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13. It was also contended that by placing a very high burden at the very
threshold on Hind Offshore, without permitting evidence to be led to show
how Planet Support is a veritable party, the application to implead Planet
Support was summarily dismissed.
14. In contrast, Ms. Fereshte Sethna, Learned Advocate on behalf of
OCS Services would contend that a careful reading of Section 16 and Section
37 of the Act would show that the challenge in the instant case is not at all
maintainable. According to her, OCS Services is the claimant in the
arbitration and a plain reading of Section 16(2) and Section 16(3) would
indicate that the person who can file an application under Section 16
questioning the jurisdiction is the respondent in the arbitral proceedings, and
it is the acceptance of such a challenge that is appealable under Section 37(2)
(a) of the Act. Since Hind Offshore was the party required to file the
Statement of Defence and the one that sought to bring in a third party into the
proceedings, the provisions of Section 37 of the Act are not at all attracted at
this stage.
15. That apart, Ms. Sethna would submit that OCS Services bagged a
contract to paint the rigs of ONGC, for which it had relationships with multiple
third parties, such as Planet Support. There is no basis to rope in Planet
Support into the arbitration initiated against Hind Offshore, which relates to
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the Charter of two vessels. Planet Support also provides services similar to
what it provides to OCS Services, to multiple other clients, and such a role is
that of a support service, including vendor management. Also relying on Cox
and Kings, Ms. Sethna would submit that by helping manage the execution of
the Subject Agreements between OCS Services and Hind Offshore, Planet
Support would not become party to the arbitration agreement contained in
them. Ms. Sethna would emphasise that the test laid down is not to see if
parties are related, but to see if the relationship between the parties is of a
nature that makes the non-signatory party, a party to the arbitration
agreement i.e. being bound by the obligation to settle disputes by arbitration.
Analysis and Findings:
16. Having heard the parties, I must record at the threshold that the
Petition does not articulate the precise basis on which the jurisdiction of this
Court has been invoked. Upon specific queries from the Bench, the Petitioner
reformulated its approach to invoke Section 37(2)(a) i.e. acceptance of a plea
against jurisdiction raised under Section 16(2) or Section 16(3) of the Act to
maintain this appeal.
17. There is consensus between the Learned Advocates for the parties
that without the need for formal amendments, this Court may treat this
Petition as having been filed invoking Section 37(2)(a), without prejudice to
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OCS Services' contention that even in terms of that provision, this challenge is
not maintainable. By consent of the parties, the Petition was heard finally
with the aforesaid approach.
Consideration of Maintainability of the Challenge:
18. At the threshold, the issue of maintainability must be dealt with, and
therefore, the provisions of Section 16 of the Act may be noticed:
16. Competence of arbitral tribunal to rule on its jurisdiction.--
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement, and
for that purpose,--
a) an arbitration clause which forms part of a contract shall be treated as
an agreement independent of the other terms of the contract; and
b) a decision by the arbitral tribunal that the contract is null and void
shall not entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not
later than the submission of the statement of defence; however, a party shall not be
precluded from raising such a plea merely because that he has appointed, or
participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its authority is raised
during the arbitral proceedings.
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(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2)
or sub-section (3), admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or
sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea,
continue with the arbitral proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an application for
setting aside such an arbitral award in accordance with section 34.
[Emphasis Supplied]
19. A plain reading of the foregoing would show that under Section 16(1) of
the Act, the Arbitral Tribunal has the power to decide on its own jurisdiction -
which includes coverage of the existence or validity of an arbitration
agreement. Under Section 16(2), the plea of there being no jurisdiction can be
raised before the Statement of Defence is filed. Under Section 16(3), a plea
that the Arbitral Tribunal is exceeding the scope of its authority may be filed as
soon as the matter that gives rise to such contention comes about. A rejection
of a plea under Section 16(2) or Section 16(3) would mean that the Arbitral
Tribunal has ruled in favour of its own jurisdiction, and this is not amenable to
challenge until the Section 34 stage, which may be exercised if the party that
raised the jurisdictional objection is aggrieved by the arbitral award. It is
possible that the Arbitral Tribunal is against the plea opposing jurisdiction,
but on merits, holds in favour of such party eventually. In that event, the
decision on jurisdiction would go without challenge even at the Section 34
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stage, as during the pendency of arbitral proceedings there is no challenge
conceivable to the rejection of such a plea.
