[Cites 46, Cited by 0]
Delhi High Court
Talent Unlimited Online Services ... vs Affle India Limited on 4 April, 2026
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 28.11.2025
Judgment pronounced on: 04 .04 .2026
+ ARB. A. (COMM) 22/2024 & I.A. 8228/2024, I.A. 30930/2024
TALENT UNLIMITED ONLINE SERVICES PRIVATE LIMITED
AND ANR. .........Appellants
Through: Mr. Manik Dogra Sr. Adv. with
Mr.Sandeep Devashish Das, Ms. Anandini
Kumari Rathore, Mr. Arijeet Bhattacharjee,
Advs.
versus
AFFLE INDIA LIMITED .........Respondent
Through: Mr. Jayant Mehta, Sr. Adv. with
Mr. Abhishek Ghai, Adv.
OMP (ENF.) (COMM) 66/2024
AFFLE INDIA LIMITED .........Decree Holder
Through: Mr. Jayant Mehta, Sr. Adv. with
Mr. Abhishek Ghai, Adv.
versus
TALENT UNLIMITED ONLINE SERVICES PRIVATE LIMITED
AND ANR. .........Judgement Debtors
Through: Mr. Manik Dogra Sr. Adv. with
Mr.Sandeep Devashish Das, Ms. Anandini
Kumari Rathore, Mr. Arijeet Bhattacharjee,
Advs.
ARB. A. (COMM) 22/2024 & OMP (ENF.) (COMM) 66/2024 Page 1 of 59
Digitally Signed
By:MAYANK
Signing Date:04.04.2026
14:11:44
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
ARB. A. (COMM) 22/2024
1. This is an appeal filed under Section 37(2)(b) of the Arbitration and
Conciliation Act, 1996 ("1996 Act") challenging the order dated
11.03.2024 ("impugned Order") passed before the Singapore
International Arbitration Centre ("SIAC") in SIAC Arbitration No.
024 of 2023 in the arbitration proceedings titled as "Affle (India)
Limited vs. Talent Unlimited Online Services private Limited & Ors.".
2. The appellants herein were the respondents in the arbitral proceedings
and the respondent herein was the claimant.
FACTUAL MATRIX AS PER THE APPELLANTS
3. The appellant No.1 i.e., Talent Unlimited Online Services Private
Limited, ("appellant No.1 Company") is a private limited company,
registered as a „Micro Industry‟ under the Micro Small and Medium
Enterprises Development Act, 2006. The appellant No. 2 i.e., Mr.
Ankit Prasad, is the founder and Chief Executive Officer of appellant
No.1 Company.
4. The respondent i.e., Affle (India) Limited, a public company limited,
is a technology company and delivers consumer acquisitions,
engagements, and transactions using mobile advertising for companies
globally.
5. The appellant No.1 Company developed an input method smartphone
keyboard service namely Bobble Keyboard. Subsequently, many
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investors invested in appellant No.1 Company including Marquee
International Investor SAIF Partners ("SAIF") and hold 12.74% of
appellant No. 1 Company and Xiaomi Singapore Pte. Ltd. ("Xiaomi"),
which holds 7.02% shareholding in appellant No.1 Company.
6. On 30.04.2020, the appellant No.1 Company was approached by the
respondent with a proposal to invest in appellant No.1 Company by
becoming its „exclusive Ad monetisation‟ partner and assured that
integrating its software development kit on appellant No.1 Company‟s
keyboard applications, the appellants would generate substantial
advertising revenue. Subsequently, the respondent and appellant No.1
Company entered into a Memorandum of Understanding ("MOU")
dated 31.07.2020 and also into three inter-linked definitive agreements
all dated 08.08.2020 namely:-
i. Series C Share Subscription Agreement ("Series C SSA") and
Series C Shareholders Agreement ("Series C SHA") whereby
which respondent subscribed to 2300 Series C CCPS ("Initial
Shares") of appellant No.1 Company by investing USD
2,640,000 i.e., about Rs. 19,80,00,000/-;
ii. Platform Licensing Agreement ("PLA"); and
iii. Global Monetization Partnership Agreement ("GMPA")
pursuant to which respondent became the exclusive ad
publishing partner of appellant No.1 Company and under which
the respondent guaranteed minimum revenue commitments of
approximately Rs. 1,00,00,00,000/- upon achievement of
certain minimum Daily Active User targets by appellant No.1
Company.
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7. Subsequently, on 09.06.2021 Series C1 Share Subscription Agreement
("Series C1 SSA") was signed, and consequently, Series C SHA was
amended and the Amended and Restated Shareholders Agreement
("SHA") was executed.
8. The SHA contains the arbitration clause being Clause No. 14.7, which
reads as under:-
"14.7 Dispute Resolution.
14.7.1 All disputes and differences arising out of or in
connection with any of the matters set out in this Agreement
("Dispute"), if not resolved by amicable settlement within 30
(Thirty) days from the Dispute, shall be finally and
conclusively determined by arbitration by a sole arbitrator
mutually appointed by the Parties to the dispute, in
accordance with the Rules of Singapore International
Arbitration Centre (SIAC).
14.7.2 The arbitrator shall reach and render a decision in
writing with respect to the appropriate award to be rendered
or remedy to be granted pursuant to the dispute.
14.7.3 To the extent practical, decisions of the arbitrator
shall be rendered no more than 90 (Ninety) days following
commencement of proceedings with respect thereto.
14.7.4 The arbitration shall be conducted in English, and
the venue for arbitration shall be Singapore.
14.7.5 The arbitrator shall be entitled to award costs of the
arbitration."
9. The parties also entered into a Keyboard Licensing Agreement dated
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09.06.2021 ("KLA"), under which the subsidiary company of
respondent i.e., Affle MEA FZ LLC ("Affle Dubai") was granted
limited license to appellant No.1 Company proprietary keyboard
software.
10. Later, under the Series C SSA and GMPA, respondent acquired
additional shareholding, based upon certain predetermined figures of
revenue being raised ("Monetization Milestones") and certain user
targets being achieved. As per the terms of the Series C SHA, the
respondent could subscribe to 2500 Series C CCPS for an amount of
Rs. 19.8 Crores when it achieves Monetization Milestone 1 and to
1302 Equity shares for a consideration of Rs.13,020/-when it achieves
Monetization Milestone 2. However, it is the case of the appellants
that not only did respondent refused to share data regarding revenue
generated but also, failed to achieve the Monetization Milestones.
11. Subsequently, the requirement of minimum guaranteed revenue was
undermined, and the Series C SSA ("Series C Addendum") and
GMPA ("GMPA Addendum-I"), dated 14.03.2022 were executed,
whereby the right to subscribe to Milestone Shares would accrue on
receipt of Ad campaigns of over 300 applications. Later, vide letter
dated 16.03.2022, both Monetization Milestones were deemed to be
achieved. However, the revenue as published by the respondent
drastically declined and on appellant No.1 Company seeking
explanation the respondent began raising issues under the GMPA and
withheld payments under GMPA and since 21.11.2022 also suspended
advertisement placements on the Bobble Keyboard. Consequently,
appellant No.1 Company terminated the GMPA and the PLA.
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12. The KLA was terminated on 09.12.2022 by Affle Dubai. However,
later, it was found out that AppNext PTE, a subsidiary of the
respondent entered into an agreement with Mobicel, a South-African
company, to distribute appellant No.1 Company‟s proprietary software
and hence, appellant No.1 Company filed a petition under Section 9 of
the 1996 Act being O.M.P. (I)(COMM.) No. 240/2023,wherein vide
order dated 02.08.2023, it was recorded that the respondent and its
other subsidiary have ceased "to use or access the „Bobble Software,
services or API‟" and also "destroyed all copies of the "Bobble
Software" and documentation".
13. The respondent sent two purported notices of inspection, first on
02.12.2022 and second on 07.12.2022 to inspect appellant No.1
Company premises, however the same were sent on email address
„[email protected]‟ which was not that of appellant No.1
Company‟s. Hence, appellant No.1 Company denied respondent to
inspect the documents as the purported notices were not served upon
appellant No.1 Company with a minimum prior notice of 4 days, as
per the terms of the SHA. Later, the respondent sent a notice of
dispute dated 14.12.2022 to the appellants.
14. Subsequently, the respondent demanded an Extraordinary General
Meeting ("EGM") of appellant No.1 Company vide notice dated
09.12.2022 pertaining to the alleged obstruction of inspection. The
said EGM was conducted on 18.01.2023.
15. On 18.01.2023, the respondent also issued a Notice Invoking
Arbitration. The arbitration was deemed to have been commenced on
02.02.2023, under Rule No. 3.3 of the SIAC Rules and vide letter
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dated 23.03.2023 the Sole Arbitrator was appointed. The Sole
Arbitrator designated New Delhi as the seat of the arbitration, vide
decision dated 07.12.2023.
16. Consequently, the respondent filed a petition under Section 9 of the
1996 Act being O.M.P. (I) (COMM.) 4/2023 seeking various reliefs
including the right of inspection. During the proceedings, the
respondent filed an application being I.A. No. 11352/2023 seeking list
of documents sought to be inspected and vide order dated 03.07.2023
the Court recorded that all the documents sought had been
accumulated by the appellants and brought to the Court, however, no
inspection was granted to the respondent. Also, the appellants in the
reply to the said application raised objections to confidentiality and
even, Xiaomi vide email dated 10.07.2023 objected to sharing of the
documents. Eventually, vide order dated 31.07.2023 the Court
disposed of the Section 9 petition with direction that the same shall be
dealt with by the learned Arbitrator under Section 17 of the 1996 Act.
17. Later, by notice dated 08.08.2023, the respondent sought inspection of
the appellant No.1 Company‟s records and vide reply dated
17.08.2023, the appellant No.1 Company offered respondent to
conduct an inspection in second week of September 2023. The
appellants again offered inspection vide email dated 26.10.2023,
however, the respondent refused the same.
