
There is no material to hold that the appellants were aware of
the undertaking. Therefore, in the absence of privity of
contract between the appellants and the respondent No.1, Clause
9 of the undertaking cannot be invoked.

4.2. It is their submission that Section 45 of the

Arbitration and Conciliation Act, 1996 does not have any
application to the case on hand. It can be invoked against the
non signatories only on exceptional circumstances, which are not
available in the case on hand. The appellants are legal
entities on their own.

4.3. To buttress their submissions they made reliance upon

the following decisions:

1.SHRIRAM EPC LIMITED VS. RIOGLASS SOLAR SA

(MANU/TN/1399/2018);

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 2.HANSRAJ NAYYAR MEDICAL INDIA VS. SMITH MEDICAL
INTERNATIONAL LIMITED (2014) SCC ONLINE BOM.
696); and
3.MODI ENTERTAINMENT NETWORK AND ANOTHER VS.
W.S.G. CRICKET PTE. LTD., (MANU/SC/0039/2003).

5. Submissions of the Respondents

5.1.The learned Senior Counsel appearing for the respondent

No.1 would submit that the appellants and respondent No.1 are
parts of the same entity having a common central control. Their
E-mail ID domain name is the same. The appellants have their
offices in the same building. 99.99% of the paid up share
capital of the appellant No.1 was held by M/s Sun Edison Energy
Holding(Singapore) Pte. Ltd.,(Respondent No.2). The appellants
were the subsidiary of M/s Sun Edison Energy Holding (Singapore)
Pte. Ltd. All of them represented as the common business
venture at the time of the execution of the undertaking. The
Contractors of the appellant No.2 were marked with the copies of
the relevant E-mail correspondence. The transactions took place
with respect to the same project. The project involves the
appellants. The undertaking was given to honour the
outstanding invoice due from the appellant No.2. The purchase
orders along with invoices would clearly show that the
appellants and the respondent No.2 are the one and the same,
though operating as different entities.

5.2. The modules were supplied and delivered to the

appellant No.2 and the purchase orders were raised in relation
to the project of the appellant No.1. The purchase orders
themselves clearly state the involvement of the appellants and
the respondent No.2. The appellants were very much aware of the
purchase orders, invoices and the resultant due payment.
Deliberately, these documents were not filed.

5.3. The suits do not disclose any cause of action. Merely

because, the undertaking was signed on behalf of the respondent
No.2 at Chennai, no cause of action would arise. The suits are
to be dismissed on the principle of forum non conveniens. The
seat of arbitration is at Singapore. It is only the Singapore
law that would apply. The proceedings are governed by ICC
Rules. Therefore, it is the third respondent alone, who has
got jurisdiction.

5.4. The issue involved is squarely covered by the judgment

of the Apex Court in CHLORO CONTROLS INDIA PRIVATE LIMITED VS.
SEVERN TRENT WATER PURIFICATION INC. AND OTHERS ((2013) 1
Supreme Court Cases 641) and thus, Section 45 of the Arbitration
and Conciliation Act, 1996 would certainly apply. The
appellants are, in fact, parties to the undertaking. The

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 decisions relied upon for the first time before the Court on
behalf of the appellants are not applicable to the case on hand.
Thus, the appeals will have to be dismissed.

6. Discussion:

6.1. That the appellants and the respondent No.2 are part of
the same group is not in dispute. The transactions were also
with respect to the “Project”. The respondent No.2 was holding
99.99% aggregate equity capital in the appellant No.1. The
respondent No.2 did give an undertaking. It emanated due to the
non payment of the obligations arose in pursuant to the
invoices raised against the appellant No.2. It is the appellant
No.1, which was in the process of constructing the Project. It
did engage the appellant No.2 as the Contractor. Therefore, for
the convenience sake, the group of companies divided the work
between themselves to carry out different activities among which
the project is one. With respect to the same project, the
appellant No.2 entered into the sub contract resulting in the
purchase orders issued by the respondent No.2. The respondent
No.1 did comply with these obligations as against the appellant
No.2. Factually there was a breach. Therefore, the undertaking
came into being. The relationship between Mr.Pasubathy Gopalan
and the signatory by name Mr.Vinay Bhatia on the one side with
the appellants and the respondent No.2 on the other side is not
in dispute.

6.2. It is interesting to note that the very undertaking

itself makes it abundantly clear that the appellants and
respondent No.2 were each other's alter ego. That is the reason
why, the obligation was read into that of the others. Not only
the E-mail address, office address, mode of service, the
obligation and terms are also meant to be applied by inter
changing on many aspects. The arbitration clause clearly puts
the appellants and respondent No.2 in one basket with the
respondent No.1 the other. On the question of cause of action,
we find that the mere signing of the undertaking will not
create one and to contend that the undertaking does not bind
them. After all a cause of action involves material facts. A
real cause of action has arisen only because of the fact that
the first respondent has invoked the arbitration clause. Thus
we are of the view that the learned single Judge was right in
holding that no cause of action was available to the appellants
to maintain the suit. Resultantly, the only way open to the
appellants is to contest their case before the third respondent.