20. This brings one to Section 37 of the Act, which reads thus:
37. Appealable orders.--
(1) Notwithstanding anything contained in any other law for the time being in
force, an appeal shall lie from the following orders (and from no others) to the
Court authorised by law to hear appeals from original decrees of the Court passing
the order, namely:
(a) to (c) *****
(2) Appeal shall also lie to a court from an order of the arbitral tribunal--
(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section
16; or
(b) *****
(3) No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or takeaway any right to appeal to the
Supreme Court.
[Emphasis Supplied]
21. Section 37(2)(a) makes it clear that if the plea raised under Section 16(2)
or Section 16(3) were to be accepted by the Arbitral Tribunal, the order so
accepting the plea is amenable to an appeal. This is logical inasmuch as once
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the Arbitral Tribunal rules that it does not have jurisdiction, the matter ends
there and such a decision is amenable to a statutory right of check and
balance. This rejection may take the form of a rejection of jurisdiction over the
entire dispute, in which case the arbitration then comes to an end and is
subjected to an appeal. It may also take the form of a rejection of jurisdiction
over a party arraigned in the proceedings, which can then be subjected to a
challenge. Therefore, when a party sought to be included within the array of
parties raises an objection on the ground that it is not even amenable to the
jurisdiction of the Arbitral Tribunal, and such an objection is accepted, the
party seeking to rope in such third party whose plea on absence of jurisdiction
is accepted, would have a right to challenge that ruling.
22. Considering how the Section 11 Court should not enter upon the facet of
veritable party and must leave the issue to the Arbitral Tribunal, the Supreme
Court in ASF Buildtech2 observed the following (in Paragraph 102):
"In contrast, determinations made by the arbitral tribunal -- including on issues of
jurisdiction and impleadment -- are amenable to challenge under Section 16 of the
Act, 1996 and, thereafter, under Section 37. Accordingly, the better course of action
is for referral courts to refrain altogether from delving, into the issue of whether a
non-signatory is a veritable party to the arbitration agreement, and to leave such
matters for the arbitral tribunal to decide in the first instance."
[Emphasis Supplied]
2 ASF Buildtech (P) Ltd. v. Shapoorji Pallonji & Co. (P) Ltd. - (2025) 9 SCC 76
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23. It is clear that the Supreme Court too had examined the scheme of the
Act and the relevance of Section 37 in a challenge to a ruling accepting a plea
of absence of jurisdiction. A decision of an Arbitral Tribunal to permit or
reject impleadment of a party as a veritable party can have far-reaching
consequences. However, bearing in mind the provisions of Section 5 of the
Act, where the Court is prohibited from interfering in the conduct of arbitral
proceedings under Part I of the Act except where specifically provided, this
Court should simply not interfere where the decision of the Arbitral Tribunal
is to permit impleadment. However, where there is an acceptance of a plea for
impleadment, it would necessarily follow that there is scope for intervention
because Section 37(2)(a) so provides. If the arbitration proceedings are
conducted entirely without the involvement of someone who is later, after the
award is passed, held to be a veritable party, the parties would be put to severe
hardship with the entire arbitral proceedings being found to have been
conducted without the necessary party's involvement.
24. A learned Single Judge of the Delhi High Court in Era Infra3 has
analysed this facet threadbare and indicated that an Arbitral Tribunal's refusal
to proceed against a party sought to be made a veritable party is amenable to
3 ERA Infra Engineering Ltd. v. National Highways Authority of India - 2026 SCC OnLine
Del 1199
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challenge under Section 37(2)(a) of the Act. Among others, the Learned Single
Judge has expressed the following view:
"20. The rejection of the application for impleadment brings a dead end to the
proceedings so far as the non-signatory seeking impleadment is concerned. The wait
for seeking remedy till passing of the award and thereafter in case of success, the
entire arbitration exercise to be undertaken de novo would defeat the object of the
enactment of the Act especially when a right to appeal is provided on a conjoint
reading of Sections 16 and 37 of the Act. For this reason the statutory remedy
mentioned in ASF Buildtech (P) Ltd. (supra) is not a remedy under Section 34 of the
Act which would be against the spirit of the Act of time bound conclusion of dispute
resolution by arbitration."