18. As per the respondent, the appellants in their response dated
17.08.2023 to the third Inspection Notice refused inspection. On
appellants refusal to allow inspection as per orders dated 10.01.2023
and 31.07.2023, the respondent on 28.08.2023 initiated contempt
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proceedings against the appellant No. 2 being Contempt Case (Civil)
1228/2023 and vide order dated 29.08.2023 the Court impleaded
appellant No.1 Company as a party to the contempt petition. The said
contempt petition is still pending. Later, since the appellants again
failed to provide the information as promised vide email dated
12.09.2023, the respondent filed second contempt petition being Cont.
Case. (C) 1414/2023 against appellants for non-compliance with the
undertaking with respect to Clause No. 3.2.4 of the SHA, which was
disposed of vide order dated 03.10.2023 granting liberty to the
respondent to revive the contempt petition in case of noncompliance
of the undertaking contained in the order dated 31.07.2023.
19. Eventually, in view of the order dated 31.07.2023, the respondent filed
an application for interim relief before the Sole Arbitrator and later, an
amended application for interim reliefs was filed. The appellants filed
their reply to the said application. Subsequently, the respondent filed
its Sur-Reply dated 29.12.2023 and the appellants filed their Sur-
Rejoinder to the dated 05.01.2024. After hearing both the parties, the
Sole Arbitrator reserved the order.
20. Subsequently, vide Procedural Order dated 11.03.2024 the Sole
Arbitrator decided to defer the jurisdictional objections application to
be heard with the merits (since these objections were closely
interrelated to the merits of the case) and on 11.03.2024, the Sole
Arbitrator also passed the impugned Order, wherein the reliefs granted
to the respondent are extracted below:-
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Signing Date:04.04.2026
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21. Pursuant to the impugned Order, the respondent issued an inspection
notice dated 12.03.2024 seeking to commence inspection on
19.03.2024 on 11 A.M. and also issued a non-disclosure agreement
dated 12.03.2024 ("NDA") and a Confidentiality Undertaking dated
16.03.2024 and another undertaking dated 12.03.2024. On 18.03.2024,
the appellants responded to the said Inspection Notice and raised
concerns regarding undertakings and NDA. Later, the respondent filed
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a petition seeking enforcement of the impugned Order being
O.M.P.(ENF.) (COMM.) 66 of 2024.
22. On 03.04.2024, the appellants wrote to the Arbitral Tribunal seeking
to decide upon the sufficiency of Confidentiality Undertaking and
Undertaking and the Tribunal vide email dated 03.05.2024 allowed the
appellants to propose revisions to undertakings and respondent to
respond to the appellants‟ suggestions. The appellants filed their
submissions dated 10.05.2024 suggesting changes.
23. Hence, being aggrieved by the impugned Order dated 11.03.2024 the
appellants have filed the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
24. Mr. Dogra, learned senior counsel for the appellants, has made the
following submissions.
Final Relief Granted in Guise of Interim Relief
25. It is submitted that the impugned Order grants right to inspect
appellant No. 1 Company‟s premises, which is also prayer No. (ix) of
the final relief sought by the respondent. Reliance is placed on Mehul
Mahendra Thakkar vs. Meena Mehul Thakkar, (2009) 14 SCC 48;
Hinduja Leyland Finance Ltd. v. Jaffer Khan, 2013 SCC OnLine
Mad 1246; GMR Pochanpalli Expressways Ltd. v. NHAI,
2023:DHC:493 and Indore Development Authority v. Dr. Hemant
Mandovra, 2024 SCC OnLine SC 3724, to contend that final relief
should not be granted by way of an interim relief.
26. Additionally, the parties were already at liberty to request for
documents as per the procedural order dated 02.10.2023 and the SIAC
Rules already provide discovery of document production.
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Signing Date:04.04.2026
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Interim Relief Granted is Barred under Specific Relief Act ("SRA")
27. It is submitted that the interim relief granted in the impugned Order
necessitates continuous supervision and such interim relief is barred
under Section 14(b) of SRA. Further, seeking specific performance of
Clause No. 3.4 of the SHA at the interim stage is barred under Section
14(d) of SRA, because the same is an issue for final adjudication. The
SHA is a private commercial transaction, hence, determinable in
nature and no specific performance or injunction can be granted.
Reliance is placed on Ksheeraabd Construction Pvt. Ltd. vs. National
Highways and Infrastructure Development Corporation Ltd., 2023
SCC OnLine Del 3156; Rajasthan Breweries Ltd. v. The Stroh
Brewery Company, 2000 SCC OnLine Del 481 and Royal Orchids v.
Kulbir Singh Kohli, 2022 SCC OnLine Del 2519.
28. In response to respondent‟s arguments that objection of the SHA
being determinable is irrelevant since the SHA has not been
terminated as of today, reliance is placed on NHAI v. HK Toll Road
Pvt. Ltd., 2025 SCC OnLine Del 2376, wherein this Court has clearly
held that "if a contract can be terminated by either of the parties
whether for a specific breach or even without any cause and this right
is based on an allegation of beach or happening of an event which is
clearly stated in the contract, then the contract is determinable in
nature and hence, cannot be enforced".
Patently Illegal - Beyond Scope of Section 17 of the 1996 Act
29. It is submitted that the impugned Order is patently illegal as
permission to inspect for discovery of documents is outside the ambit
of Section 17 of the 1996 Act and the same is not an interim measure.
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Section 17(1) of the 1996 Act does not provide power to allow
discovery of documents. Further, there is no "property or thing" which
forms the subject matter of the dispute and is required to be inspected
for it to an interim measure. Additionally, it has also not been
established that there is any property or thing would be at risk if the
interim relief was not granted, reliance is placed on Union of India v.
Reliance Industries, 2018 SCC OnLine Del 13018.
Impugned Order is Non-Speaking and Unreasoned
30. It is submitted that the Sole Arbitrator has simply reproduced parties‟
arguments in major portion of the impugned Order and the findings
are just Arbitrator‟s agreement with respondent‟s arguments. The
Arbitrator decided the essential requirements of prima facie case,
balance of convenience and irreparable harm based on mere
reproduction of respondent‟s argument. Hence, it is submitted that the
impugned Order suffers from non-application of mind. Reliance is
placed on Kanti Bijlee Utpadan Nigam v. Paltech Cooling Towers &
Equipments Ltd., (Judgment dated 05.07.2022 in O.M.P. (COMM.)
154/2021), Som Datt Builders v. State of Kerala, (2009) 10 SCC 259
and Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan, (2010) 9
SCC 496.
Impugned Order Does Not Satisfy the Parameters of Section 17 of
the 1996 Act
31. It is submitted that the interim relief granted does not satisfy the
standards of interim relief under Section 17 of the 1996 Act. The Sole
Arbitrator approach in determination of a prima facie case was based
on "plain reading of Clause 3.4" of SHA which is misconceived and
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does not lead to actual determination of the scope of Clause No. 3.4 of
SHA.
32. Prima facie case should have been decided based on claims and
analysis of precipitative event that allegedly led to respondent seeking
inspection i.e., lack of transparency regarding share transfers from the
appellant No. 2 to AnyCast Technology Private Limited, Appyhigh
Technology LLP and Mobavenue Pte Limited. The Arbitrator while
passing the impugned Order failed to appreciate the fact that
respondent was fully aware of the said share transfers since March
2022. Throughout the respondent has been shifting its stance
regarding reasons for seeking the inspection. Since, the inspection will
necessarily give insight to the appellants‟ confidential information
(which is not to be disclosed to the respondent), the balance of
convenience and irreparable loss/ injury lies in favour of the appellant
rather than the respondent. The impugned Order is cryptic and for the
said, does not satisfy the parameters of Section 17 of the 1996 Act.
Scope of Clause No. 3.4 of the SHA not Determined
33. It is submitted that the Sole Arbitrator failed to determine the scope of
Clause No. 3.4 of the SHA, and provided inspection with no limitation
as to access or time. The lack of clarity as to the scope of inspection
has led the respondent claiming an unlimited time for inspection. This
has effectively given respondent the right to conduct fishing and
roving enquiry.
34. Clause No. 3.4 of the SHA provides inspection only of appellant No. 1
Company‟s contracts and financial documents and the same is only to
be allowed on a notice from all Major Investors and with a written
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notice at least 4 days in advance. The respondent is in violation of
Clause No. 3.4 of the SHA by individually seeking inspection and not
issuing notices in terms of the SHA.
35. It is further submitted that the Sole Arbitrator erred in holding that
EGM has not amended the SHA. The Arbitrator ignores that the EGM
reaffirms the scope of Clause No. 3.4 of the SHA and does nothing to
amend the SHA. Further, the Sole Arbitrator also ignored that the
EGM of appellant No. 1 Company, was requisitioned and attended by
the respondent. All shareholders were present at the EGM and except
the respondent all were ad idem that any inspection of records requires
notice to be issued by all Major Investors, which was missing in the
facts of the present case.
Appellants' Confidentiality Concerns
36. It is submitted that the impugned Order grants full access to all the
documents of the appellants, which will put proprietary software and
confidential documents of appellant No.1 Company‟s under threat of
being exposed. Such access would violate appellants‟ confidentiality
agreements exposing it to legal action. In fact Xiaomi has specifically
objected to sharing of documents citing the respondent as a
competitor.
37. It is further submitted that the undertakings are of no use as returning
or destroying confidential information after arbitration would not help
appellants‟ confidentiality concerns. Further, in the undertakings the
respondent has insulated itself from any liability from the access of
information vide inspection. Further, in the arbitration proceedings,
the respondent admitted its commercial relationship with a competitor
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of appellant No.1 Company i.e., KPT, yet, the Sole Arbitrator
dismissed such concerns based on plain reading of Clause No. 3.4 of
SHA and also held that the respondent is not a competitor as per the
definition of competitor under the SHA, and that the appellants has
known of the respondent‟s business.
