Holding

An arbitration agreement entered into by a company within a group can bind its non‑signatory affiliates if the surrounding circumstances demonstrate a mutual intention to do so, and the tribunal’s jurisdictional finding is subject to appellate review under Section 37.

Summary

Oil and Natural Gas Corporation Ltd. (ONGC) entered into a contract with Discovery Enterprises Pvt. Ltd. (DEPL), a member of the DP Jindal Group, which contained an arbitration clause. ONGC sought to bind Jindal Drilling and Industries Ltd. (JDIL), a non‑signatory affiliate, invoking the group‑of‑companies doctrine, and filed for discovery to prove functional and financial unity. The arbitral tribunal held JDIL was not a party and dismissed its claim, an interim award that ONGC appealed under Section 37 of the Arbitration and Conciliation Act, 1996. The Bombay High Court dismissed the appeal, but the Supreme Court held that a written arbitration agreement can bind non‑signatories where the parties’ mutual intention and the facts demonstrate a single economic entity, and that the tribunal erred by not considering ONGC’s discovery application. Consequently, the Supreme Court set aside the interim award and the High Court judgment, ordered a fresh arbitral tribunal, and remitted related cases to the High Court.

Issues considered

The applicability of the group‑of‑companies doctrine to bind a non‑signatory (JDIL) to an arbitration agreement.
Whether the arbitral tribunal erred in refusing to consider ONGC’s application for discovery and inspection before deciding jurisdiction.
The standard of judicial review of an interim arbitral award under Section 37 of the Arbitration Act.
The interpretation of ‘party’ under Section 2(1)(h) and the scope of Section 7 of the Arbitration Act.

Legislation cited

Arbitration and Conciliation Act, 1996s. 16, s. 2(1)(h), s. 34, s. 37, s. 45, s. 7

Subjects

ArbitrationGroup of Companies DoctrineNon‑signatoryJurisdictionSection 37 AppealInterim AwardCorporate VeilDiscovery and InspectionIndian Arbitration Act

Judgment

926 SUPREME COURT
[2022]REPORTS
4 S.C.R. 926 [2022] 4 S.C.R.

A OIL AND NATURAL GAS CORPORATION LTD.
v.
M/S DISCOVERY ENTERPRISES PVT. LTD. & ANR.
(Civil Appeal No. 2042 of 2022)
B APRIL 27, 2022
[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANT
AND VIKRAM NATH, JJ.]
Arbitration – Group of companies doctrine – Invocation of –
Held: An arbitration agreement entered into by a company within a
C group of companies, can bind its non-signatory affiliates or sister
concerns if the circumstances demonstrate a mutual intention of the
parties to bind both the signatory and affiliated, non-signatory
parties – A non-signatory may be bound by the arbitration
agreement where: (i) there exists a group of companies; and (ii)
parties have engaged in conduct or made statements indicating an
D
intention to bind a non-signatory – In deciding whether a company
within a group of companies which is not a signatory to arbitration
agreement would nonetheless be bound by it, the law considers the
following factors: (i) mutual intent of the parties; (ii) relationship
of a non-signatory to a party which is a signatory to the agreement;
E (iii) commonality of the subject matter; (iv) composite nature of the
transaction; and (v) performance of the contract.
Arbitration and Conciliation Act, 1996 – s.37 – Decision of
Arbitral Tribunal that it lacks jurisdiction – Challenge to – Held: If
the arbitral tribunal accepts a plea that it lacks jurisdiction, the
F order of the tribunal is amenable to a challenge in appeal u/s.37(2)(a)
– In exercise of the appellate jurisdiction, the court must have due
deference to the grounds which weighed with the tribunal in holding
that it lacks jurisdiction having regard to the object and spirit
underlying the statute which entrusts the arbitral tribunal with the
power to rule on its own jurisdiction – Decision of the tribunal that
G it lacks jurisdiction is not conclusive because it is subject to appellate
remedy u/s.37(2)(a) – However, in exercise of this appellate power,
the court must be mindful of the fact that the statute has entrusted
the arbitral tribunal with the power to rule on its own jurisdiction
with the purpose of facilitating the efficacy of arbitration as an
H institutional mechanism for resolution of disputes.
926
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 927
PVT. LTD. & ANR.

Allowing the appeal, the Court A
HELD: 1. A signed written agreement to submit a present
or future dispute to arbitration does not exclude the possibility
of an arbitration agreement binding a third party. A non-signatory
may be bound by the operation of the group of companies doctrine
as well as by the operation of the principles of assignment, agency B
and succession. A party, which is not a signatory to a contract
containing an arbitration clause, may be bound by the agreement
to arbitrate if it is an alter ego of a party which executed the
agreement. This constitutes a departure from the ordinary
principle of contract law that every company in a group of
companies is a distinct legal entity. A non-signatory may be bound C
by the arbitration agreement where: (i) There exists a group of
companies; and (ii) Parties have engaged in conduct or made
statements indicating an intention to bind a non-signatory.
[Para 23][955-H; 956-A-C]
2. In deciding whether a company within a group of D
companies which is not a signatory to arbitration agreement would
nonetheless be bound by it, the law considers the following factors:
(i) The mutual intent of the parties; (ii) The relationship of a non-
signatory to a party which is a signatory to the agreement; (iii)
The commonality of the subject matter; (iv) The composite nature E
of the transaction; and (v) The performance of the contract.
Consent and party autonomy are undergirded in Section 7 of the
Act of 1996. However, a non-signatory may be held to be bound
on a consensual theory, founded on agency and assignment or
on a non-consensual basis such as estoppel or alter ego.
[Para 26][957-G-H; 958-A-C] F
3.1. In the present case, ONGC’s attempt at the joinder of
JDIL to the proceedings was rejected without adjudication of
ONGC’s application for discovery and inspection of documents
to prove the necessity for such a joinder. By failing to consider
the application for discovery and inspection, the Tribunal G
foreclosed itself from inquiring into whether there was sufficient
material to establish the application of the group of companies
doctrine. The application for discovery and inspection was indeed
relevant to the exercise which was being carried out by the
Tribunal. [Paras 26 and 30][958-C-D; 959-E-F]
H
928 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 3.2. The interim award of the first Arbitral Tribunal stands
vitiated because of: (i) The failure of the arbitral tribunal to decide
upon the application for discovery and inspection filed by ONGC;
(ii) The failure of the arbitral tribunal to determine the legal
foundation for the application of the group of companies doctrine;
and (iii) The decision of the arbitral tribunal that it would decide
B upon the applications filed by ONGC only after the plea of
jurisdiction was disposed of. There was a fundamental failure of
the first Arbitral Tribunal to address the plea raised by ONGC
for attracting the group of companies doctrine. Moreover, by
leaving the application filed by ONGC for discovery and
inspection unresolved, the first Arbitral Tribunal failed to allow
C evidence which may have had a bearing on the issue of whether
JDIL could be considered to have an economic unity with DEPL
and could hence be made a party to the arbitral proceedings.
[Paras 50 and 51][974-B-F]
Chloro Controls India Pvt. Ltd. v. Severn Trent Water
D Purification Inc. & Ors (2013) 1 SCC 641 : [2012] 13
SCR 402 – relied on.
Ameet Lalchand Shah & Ors. v. Rishabh Enterprises &
Anr. (2018) 15 SCC 678 : [2018] 6 SCR 1001 –
affirmed.
Indowind Energy Ltd. v. Wescare (I) Ltd. & Anr. (2010)
E 5 SCC 306 : [2010] 5 SCR 284; Cheran Properties Ltd.
v. Kasturi & Sons Ltd. & Ors (2018) 16 SCC 413 :
[2018] 4 SCR 1063; MTNL v. Canara Bank & Ors.
(2020) 12 SCC 767 : [2019] 11 SCR 660; Duro
Felguera v. Gangavaram Port Limited (2017) 9 SCC
729 : [2017] 10 SCR 285; referred to Reckitt Benckiser
F (India) P Ltd. v. Reynders Label Printing (2019) 7 SCC
62 : [2019] 8 SCR 966; Ssangyong Engineering and
Construction Company Limited v. National Highways
Authority of India (2019) 15 SCC 131 : [2019]
7 SCR 522; M/s Dyna Technologies Pvt. Ltd. v. M/s
G Crompton Graves Ltd. (2019) 20 SCC 1 : [2019]
15 SCR 295; Associate Builders v. DDA (2015) 3 SCC
49 : [2014] 13 SCR 895 – referred to.
Redfern and Hunter on International Arbitration, 5th
Ed. – 2.13, pp. 89-90; Gary Born, International
Commercial Arbitration 2nd Edn., Vol. 1, at page
H 1418; John Fellas, Compelling Signatories to Arbitrate
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 929
PVT. LTD. & ANR.