[Emphasis Supplied]
25. Against this backdrop, Ms. Sethna's contention that the jurisdiction
under Section 37(2)(a) has not been attracted must be dealt with. In the facts
of the case, both OCS Services and Planet Support filed replies to the
application for impleadment moved by Hind Offshore, and took up the plea
that the Arbitral Tribunal did not have jurisdiction over Planet Support. This
plea has been accepted. Acceptance of such plea is amenable to a challenge
under Section 37(2)(a) of the Act and that should be the end of the matter on
whether this Court has jurisdiction.
26. I find the parsing of literal construction of Section 16(2) and mooring it
to the right of only an original defendant, to be contrary to the scheme of the
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Act. Hind Offshore has sought to defend and raise a counterclaim, in which it
wants to also move against Planet Support. The time to raise an objection as
seen from the deadline indicated in Section 16(2) is to be linked to the
Statement of Defence to the counterclaim. Indeed, both OCS Services and
Planet Support have raised objections and taken a plea that the Arbitral
Tribunal does not have jurisdiction over Planet Support. The only provision to
which such an objection is referable is Section 16(1) of the Act. That plea has
been accepted by the tribunal. The acceptance of such a plea is amenable to
challenge under Section 37(2)(a) of the Act. ASF Buildtech sets that out
clearly. Although that was a decision in relation to how the Section 11 Court
should not have to sit in judgement on whether a party is a veritable party,
since it may actually involve review of mixed questions of fact and law, the
judgement is a clear declaration of the law on how this element is in the
domain of the Arbitral Tribunal and is subject to a check and balance under
Section 37 of the Act.
27. The Supreme Court has specifically and carefully declared that a
decision on impleadment is amenable to an appeal, and when one reads that
in the context of the scheme of Section 37(2)(a) read with Section 5 of the Act,
the inexorable and necessary conclusion is that an order of the Arbitral
Tribunal accepting the objection by a party to the Arbitral Tribunal having
jurisdiction over it, is amenable to challenge. To the extent the application
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filed by Hind Offshore entailed impleadment of Planet Support, and the
objection to impleadment has been accepted, the challenge under Section
37(2)(a) would lie. Therefore, the captioned Petition is indeed maintainable.
Consideration of Merits of the Challenge:
28. The key question to ask is what the role of Planet Support has been
in the agreement between Hind Offshore and OCS Services, and whether a
commitment by Planet Support to have any disputes in this regard be referred
to arbitration under the arbitration agreement between these two parties is
discernible.
29. The approach of Hind Offshore is apparent - so long as a group
relationship between OCS Services and Planet Support is shown, it believed
Planet Support ought to be made a party to the arbitration proceedings,
leaving the material particulars of what precise role it played to the stage of
evidence and trial. Indeed, Hind Offshore has also brought to bear emails to
show involvement of Planet Support in the negotiation of the Subject
Agreements as well as emails after the execution, to make out a suggestion
that Planet Support was involved in the transaction and therefore has a subject
matter commonality. Therefore, the contentions have all been centred around
demonstrating that Planet Support is a group company of OCS Services, and to
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that is added, the existence of the email correspondence before and after the
execution of the Subject Agreements.
30. I am afraid this would not suffice to show that Planet Support is a
group company against which a counterclaim is to be mounted. When one
examines the email correspondence sought to be relied upon for this purpose,
it is apparent that the emails indicate Planet Support playing a role in the
execution of the contract. While this may appear to be a role in negotiation
and execution, one cannot lose sight of the fact that Planet Support's role
during such involvement was of a vendor management service provider. There
is also nothing to indicate that key and critical decisions on any material terms
of the contract were finally approved only by Planet Support, making it the
real controller of the bargain struck between the parties. The record does not
have such an indication and the Learned Arbitral Tribunal has returned a
finding to that effect.