38. Further, the Sole Arbitrator failed to deal with the confidentiality
concerns of the appellants by simply directing issuance of NDA and,
the Undertaking and the Confidentiality Undertaking, without
delineating any terms. The Arbitrator failed to consider the appellants‟
specific offers of inspection which respondent refused. Also, it is
submitted that the terms of the Undertakings are still not agreed upon,
and have been referred back to the Arbitrator.
39. Lastly, during arguments before the Court, the respondent sought to
advance arguments based on Clause No. 12.3.4 of the SHA, for the
very first time and this argument was neither pleaded in the Section 17
Application, nor before the Sole Arbitrator.
Suppression of Facts by the Respondent and Malafide Conduct
40. It is submitted that the Sole Arbitrator failed to deal with respondent‟s
knowledge of the share transfers and suppression of said fact and
found such fact irrelevant for granting interim reliefs. The issue of
transfer of shares was before the then board of directors, which
included Mr. Kapil Mohan Bhutani, respondent‟s Chief Financial and
Operations Officer and then appointed nominee director of appellant
No. 1 Company. This issue was discussed in board meeting dated
17.03.2022 and ratified afterwards. However, the respondent
suppressed the said minutes of meeting dated 17.03.2022. Further,
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appellant No. 1 Company has executed shareholders agreements with
Anycast, Appyhlgh and Mobavenue, which were signed by Mr. Kapil
Mohan Bhutani on behalf of respondent and the same has been
suppressed by the respondent.
41. It is clear that the respondent since March 2022, was aware of the
transfer of shares, which was the alleged precipitative event for
issuing inspection notices. Despite the same, the Sole Arbitrator only
considered the date of filing Section 9 Application which was in
January 2023.
Reliance on Judgement of Ares Investment is Misplaced
42. The Sole Arbitrator heavily relied on the judgment of Ares Investment
LLC v. International Print-O-PAC Ltd. & Ors., 2016 SCC OnLine
Del 5771. However, the said judgment is distinguishable on the
following grounds: (i) In Ares Investment (supra), the investor‟s right
to conduct audit of the company was not disputed by the respondent
therein, unlike in the present case; (ii) In Ares Investment (supra), the
investor had not sought inspection rights as a final relief and the
interim relief sought by the appellant therein was to conduct an audit,
whereas in the present case, the final relief sought by the respondent is
identical to the interim relief sought; (iii) In Ares Investment (supra),
the company failed to provide specific information requested by
investor, whereas, in the present case, the appellants have not
concealed any information sought by the respondent (to which it is
entitled); and (iv) lastly, unlike Ares Investment (supra), the
appellants and third parties have raised confidentially concerns herein.
Erroneous Reliance on the Court's Order dated 31.07.2023
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43. It is submitted that the Sole Arbitrator has erred in relying upon the
Court‟s Order dated 31.07.2023 passed in O.M.P.(I)(COMM.) 4/2023.
The Arbitrator has relied on misconceived interpretation of the said
order given by respondent i.e., that the Court had directed compliance
with Clause No. 3.4. of the SHA as an interim measure. Such an
interpretation would mean that there was no requirement for
arbitration as the Court had already ordered compliance of Clause No.
3.4. of SHA. The Arbitrator failed to see the Order in its entirety
which kept all the rights and contentions of parties open and did not
determine respondent‟s alleged rights under Clause No. 3.4 of SHA.
44. Further, the respondent did not act expeditiously, as the Court‟s Order
was dated 31.07.2023 and the respondent filed the application for
Interim reliefs after a period of over two months.
Impugned Order Was Passed Without Deciding Jurisdiction
45. It is submitted that the issue of jurisdiction should have been decided
first, however, the Sole Arbitrator deferred the issue, and granted
interim relief. The Arbitrator ignored lack of arbitrability of the reliefs
sought, which began after notice invoking arbitration was issued and
which related to different reliefs. Also, the respondent did not first
seek resolution under Clause No. 14.7.1. of the SHA. Further, the
reliefs sought declaration of the transfers of shares of Anycast,
Appyhigh, Mobavenue, Rahul Prasad and one Amit Negi invalid,
which could have been only granted by National Company Law
Tribunal ("NCLT") (Section 59 of the Companies Act, 2013). Further,
affected rights of such individuals who were not made parties to the
proceedings. The respondent made allegations regarding corporate
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governance issues, however, such matters are to be agitated before
NCLT under Sections 241 and 242 of the Companies Act, 2013.
Hence, the Arbitrator lacked jurisdiction for such reliefs under Section
430 of the Companies Act, 2013.
46. Further, the Sole Arbitrator wrongly refused the appellants‟ request to
submit an expert‟s report on Indian law on maintainability of the
arbitration concerning the interim reliefs sought and passed the
Impugned Order, which is in violation of the settled law in India.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
47. Mr. Mehta, learned senior counsel for the respondent, submits that the
impugned Order after dealing with all the argument of the parties
granted a discretionary relief to respondent and the appellants have
failed to establish any irrationality or unreasonableness in the
impugned Order.
Scope of Interference Under Section 37 of the 1996 Act
48. It is submitted that it well settled law the scope of interference under
Section 37(2)(b) of the 1996 Act is limited. The Court under Section
37 of the 1996 Act must refrain to interfere with orders passed by the
Arbitral Tribunal under Section 17 of the 1996 Act only because an
alternative view is possible and the Arbitral Tribunal‟s view should be
upheld unless arbitrary or perverse. Reliance is placed on Shabnam
Dhillon v. Zee Entertainment Enterprises Ltd., 2019 SCC OnLine
Del 8905; EMAAR MGF Land Limited v. Kakade British Realities
Private Limited & Anr., 2013 SCC OnLine Del 4170 and HK Toll
(supra).
49. An interim order, founded on the prima facie assessment, does not
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require detailed reasoning, reliance is placed on Rakesh Kumar and
Company v. Union of India, 2015 SCC OnLine Del 8677. Further,
Courts are expected to not to interfere with view of Arbitral Tribunal,
even when reasoning is implicit and not apparent, reliance is placed on
M/s Star Shares & Stock Brokers Ltd. v. Praveen Gupta & Anr.,
2024:DHC:7733.
Interim Relief is not the Final Relief
50. It is submitted that the Sole Arbitrator held that the relief sought by
the respondent in interim application is not same as the final relief, as
the final relief was declaratory in nature, unlike the interim relief.
Further, in the relief granted by the Arbitrator the respondent has been
directed to give undertakings and NDA, which restricts the purpose of
inspection, whereas if the final relief is granted the respondent would
have unrestricted right to inspection.
SRA Does Not Bars Granting of the Interim Relief
51. The Sole Arbitrator held that the SHA is not a determinable contract
under Section 14(d) of the SRA, by relying on DLF Home Developers
Limited v. Shipra Estate Limited, 2021 SCC OnLine Del 4902, and
Clause No. 14.10 of the SHA, which confers upon the parties the right
to seek specific performance.
52. Further, the Arbitrator distinguished Ksheerabad Construction
(supra), relied upon by the appellants, on the basis that the Court in
Ksheerabad Construction (supra) had upheld and only distinguished
DLF Home Developers (supra) on facts. Even in HK Toll (supra),
this Court upheld Ksheerabad Construction (supra) wherein it
distinguished DLF Home Developers (supra) on the ground that DLF
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Home dealt with "contracts which contained clauses conferring a right
on parties to seek specific performance", just like in the present case.
Further, in HK Toll (supra), this Court observed that for a contract to
be determinable in nature both parties should have right to unilaterally
terminate the contract, whereas, in the present case, the appellants
have no right to unilaterally terminate the contract. Also, HK Toll
(supra) was rendered on different facts, wherein the Court declined to
grant specific relief on the fact that the agreement had already been
terminated, whereas in the present case, the SHA has not been
terminated and continues to subsist. Hence, the Sole Arbitrator placed
reliance on Ares Investment (supra), and rejected appellants‟
contentions based on Section 14(b) of SRA.
Relief Granted in Impugned Order Falls Within the Ambit of
Section 17 of the 1996 Act
53. It is submitted that in the interim reliefs were granted under Section
17(1)(ii)(e) of the 1996 Act, which allow grant of such interim
measures that the Arbitral Tribunal deems fit. Further, the reliefs
granted were under respondent‟s contractual right to conduct
inspection under Clause No. 3.4 of the SHA.
54. Reliance is placed on Ares Investment (supra) to contend that the said
judgment is based on identical facts. In Ares Investment (supra), this
Court, despite termination of the agreement, granted inspection as
right under contractual clause and Articles of Association, both of
which are similar to the present case in terms of conferring inspection
right. Additionally, as the subject matter of arbitration dispute
concerns appellants‟ breaches of SHA, the relief sought and granted is
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directly related to protection of the subject matter. Even this Court
vide order dated 31.07.2023 passed in O.M.P. (I) (COMM.) No.
4/2023, granted respondent right to inspection.
55. Further, the appellant‟s reliance on Reliance Industries (supra) is
misplaced as the issue before the Court therein pertained to the
maintainability of an appeal under Section 37(2)(b) of the 1996 Act
filed against a procedural order for disclosure or discovery of
documents.
Tests for Granting Interim Relief Under Section 17 of the 1996 Act
Satisfied
56. There exists a prima facie case in favour of the respondent. For
determining existence of prima facie case, the Sole Arbitrator on a
plain reading of the Clause No. 3.4 of SHA found that respondent has
established a prima facie case and further, it was observed that the
inspection right under the said clause is an individual right,
exercisable by any Major Investor and the appellants raised no
objection to respondent‟s inspection notices, which shows that claim
of inspection as a collective right was an afterthought.
57. In respect to the argument that respondent is allegedly a competitor of
the appellants it is submitted that firstly, the respondent does not fall
under the definition of "competitor" provided in the SHA. Secondly,
Clause No. 3.4 of the SHA contains no limitation on inspection
against a competitor and lastly, the appellants had full knowledge of
respondent‟s business and still granted inspection rights under SHA.