with Non-Signatories, New York Law Journal (March A
28, 2022) - referred to.
Case Law Reference
[2010] 5 SCR 284 referred to Para 7
[2012] 13 SCR 402 relied on Para 13 (viii)
[2018] 4 SCR 1063 referred to Para 13 (viii) B
[2019] 11 SCR 660 referred to Para 13 (viii)
[2018] 6 SCR 1001 affirmed Para 19
[2017] 10 SCR 285 referred to Para 20
[2019] 8 SCR 966 referred to Para 21
[2019] 7 SCR 522 referred to Para 35 C
[2019] 15 SCR 295 referred to Para 35
[2014] 13 SCR 895 referred to Para 36
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2042
of 2022.
From the Judgment and Order dated 27.06.2012 of the High Court D
of Judicature at Bombay in Arbitration Petition No. 814 of 2011.
K.M. Nataraj, ASG, Somiran Sharma, K. R. Sasiprabhu, Tushar
Bhardwaj, Vishnu Sharma, Vinayak Sharma, Vinayak Maini, Advs. for
the appellant.
Shyam Divan, Sr. Adv., Rahul Narichania, Sr. Adv., Ajay Bhargava, E
Ms. Vanita Bhargava, Aseem Chaturvedi, Ms. Trishala Trivedi, Milind
Sharma for M/S. Khaitan & Co., Advs. for the respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis. F
These are:
A Facts........................................................................3*
A.1. Transferred cases arising out of the arbitration....11*
B Submissions of Counsel...............................................14*
C Analysis..................................................................21* G
C.1. Group of Companies Doctrine............................21*
C.2. Standard for Review of the Interim Arbitral Award...37*
D Conclusion...............................................................58*

* Denotes pagination as per the original Judgement. H
930 SUPREME COURT REPORTS [2022] 4 S.C.R.

A A Facts
1. The appeal arises from a judgment dated 27 June 2012 of the
High Court of Judicature at Bombay by which an appeal under Section
37 of the Arbitration and Conciliation Act, 19961 has been dismissed. Oil
& Natural Gas Corporation Limited2 instituted an appeal against an interim
B award dated 27 October 20103 of the Arbitral Tribunal holding that the
second respondent – Jindal Drilling and Industries Limited4 was not a
party to the arbitration agreement and must be deleted from the array of
parties. The interim award was challenged in an appeal which was
dismissed by the impugned judgment.
C 2. On 22 March 2006, ONGC awarded a contract to Discovery
Enterprises Private Limited5, the first respondent, which is acompany
belonging to the DP Jindal Group, for operating a floating, production,
storage and offloading vessel6. Pursuant to the stipulation contained in
clause 25.7.11 of the contract, a vessel called Crystal Sea was imported
on 11 May 2006. ONGC paid the customs duty in the amount of Rs.55.78
D crores on the understanding that the vessel would be re-exported after
work was complete under duty drawback whose formalities would be
completed by DEPL. The vessel left Indian territorial waters and did not
return. According to ONGC, DEPL failed to complete the formalities
for duty drawback and did not compensate ONGC for customs duty and
E other expenses incurred in the amount of Rs.63.88 crores.
3. Clause 37 of the contract between ONGC and DEPL provides
for the settlement of disputes of the parties through arbitration. On 25
April 2008, ONGC invoked arbitration against DEPL and JDIL and
claimed an amount of Rs.63.88 crores. An Arbitral Tribunal consisting
F of Mr Justice SP Kurdukar (Retd.), Mr Justice MS Rane (Retd.)and Mr
S Venkateswaran (Senior Advocate) was constituted. In its statement
of claim filed before the Arbitral Tribunal, ONGC set up the case that
DEPL and JDIL belonged to the DP Jindal Group of Companies and
since they constitute a single economic entity, the corporate veil should
be lifted to compel the non-signatory, JDIL, to arbitrate. According to
G
1
"Act of 1996”
2
"ONGC”
3
“interim award”
4
"JDIL” or the “second respondent”
5
"DEPL”
H 6
"vessel”
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 931
PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

ONGC, DEPL is an alter ego and agent of JDIL. The statement of A
claim read thus:
“17. It is submitted the Respondent no.1 was awarded the contract
by relying on the fact that it is Group Company of D P Jindal
group of companies and that the Respondent No.2, M/s Jindal
Drilling & Industries Ltd has a vital business interest in the B
Respondent No.1, which can be said to be the alter ego of
Respondent No.2. In fact, the Respondent No.2 is the ultimate
beneficiary of the business of Respondent No.1. […] Presently,
they are having three valid existing contracts with ONGC. DEPL
has close corporate unity with Jindal Group and in fact the
shareholders are almost common. Respondent No.1 has C
throughout represented that they are group company of Jindal
apart from their representation in the bid they have been
representing that through the letter heads which clearly indicated
that they belong to a single group of companies, namely DP Jindal
Group of companies. M/s Jindal Drilling has also acknowledged D
that the contractor M/s DEPL is a group company of Jindal Group
in their website in an article titled “Key due diligence observations”.
A copy of the said article is annexed herewith and marked as
Annexure 8. Since Respondent No. 1 is liable to compensate
ONGC for the losses suffered by it, ONGC has adjusted the said
amount from the monies payable to Jindal Drilling and Industries E
Limited as a security to satisfy the award to be passed in this
case.
18. As stated above, Respondent No.2 was supplying vessels and
rigs to ONGC under various contracts, for last many years. It is a
fact that the Respondent No.1 was formed as a group company F
with the charter of introducing cutting-edge technology and
solutions to the oil and gas market in India. Respondent No.1 has
represented itself as a part of the DP Jindal group of companies
as seen from the company’s website (www.discoveryepl.com).
A copy of the relevant extract from the website is attached G
herewith and marked as Annexure A-9. The same web-based
representation was made in categorical and unequivocal manner
by Respondent No.1 in the bid submitted by them in connection
with the subject contract. The copy of the same is annexed
herewith and marked as Annexure-10. The Directors of the
H
932 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Respondent No.1 are Mr. Manav Kumar and Mrs. Shilpa Agarwal,
son and daughter in law of Shri Naresh Kumar who is the Managing
Director of the Respondent No. 2 i.e, the Jindal Drilling and
Industries Ltd. The two companies operate out of the same
premises, same floor, same building i.e. Keshav Building, Bandra
Kurla Complex. Copies of the Letter Head of both the companies
B
addressed to the claimant is enclosed herewith and marked as
Annexure A-11 (colly). More significantly a prominent Jindal
Drilling Executive has taken an active interest in the negotiations
concerning the subject contract […]. It makes it abundantly clear
that the activities of DEPL i.e. Respondent No.1 contractor are
C an extension of the activities of Respondent No.2 who has set up
the Respondent No. 1 company as an agency to carry out its
activities. Therefore, it is submitted that the doctrine of group
company can be applied in this case - an arbitration agreement
signed by one company in a group of companies entitles (or
obligates) other group non-signatory companies, if the
D
circumstances surrounding the negotiation, execution of the
agreement show that the mutual intention of all the parties was to
bind non-signatories. This group companies constitute the same
“economic reality”. This is evident when veil-piercing is done.
Copies of documents evidencing close relationship between both
E the companies are annexed herewith as indicated above.
19. In any case, Respondent No.1 can be considered as an agent/
alter ego of Respondent No.2 because of its deep and pervasive
family links, apart from the fact that Respondent No. 2 is the
intended third-party beneficiary of this contract. The Arbitral
F Tribunal has to determine these questions in accordance with
evidence and law. Further, there is corporate unity and cross
shareholdings in both the companies by shareholders, common to
both the companies.
[…]
G 21.It is submitted that this is a fit case where this Hon’ble Tribunal
has to pierce the corporate veil in order to see the acknowledged
the realities of Respondent No.1 being a group company of DP
Jindal Group. As submitted above, there is a clause ‘corporate
unity’ and applying the doctrine of group companies/alter ego/
H ultimate beneficiary. This Tribunal has to hold Respondent No.2
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 933
PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

also liable to compensate ONGC for the dues of respondent A
No.1.The issue preferred to Tribunal is within the arbitration
agreement and under law and this Hon’ble Tribunal has jurisdiction
to entertain and decide the dispute.”
4. An application under Section 16 of the Act of 1996 was filed by
JDIL seeking its deletion from the arbitral proceedings on the ground B
that it is not a party to the arbitration agreement. ONGC responded to
the application. During the course of the proceedings, ONGC filed an
application on 5 January 2009 for discovery and inspection to support its
case that DEPL is an alter ego of the Jindal Group of companies. In
support of the application for discovery and inspection, ONGC pleaded
that: C