31. For all purposes of my analysis, it is quite clear that Planet Support
is a group company and an affiliate of OCS Services. The two entities have
common ownership going back to the hands of Mr. Raju Shete. However, it is
difficult to accept that the Norwegian joint venture partner does not have any
voting power shy of 50% in the holding company of OCS Services. The
disclosure relied upon (Page 601 of the Paperbook) only states that the joint
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venture partner does not have joint control over the holding company of OCS
Services. The statement is that this investor does not have power over more
than half of the voting rights and that the treatment of the joint venture in its
books of accounts is purely on the basis of its equity holdings. This is only an
assertion of what the Norwegian joint venture partner does not have. It is not
a disavowal of even the 50% of the voting power.
32. Indeed, it is stated that Planet Energy takes care of the day-to-day
operations of the holding company of OCS Services. Taking this at its highest
i.e. that all decisions of OCS Services are taken by Planet Energy and its
promoters i.e. Mr. Raju Shete, it would at best make OCS Services a group
company, but by no stretch could its independent legal existence and its
independent autonomy be undermined and wished away to lift the corporate
veil. This is what the Learned Arbitral Tribunal has impeccably held. The
Learned Arbitral Tribunal has chosen not to extract from the emails relied
upon but has returned a finding that these emails do not show involvement of
a nature that makes Planet Support privity to the arbitration agreement
between Hind Offshore and OCS Services.
33. I have examined the email correspondence and indeed the
application for impleadment which sets out Hind Offshore's characterisation
and depiction of these emails to seek roping in Planet Support. I find that the
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email correspondence relied upon relates to support services and would at
best point to Planet Support playing an agency role for OCS Services. There is
neither any privity of contract between Planet Support and Hind Offshore, nor
is there anything to show that a commitment by Planet Support to be bound
by arbitration in any dispute between Hind Offshore and OCS Services is
discernible. The emails substantially indicate a vendor management support
role. The claim in the arbitration is by OCS Services. The impleadment
application does not even indicate the nature of the counterclaim for which
Planet Support's participation in the arbitration proceedings would be
necessary. Planet Support could well be a witness in the proceedings and
reliance on Section 27 of the Act may be placed to force Planet Support to lead
evidence, of course with the leave of the Learned Arbitral Tribunal.
34. However, to seek to rope in Planet Support as a party to the
arbitration without anything more to show than the fact that it is a group
company of OCS Services and that it had some support role or other to play in
the course of the hire of Hind Offshore's vessels by OCS Services, would not
make it a veritable party to the arbitration agreement. As stated earlier, the
nature of the email correspondence appears to be that of a coordinator of
clerical activities, such as invoicing, signature of contracts etc.
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35. Indeed, the Additional Affidavit had alleged that the services
agreement between OCS Services and Planet Support, brought on record by
OCS Services to demonstrate an arm's-length relationship between two group
companies, is fabricated and backdated. However, apart from a bald
allegation there is nothing to indicate why and how such services agreement is
to be regarded as fabricated and forged. The Impugned Order indeed contains
an erroneous observation that it is not Hind Offshore's case that the services
agreement with Planet Support is a sham or surrogate agreement. However,
even if one accepts this error at its highest, for its apparent conflict with the
assertion in the Additional Affidavit, in my opinion, the needle does not turn
in Hind Offshore's favour.