Even the SHA does not restrict the respondent from investing or
collaborating with entities that may be competitors to the appellants.
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58. Further, the Sole Arbitrator held that the EGM held on 18.01.2023,
wherein all shareholders, except respondent, agreed that inspection
would be permitted only on issuance of notice by all Major Investors,
did not affect amendment to SHA and placed reliance on Clause No.
14.8 of the SHA. Additionally, the Arbitrator rejected appellant‟s
contention pertaining to the respondent‟s prior knowledge of the share
transfers on the ground that it was irrelevant as Clause No. 3.4 of the
SHA gave unfettered inspection right. The Arbitrator also relied upon
order dated 31.07.2023 passed in O.M.P.(I)(COMM.) 4/2023, which
gave same reliefs.
59. The balance of convenience lies in favour of the respondent. The Sole
Arbitrator on the plain reading of Clause No. 3.4 of the SHA,
observed that the relief was necessary for the respondent to present its
case comprehensively. The Arbitrator also addressed confidentiality
concerns and found that respondent is not a competitor and the
appellants have failed to prove otherwise.
60. Further, in response to appellants‟ arguments that confidentiality
undertaking dated 16.03.2024 provided by respondent is insufficient it
is submitted that the Sole Arbitrator gave both parties opportunity to
raise their concerns and the appellants have already availed the said
opportunity. Additionally, actions of the appellants in not signing the
NDA and then refusing inspection on 18.03.2024, and then
approaching the Arbitral Tribunal on 03.04.2024 seeking clarity on
NDA and undertakings, while simultaneously challenging the
impugned Order and then again approaching Tribunal for adjudication
of undertakings on 15.04.2025, after nearly 4 and a half months, is an
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attempt to reagitate the same issues already decided by the Arbitral
Tribunal. Further, on respondent‟s request, the Tribunal held a hearing
on determination of sufficiency of undertakings and order is awaited.
61. Lastly, it is submitted that the Sole Arbitrator rightly held that the
respondent would suffer irreparable harm if not granted inspection
rights, as the same aids it in presenting its case comprehensively and
after considering appellants‟ confidentiality concerns, the Arbitrator
directed respondent to furnish confidentiality and destruction
undertakings.
On the Issue of Jurisdiction
62. It is submitted that the Sole Arbitrator deferred ruling on appellant‟s
jurisdiction application vide Procedural Order dated 11.03.2024 and
held that it has jurisdiction on all matters that may arise until final
award, and the same is also noted in the impugned Order. Despite this,
appellants did not raise any objection and therefore, are now barred
from raising objection to validity of impugned Order on jurisdiction.
63. Lastly, it is submitted that the Sole Arbitrator observed that the
respondent approached the Court and the Arbitrator within a
reasonable timeframe. Even during the intermittent period, respondent
was protected by Court‟s order dated 31.07.2023 passed in
O.M.P.(I)(COMM.) 4/2023.
ANALYSIS AND FINDINGS
64. I have heard learned senior counsels for the parties and perused the
material available on record including the judgments cited.
Scope Of Section 37(2)(b) Of The 1996 Act
65. Before going into the merits of the contentions, it is necessary to
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outline the ambit and scope of Section 37(2)(b) of the 1996 Act. The
Hon‟ble Supreme Court and this Court in a catena of judgments have
held that the powers of appellate Court while exercising jurisdiction
under Section 37(2)(b) of the 1996 Act against orders passed by the
Arbitral Tribunal are very restricted and narrow and the same should
be exercised when the order seems to be perverse, arbitrary and
contrary to law. Reliance is placed on Ramesh Kumar Jain v. Bharat
Aluminium Co. Ltd., 2025 SCC OnLine SC 2857, wherein the
Hon‟ble Supreme Court observed as under:-
"29. When it comes to section 37 of the A&C Act it provides
for a limited appellate remedy against an order either
setting aside or refusing to set aside an arbitral award
passed by civil court in exercise of its power under section
34. This court in MMTC Ltd. v. Vedanta Ltd.15, at
Paragraph 14 observed that interference with an order
made under section 37 cannot travel beyond the restrictions
laid down in section 34. Further in Konkan Railway
Corporation Limited v. Chenab Bridge Project
Undertaking16 this court at Paragraph 18 observed that the
scope of appellate scrutiny under section 37 is necessarily
co-extensive with the parameters mandated under section 34
of the Act and hence the said provision does not enlarge the
jurisdiction of the appellate court. Even this court has
observed in Hindustan Construction Company
Limited v. National Highways Authority of India17, wherein
one of us (Justice Aravind Kumar) was part of the bench at
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Paragraph 26 that the standard of scrutiny of an arbitral
award is very narrow and it is not the judicial review of an
award. Further in Paragraph 27 it was observed that
awards which contains reasons, especially when they
interpret contractual terms, ought not to be interfered with
lightly. ..... Hence, it is very well settled that arbitral awards
are not liable to be set aside merely on the ground of
erroneous in law or alleged misappreciation of evidence
and there is a threshold that the party seeking for the award
to be set aside has to satisfy, before the judicial body could
enter into the realm of exercising its power under section(s)
34 & 37. It is also apt and appropriate to note that re-
assessment or re-appreciation of evidence lies outside the
contours of judicial review under section(s) 34 and 37. This
court in Punjab State Civil Supplies Corporation
Limited v. Sanman Rice Mills19, at Paragraph 12 observed
that even when the arbitral awards may appear to be
unreasonable and non-speaking that by itself would not
warrant the courts to interfere with the award unless that
unreasonableness has harmed the public policy or
fundamental policy of Indian law. It might be a possibility
that on re-appreciation of evidence, the courts may take
another view which may be even more plausible but that
also does not leave scope for the courts to reappraise the
evidence and arrive at a different view. This court
in Batliboi Environmental Engineers Limited v. Hindustan
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Petroleum Corporation Limited20 held that the arbitrator is
generally considered as ultimate master of quality and
quantity of evidence. Even an award which is based on little
or no evidence would not be held to be invalid on this score.
At times, the decisions are taken by the arbitrator acting on
equity and such decisions can be just and fair therefore
award should not be overridden under section 34 and 37 of
the A&C Act on the ground that the approach of the
arbitrator was arbitrary or capricious."
(Emphasis added)
66. A perusal of the aforesaid judgment shows that the Appellate Court
while exercising powers/jurisdiction under Section 37 of the 1996 Act
has to keep in mind the limited scope of judicial interference as
prescribed under Section 34 of the 1996 Act. The appeals under the
1996 Act against the orders passed by the Arbitral Tribunal are subject
to strict and narrow grounds and the 1996 Act aims at minimal Court
interference, thereby to uphold the autonomy and efficiency of the
arbitration process. The Appellate Court is not required to substitute
its views with the view taken by the Arbitral Tribunal which is a
reasonable or a plausible view except where the discretion is exercised
arbitrarily or where the Arbitral Tribunal has ignored the settled
principles of law. The Appellate Court is not required to interfere in
the arbitral orders especially if a decision taken is at an interlocutory
stage. The Appellate Court is only required to see the whether the
Arbitral Tribunal has adhered to the settled principles of law rather
than re-assessing the merits of the Arbitral Tribunal‟s reasoning.
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67. To sum up, it is clear that in view of the limited judicial interference,
the Appellate Court has to exercise its power only if the arbitral order
suffers from perversity, arbitrariness and a manifest illegality.
Interim Relief Is Not Same As The Final Relief
68. The learned senior counsel for the appellants has argued that the relief
sought by the respondent in its Statement of Claim i.e., prayer No. (ix)
and the reliefs sought in interim application by the respondent are
same and by granting the interim relief, final relief has been granted in
the guise of an interim relief.
69. The law is well settled that an Arbitral Tribunal, while exercising
jurisdiction under Section 17 of the 1996 Act, cannot under the guise
of interim protection, grant relief of such nature as to lead to final
adjudication of reliefs. However, in my considered view the present
case, is not such a case. The final relief, which as per the appellants
have been granted in guise of the interim relief is prayer No. (ix) of
the Statement of Claim and the same reads as under:-
"(ix) A declaration that R1 and R2 have breached Clause
3.4 of the SHA and that R1 and R2 should comply fully with
Clause 3.4 of the SHA upon request by Affle;"
70. The interim relief granted to the respondent by the Sole Arbitrator is in
paragraph No. 6.1 of the impugned Order (reproduced above), which
provides that subject to parties signing the NDA or Confidentiality
Undertaking, the appellants shall provide inspection rights to the
respondent pursuant to Clause No. 3.4 of the SHA.
71. The Sole Arbitrator on the said issue observed that the interim relief is
not the final relief as while the final relief is in the nature of a
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declaratory relief, the interim relief is not. I find myself in agreement
with the reasoning of the Arbitrator. The final relief seeks finding that
the appellants have breached Clause No. 3.4 of the SHA and hence, a
declaration that the appellants should be directed to comply with the
same upon the request of the respondent. On the other hand, what has
been granted as interim relief is only a supervised inspection right
guided by NDA and Confidentiality Undertaking, for the time being,
to allow the respondent its inspection rights. The same cannot be said
to be of permanent or declaratory nature like the final relief. Had the
interim relief been in the nature of the final relief there would have
been no restrictions on the parties to sign the NDA and Undertakings,
as done in the impugned Order.