(i) DEPL and JDIL are group companies and that the former
is an agent or alter ego of the latter;
(ii) There exists corporate and functional unity between them;
(iii) DEPL is a corporate facade which has been created to D
promote and extend the business of JDIL;
(iv) JDIL is responsible for the acts of omission and commission
of DEPL on the basis of the group of companies doctrine;
(v) DEPL has been created by the Jindal Group to render
E
services in the oil and gas sector and each entity of the
group is strategically formed to render certain services; and
(vi) DEPL is working under the “fraternal hood” of the group
based on the admission on the corporate website of JDIL.
5. ONGC stated that the documentary evidence demonstrates F
that there is a “close corporate unity and functional unity existing between
these two companies” and hence it was necessary to discover the
documents set out in the schedule to the application. The documents of
which discovery was sought are tabulated below:
“SCHEDULE OF DOCUMENTS G
1. Memorandum of Association of Respondent No.2.
2. Articles of Association of Respondent No.2.
3. Ledger account of Respondent No.2 for the financial years
2003-04, 2004-05, 2005-06 and 2006-07.
H
934 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 4. Employees salary register of Respondent No.2 for the financial
years 2003-04, 2004-05, 2005-06 and 2006-07.
5. Titled document showing Respondent No.1’s rights/ownership
over the registered office premises at Suite 110, Tower-I, 70
Najafgarh Road, B-39, New Delhi-110 015.
B 6. Titled document showing Respondent No.2’s rights/ownership
over the office premises at 3rd Floor, Keshav Building, Banda-
Kurla Complex, Banda (East), Mumbai-400 051.
7. Documents showing grant of telephone connection of the
following telephone and fax numbers at the Delhi office of
C Respondent No. 1 and the payment of the bills of the said telephone
and fax numbers by Respondent No. 1 from the calendar years
2003 to 2007. (i) Telephone No.52531100, (ii) Fax No.52531191.
8. Documents showing grant of telephone connection of the
following telephone and fax numbers at the Mumbai office of
D Respondent No. 2 and the payment of the bills of the said telephone
and fax numbers by Respondents from the calendar years 2003
to 2007. (i) Telephone Nos.26592889 & 55020047, (ii) Fax
No.26592630.
9. List of the contract bagged from ONGC so far the inception of
E Respondent No.2.
10. List of crew members in the Drilling Unit “Noble Ed-Holt
awarded on 17.8.06 and Noble Charlie Yester on 2.12.06.”
6. ONGC led evidence in support of the statement of claim. During
the course of the examination, ONGC’s witness, Anindya Bhattacharya
F who was working as Chief Manager(MM) of ONGC, produced
documents in support of claim. The production of documents was objected
to by JDIL on the ground of relevance and admissibility. During the
arbitral meeting on 7 July 2009, the Tribunal recorded the following
minutes:
G “Per Tribunal :
The documents produced by the witness Anindya Bhattacharya
(CW-1) along with his affidavit dated June 26 th 2009 and
annexures 1 to 10 are taken on record. Mr. Rahul Narichania, Ld.
Advocate for Respondent No. 2 objects to these documents being
H taken on record on the ground that the same are not relevant and
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 935
PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

admissible as far as the Respondent No. 2 is concerned. He further A
stated that he will cross examine the witness on the documents
without prejudice to his rights that the said documents were neither
relevant nor admissible in evidence and ought not to be marked as
exhibits.
The rival contentions will be decided while disposing of the B
application made under Section 16 of the Arbitration &Conciliation
Act, 1996. It is also madeclear that merely because the witness
has been cross examined on behalf of the Respondent No. 2 on
the documents, the documents do not automatically stand exhibited.
Mr. Rajiv Kumar objects to the procedure recorded above. The C
Claimants do not waive any rights in this behalf.”
7. By its interim award dated 27 October 2010, the Arbitral Tribunal
held that it lacked the jurisdiction to arbitrate on the claim against JDIL,
which was not a party to the arbitration agreement. The tribunal relied
on the judgment of this Court in Indowind Energy Ltd. v. Wescare (I) D
Ltd. & Anr.7. The conclusion of the Tribunal was that JDIL is not a
signatory of the arbitration agreement and hence could not be impleaded
as a party to the proceedings. The Arbitral Tribunal held:
“20. After considering rival contentions, the arbitral tribunal is of
the opinion that it may not be permissible for it to go beyond the E
ambit of section 7 of the act. The word ‘party’ is defined under
section 2(1)(h) means a party to an Arbitration Agreement and
the arbitration agreement has been defined under section 7 of the
Act. […] To put it differently, this arbitral tribunal lacks the
jurisdiction to investigate, enquire into and record any
finding on the basis of claim petition paragraphs 17 to 21 F
against M/s Jindal Ltd/ Respondent No.2. The arbitral
tribunal is therefore of the opinion that the claim petition
of ONGC vis a vis M/s Jindal Ltd./ Respondent No.2 is
untenable for want of jurisdiction under the Act. The arbitral
tribunal makes it clear that the position of M/s Jindal Ltd/ G
respondent no.2 considered only on the basis of the
provisions contained in section 2(1)(h) and section 7 of the
Act.”
(emphasis supplied)
7
(2010) 5 SCC 306 [“Indowind”] H
936 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 8. JDIL was accordingly struck off the array of parties. ONGC
filed an appeal under Section 37 before the Bombay High Court which
was dismissed on 27 June 2012 with the following observations:
“16. As observed hereinabove, there is no evidence tendered
before Arbitral Tribunal that DEPL and JDIL had common
B shareholders and common board of directors. Even if that had
been the case, the Hon’ble Supreme Court of India in Indowind
Versus Wescare case (supra) has held in terms that merely
because two companies have common shareholders and directors,
they do not become a single entity. In the instant case also, the
Arbitral Tribunal has correctly held that merely because the two
C companies may at one point of time have had a common address
and telephone number, it does not make them one economic unit.
The mere fact that the son and daughter-in-law of the managing
director of JDIL are directors in DEPL also does not and cannot
establish that these companies are one and the same. There is
D also no credible evidence to show that because of the alleged
nexus between the two companies, ONGC awarded the said
contract to DEPL. Even assuming this to be correct, it does not
take the case of ONGC any further. JDIL is admittedly not a
party to the contract and cannot be liable under the said contract
which is only between ONGC and DEPL. If ONGC wanted to
E bind JDIL to the said contract, it should have asked JDIL to be a
party to the said contract. In fact, this court inquired from learned
Advocate appearing for ONGC as to why ONGC did not insist
on JDIL signing the said contract when admittedly there are other
contracts which are entered into between ONGC and JDIL.
F However, the learned advocate appearing for ONGC had no
answer to the same. In response, he only submitted that ONGC
has also filed suit being 2947 of 2011 in this court in which DEPL
and JDIL have been arrayed as the defendants.”
9. The judgment of the High Court was challenged by ONGC
G under Article 136 of the Constitution. The Arbitral Tribunal delivered its
final award dated 6 June 20138 and, while allowing the claim of ONGC,
held that it is entitled to recover an amount of Rs.63.87 crores and USD
1,756,197.50 together with interest at 9% per annum and legal costs.
The counter claim filed by DEPL was dismissed.
8
H “Arbitral Award in the first proceeding”
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 937
PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

10. At this stage, it would also be necessary to note that in the A
course of its interim award, the Arbitral Tribunal dealt with the applications
filed by ONGC on 5 January 2009 for discovery of documents and
inspection. The Arbitral Tribunal noted ONGC’s contention that its
application for discovery and inspection should be heard and disposed of
first on merits and that the application filed by JDIL under Section 16
B
should be heard thereafter so that all relevant documents would emerge
before the Arbitral Tribunal. The Arbitral Tribunal, however, directed
that the application for discovery and inspection filed by ONGC be
“deferred until the issue of the jurisdiction is decided”.
A.1. Transferred cases arising out of the arbitration
C
11. During the pendency of the arbitration between ONGC and
DEPL, ONGC withheld a sum of US$14,772,408.54 towards recovery
of its claim of Rs.64.88 crores against four contracts with JDIL. By a
letter dated 24 October 2007, JDIL sought the release of the sum withheld
together with interest failing which it stated that it would exercise its
right to take legal recourse. ONGC replied to the letter on 5 May 2008 D
stating that they are withholding the dues as an adjustment against the
dues owed to ONGC by DEPL. Aggrieved by the deductions made by
ONGC under its four contracts for drilling services, JDIL invoked
arbitration on 4 February 2010.AnArbitral Tribunal consisting of Ms
Justice Sujata Manohar (Retd.), Mr Justice BN Srikrishna (Retd.), and E
Mr Justice MS Rane (Retd.) was constituted. In the meanwhile, ONGC
instituted a declaratory suit against JDIL and DEPL before the Bombay
High Court which is presently pending. The Arbitral Tribunal, by a
common award dated 9 October 2013,9 directed ONGC to pay JDIL an
amount of US$14,772,495.55/- together with interest at 4% per annum
calculated from the due date of each invoice till the date of payment or F
realisation. The Arbitral Tribunal dealt with the submission of ONGC
that DEPL and JDIL belong to the same group thus entitling ONGC to
make the deductions. Rejecting the contention of ONGC, the Arbitral
Tribunal held:
“25. There is hardly any evidence to support the plea of the G
Respondent that DEPL and the Claimant are one and the same
company. Both DEPL and the Claimant are group companies of
D.P. Jindal group of companies. Although the directors of DEPL

9
“Arbitral Award in the second proceeding” H
938 SUPREME COURT REPORTS [2022] 4 S.C.R.