6.3. It is to be noted that the execution of the undertaking

is not in dispute. The Apex Court in CHLORO CONTROLS INDIA
PRIVATE LIMITED VS. SEVERN TRENT WATER PURIFICATION INC. AND
OTHERS ((2013) 1 Supreme Court Cases 641) has considered the

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 principle governing "group of companies doctrine" and held that
in a given case an arbitration agreement entered into by a
company within the group of companies can bind its non
signatory affiliates. It was further held that what is
important is the intention of the parties. Thus, the “group of
companies doctrine” was made applicable and read into Section 45
of the Act 26 of 1996. Similarly, the circumstances under which
a third party can be made to go through the arbitration
proceedings is also dealt with. Therefore, the non signatory
third party also would come within the purview of an arbitral
agreement. The following paragraphs are apposite.
70.Normally, arbitration takes place between the
persons who have, from the outset, been parties to
both the arbitration agreement as well as the
substantive contract underlining that agreement.
But, it does occasionally happen that the claim is
made against or by someone who is not originally
named as a party. These may create some difficult
situations, but certainly, they are not
absolute obstructions to law/the
arbitration agreement. Arbitration, thus, could be
possible between a signatory to an arbitration
agreement and a third party. Of course, heavy onus
lies on that party to show that, in fact and in
law, it is claiming ‘through’ or ‘under’ the
signatory party as contemplated under Section 45
of the 1996 Act. Just to deal with such situations
illustratively, reference can be made to the
following examples in Law and Practice of
Commercial Arbitration in England (Second Edn.) by
Sir Michael J. Mustill: “1. The claimant was in
reality always a party to the contract, although
not named in it.
2. The claimant has succeeded by operation of
law to the rights of the named party.

3. The claimant has become a part to the

contract in substitution for the named party
by virtue of a statutory or consensual
novation.

4. The original party has assigned to the

claimant either the underlying contract,
together with the agreement to arbitrate
which it incorporates, or the benefit of a
claim which has already come into existence.”

71. Though the scope of an arbitration agreement

is limited to the parties who entered into it and

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 those claiming under or through them, the Courts
under the English Law have, in certain cases, also
applied the “Group of Companies Doctrine”. This
doctrine has developed in the international
context, whereby an arbitration agreement entered
into by a company, being one within a group of
companies, can bind its non- signatory affiliates
or sister or parent concerns, if the circumstances
demonstrate that the mutual intention of all the
parties was to bind both the signatories and the
non-signatory affiliates. This theory has been
applied in a number of arbitrations so as to
justify a tribunal taking jurisdiction over a
party who is not a signatory to the contract
containing the arbitration agreement. [‘Russell on
Arbitration’ (Twenty Third Edition)].
72. This evolves the principle that a non-
signatory party could be subjected to arbitration
provided these transactions were with group of
companies and there was a clear intention of the
parties to bind both, the signatory as well as the
non-signatory parties. In other words, ‘intention
of the parties’ is a very significant feature
which must be established before the scope of
arbitration can be said to include the signatory
as well as the non-signatory parties.
73. A non-signatory or third party could be
subjected to arbitration without their prior
consent, but this would only be in exceptional
cases. The Court will examine these exceptions
from the touchstone of direct relationship to the
party signatory to the arbitration agreement,
direct commonality of the subject matter and the
agreement between the parties being a composite
transaction. The transaction should be of a
composite nature where performance of mother
agreement may not be feasible without aid,
execution and performance of the supplementary or
ancillary agreements, for achieving the common
object and collectively having bearing on the
dispute. Besides all this, the Court would have to
examine whether a composite reference of such
parties would serve the ends of justice. Once this
exercise is completed and the Court answers the
same in the affirmative, the reference of even
non-signatory parties would fall within the
exception afore-discussed.
103. Various legal basis may be applied to bind a
non-signatory to an arbitration agreement.

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 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.
104. We may also notice the Canadian case of The
City of Prince George v. A.L. Sims & Sons Ltd.
[YCA XXIII (1998), 223] wherein the Court took the
view that an arbitration agreement is neither
inoperative nor incapable of being performed if a
multi-party dispute arises and not all parties are
bound by the arbitration agreement: the parties
bound by the arbitration agreement are to be
referred to arbitration and court proceedings may
continue with respect to the other parties, even
if this creates a risk of conflicting decisions.
105. We have already discussed that under the
Group of Companies Doctrine, an arbitration
agreement entered into by a company within a group
of companies can bind its non-signatory
affiliates, if the circumstances demonstrate that
the mutual intention of the parties was to bind
both the signatory as well as the non-signatory
parties. “

6.4. We are dealing with the better case than the one dealt
with by the Apex Court cited supra. The undertaking does refer
to the appellants and put them in the same basket as that of
respondent No.2. Therefore, the appellants cannot contend that
the agreement is inoperative on the sole basis that they are not
signatories in a literal sense. This is an unsustainable
technical plea to avoid participation before the respondent
No.3.