72. In furtherance of its contention that final relief cannot not be granted
in guise of interim relief the appellants have relied upon Mehul
Mahendra Thakkar (super), which is not relevant and distinguishable
on facts as therein issue was matrimonial in nature and the Court had
granted a declaratory order at the interim stage. Further, reliance upon
the judgment of GMR Pochanpalli Expressways Ltd. (supra) is also
not relevant and distinguishable on facts as therein the Court held that
interim relief was outside the ambit of Section 9 the 1996 Act as the
petitioner sought amount illegally withheld by respondent, which the
Court found to be in nature of a permanent relief. Similarly, reliance
on Hinduja Leyland Finance Ltd. (supra) is also misplaced as therein
too interim relief granted seizure of vehicle and permitted the
applicant to dispose of the vehicle which was akin to final
adjudication. However, in the present case, the inspection sough
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cannot be said to be permanent in nature especially in view of the
requirement of NDA and Undertakings. Even reliance upon Indore
Development Authority (supra), is misplaced wherein the State
Commission by way of an interim order directed delivery of
possession of plot in question and under such circumstances it was
observed that final relief could not have been granted in an
interlocutory application.
Relief Is Not Barred Under The Provisions Of SRA
73. The learned senior counsel for the appellants contends that the interim
relief granted is barred under Section 14(b) of the SRA, as interim
relief necessitates continuous supervision and also under Section 14(d)
of the SRA, as the SHA is determinable in nature.
74. At this point it is relevant to refer to Sections 14(b) and 14(d) of the
SRA, which read as under:-
"14. Contracts not specifically enforceable.--The following
contracts cannot be specifically enforced, namely--
(a) ...
(b) a contract, the performance of which involves the
performance of a continuous duty which the court cannot
supervise;
(c) ...
(d) a contract which is in its nature determinable."
75. In HK Toll (supra), I have after referring to judgments of this Court
and Hon‟ble Supreme Court, laid down when a contract is
determinable in nature and that if a contract is found to be
determinable in nature, specific performance of such contracts cannot
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be granted. The relevant paragraphs from the said judgment are
reproduced below:-
"85. The word "determinable" is not defined in SRA. As per
the Black's Law 18th Edn., the said word means "liable to
end upon the happening of a contingency", meaning
thereby, if a contract is liable to be terminated by either of
the parties to a contract in view of some future situation or
events, then such contract can be termed as determinable in
nature. There cannot be any straitjacket formula to test
whether a contract is determinable or not but the same has
to be tested on the facts of the each case after taking note of
the clauses of the said contract.
xxxxxxx
88. On perusing the above judgments, it is discernible that if
a contract can be terminated by either of the parties
whether for a specific breach or even without any cause and
this right is based on an allegation of beach or happening of
an event which is clearly stated in the contract, then the
contract is determinable in nature and hence, cannot be
enforced.
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91. This Court has time and again observed that once a
contract is held to be determinable in nature, injunction
cannot be granted.34 The Division Bench of this Court
in Rajasthan Breweries Ltd. v. Stroh Brewery Co.35 has
observed that if court finds that the contract was illegally
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terminated, then the only remedy available to the aggrieved
party is to seek compensation for wrongful termination and
it cannot claim specific performance of the agreement. ...
xxxxxxx
94. In somewhat similar circumstances and more
particularly the termination clause being the same, this
Court in Supreme Panvel Indapur Tollways (P) Ltd.
case7 dismissed the appeal and upheld the order passed by
the AT under Section 17 wherein the AT had dismissed the
interim application on the ground inter alia, the contract
being determinable contract and if termination found
illegal, the aggrieved party can seek damages and once the
appellant therein had already been dispossessed from the
project, granting stay of termination would amount to final
relief. ..."
(Emphasis added)
76. However, the judgment of HK Toll (supra) is not relevant in the
present case in view of the Clause No. 14.10 of the SHA, which reads
as under:-
"14.10 Specific Performance. This Agreement shall be
specifically enforceable at the instance of any Party. The
Parties agree that a non-defaulting Party will suffer
immediate, material, immeasurable, continuing and
irreparable damage and harm in the event of any material
breach of this Agreement and the remedies at Applicable
Law in respect of such breach will be inadequate and that
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such non-defaulting Party shall be entitled to seek specific
performance against the defaulting Party for performance
of its obligations under this Agreement in addition to any
and all other legal or equitable remedies available to it."
77. Clause No. 14.10 of the SHA is a contractual understanding between
the parties, wherein the parties have clearly understood and agreed
that in the event of default, non-defaulting party will suffer immediate,
material, immeasurable, continuing and irreparable damage and
remedies in respect of breach are inadequate and the then non-
defaulting party shall be entitled to specific performance. In such
situation the argument of the SHA being determinable in nature does
not hold any ground.
78. The Sole Arbitrator has referred to and relied upon Clause No. 14.10
of the SHA and in paragraph No. 5.114 of the impugned Order
observed that the said clause permits specific performance of the SHA
and therefore, the SHA is not determinable in nature under SRA. The
paragraph No. 5.114 of the impugned Order reads as under:-
"5.114 I agree with the Claimant's arguments for the
purposes of this Application. The SHA does not appear to be
a determinable contract within the meaning of Section 14 of
the SRA 1963, particularly in light of the reasoning and
arguments provided by the Claimants relying on DLF Home
Developers. Clause 14.10 of the SHA confers the right on
the parties to seek specific performance and therefore is not
determinable within the meaning of Section 14 of the SRA
1963. I do not agree with the Respondents that Ksheerabad
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is applicable in this case, as the agreement in that case did
not contain a specific enforcement clause."
79. Upon a perusal of the paragraph, reproduced above, the interpretation
adopted by the Sole Arbitrator of Clause No. 14.10 of the SHA is fair
and a plausible one and hence, requires no interference. Additionally,
the reliance on the judgment of DLF Home Developers (supra) is also
correct as therein too there was a similar clause of specific
performance, depending upon which a Coordinate Bench of this Court
held that the contract in question was liable for specific performance.
The relevant paragraphs from the said judgment read as under:-
"72. The aforesaid view also finds support in Clause 10 of
the ATS, which entitles DLF to claim specific performance
of the ATS. Clause 10 of the ATS is set out below:
"10. SPECIFIC PERFORMANCE
The Parties agree that in the event of any breach or
threatened breach by the Seller, and, or, Promoter and,
or, IHFL of any covenant, obligation or other provision
set forth in this Agreement, the Purchaser shall be
entitled, in addition to any other remedy that may be
available to it, to seek; (i) any decree or order of specific
performance to enforce the observance and performance
of any covenant, obligation or other provisions of this
Agreement by the Seller, and, or, Promoter and, or, IHFL;
and, or, (ii) any injunction restraining such breach or
threatened breach by the Seller, and, or, Promoter and,
or, IHFL. The Parties agree that the Sale Property is a
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special property and in the event of any breach or default
of any terms of this Agreement by the Seller, and/or,
Promoter and/or IHFL monetary relief shall not be
sufficient and the Purchaser is entitled to seek mandatory
or any other injunctions at an interim stage."
xxxxxxxx
96. As noted above, Clause 10 of the ATS expressly states in
unambiguous terms that DLF would be entitled to specific
performance of the ATS as the Sale Property is a special one
and a similar property is otherwise not easily available.
Once the parties have expressly agreed that the contract is
required to be specifically enforceable, it is clearly not open
for any party to contend to the contrary.
xxxxxxxxx
118. As noted above, in terms of Clause 10 of the ATS, the
parties had agreed that the Sale Property is a „special
property‟ and damages would not be an adequate remedy.
Thus, if DLF prevails in its case that it is entitled to specific
performance of the ATS, the damages it would suffer in the
event the Sale Property is alienated, cannot be compensated
in monetary terms. This Court is of the view that in these
facts, the balance of convenience is, plainly, in favour of
grant of an interim injunction restraining the parties from
creating any third party rights."
80. Further, reliance upon the judgments of Ksheeraabd Construction
(supra), Rajasthan Breweries (supra) and Royal Orchids (supra) is
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not relevant here and the same are distinguishable as in none of the
said judgments a clause like Clause No. 14.10 of the SHA, which
provided specific performance of the contract, existed.
81. Lastly, I also do not agree with appellants‟ contention that the interim
relief is barred under Section 14(b) of the SRA, as the Sole Arbitrator
will continue to supervise the inspection rights as the Arbitrator is yet
to decide upon the sufficiency of the terms of the NDA and
Undertakings. The Arbitrator in paragraph Nos. 5.126 and 5.127 of the
impugned Order has opined as under:-
"5.126 I am persuaded by the Claimant's arguments. The
court in Ares Investment or the DHC did not seem
concerned with the continuous supervision issue. I agree
with the Claimant that my remit would be "to preside over
any ordered inspection(s) and follow up inquiries provided
for in Clause 3.4 for a short period that would last for less
than two months since the merits hearings will take place
within that time" (in other words, until the merits hearing of
this Arbitration).
5.127 In any event, I will have supervisory powers over this
Order until this Arbitration is concluded."
82. The Arbitrator has relied upon the judgment of Ares Investment
(supra), and held that the Arbitrator would be required to preside over
the order only for a small period of time and not continuously. A
perusal of the aforesaid finding to my mind is fair, reasonable and
plausible.
Relief Is Not Outside The Ambit Of Section 17 Of The 1996 Act
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83. The learned senior counsel for the appellants has contended that the
interim relief granted i.e., right of inspection for discovery of
documents is outside the ambit of Section 17 of the 1996 Act and
there is no "property or thing" forming subject matter of the dispute,
which require inspection for interim measures or that any "property or
thing" would be at risk if the interim relief was not granted.
84. At this juncture it is relevant to extract Section 17(1) of the 1996 Act,
which reads as under:-
"17. Interim measures ordered by arbitral tribunal.--
(1) A party may, during the arbitral proceedings, apply to
the arbitral tribunal--
(i) ...
(ii) for an interim measure of protection in respect of any of
the following matters, namely--
(a) ...
(b) ...
(c) the detention, preservation or inspection of any property
or thing which is the subject-matter of the dispute in
arbitration, or as to which any question may arise therein
and authorising for any of the aforesaid purposes any
person to enter upon any land or building in the possession
of any party, or authorising any samples to be taken, or any
observation to be made, or experiment to be tried, which
may be necessary or expedient for the purpose of obtaining
full information or evidence;
(d) ...