A are the son and daughter-in-law of the managing director of the
Claimant, and the two companies, for some time, shared a common
office and telephone numbers, that does not make the two
companies one. Both are subsidiaries of the main company and
both have independent legal existence. DEPL was incorporated
in the year 2003. The Claimant is a public limited company listed
B
on the stock exchange and was incorporated in the year 1983.
26. […] The facts of the present case are totally different and do
not warrant lifting of corporate veil, assuming there is one. The
evidence in the present case does not justify the application of
“lifting the corporate veil”. In respect of the contract which was
C entered into by the Respondent with DEPL, the tender was floated
by ONGC in 2005 and the contract was entered into in 2006.
There is no material to show that the Respondent awarded the
contract to DEPL because it was in fact the claimant and/ or was
supported by the claimant. The minutes of the meeting held by
D the Respondents for short-listing of bidders in respect of the
contract have not been produced. The only witness produced by
ONGC was not present at the meetings held by the executive
purchase committee when the deliberations on the award of the
contract recommended bidder took place. […] There is no
evidence to show that in order to secure the said contract, DEPL
E represented that it was a part of the Claimant group. […]
27. There is no guarantee or letter of “comfort” from the Claimant
to the Respondent in respect of the liabilities, if any, of DEPL
under its contract with ONGC. […]
[…]
F
30. In the present case the Claimant and DEPL have throughout
maintained their separate legal character. There is no evidence to
indicate that they ever represented to the Respondent that they
are one company or that the Claimant will be liable under the
contract of the Respondent with DEPL.
G
31. In the present case the Respondent ONGC had earlier initiated
arbitration proceedings against both DEPL and the Claimant before
an Arbitral Tribunal […]. By its ‘interim final award’ dated 27-
10-2010, the Arbitral Tribunal held that in the dispute between the
Respondent and DEPL, the Claimant could not be impleaded.
H […] The findings of the earlier arbitral tribunal and the High Court
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in its order of 27 June 2012 support our present conclusions, and A
we respectfully agree with the same.”
12. DEPL was not a party to the above arbitral proceedings which
were initiated by JDIL. ONGC instituted petitions10 under Section 34 of
the Act of 1996 for challenging the Arbitral Award in the second
proceeding in respect of the four contracts of JDIL. The petitions were B
dismissed by a Single Judge of the Bombay High Court on 28 April
2015. ONGC filed an appeal11 under Section 37 of the Act of 1996
during the pendency of the special leave petition arising from the interim
award of the Arbitral Tribunal dated 27 October 2010, consisting of
Mr Justice SP Kurdukar (Retd.), Mr Justice MS Rane (Retd.) and Mr S
Venkateswaran. ONGC sought a transfer of the appeals lodged before C
the Bombay High Court against the judgment of the Single Judge
dismissing the petitions under Section 34 for challenging the Arbitral
Award in the second proceeding. The transferred cases12 have come up
before this Court together with the special leave petition arising out of
the interim award dated 27 October 2010. D
B Submissions of Counsel
13. Mr KM Nataraj, Additional Solicitor General13, appearing on
behalf of ONGC submitted that:
(i) The case of ONGC is that DEPL and JDIL constitute one E
single commercial entity and that ONGC is hence entitled
by law to compel JDIL to participate in the arbitration
proceedings so as to enforce the award against it;
(ii) Though evidence was available with ONGC to buttress the
above claim, it filed an application for discovery and F
inspection to secure material which was within the
possession, control and custody of JDIL. However, with
the deletion of JDIL from the array of parties, the application
for discovery and inspection has been rendered otiose;
(iii) The Arbitral Tribunal has not enquired into the facts at all,
G
despite the contention of ONGC that JDIL is a necessary
party;
10
Arbitration Petition No. 587, 767, 768 and 1045 of 2014
11
Arbitration Appeal Nos. 446 to 449 of 2015
12
Transferred Case (Civil) Nos. 47, 48, 49 and 50 of 2016
13
“ASG” H
940 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (iv) The Arbitral Tribunal has merely held, on the basis of the
legal principle underlying Section 7 of the Act of 1996 and
privity of contract, that JDIL which is not a signatory to the
arbitration agreement cannot be impleaded in the arbitral
proceedings;
B (v) After the application for discovery and inspection was
opposed by JDIL, the Arbitral Tribunal deferred its decision
until the issue of jurisdiction was resolved on the application
filed by JDIL under Section 16 of the Act of 1996;
(vi) The interim award did not consider or hear the application
for discovery and inspection under Section 16. The decision
C has been rendered purely on the premise that anon-signatory
to the arbitration agreement cannot be impleaded as a party;
(vii) ONGC has been precluded from tendering evidence that
JDIL could be brought within the fold of arbitration on the
basis of the group of companies doctrine;
D (viii) While the Arbitral Tribunal has relied on the decision of this
Court in Indowind (supra), the subsequent decisions of this
Court have accepted and applied the group of companies
doctrine. These decisions are:
a. Chloro Controls India Pvt. Ltd. v. Severn Trent
E Water Purification Inc. & Ors;14
b. Cheran Properties Ltd. v. Kasturi & Sons Ltd.
& Ors;15 and
c. MTNL v. Canara Bank & Ors.16. and
(ix) The decision in Indowind (supra) is not good law in view
F of the subsequent judgments of this Court. The Arbitral
Tribunal ought to have decided the jurisdictional issue after
parties were permitted to lead evidence, since the application
of the group of companies doctrine and the lifting of the
corporate veil involves mixed questions of law and fact.
G The issue of jurisdiction and merits are inextricably
intertwined and a ruling premised exclusively on the
application of Section 7 of the Act of 1996 was improper.

14
(2013) 1 SCC 641 [“Chloro Controls”]
15
(2018) 16 SCC 413 [“Cheran Properties”]
16
H (2020) 12 SCC 767 [“MTNL”]
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14. Controverting the above submissions, Mr Shyam Divan, Senior A
Counsel appearing on behalf of the JDIL has indicated in the following
tabulation:
(i) ONGC’s contentions;
(ii) JDIL’s response;
(iii) Findings in the interim award of the Arbitral Tribunal; and B
(iv) The order of the High Court.
The tabulated statement is reproduced below for convenience of
reference:

C

D

E

F

G

H
942 SUPREME COURT REPORTS [2022] 4 S.C.R.

A

B

C

D

E

F

G

H
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 943
PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

A

B

15. The following submissions have been urged by Mr Shyam
Divan, Senior Counsel behalf of the respondent: C
(i) There is no disputing the factual position that DEPL is a
part of the DP Jindal Group, yet JDIL has no shareholding
in DEPL. There is neither any cross shareholding nor any
common directors;
(ii) In 2010, DEPL ceased to be a part of the DP Jindal Group. D
However, JDIL continues to be a part of the DP Jindal
Group of companies together with other group entities such
as Maharashtra Seamless Ltd. and Jindal Pipes Ltd.;
(iii) JDIL is not a party to the arbitration agreement as required
under Section 7 of the Act of 1996 and cannot be held liable E
for claims against DEPL since there is no evidence that
JDIL was a beneficiary of the contract between ONGC
and DEPL. No letter of guarantee or of comfort was issued
by JDIL on behalf of DEPL in favour of ONGC;
(iv) The Bombay High Court has correctly held that no evidence F
was tendered before the Arbitral Tribunal that DEPL and
JDIL had common shareholders or common directors;
(v) The arbitral award has discussed ONGC’s claim that DEPL
and JDIL belong to the same group of companies and came
to the conclusion that there is not “a tickle of evidence” G
that JDIL played any role in the negotiations leading up to
the contract or that thereafter JDIL participated in the
execution of the contract on behalf of the DEPL. Hence,
the group of companies doctrine cannot be invoked to indict
JDIL for the alleged acts and omissions of DEPL;
H
944 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (vi) Under Section 7 of the Act of 1996,theremust be an
agreement between the parties to submit to arbitration. The
expression ‘party’ is defined in Section 2(1)(h). The
keywords in both the provisions are “party to an arbitration
agreement” and an agreement by the party to submit to
arbitration. JDIL and DEPL are separate entities. DEPL
B
was incorporated in 2003. JDIL was incorporated in 1983.
Its shares are listed on the Bombay Stock Exchange. Though
DEPL belonged to the DP Jindal Group of Companies, it
ceased to remain a part of the group in 2010. The fact that
DEPL and JDIL shared a common office is of no relevance.
C ONGC’s witness asserted that he came to know that Mr
GD Sharma (who signed on behalf of DEPL) is an employee
of JDIL only after the signing of the contract. Hence there
was no representation that JDIL was bidding for the
contract. The association of the executive of JDIL was to
D render assistance to DEPL and nothing more; and
(vii) ONGC’s witness has no knowledge of the facts since he
was not:
a. Involved in the shortlisting of bidders;
E b. A part of the decision-making process for the award
of the contract;
c. A party to the deliberations by the tender committee
for the award of the contract;