6.5. The purchase orders produced by the respondent No.1 in

pursuant to the direction of the Court will not help the case of
the appellant. The purchase orders have already been mentioned
in the undertaking. Invoices have also been defined therein.
The appellant No.2 did not deny the factum of supply. In
pursuant to the supply there is also no denial of transfer made.

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 6.6. The decision relied upon by the appellants are not
cases in point. In INDOWIND ENERGY LTD., VS WESCARE INDIA LTD.,
AND ANOTHER ((2010) 5 Supreme Court Cases 306), the Apex Court
was dealing with Section 11 of the Act which comes under Part-
I. Similarly in ECONOMIC TRANSPORT ORGANISATION VS. CHARAN
SPINNING MILLS ((2010) 4 Supreme Court Cases) 114) the Apex
Court was dealing with the Consumer Protection Act. The issue
was on the interpretation of Contract of Subrogation in a
insurance policy. So also the facts of the case in DURO
FELGUERA SA VS. GANGAVARAM PORT LTD., ((2017) 9 Supreme Court
Cases 729). Even here the Apex Court was concerned with Section
11 of the Act, which comes under Part I. In this connection, it
is to be noted that the Apex Court in AMEET LALCHAND SHAH AND
OTHERS VS. RISHABH ENTERPRISES AND OTHERS (CIVIL APPEAL NO.4690
OF 2018 (Arising out of SLP © No.16789 of 2017) decided on
03.05.2018 reported in MANU/SC/0501/2018 was pleased to held
that the principle laid down in CHLORO CONTROLS INDIA PRIVATE
LIMITED cited supra can also be applied for Section 8 of the
Act as well. The following are the relevant paragraphs.
21......What is evident from the facts and intention
of the parties is to facilitate procurement of
equipments, sale and purchase of equipments,
installation and leasing out the equipments to Dante
Energy. The dispute between the parties to various
agreements could be resolved only by referring all
the four agreements and the parties thereon to
arbitration.
22. Parties to the agreements namely Rishabh and
Juwi India:- (i) Equipment and Material Supply
Agreement; and (ii) Engineering, Installation and
Commissioning Contract and the parties to Sale and
Purchase Agreement between Rishabh and Astonfield
are one and the same as that of the parties in the
main agreement namely Equipment Lease Agreement
(14.03.2012). All the four agreements are inter-
connected. This is a case where several parties are
involved in a single commercial project (Solar Plant
at Dongri) executed through several
agreements/contracts. In such a case, all the
parties can be covered by the arbitration clause in
the main agreement i.e. Equipment Lease Agreement
(14.03.2012).
48.The basic principle which must guide
judicial decision-making is that arbitration
is essentially a voluntary assumption of an
obligation by contracting parties to resolve
their disputes through a private tribunal.
The intent of the parties is expressed in the
terms of their agreement. Where commercial

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 entities and persons of business enter into
such dealings, they do so with a knowledge of
the efficacy of the arbitral process. The
commercial understanding is reflected in the
terms of the agreement between the parties.
The duty of the court is to impart to that
commercial understanding a sense of business
efficacy.”

7. Section 45 of the Act 26 of 1996

Though the learned Senior Counsel appearing for the
respondent No.1 made submission on the maintainability of the
appeal qua an order allowing an application filed under Section
45 of the Act, we do not propose to go into the same for the
reason that even assuming the same can sustain in the eye of
law, the appeals as against the other applications are certainly
maintainable. Secondly, invoking Section 45 of the Act 26 of
1996 and the order passed therein are consequential. To be
noted, the respondent No.1 has already initiated the process by
invoking Clause 9 of the undertaking before the respondent No.3.
Thus, there is nothing wrong in directing the appellants to
participate in the proceedings before the Respondent No.3. This
is, even assuming that the application under 45 is not
maintainable. The learned single Judge has rightly took into
consideration of the undertaking given and its effect on the
appellants.

8. Conclusion:

In fine, we do not find any merit in these original side

appeals. Accordingly, they are dismissed. No costs.
Consequently, connected miscellaneous petitions are also
dismissed.

Sd/-
Assistant Registrar(CS VIII)

//True Copy//

Sub Assistant Registrar

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 raa

To:

The Sub. Asst. Registrar

Original Side,
High Court,
Madras.

+2cc to M/S.Shubharanjani Ananth, Advocate Sr.49740 & 49179

+1cc to Mr.P.Giridharan, Advocate Sr.49281
+1cc to Mr.U.Srikanth, Advocate Sr.49178

OSA.Nos.170 to 175 and 206 to 210 of 2018

rv[co]
srg 27/08/2018

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