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(e) such other interim measure of protection as may appear
to the arbitral tribunal to be just and convenient,
and the arbitral tribunal shall have the same power for
making orders, as the court has for the purpose of, and in
relation to, any proceedings before it."
85. In the judgment of Ares Investment (supra), a Coordinate Bench of
this Court set aside the impugned order therein on the ground that the
appellant therein had right to conduct audit under Articles of
Association and the respondent failed to show otherwise. Further, it
was found that the subject matter of the dispute pertained to alleged
breach of Articles of Association, hence denying the interim relief of
conducting audit on the ground that the same has no relation with
protecting the subject matter of the dispute was not found sustainable.
86. While dealing with the issue whether the relief sought by the
respondent in the interim application falls within the scope of Section
17 of the 1996 Act, the Sole Arbitrator has heavily relied upon the
judgment of Ares Investment (supra), and held that the clause in
question in the said judgment, providing information rights, was
similar to Clause No. 3.4 of the SHA and based on such clause the
Court allowed the appeal and set aside the impugned order therein
denying the information rights. Hence, the Sole Arbitrator held that
just like in Ares Investment (supra), the present case also fall within
the ambit of Section 17(1) of the 1996 Act. The said findings are
provided in paragraph Nos. 5.102 and 5.103 of the impugned Order,
which read as under:-
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"5.102 I am more persuaded by the Claimant's arguments.
I agree with the Claimant that the decision in the Ares
Investment case is relevant on this point. As the Claimant
argued, the clause analysed in Ares Investment was similar
to Clause 3.4 of the SHA. On that basis, the court in Ares
Investment set aside the tribunal's wrongful order not to
give effect to the information rights clause as an interim
measure of protection under Section 17(1)(ii). I am therefore
persuaded that the situation in Ares Investment is similar to
the present Application and that the Claimant's Application
falls within Section 17(1)(ii).
5.103 As to whether it falls within Section 17(1)(ii)(c) or
(e), I agree with the Claimant that the court in Ares
Investment granted the petitioner's claim for interim relief
for inspection, information and audit under Section 17,
which can only mean Section 17(1)(ii)(e)."
87. Although, the learned senior counsel for the appellants have
enumerated as to how of the judgment of Ares Investment (supra) is
not relevant to the present case, but to my mind the interpretation
given by the Sole Arbitrator is correct. Hence, I find no reason to
interfere with the finding of the Arbitration that the interim reliefs
sought and granted falls within the ambit of the Section 17(1) of the
1996 Act.
88. The learned senior counsel for the appellants to buttress this
contention has also placed reliance on Reliance Industries (supra),
which is distinguishable, as in the said case there were request for
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disclosures under Redfern schedules, however, the same is not the
case here, as in the present case, the respondent is not making request
to disclosure but is exercising its contractual right under Clause No.
3.4 of the SHA.
Satisfaction Of The Standards Of Section 17 Of The 1996 Act
89. The learned senior counsel for the appellants has argued that the
impugned Order is a mere reproduction of contentions of the parties
and the final decision of the Sole Arbitrator under each issue is a mere
agreement with the respondent‟s argument. Per contra, the learned
senior counsel for the respondent has argued that firstly, such
argument is a mere afterthought, as the same was not raised in appeal
and secondly, the Arbitrator has considered all the documents on
record before arriving at the findings and an interim order based on
prima facie case does not require detailed deliberations.
90. The argument that the impugned Order is mere reproduction of the
contentions of the parties has not been pleaded in the appeal. Though
pleadings are not to be filed in a rigid form and there is generally no
straight jacket formula, however, there should at least be a semblance
of reference to the grounds in the petition/appeal which are urged
orally by the appellants at the stage of arguments, so that the opposing
party has a fair chance to deal and address the same during arguments.
Reliance is placed upon the judgement Deep Nursing Home v.
Manmeet Singh Mattewal, 2025 SCC OnLine SC 1934, wherein the
Hon‟ble Supreme Court while referring to the judgements Trojan &
Co. Ltd. v. Nagappa Chettiar, (1953) 1 SCC 456 and Ram Sarup
Gupta v. Bishun Narain Inter College, (1987) 2 SCC 555, observed
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as under:-
"29. Useful reference may also be made to the observations
of this Court in Trojan and Company v. Rm. N.N. Nagappa
Chettiar12, as long back as in the year 1953, that it is well
settled that the decision of a case cannot be based on
grounds outside the pleadings of the parties and it is the
case pleaded that has to be found. Again, in Ram Sarup
Gupta (Dead) by LRs v. Bishun Narain Inter College13, this
Court observed that it is well settled that no party should be
permitted to travel beyond its pleadings and that all
necessary and material facts should be pleaded by a party
in support of the case set up by it. It was pointed out that the
object and purpose of pleadings is to enable the adversary
party to know the case it has to meet as, in order to have a
fair trial, it is imperative that a party should settle the
essential material facts so that the other party may not be
taken by surprise."
(Emphasis added)
91. In the present case, the appellants have only raised the ground of
verbatim reproduction of respondent‟s argument and non-application
of mind by the Sole Arbitrator at the stage of argument and filing of
written submissions and hence, the same should not be entertained.
Only legal pleas can be permitted to be urged at the time of oral
hearing.
92. Despite the same, I have scrutinized the impugned Order and do not
find myself in agreement with the contentions raised by the learned
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senior counsel for the appellants. It is a fact that the impugned Order
extends to approximately 86 pages and a substantial portion, nearly
first 57 pages, is mere reproduction of pleadings of the parties.
However, from page No. 57 of the impugned Order, under the heading
"THE DECISION", the Sole Arbitrator has dealt with each issue.
Further, while it is true that under each issue there is reproduction of
contentions raised by both parties in the application, reply, surreply,
surrejoinder, closing submissions, etc. respectively, but the Arbitrator
has while stating, in majority issues, that she agrees with respondent‟s
arguments, in my considered opinion, has also provided her reasoning
for such agreement.
93. I will now begin to analyse analysis as done by the Sole Arbitrator,
under the sub-heading "D. Standard/Test for Interim measures to be
ordered" to assess whether the standards of Section 17 of the 1996 Act
were met or not for granting interim relief.
94. The Sole Arbitrator after laying down the test for grant of interim
relief, first determined existence of a "prima facie case". The
Arbitrator first quoted and summarised both parties‟ arguments on the
said issue from paragraph Nos. 5.32 to 5.38 of the impugned Order
and then in paragraph Nos. 5.39 to 5.49 of the impugned Order, has
expressed agreement with respondent‟s argument. Paragraph Nos.
5.39 to 5.49 of the impugned Order are reproduced below:-
"5.39 I agree with the Claimant's arguments. At this point
(ie on a prima facie basis or on a strong/very strong prima
facie basis, the latter as argued by the Respondents), the
most relevant fact that needs to be taken into account to
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decide whether there is a prima facie case (or a strong/very
strong prima facie case) or not is whether the interpretation
of Clause 3.4 on a prima facie basis grants a right of
inspection to the Claimant. Based on the evidence presented
by both Parties, I am satisfied that on a plain reading of
Clause 3.4 a prima facie case (or a strong/Very strong
prima facie case) has been made out by the Claimant for it
to be entitled to Inspection Rights. To clarify, whether the
test to be met is a prima facie case or a strong/very strong
prima facie case, this has been established.
5.40 Furthermore, on a plain reading of Clause 3.4, there
seems to be no inclusion, on a prima facie basis (or a
strong/very strong prima facie basis), of any caveat that the
Respondents are entitled to refuse granting the Inspection
Rights on the basis of confidentiality concerns or because
the Claimant may be a competitor of the Respondents.
5.41 I have also reviewed the definition of competitor under
the SHA and I agree with the Claimant, on a prima facie
basis (or a strong/very strong prima facie basis), that the
Claimant is not a competitor within the meaning of the
SHA291 and that:
"Respondents' claim that Affle is a ......"292
5.42 As to whether the Inspection Rights are an individual
or collective right, at this point, on a prima facie basis (or a
strong/very strong prima facie basis), I agree with the
Claimant's arguments:
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"The reference to the Majority Investors needing ...."293
5.43 Furthermore, I also agree with the Claimant, on a
prima facie basis (or a strong/very strong prima facie
basis), that:
"[T]here is at least a prima facie right to ...." 294
5.44 As to the weight to be given to the EGM, I am
persuaded, on a prima facie basis (or a strong/very strong
prima facie case), by the Claimant's arguments on this
point. Based on the evidence submitted by the Parties
and/or taking into account the wording of Clause 14.8
(Amendments) of the SHA, on a prima facie basis (or a
strong/very strong prima facie case), I find that the EGM
has not indeed amended the SHA. This is also supported by
the Respondents who have themselves stated that the EGM
has not amended the SHA. 295
5.45 In this regard, I note the Respondents' arguments that:
"No order, with the effect of altering or overturning the
decision....."296
5.46 However, I am persuaded by the Claimant's arguments
put forward at the Hearing:
"And again, we have this idea that there....."297
5.47 I also agree with the Claimant that the Ares Investment
case is relevant for the purposes of this Application and that
the Respondents have failed to demonstrate why it should
not be applied in assessing whether this application should
be granted. As the Claimant submits:
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"Respondents have tried in vain to distinguish Ares
Investment..."298
5.48 Finally, I am not persuaded by the Respondents'
arguments that this Application cannot be granted because
the "Claimant has suppressed material facts and made
various inconsistent statements across its various
pleadings".299 This is irrelevant for the granting of this
Application. In any event I note from the Claimant's
arguments that the DHC Order was issued despite this
argument being raised.300 I also do not consider that this
Application should be refused because the Claimant
declined to accept the Respondents' offers of inspection.