F d. Present at the time when the approval was given for
the award of the contract; and
e. Party to the deliberations within ONGC.
The witness stated that he has accessed the website of
G DEPL for the first time in June 2008, after the award of the
contract on 22 March 2006. Hence it is not open to ONGC
to claim that DEPL or JDIL represented to ONGC that
DEPL was a group company of JDIL or that ONGC
awarded the contract because of any representation by JDIL
on its website.
H
OILAND NATURAL GAS CORP. LTD. v. M/S DISCOVERY ENTERPRISES 945
PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

C Analysis A
C.1. Group of Companies Doctrine
16. Section 717 provides for an arbitration agreement. For the
purpose of Part-I of the Act of 1996, an arbitration agreement is defined
to mean an agreement by the parties to submit disputes between them in
B
respect of a defined legal relationship, to arbitration. An arbitration
agreement may either be in the form of an arbitration clause in a contract
or take the form of a separate agreement. An arbitration agreement has
to be in writing but it may be contained in:
(i) A document signed by the parties; C
(ii) An exchange of communication; and
(iii) An exchange of a statement of claim and defence in which
an allegation that there exists an arbitration agreement is
not denied by the other party.
D
Sub-section (5) of Section 7 stipulates that the reference in a
contract to a document containing an arbitration clause constitutes an
arbitration agreement if:
(i) The contract is written; and
(ii) The reference is such as to make the arbitration clause a E
part of the contract.

17
“7. Arbitration agreement.—
(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise between them
in respect of a defined legal relationship, whether contractual or not. F
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or
in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication
G
including communication through electronic means which provide a record of the
agreement; or
(c) an exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes
an arbitration agreement if the contract is in writing and the reference is such as to make
that arbitration clause part of the contract.” H
946 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 17. The expression “party” is defined in Section 2(h) to mean a
party to an arbitration agreement. The interpretation of the term “parties”
vis-à-vis an arbitration agreement under Section 7 has been dealt with
by this Court in Indowind (supra) in the context of an application for the
appointment of an arbitrator under Section 11(6). In that case, the second
respondent company was the promoter of Indowind. The first and second
B
respondent had entered into an agreement of sale. In the agreement, the
seller was described to include the first respondent and its subsidiaries.
The second respondent was described as the buyer and as the promoter
of Indowind. Under the agreement, the seller agreed to transfer business
assets for a consideration which was partly payable in money and partly
C by the issuance of shares. The sale agreement also incorporated a clause
to arbitrate any dispute. The Board of Directors of the first and second
respondent approved of the agreement, but there was no approval by
the Board of Indowind. After a dispute arose, the first respondent instituted
a petition under Section 11(6) against both the second respondent and
D Indowind for the appointment of an arbitrator. Indowind resisted the
petition on the ground that it was not a party to the agreement between
the first and second respondent. The application was allowed by the
Chief Justice of the Madras High Court by observing that prima facie
Indowind was a party after lifting the corporate veil and noticing
Indowind’s intention to be bound by the sale agreement. Two issues
E were framed by this Court for consideration:
“
(i) Whether an arbitration clause found in a document (agreement)
between two parties, could be considered as a binding arbitration
agreement on a person who is not a signatory to the agreement;
F
(ii) Whether a company could be said to be a party to a contract
containing an arbitration agreement, even though it did not sign
the agreement containing an arbitration clause, with reference to
its subsequent conduct”
G Justice RV Raveendran, speaking for the two-judge Bench in
Indowind (supra) held that if Indowind had acknowledged or confirmed
in any correspondence, agreement or document that it was a party to
the arbitration agreement between the first and second respondent or
that it was bound by the arbitration agreement contained in that contract,
it could have been possible to say that Indowind is a party to the arbitration
H
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PVT. LTD. & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

agreement. That however was not the position. The decision in Indowind A
(supra) was in the context of an application under Section 11(6). A party
which was not a signatory to the arbitration agreement had raised an
objection on the ground that the agreement to arbitration did not operate
in relation to it. The Court refused to pierce the corporate veil and relied
on a strict interpretation of Section 7 to hold thus :
B
“17. It is not in dispute that Subuthi and Indowind are two
independent companies incorporated under the Companies Act,
1956. Each company is a separate and distinct legal entity
and the mere fact that the two Companies have common
shareholders or common Board of Directors, will not make
C
the two Companies a single entity. Nor will the existence
of common shareholders or Directors lead to an inference
that one company will be bound by the acts of the other. If
the Director who signed on behalf of Subuthi was also a Director
of Indowind and if the intention of the parties was that Indowind
should be bound by the agreement, nothing prevented Wescare D
insisting that Indowind should be made a party to the agreement
and requesting the Director who signed for Subuthi also to sign on
behalf of Indowind.
18. The very fact that the parties carefully avoided making
Indowind a party and the fact that the Director of Subuthi though E
a Director of Indowind, was careful not to sign the agreement as
on behalf of Indowind, shows that the parties did not intend that
Indowind should be a party to the agreement. Therefore the mere
fact that Subuthi described Indowind as its nominee or as a
company promoted by it or that the agreement was purportedly
F
entered by Subuthi on behalf of Indowind, will not make Indowind
a party in the absence of a ratification, approval, adoption or
confirmation of the agreement dated 24-2-2006 by Indowind.
[….]
20. Wescare referred to several acts and transactions as also the G
conduct of Indowind to contend that an inference should be drawn
that Indowind was a party to the agreement or that it had affirmed
and approved the agreement or acted in terms of the agreement.
An examination of the transactions between the parties to decide
whether there is a valid contract or whether a particular party
H
948 SUPREME COURT REPORTS [2022] 4 S.C.R.