36. Finally, one must examine the contents of Cox and Kings, which
both sides rely on, reading it as indicative of their line of argument. Indeed,
Courts (and Arbitral Tribunals) would need to adopt a pragmatic approach to
discerning consent of a non-signatory as being a veritable party to the
arbitration agreement. At the risk of the extraction being a copious and prolix
one, in my view, the following extracts are noteworthy:
"E. Group of Companies doctrine
(i) Separate legal personality
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88. The principle of separate legal personality has been the cornerstone of
corporate law. In Aron Salomon (Pauper) v. A. Salomon & Co. Ltd. [Aron Salomon
(Pauper) v. A. Salomon & Co. Ltd., 1897 AC 22 (HL)], the House of Lords famously
observed that a company is at law a different person altogether from the promoters,
directors, shareholders, and employees. The principle of separate legal personality
equally applies to corporate groups. A parent company is not generally held to be
liable for the actions of the subsidiary company of which it is a direct or indirect
shareholder. The Companies Act, 2013 ("the 2013 Act") has statutorily recognised
a subsidiary company as a separate legal entity. [Balwant Rai Saluja v. Air India
Ltd., (2014) 9 SCC 407 : (2014) 2 SCC (L&S) 804] Section 2(46) of the 2013 Act
defines a holding company as a company of which one or more other companies are
subsidiary companies. Section 2(87) defines "subsidiary company" to mean a
company in which the holding company exercises control over the composition of
the Board of Directors and has a controlling interest of at least 50% over the voting
rights. Although a holding company owns a controlling interest in the subsidiary
company, they are considered as separate legal entities. Group companies'
structures allow multinational corporations to structure their businesses at both the
national and international level to leverage better returns for the investors and
ensure business growth of the corporation.
*****
(ii) Adopting a pragmatic approach to consent.
102. Increasingly, multinational groups often adopt new and sophisticated
corporate structures for execution and delivery of complex commercial transactions
such as construction contracts, concession contracts, licence agreements, long-term
supply contracts, banking and financial transactions, and maritime contracts. For
the execution of such contracts, corporate structures may take the form of groups
based on equity, joint ventures, and informal alliances. [Stavros Brekoulakis,
"Parties in International Arbitration : Consent v. Commercial Reality" in Stavros
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Brekoulakis, Julian DM Lew, et al. (Eds.) in The Evolution and Future of
International Arbitration (2016) 119, 120.] A multi-corporate structure helps a
group in adopting commercially effective models of operation as different
companies can get involved at different stages of a single transaction. Often,
persons or entities, who are not signatories to the underlying contract containing
the arbitration agreement, are involved in the negotiation, performance, or
termination of the contract. In the context of arbitration law, the challenge arises
when only one member of the group signs the arbitration agreement, to the
exclusion of other members. Should the non-signatories be excluded from the
arbitration proceedings, even though they were implicated in the dispute which
forms the subject-matter of arbitration? As a response to this challenge, arbitration
law has developed and adopted the Group of Companies doctrine, to allow or
compel a non-signatory party to be bound by an arbitration agreement.
*****
(iii) Group of Companies doctrine -- A fact based doctrine
103. The Group of Companies doctrine is used in the context of companies which
are related to each other by virtue of their being a part of the same corporate group.
Since every company in a group has a separate legal personality, a contract
formally entered by one member of a group will not be binding on the other
members by virtue of the limited liability principle. The Group of Companies
doctrine is used to bind a non-signatory company within a group to an arbitration
agreement which has been signed by other member of the group. [Uncitral,
"Settlement of Commercial Disputes : Possible uniform rules on certain issues
concerning settlement of commercial disputes : Conciliation, interim measures of
protection, written form of arbitration agreement : Report of the Secretary General"
A/CN.9/WG.II/WP.108/Add.1 (26-1-2000).] The underlying basis of the Group of
Companies doctrine rests on maintaining the corporate separateness of the group
companies while determining the common intention of the parties to bind the non-
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signatory party to the arbitration agreement. In other words, the Group of
Companies doctrine is a means of identifying the common intention of the parties to
bind a non-signatory to arbitration agreement by emphasising and analysing the
corporate affiliation of the distinct legal entities. [Gary Born, International
Arbitration Law and Practice, (3rd Edn., 2021) at p. 1563.]
*****
(iv) The determination of mutual intention
110. In multi-party agreements, the Courts or tribunals will have to examine the
corporate structure to determine whether both the signatory and non-signatory
parties belong to the same group. This evaluation is fact specific and must be
carried out in accordance with the appropriate principles of company law. Once the
existence of the corporate group is established, the next step is the determination of
whether there was a mutual intention of all the parties to bind the non-signatory to
the arbitration agreement.