5.49 For the sake of clarity, although the issue related to a
prima facie case (or a strong/very strong prima facie case)
has been relevant to the conclusion reached in this Order, it
is nevertheless one of the many circumstances I have had
regard to in reaching my conclusions in this Order."
95. On a perusal of the paragraphs, reproduced above, no doubt there is
reproduction of respondent‟s arguments and the Arbitrator has
expressed agreement with respondent‟s argument, but it cannot be said
that there is no application of mind or reasoning. In paragraph No.
5.39, the Sole Arbitrator has stated that based on evidence presented
by parties and on plain reading of Clause No. 3.4 of SHA a prima
facie case has been made out by respondent showing entitlement to
inspection rights. Further, in paragraph No. 5.40, the Arbitrator states
that on plain reading of Clause No. 3.4 of SHA prima facie there
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seems no right to refuse inspection on basis of confidentiality or
because the respondent might be a competitor. By relying on Clause
No. 3.4 of SHA shows that the Arbitrator has duly considered the
clause and applied the prima facie test. It shows that the Arbitrator did
a literal interpretation of the clause in issue and then provided her
understanding of the clause.
96. At this point it is relevant to refer to Clause No. 3.4 of SHA, which
reads as under:-
"3.4 Inspection Rights. In addition to the information and
materials to be provided under this Clause 3, the Company
shall permit any Major Investor and its representatives,
subject to such Major Investor holding (either individually
or collectively with its Affiliates) at least 8% (Eight percent)
of the Share Capital, at all times during normal business
hours to visit and inspect to its satisfaction, the offices of the
Company. The Major Investors will be required to issue a
prior Notice of at least 4 (Four) days prior to such visit and
inspection. Such Major Investor or their authorized
representative will be entitled to inspect Company's material
contracts and financial accounts and documents as well as
conduct internal audits, as such Major Investor may deem
fit at its sole discretion. The Company and Founder shall
render full co-operation and provide all such other
authorization as may be required. The Major Investors shall
also have a right to consult with and receive information,
documents and material about the business and operation of
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the Company that they consider material, from the
Company, its employees, vendors, consultants, counsel
(internal or external) and internal and external auditors of
the Company. The Company and/ or the Founder shall,
where required, facilitate such consultation including by
issuing appropriate instructions to the persons referred to
above."
97. A perusal of the clause, reproduced above, clearly shows that the
respondent has a right to inspect, which has been so exercised by the
respondent and recognised by the Sole Arbitrator. Hence, I am of the
view that the findings of the Sole Arbitrator are based on correct
interpretation of Clause No. 3.4 of the SHA. As observed above, the
Court under Section 37 of the 1996 Act is not to substitute its views
with that of the Arbitrator‟s if the same are not perverse or arbitrary.
98. Further, the learned senior counsel for the appellants have also argued
that the Sole Arbitrator failed to determine the scope of Clause No. 3.4
of the SHA, and provided respondent inspection with no limitation as
to access or time. I am unable to agree with the same, as the Arbitrator
has directed both parties to enter into NDA and Undertakings, thereby
taking care of putting limitations to inspection rights.
99. As regards the contention of the appellants that respondent is a
competitor and is engaged with the competitors of the appellants, even
though not stated before the Sole Arbitrator, Clause No. 12.3.4 of the
SHA permits the respondent to invest in similar or allied field of
business. Clause No. 12.3.4 of the SHA reads as under:-
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"12.3.4 Investors‟ Right to Invest. The Major Investors and
the Angel Investors and their respective Affiliates invest in
numerous companies, some of which may compete with the
Company. The Company and the Founder confirm that they
will not have any objection to the Major Investors and/ or
the Angel Investors or any of their Affiliates investing in the
equity, entering into a joint venture, or collaborating with
any company entity in the same or allied field (as the
Business) in India or elsewhere, subject to compliance by
the Major Investors and/ or the Angel Investors of their
confidentiality obligations as detailed in Clause 12.7. In the
event the Major Investors and/or the Angel Investors invest
in any such company / entity, they shall inform the Company
of the same at the time of such Major Investors and/ or the
Angel Investors making a bona fide offer for such
investment. The Founder and the Company shall provide the
necessary no objection certificate, if requested by the Major
Investors or the Angel Investors, as and when required.
Further, neither the Major Investors, the Angel Investors
nor any of their Affiliates shall be liable for any claim
arising out of or based upon any action taken by any of their
officers or representatives in assisting any such competitive
company or otherwise, and whether or not such action has a
detrimental effect on the Company."
100. As regards the contention of the appellants that all major investors
have to issue notice for inspection (an interpretation reaffirmed in the
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EGM), the Sole Arbitrator in paragraph No. 5.44 of the impugned
order (reproduced above) dealt with the said issue and after
considering both parties argument and Clause No. 14.8 of SHA, found
that EGM did not amended the SHA. In paragraph No. 5.47 of the
impugned Order (reproduced above), the Arbitrator agreed with
respondent‟s contention relying upon the judgment of Ares
Investment (supra).
101. Lastly, in paragraph No. 5.48 of the impugned Order (reproduced
above), the Arbitrator expressed disagreement with appellants‟
argument regarding suppression of facts by the respondent and found
the same irrelevant and also based this finding, on the fact that the
order dated 31.07.2023 was passed despite such arguments. As
observed above, the Arbitral Tribunal is the best judge of quality and
quantity of evidence and facts, and if the Arbitrator found the
contention regarding suppression of facts by the respondent and its
changing stance irrelevant for determination of prima facie case, then
I find no reason to interfere with the same.
102. To my mind, the reasoning provided in paragraph Nos. 5.39, 5.40,
5.44 and 5.48 of the impugned Order coupled with the reliance placed
on the judgment of Ares Investment (supra) and order dated
31.07.2023 passed by the Court, shows sufficient application of mind
and Arbitrator‟s reasoning for existence of prima facie case and the
same is enough at the interim stage. There is no straight jacket formula
as to what amount of reasoning an Arbitral Tribunal is required to
provide to show that it is satisfied as to existence of prima facie case.
103. Moving further to the test of „Balance of Convenience‟, in paragraph
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Nos. 5.55 to 5.61 of the impugned Order, the Arbitrator has showed
agreement with respondent‟s contentions and provided reasoning for
the same. Paragraph Nos. 5.55 to 5.61 of the impugned Order are
reproduced below:-
"5.55 I am persuaded by the Claimant's arguments. I
believe in granting this Application the balance of harm test
favours the Claimant particularly given the prima facie
plain language of Clause 3.4 and the fact that granting this
Application is relevant for the Claimant to be able to put
forward its case holistically without which it may not be
able to do so.
5.56 I also do not agree with the Respondents' assertion that
their offer to provide an undertaking to the effect that they
will not alter / destroy / tamper with the records of R1 (as
well as the appointment of a receiver for this purpose) will
"balance the equities between the parties, simultaneously
addressing the Claimant's [...] concerns about preservation
of records and the Respondents' concerns regarding
confidentiality of documents."308 The Respondents' offer
would not allow the Claimant to exercise its Inspection
Rights and get access to documents that may be relevant for
it to put forward its case holistically under this Arbitration.
5.57 I have also taken note of the Respondents'
confidentiality concerns. However, I agree with the
Claimant that: ....
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5.58 In any event, I agree with the Claimant's proposal to
enter into the Proposed NDA, if I grant this Application.
This is dealt with in more detail in Section 6 of this Order.
5.59 I also note the Claimant's proposed undertaking (see
paragraph 5.51) that it for whatever reason, it is eventually
determined at the merits hearing that the Claimant is not
entitled to the information to which they will get access
through the Inspection Rights, the Claimant is willing to
undertake to return or destroy any such documents obtained
as a result of the Parties complying with this Order (the
Proposed Undertaking).
5.60 I believe that having the Proposed NDA in place, as
well as the Proposed Undertaking, are reasonable means to
address the Respondents' concerns. This is dealt with in
more detail in Section 6 of this Order.
5.61 For the sake of clarity, although the issue related to
balance of convenience has been relevant to the conclusion
reached in this Order, it is nevertheless one of the many
circumstances I have had regard to in reaching my
conclusions in this Order."
104. In the paragraphs, reproduced above, the Sole Arbitrator takes into
account the respondent‟s NDA and undertakings to return/destroy
such documents subsequently. In paragraph No. 5.55 of the impugned
Order (reproduced above), the Arbitrator provided two reasons for
which she thinks the balance of convenience lies in favour of granting
the interim relief i.e., first that prima facie case exists on plain reading
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of Clause No. 3.4 of SHA and second to enable the respondent to
present its case holistically, which it might not be able to do if interim
relief is not granted.
105. Based on all these findings the Sole Arbitrator held that balance of
convenience lies in favour of granting the interim relief. Hence, to my
mind, there is reasoning provided by the Arbitrator for holding
balance of convenience in favour of the respondent i.e., in paragraph
Nos. 5.55 to 5.60 of the impugned Order and the reasoning of the
Arbitrator is fair, reasonable and shows due application of mind.
106. Moving further to the test of „irreparable harm/ injury‟, in paragraph
Nod. 5.72 to 5.75 of the impugned Order, the Sole Arbitrator has
shown agreement with respondent‟s contentions and provided
reasoning for the same. Paragraph Nos. 5.72 to 5.75 of the impugned
Order are reproduced below:-
"5.72 I am persuaded by the Claimant's arguments in this
regard. I believe that the Claimant would suffer irreparable
harm if this Application were not granted as the Claimant
would not have had the chance to put forward its case in
this Arbitration holistically. The Claimant's ability to
present its case adequately would be affected. As the
Claimant has argued: ...
5.73 I have taken note of the Respondents' concerns about
confidentiality, as well as the alleged irreparable harm that
they may suffer if the Claimant has access to commercially
sensitive or confidential information that may be irrelevant
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to the present dispute that. I reiterate what I mentioned
above at paragraph 5.40-5.42; 5.57.