A owed any obligation towards another party or whether any person
had committed a breach of contract, will be possible in a suit or
arbitration proceeding claiming damages or performance. But the
issue in a proceeding under Section 11 is not whether there was
any contract between the parties or any breach thereof. A contract
can be entered into even orally. A contract can be spelt out from
B
correspondence or conduct. But an arbitration agreement is
different from a contract. An arbitration agreement can come
into existence only in the manner contemplated under
Section 7. If Section 7 says that an arbitration agreement
should be in writing, it will not be sufficient for the petitioner
C in an application under Section 11 to show that there existed
an oral contract between the parties, or that Indowind had
transacted with Wescare, or Wescare had performed certain
acts with reference to Indowind, as proof of arbitration
agreement.
D […]
24. It is no doubt true that if Indowind had acknowledged
or confirmed in any correspondence or other agreement or
document, that it is a party to the arbitration agreement
dated 24-2-2006 or that it is bound by the arbitration
E agreement contained therein, it could have been possible
to say that Indowind is a party to the arbitration agreement.
But that would not be under Section 7(4)(a) but under
Section 7(4)(b) or Section 7(5). Be that as it may. That is
not the case of Wescare. In fact, the delivery notes/invoices
issued by Wescare do not refer to the agreement dated 24-2-
F 2006. Nor does any letter or correspondence sent by Indowind
refer to the agreement dated 24-2-2006, either as an agreement
executed by it or as an agreement binding on it…..”
(emphasis supplied)
18. Subsequently, in Chloro Controls (supra), a three-judge
G
Bench of this Court dealt with the provisions of Section 45, which falls in
Part II of the Act of 1996 dealing with the enforcement of foreign arbitral
awards. Section 45 postulates that notwithstanding anything contained
in Part I, a judicial authority, when seized of an action in a matter in
respect of which the parties have made an agreement in writing for
H arbitration shall at the request of one of the parties “or any person claiming
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through or under him” refer the parties to arbitration unless it finds that A
the agreement is void, inoperative or incapable of being performed.
Interpreting the expressions “through or under” in Section 45, this Court
held that though an arbitration normally would take place between parties
to the arbitration agreement, it could take place between a signatory to
an arbitration agreement and a third party as well. This Court held that
B
though the scope of the arbitration agreement is limited to parties who
have entered into it and those who claim under or through them, courts
under the English law have developed the group of companies doctrine.
In substance, the doctrine postulates that an arbitration agreement which
has been entered into by a company within a group of companies, can
bind its non-signatory affiliates or sister concerns if the circumstances C
demonstrate a mutual intention of the parties to bind both the signatory
and affiliated, non-signatory parties. Elaborating on the concept, the Court
held:
“71. Though the scope of an arbitration agreement is limited to
the parties who entered into it and those claiming under or through D
them, the courts under the English law have, in certain cases, also
applied the “group of companies doctrine”. This doctrine has
developed in the international context, whereby an arbitration
agreement entered into by a company, being one within a group
of companies, can bind its non-signatory affiliates or sister or parent
concerns, if the circumstances demonstrate that the mutual E
intention of all the parties was to bind both the signatories and the
non-signatory affiliates. This theory has been applied in a number
of arbitrations so as to justify a tribunal taking jurisdiction over a
party who is not a signatory to the contract containing the arbitration
agreement. [Russell on Arbitration (23rd Edn.)] F
72. This evolves the principle that a non-signatory party could be
subjected to arbitration provided these transactions were with
group of companies and there was a clear intention of the parties
to bind both, the signatory as well as the non-signatory parties. In
other words, “intention of the parties” is a very significant feature G
which must be established before the scope of arbitration can be
said to include the signatory as well as the non-signatory parties.”
Noting that this would only be in exceptional cases, the Court in
Chloro Controls (supra) held that these exceptions would be examined
on the touchstone of: H
950 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (i) A direct relationship to the party signatory to the arbitration
agreement;
(ii) Direct commonality of the subject matter; and
(iii) Whether the agreement is of a composite transaction where
the performance of a mother agreement may not be feasible
B
without the execution or performance of a subsidiary or
ancillary agreement.
19. The principle for binding non-signatories as laid down in Chloro
Controls (supra) was applied in the context of a domestic arbitration in
Ameet Lalchand Shah & Ors. v. Rishabh Enterprises & Anr.18. A
C
two-judge Bench of this Court, in the context of the application of the
then amended19 provisions of Section 8 of the Act of 1996, observed that
the 2015 amendment to Section 8 had brought it in line with Section 45
of the Act of 1996. Prior to the amendment, Section 8(1) of the Act of
1996 provided that a party to an arbitration agreement can make an
D application to seek a reference to arbitration. The amended Section 8
(1) clarified that a person claiming through or under a party to the
arbitration can also seek reference to arbitration notwithstanding any
judicial precedent. In Ameet Lalchand (supra), the Court did not explicitly
invoke the group of companies doctrine to bind a non-signatory, rather it
relied on Chloro Controls (supra) to hold that a non-signatory would
E
be bound by the arbitration clause in the mother agreement, since it is a
party to an inter-connected agreement, executed to achieve a common
commercial goal.
20. In Cheran Properties (supra), a three-judge Bench of this
Court interpreted and applied the group of companies doctrine in the
F
context of the enforcement of a domestic arbitration award against a
non-signatory to the arbitration agreement. The Court observed that the
decision by a two-judge Bench in Indowind (supra) was rendered before
the evolution and application of the group of companies doctrine by a
three-judge Bench in Chloro Controls (supra):
G
“23. As the law has evolved, it has recognised that modern business
transactions are often effectuated through multiple layers and
agreements. There may be transactions within a group of

18
(2018) 15 SCC 678
19
H Arbitration and Conciliation (Amendment) Act, 2015 (“2015 amendment”)
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companies. The circumstances in which they have entered into A
them may reflect an intention to bind both signatory and non-
signatory entities within the same group. In holding a non-signatory
bound by an arbitration agreement, the court approaches the matter
by attributing to the transactions a meaning consistent with the
business sense which was intended to be ascribed to them.
B
Therefore, factors such as the relationship of a non-signatory to a
party which is a signatory to the agreement, the commonality of
subject-matter and the composite nature of the transaction weigh
in the balance. The group of companies doctrine is essentially
intended to facilitate the fulfilment of a mutually held intent between
the parties, where the circumstances indicate that the intent was C
to bind both signatories and non-signatories. The effort is to find
the true essence of the business arrangement and to unravel from
a layered structure of commercial arrangements, an intent to bind
someone who is not formally a signatory but has assumed the
obligation to be bound by the actions of a signatory.”
D
This Court in Cheran Properties (supra) also analysed academic
literature that scrutinised adjudicatory trends across the world. It noted
that the written intention to arbitrate between parties can extend to bind
non-signatories with the aim to target the creditworthy member of the
group of companies. However, the principle of separate legal personalities
of companies also has to be balanced. The corporate veil can be pierced E
to bind non-signatories upon a construction of the arbitration agreement,
the intention at the time of entering the contract and the performance of
the underlying contract:
“25. Does the requirement, as in Section 7, that an arbitration
agreement be in writing exclude the possibility of binding third F
parties who may not be signatories to an agreement between two
contracting entities? The evolving body of academic literature as
well as adjudicatory trends indicate that in certain situations, an
arbitration agreement between two or more parties may operate
to bind other parties as well. Redfern and Hunter explain the G
theoretical foundation of this principle:
“… The requirement of a signed agreement in writing, however,
does not altogether exclude the possibility of an arbitration
agreement concluded in proper form between two or more
parties also binding other parties. Third parties to an arbitration H
952 SUPREME COURT REPORTS [2022] 4 S.C.R.

A agreement have been held to be bound by (or entitled to rely
on) such an agreement in a variety of ways : first, by operation
of the ‘group of companies’ doctrine pursuant to which the
benefits and duties arising from an arbitration agreement may
in certain circumstances be extended to other members of the
same group of companies; and, secondly, by operation of
B
general rules of private law, principally on assignment, agency,
and succession…. [Id at p. 99.]”
The group of companies doctrine has been applied to pierce the
corporate veil to locate the “true” party in interest, and more
significantly, to target the creditworthy member of a group of
C companies [Op cit fn. 16, 2.40, p. 100.] . Though the extension of
this doctrine is met with resistance on the basis of the legal
imputation of corporate personality, the application of the doctrine
turns on a construction of the arbitration agreement and the
circumstances relating to the entry into and performance of the
D underlying contract. [Id, 2.41 at p. 100.]”
This Court in Cheran Properties (supra) also distinguished the
principle laid down in Chloro Controls (supra) from its application in
the context of Section 11(6) in Duro Felguera v. Gangavaram Port
Limited20. In Duro Felguera (supra), a two-judge Bench of this Court
E refused to direct a joint arbitration in five different contracts between
sister concerns of one of the parties of the original arbitration agreement,
by respecting the conscious intention of the parties to subject themselves
to separate arbitration agreements under their individual contracts. This
Court in Cheran Properties (supra) distinguished the factual situation
in Duro Felguera (supra) by discerning the mutual intention of the
F parties and performance of the contract:
“34. […..] The principle which underlies Chloro Controls [Chloro
Controls India (P) Ltd. v. Severn Trent Water Purification Inc.,
(2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] is that an arbitration
agreement which is entered into by a company within a group of
G companies may bind non-signatory affiliates, if the circumstances
are such as to demonstrate the mutual intention of the parties to
bind both signatories and non-signatories. In applying the doctrine,
the law seeks to enforce the common intention of the parties,

20
H (2017) 9 SCC 729 [“Duro Felguera”]
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where circumstances indicate that both signatories and non- A
signatories were intended to be bound. In Duro [Duro Felguera
v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC
(Civ) 764] , the case was held to stand on a different footing since
all the five different packages as well as the corporate guarantee
did not depend on the terms and conditions of the original package
B
nor on the memorandum of understanding executed between the
parties. The judgment in Duro [Duro Felguera v. Gangavaram
Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] does not
detract from the principle which was enunciated in Chloro
Controls [Chloro Controls India (P) Ltd. v. Severn Trent Water
Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689].” C
21. The group of companies doctrine was subsequently applied
by a two-judge Bench of this Court in Reckitt Benckiser (India) P
Ltd. v. Reynders Label Printing21 for determining if a non-signatory
foreign company, within the same group of companies, could be impleaded
in a domestic arbitration. This Court noted the principles formulated by D
this Court in Chloro Controls (supra) and Cheran Properties (supra)
and noted its inapplicability after assessing the following:
(i) the alleged common employee between the two companies
in the same group was factually established as having no
connection with the foreign company; and E
(ii) a mere existence of an indemnity by the foreign company,
in the absence of any other factors, would not signify its
intention to be bound by the arbitration agreement and/or
of deriving benefits from the performance of the underlying
contract. F
22. In MTNL (supra), a two-judge Bench of this Court was
considering a situation in which MTNL had floated certain bonds to Can
Bank Financial Services Ltd22 through a memorandum of understanding.
The bond amount was placed in an FD by MTNL with Canfina. Canfina
paid back a part of the amount of the FD while the rest was not paid to G
MTNL. As a consequence, MTNL did not service the interest of the
bonds. Canfina was a wholly-owned subsidiary of Canara Bank. Canfina
had transferred the bonds to Canara Bank. Subsequently, all three parties

21
(2019) 7 SCC 62
22
“Canfina” H
954 SUPREME COURT REPORTS [2022] 4 S.C.R.