111. The Group of Companies doctrine requires the Courts and tribunals to
consider the commercial circumstances and the conduct of the parties to evince the
common intention of the parties to arbitrate. It is important to note that the Group of
Companies doctrine concerns only the parties to the arbitration agreement and not
the underlying commercial contract. [Gary Born, International Arbitration Law and
Practice, (3rd Edn., 2021) at p. 1567.] Consequently, a non-signatory could be held
to be a party to the arbitration agreement without becoming a formal party to the
underlying contract. The existence of a group companies is one of the essential
factors to determine whether the conduct amounts to consent but membership of a
group is not sufficient in itself. This has been the consistent position of law, starting
from the Dow Chemical [Dow Chemical v. Isover Saint Gobain ICC Case No. 4131,
dated 23-9-1982 (ICC, Interim Award)] award, where it was observed that the
common intention of the parties to bind the non-signatory party to the arbitration
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can be inferred from the "circumstances that surround the conclusion and
characterise the performance and later the termination of the contracts". In other
words, it was held that a non-signatory party could be considered as a "true party"
to the arbitration agreement on the basis of their role in the conclusion,
performance, or termination of the underlying contract containing the arbitration
agreement."
[Emphasis Supplied]
37. What becomes clear is that whether a non-signatory is a veritable
party to the arbitration agreement is the subject matter of assessment. The
doctrine does not relate to the underlying agreement and the transactions
contracted therein, but to the arbitration agreement. The doctrine is not that
every group company that had any role at all to play must be subjected to
arbitration proceedings. The enquiry is always meant to be fact-specific. In
any operating contract, there could be multiple other parties with which one of
the contracting parties has a contract. They would not become liable to action
in any arbitration that a group company has with any third party.
38. Therefore, when one examines the concluding portion of Cox and
Kings, to see the "conduct" of the non-signatory third party, the conduct to be
examined is whether such third party indicated being an integral party to the
arbitration agreement. Towards this end, the party seeking impleadment of
the third party has to make out the case of how the cause of action involved
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necessarily entails roping in such third party whose conduct necessarily
indicates a discernible veritable privity to the arbitration agreement. At the
least, Hind Offshore would have had to indicate the nature of its cause of
action against Planet Support for which it sought impleadment. That facet of
the matter is sorely missing.
39. Instead, Hind Offshore's approach has simply been to indicate that
there is a group company that has played some role, and therefore, without
even indicating what the cause of action against the group company is, and
why its involvement as a party to the arbitration is necessary, the group
company should be first dragged into the proceedings, leaving the material
detail of the cause of action to some undefined subsequent stage. That, in my
opinion, is not an acceptable approach at all. It was always open to Hind
Offshore to indicate the cause of action it desired to pursue against Planet
Support and also seek to lead evidence to make that good, and thereby bring to
bear its contention now being made, that a mixed question of fact and law is
involved. It is for the party seeking to bring in a non-signatory party to frame
that mixed question of fact and law. What Hind Offshore has done is frame a
question of Planet Support being a group company without pleading material
facts of how it is vital to make Planet Support a party to the arbitration
proceedings.
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40. Even taking the assault on the Impugned Order about the
erroneous reading that the services agreement between Planet Support and
OCS Services had not been assailed by Hind Offshore as a sham or surrogate at
its highest, no case has been made out for interference. There is not even a
prima facie case made out to substantiate the contention that the services
agreement is a sham or surrogate. Indeed, OCS Services has brought to bear
invoices raised by Planet Support on OCS Services pursuant to the services
agreement and compliance with Goods and Services Tax requirements, to
indicate that it is not a sham agreement.
41. Therefore, I do not find any reason to interfere with the Impugned
Order. It contains an excellent summary of the state of the law on veritable
party to arbitration proceedings and applies the law to the facts of the case as
presented to the Learned Arbitral Tribunal. There is nothing perverse in it.
42. Therefore, even while holding that the challenge mounted in the
Petition was maintainable as a matter of jurisdiction, the captioned Petition is
dismissed on merits. The costs for this round of litigation shall be considered
by the Learned Arbitral Tribunal in the course of the conduct of the
proceedings.
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43. All actions required to be taken pursuant to this order shall be taken
upon receipt of a downloaded copy as available on this Court's website.
[SOMASEKHAR SUNDARESAN, J.]
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