5.74 In any event, I am satisfied that (i) the Proposed
Undertaking referred at paragraph 5.59; and (ii) the
Proposed NDA to be entered into by the Claimant (see
paragraph 5.58 above), are sufficient to protect the
Respondents.
5.75 For the sake of clarity, although the issue related to
irreparable harm has been relevant to the conclusion
reached in this Order, it is nevertheless one of the many
circumstances I have had regard to in reaching my
conclusions in this Order."
107. In paragraph No. 5.72 of the impugned Order (reproduced above), the
Sole Arbitrator states that the respondent would suffer irreparable
harm as it would not able to put its case holistically if not allowed
inspection rights. Further, in paragraph Nos. 5.73 and 5.74 of the
impugned Order (reproduced above), the Arbitrator again states that as
for confidentiality concerns she is satisfied with the respondent‟s
argument that the same can be dealt with by executing Undertakings
and NDA. Hence, to my mind, the reasoning provided in paragraph
Nos. 5.72 to 5.74 of the impugned Order, shows Arbitrator‟s
reasoning for existence of irreparable harm in favour of respondent
and the same shows due application of mind. The reasoning is both
fair and reasonable and based on correct interpretation of the SHA.
108. Lastly, while dealing with the test of „urgency/ expediency‟, in
paragraph Nos. 5.79 to 5.83 of the impugned Order, the Arbitrator
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while agreeing with respondent‟s contentions, provided reasoning for
the same. Paragraph Nos. 5.79 to 5.83 of the impugned Order are
reproduced below:-
"5.79 I am more persuaded by the Claimant's arguments in
this regard. I believe that the Claimant has demonstrated
that they have acted with urgency (ie expeditiously) when
dealing with this matter. This is mainly, inter alia, for the
following reasons:
(a) The Claimant filed the Section 9 Application in the
Indian courts in January 2023-just after having its notice of
inspection rejected by Respondents the month before on 22
December 2023. (Typographical error should be December
2022)
(b) Once the DHC Order was issued on 31 July 2023, the
Claimant filed its Unamended Interim Measures Application
on 6 October 2023, which I consider to be a reasonable
timeframe.
(c) Having reviewed the events described in the Claimant's
List of Dates and the Respondents' List of Dates
(particularly the interactions between the Parties on this
matter), I consider that the Claimant has dealt with this
matter with urgency/expediency.
5.80 Furthermore, I agree with the Claimant that: ...
5.81 I also note the Respondents' argument that the
Claimant has failed to establish any urgency in the grant of
interim measures or how if the Application is not allowed at
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this stage, it would render the relief infructuous at a later
stage. However, I am more persuaded by the Claimant's
arguments put forward at the Hearing: ...
5.82 For the sake of clarity, although the issue related to
urgency/expediency has been relevant to the conclusion
reached in this Order, it is nevertheless one of the many
circumstances I have had regard to in reaching my
conclusions in this Order.
5.83 For the reasons set out above, I believe that this
Application meets the four elements of the relevant
standard/ test to grant interim measures."
109. In paragraph No. 5.79 of the impugned Order (reproduced above), the
Sole Arbitrator has provided three reasons for why she believes that
respondent acted expeditiously namely, (i) the respondent filed
Section 9 application in January 2023, within a month after appellants‟
rejected its inspection notice; (ii) the respondent filed Section 17
application in October 2023, which is a reasonable time from order of
31.07.2023 and lastly, (iii) on review of parties list of dates, in
Arbitrator‟s view the respondent acted expeditiously. To my mind, the
Arbitrator has provided reasons and the same are reasonable.
110. The Sole Arbitrator based on all the findings and views, as discussed
above, held that the respondent has met all the conditions for grant of
interim relief and hence, allowed the application. As observed above,
the Court under Section 37 of the 1996 Act is not to substitute its view
with that of the Arbitral Tribunal just because an alternative view is
possible. In my opinion, the Arbitrator has provided enough and
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reasonable reasoning under each of the four tests to give findings in
favour of the respondent. I find no reason to interfere with the said
findings of the Sole Arbitrator.
Reliance On Order Dated 31.07.2023 Passed In O.M.P. (I)(COMM.)
111. As observed above, the Sole Arbitrator heavily relied upon Court‟s
Order dated 31.07.2023 passed in O.M.P.(I)(COMM.) 4/2023, in
furtherance of the view that the respondent should be allowed
inspection right under Clause No. 3.4 of the SHA. The learned senior
counsel for appellants‟ asserts that the Arbitrator‟s interpretation of
the said order i.e., there is direction for compliance with Clause No.
3.4 of SHA as an interim measure is wrong as the order kept rights
and contentions of parties open and did not determine respondent‟s
alleged rights under Clause No. 3.4 of the SHA.
112. It is relevant to refer to the operative portion of the said order, which
reads as under:-
"6. Respective counsels for the parties are also in
agreement that pending further consideration of the matter
by the learned sole Arbitrator, the assurance and
undertaking given on behalf of the respective parties on
10.01.2023 shall continue to operate, in terms of which the
parties are required to strictly adhere to the terms of the
Amended and Restated Shareholders Agreement dated
06.09.2021. Necessarily, the same subsumes adherence to
clause 3.4 thereof, which affords certain inspection right/s
to the petitioner.
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7. The undertaking recorded in the order dated 14.03.2023
shall also continue to operate.
8. The above shall be subject to further order/s as may be
passed by the learned Sole Arbitrator. All rights and
contentions of the parties are left open to be considered by
the learned Sole Arbitrator."
113. A perusal of paragraph No. 6 of the said order, reproduced above,
clearly shows that the Court held that pending arbitration proceedings
the parties will be bound by undertakings given on 10.01.2023,
whereby which they are bound to adhere to terms of the SHA which
includes Clause No. 3.4 of the SHA. Hence, I find no error with the
finding of the Sole Arbitrator and reliance on the said order, among
other things, for granting the interim relief.
On The Issue Of Jurisdiction
114. The learned senior counsel for the appellants argued that the relief
sought lacked arbitrability and the reliefs sought could only be granted
by NCLT under the Companies Act, 2013.
115. While dealing with the appellant‟s jurisdictional objections the Sole
Arbitrator observed as under:-
"5.9 I note that the Respondents have raised their
Jurisdictional Objections in their pleadings concerning the
Claimant's Application and argue that no interim measures
can be granted by the Sole Arbitrator in the absence of
jurisdiction: ... ...
5.10 I do not wish to comment in this Order on the
Respondents' Jurisdictional Objections Application, as this
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will be dealt with separately. The Parties will receive my
PO2 addressing the Tribunal's approach to the Respondents'
Jurisdictional Objections at the same time this Order is
served on them.
5.11 Notwithstanding the outcome of the Respondents'
Jurisdictional Objections Application, I find and reiterate
that I have the jurisdiction to determine this Application. As
the Parties will appreciate from PO2 in respect of the
Respondents' Jurisdictional Objections Application, the
Tribunal retains jurisdiction over all aspects of the
proceedings while the Respondents' Jurisdictional
Objections Application is pending and to be decided. This
encompasses not only this Application but also any other
Interlocutory matters that arise in the interim."
116. A perusal of the paragraphs, reproduced above, shows that the Sole
Arbitrator deferred ruling on jurisdiction and observed that she has
jurisdiction on all matters that may arise until final award. The
Arbitrator was appointed by both the parties and as per the principle
of Kompetenz-Kompetenz the Arbitral Tribunal has the power to rule
on its jurisdiction. Hence, I find no infirmity with the said finding of
the Arbitrator.
CONCLUSION
117. In view of the aforesaid discussion, I find no merit in the submissions
made by the learned senior counsel for appellants to set aside the
impugned Order. The findings of the Sole Arbitrator are plausible and
not contrary to the terms of the SHA or so unreasonable that no
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prudent man could have arrived at.
118. Hence, the present appeal is dismissed and the impugned Order dated
11.03.2024 is upheld.
119. Consequently, pending applications, if any, are also disposed of.
120. The Written Submissions handed over in the Court by both the parties
are taken on record.
OMP (ENF.) (COMM) 66/2024
121. This is an enforcement petition filed under Section 17(2) of the 1996
Act Read With Order XXI of the Code of Civil Procedure, 1908
seeking the following prayers:-
"A. Issue direction to the Respondents to comply with Order
on interim relief dated 11.03.2024 passed by the Ld. Sole
Arbitrator Ms. Sherina Petit, in SIAC Arbitration No. 024 of
2023 between Affle India Limited and Talent Unlimited
Online Services Pvt Ltd and others.
B. Issue direction to the Respondents to comply with their
obligation to provide inspection rights to the Petitioner; and
fully cooperate and facilitate the Petitioner and its
representatives' visit and inspection of Respondent No. 1 's
offices, pursuant to Clause 3.4 of the Amended and Restated
Shareholders Agreement dated 09 June 2021 and the Order
on interim relief dated 11.03.2024 passed by the Ld. Sole
Arbitrator Ms. Sherina Petit, in SIAC Arbitration No. 024 of
2023 between Affle India Limited and Talent Unlimited
Online Services Pvt Ltd and others.
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C. Pass any other further orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
case, in favour of the decree Holder."
122. The decree holder i.e., Affle (India) Limited, was the claimant before
the Arbitral Tribunal and the judgment-debtor No.1 i.e., Talent
Unlimited Online Services Private Limited, and judgment-debtor No.2
i.e., Mr. Ankit Prasad, were the respondents.
123. Since, the validity of the impugned Order dated 11.03.2024
challenged in the ARB.A. (COMM) 22/2024 has been upheld, the
judgement debtors are directed to comply with the directions
contained in impugned Order dated 11.03.2024 expeditiously and in
any case not later than 4 weeks from today.
124. Consequently, pending applications, if any, are also disposed of.
JASMEET SINGH, J
APRIL 04, 2026/(HG)
Digitally Signed
By:MAYANK
Signing Date:04.04.2026
14:11:44