A had participated in a meeting where the minutes indicated their view to
take recourse to arbitration. A sole arbitrator was appointed to resolve
the dispute and notice was issued in the arbitration to MTNL, Canara
Bank and Canfina. A dispute was raised on whether Canfina could be
joined as a party to the arbitral proceedings. In this backdrop, this Court
while dealing with the joinder of Canfina in the arbitration proceedings
B
held:
“10.3. A non-signatory can be bound by an arbitration agreement
on the basis of the “group of companies” doctrine, where the
conduct of the parties evidences a clear intention of the parties to
bind both the signatory as well as the non-signatory parties. Courts
C and tribunals have invoked this doctrine to join a non-signatory
member of the group, if they are satisfied that the non-signatory
company was by reference to the common intention of the parties,
a necessary party to the contract.”
While elucidating the circumstances in which the group of
D companies doctrine could be invoked to bind the non-signatory, the Court
held:
“10.5. The group of companies doctrine has been invoked by courts
and tribunals in arbitrations, where an arbitration agreement is
entered into by one of the companies in the group; and the non-
E signatory affiliate, or sister, or parent concern, is held to be bound
by the arbitration agreement, if the facts and circumstances of
the case demonstrate that it was the mutual intention of all parties
to bind both the signatories and the non-signatory affiliates in the
group. The doctrine provides that a non-signatory may be
F bound by an arbitration agreement where the parent or
holding company, or a member of the group of companies
is a signatory to the arbitration agreement and the non-
signatory entity on the group has been engaged in the
negotiation or performance of the commercial contract, or
made statements indicating its intention to be bound by
G the contract, the non-signatory will also be bound and
benefitted by the relevant contracts. [ Interim award in ICC
Case No. 4131 of 1982, IX YB Comm Arb 131 (1984); Award in
ICC Case No. 5103 of 1988, 115 JDI (Clunet) 1206 (1988). See
also Gary B. Born : International Commercial Arbitration, Vol.
H I, 2009, pp. 1170-1171.]
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10.6. The circumstances in which the “group of companies” A
doctrine could be invoked to bind the non-signatory affiliate of a
parent company, or inclusion of a third party to an arbitration, if
there is a direct relationship between the party which is a signatory
to the arbitration agreement; direct commonality of the subject-
matter; the composite nature of the transaction between the
B
parties. A “composite transaction” refers to a transaction which
is interlinked in nature; or, where the performance of the agreement
may not be feasible without the aid, execution, and performance
of the supplementary or the ancillary agreement, for achieving
the common object, and collectively having a bearing on the dispute.
10.7. The group of companies doctrine has also been invoked in C
cases where there is a tight group structure with strong
organisational and financial links, so as to constitute a single
economic unit, or a single economic reality. In such a situation,
signatory and non-signatories have been bound together under
the arbitration agreement. This will apply in particular when the D
funds of one company are used to financially support or restructure
other members of the group. [ ICC Case No. 4131 of 1982, ICC
Case No. 5103 of 1988.].”
(emphasis supplied)
On the facts, the Court held that Canfina was set up as a wholly- E
owned subsidiary of Canara Bank. The dispute arose out of the
subscription by Canfina of the bonds floated by MTNL which were
subsequently transferred by Canfina to its holding company, Canara
Bank. MTNL had contended that it was constrained to cancel the
allotment due to the non-payment of the sale consideration by Canfina.
F
Hence, this Court held that it would be futile to decide the dispute only
between MTNL and Canara Bank in the absence of Canfina since
indisputably, the original transaction emanated from the agreement
between MTNL and Canfina and there was “a clear and direct nexus”
between the issuance of the bonds, their subsequent transfer by Canfina
to Canara Bank and the cancellation of allotment by MTNL. Canfina G
was held to be a proper party to the proceedings.
23. Commentators have noted that a signed written agreement to
submit a present or future dispute to arbitration does not exclude the
possibility of an arbitration agreement binding a third party. A non-
signatory may be bound by the operation of the group of companies H
956 SUPREME COURT REPORTS [2022] 4 S.C.R.

A doctrine as well as by the operation of the principles of assignment,
agency and succession.23 A party, which is not a signatory to a contract
containing an arbitration clause, may be bound by the agreement to
arbitrate if it is an alter ego of a party which executed the agreement.
This constitutes a departure from the ordinary principle of contract law
that every company in a group of companies is a distinct legal entity. A
B
non-signatory may be bound by the arbitration agreement where:
(i) There exists a group of companies; and
(ii) Parties have engaged in conduct or made statements
indicating an intention to bind a non-signatory.
C 24. Gary B. Born in his treatise on International Commercial
Arbitration indicates that:
“The principal legal basis for holding that a non-signatory is bound
(and benefited) by an arbitration agreement … include both purely
consensual theories (e.g., agency, assumption, assignment) and
D non-consensual theories (e.g. estoppel, alter ego).24”
Explaining the application of the alter ego principle in arbitration,
Born also notes:
“Authorities from virtually all jurisdictions hold that a party who
has not assented to a contract containing an arbitration clause
E
may nonetheless be bound by the clause if that party is an ‘alter
ego’ of an entity that did execute, or was otherwise a party to, the
agreement. This is a significant, but exceptional, departure from
the fundamental principle … that each company in a group of
companies (a relatively modern concept) is a separate legal entity
F possessed of separate rights and liabilities25.
[……]
“the group of companies doctrine is akin to principles of agency
or implied consent, whereby the corporate affiliations among
distinct legal entities provide the foundation for concluding that
G they were intended to be parties to an agreement, notwithstanding
their formal status as non-signatories26.”
23
Redfern and Hunter on International Arbitration, 5 th Ed. – 2.13, pp. 89-90
24
Gary Born, International Commercial Arbitration 2nd Edn., Vol. 1, at page 1418
25
Id.at page 1432
H 26
Id. at page 1450
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25. Recently, John Fellas elaborated on the principle of binding a A
non-signatory to an arbitration agreement from the lens of the doctrine
of estoppel. He situated the rationale behind the application of the principle
of direct estoppel against competing considerations of party autonomy
and consent in interpreting arbitration agreements. Fellas observed that
non-signatory parties can be bound by the principle of direct estoppel to
B
prohibit such a party from deriving the benefits of a contract while
disavowing the obligations to arbitrate under the same:
“There are at least two distinct types of estoppel doctrine
that apply in the non-signatory context: “the direct
benefits” estoppel theory and the “intertwined” estoppel
theory. The direct benefits theory bears the hallmark of C
any estoppel doctrine- prohibiting a party from taking
inconsistent positions or seeking to “have it both ways”
by “rely[ing] on the contract when it works to its advantage
and ignor[ing] it when it works to its disadvantage.” Tepper
Realty Co. v. Mosaic Tile Co., 259 F.Supp. 688,692 (SDNY 1966). D
The direct benefits doctrine reflects that core principle by
preventing a party from claiming rights under a contract
but, at the same time, disavowing the obligation to arbitrate
in the same contract.
[….] E
By contrast, the intertwined estoppel theory looks not to whether
any benefit was received by the non-signatory, but rather at the
nature of the dispute between the signatory and the non-signatory,
and, in particular whether “the issues the non-signatory is seeking
to resolve in arbitration are intertwined with the agreement that F
the estoppel [signatory party] has signed….the intertwined estoppel
theory has as its central aim the perseveration of the efficacy of
the arbitration process is clear when one looks at the typical fact
pattern of an intertwined estoppel case.”27
(emphasis supplied)
G
26. In deciding whether a company within a group of companies
which is not a signatory to arbitration agreement would nonetheless be
bound by it, the law considers the following factors:
27
John Fellas, Compelling Signatories to Arbitrate with Non-Signatories, New York
Law Journal (March 28, 2022) H
958 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (i) The mutual intent of the parties;
(ii) The relationship of a non-signatory to a party which is a
signatory to the agreement;
(iii) The commonality of the subject matter;
B (iv) The composite nature of the transaction; and
(v) The performance of the contract.
Consent and party autonomy are undergirded in Section 7 of the
Act of 1996. However, a non-signatory may be held to be bound on a
consensual theory, founded on agency and assignment or on a non-
C consensual basis such as estoppel or alter ego.28 These principles would
have to be understood in the context of the present case, where ONGC’s
attempt at the joinder of JDIL to the proceedings was rejected without
adjudication of ONGC’s application for discovery and inspection of
documents to prove the necessity for such a joinder.
D C.2. Standard for Review of the Interim Arbitral Award
27. The interim award of the Arbitral Tribunal is substantially
premised on the fact that JDIL is not a party to the contract dated 22
March 2006. The Tribunal held that the agreement was only between
ONGC and DEPL. Adverting to Section 7 of the Act of 1996, the Tribunal
E held that there must be a written agreement between the parties to submit
to arbitration or in the specific manner envisaged under the provision.
Before the Arbitral Tribunal, it was urged by ONGC that:
(i) There is a commonality of interest in the business between
DEPL and JDIL;
F
(ii) DEPL is a corporate facade created by JDIL for their
extended business;
(iii) The executives of JDIL were actively associated in the
bidding process; and
G (iv) The office of DEPL or JDIL were situated in the same
building.
The Arbitral Tribunal rejected the above submissions by holding
that there was not a “tickle” of evidence on record to show that JDIL,

28
H Gary Born, supra note 24, at page 1418
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which is a distinct corporate legal entity, “ever played any role to find A
itself in the contract between JDIL and ONGC”. The participation of
JDIL in the execution of the contract was held to be on behalf of DEPL
and that the fact that the directors of DEPL are the son and daughter-in-
law of the MD of JDIL was held not to be of relevance.
28. The fundamental basis of the interim award is that in view of B
the provisions of Section 7 and the definition of the expression “party” in
Section 2(1)(h), the provisions of the Act of 1996 could not be invoked
or applied to a non-signatory to an arbitration agreement. The Tribunal
held that it has no jurisdiction to investigate, enquire into or record any
findings on the basis of ONGC’s claim against JDIL.
C
29. The Tribunal had, by its order dated 7 July 2009, specifically
held that the objections of JDIL to the production of documents sought
by ONGC would be decided when the application under Section 16 was
resolved. Yet in the interim award, ultimately, the Tribunal has directed
that ONGC’s application dated 5 January 2009 would stand deferred
until the issue of jurisdiction is decided. ONGC was justified in submitting D
that its application for discovery and inspection should be heard first and
disposed of on merits after which appropriate orders as regards joinder
of parties could be issued to DEPL and JDIL.
30. By failing to consider the application for discovery and
inspection, the Tribunal has foreclosed itself from inquiring into whether E
there was sufficient material to establish the application of the group of
companies doctrine. The application for discovery and inspection was
indeed relevant to the exercise which was being carried out by the
Tribunal. ONGC’s primary submissions for impleading JDIL were that:
(i) DEPL has been created by the DP Jindal Group with a F
definite purpose to render services to the oil and gassector;
(ii) There is a close corporate and functional unity between
DEPL and JDIL;
(iii) The executives of JDIL had been closely associated with
G
the negotiation of the agreement;
(iv) The bid as well as the contract with DEPL were signed by
GD Sharma who was an employee of JDIL;
(v) GD Sharma was signing letters on behalf of DEPL as their
authorized signatory as well as on behalf of JDIL; H
960 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (vi) Mohan Ramanathan, who was the General Manager of
JDIL, used to visit the witness who deposed on behalf of
the ONGC in connection with the subject contract; and
(vii) Naresh Kumar, the Managing Director of JDIL, had
negotiated with the owners of the vessel in connection with
B the same tender.
31. Moreover, it was stated in the course of the evidence by
ONGC’s witness that almost all the senior officers of JDIL, including its
Managing Director, actively participated in matters relating to the hiring
of the vessel, its deployment, performance and related issues. At a kick-
C off meeting held on 21 November 2005 between ONGC and DEPL,
Mohan Ramanathan (General Manager, JDIL) was stated to have been
in attendance on behalf of the DEPL. It was in this backdrop that ONGC
sought to assert that there exists corporate, financial and functional unity
between DEPL and JDIL. The Arbitral Tribunal has not considered
whether the group of companies doctrine would stand attracted. The
D Arbitral Tribunal precluded itself from deciding as to whether the
application for discovery and inspection should be allowed. The Arbitral
Tribunal effectively shut out material evidence which ONGC sought to
bring on the record.
32. In this backdrop, the failure of the Arbitral Tribunal to allow
E for discovery and inspection goes to the root of the process in as much
as it disabled ONGC from pursuing its fundamental claim based on the
application of the group of companies doctrine.
33. During the course of his submissions, Mr Shyam Divan, senior
counsel urged that:
F
(i) JDIL’s application under Section 16 was decided by the
Arbitral Tribunal after evidence was adduced;
(ii) The witness for ONGC deposed and the Tribunal has
evaluated the evidence and documentary material on record;
G (iii) The Tribunal has entered a finding of fact that there is
nothing to indicate the existence of a single economic unit
comprising JDIL and DEPL;
(iv) No directions could have been issued by the Tribunal on
ONGC’s application for discovery and inspection unless the
H Tribunal were to rule on the challenge to its jurisdiction which
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had to be decided first and hence the Tribunal was justified A
in concluding that the application filed by ONGC for
discovery and inspection would be considered subsequently;
(v) The decision in Indowind (supra) continues to hold the field.
The group of companies doctrine is only an exception to
the principle that a party who is not a signatory of the B
agreement cannot be subjected to arbitration;
(vi) The broad approach of the court under Section 34 which is
of non-interference with the arbitral award, must also govern
an appeal under Section 37; and the same standard must
apply to the latter as it applies to the former. The Arbitral C
Tribunal has ruled on its jurisdiction, pursuant to the
application filed by JDIL under sub-section (1) of Section
16. Under sub-section (5), if the Arbitral Tribunal rejects
such a plea, it must continue with the arbitral proceedings
to make an arbitral award. Under sub-section (6), a party
aggrieved by the arbitral award may make an application D
for setting aside the award under Section 34.
34. The arbitral tribunal has held that it does not have jurisdiction
to entertain the claim against JDIL. The decision of the Arbitral Tribunal
that it lacks jurisdiction is subject to an appeal under Section 37(2)(a).
Under sub-section (1) of Section 37, an appeal lies to the court (as defined E
under Section 2(1)(e)) only from the following orders, namely:
(i) An order refusing to refer the parties to arbitration under
Section 8;
(ii) An order granting or refusing to grant any measure under F
Section 9; and
(iii) An order setting aside or refusing to set aside an arbitral
award under Section 34.
Sub-section 2 of Section 37 stipulates that an “appeal shall also
lie” to the court from an order of the arbitral tribunal, inter alia, on the G
ground of the arbitral tribunal accepting the plea referred to in sub-section
(2) or sub-section (3) of Section 16. Hence, an appeal lies to the Court
from the decision of the Arbitral Tribunal that it lacks jurisdiction.
35. Mr Shyam Divan, relied upon two recent decisions of this
Court in Ssangyong Engineering and Construction Company H
962 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Limited v. National Highways Authority of India29, and in M/s Dyna
Technologies Pvt. Ltd. v. M/s Crompton Graves Ltd.30 Both these
decisions define the standard of review under Section 34. These decisions
indicate that a challenge to an arbitral award must be adjudicated within
the confines of Section 34.Clause (b)(ii) of sub-section (2) of Section 34
stipulates that an arbitral award may be set aside only if the court finds
B
that it conflicts with the public policy of India. Prior to its substitution by
Act 3 of 2016, the explanation stipulated that without prejudice to the
generality of sub-clause (ii), an award is in conflict with the public policy
of India if the making of the award was induced or affected by fraud or
corruption or was in violation of Section 75 or Section 81. As a result of
C the substitution of the explanation by Act 3 of 2016, Parliament has
stipulated that an award conflicts with the public policy of India only if
one of three conditions is fulfilled, namely:
(i) The making of the award was induced or affected by fraud
or corruption or was in violation of Section 75 or Section
D 81;
(ii) The award is in contravention with the fundamental policy
of Indian law; or
(iii) The award conflicts with the most basic notions of morality
or justice.
E
36. In Ssangyong Engineering (supra), this Court held that the
expression “public policy of India” in Section 34 would mean “the
fundamental policy of Indian law” as explained in Associate Builders
v. DDA31. Sub-section (2A) to Section 34, which was introduced by the
Amending Act of 2016, provides for an additional ground of challenge in
F the case of a domestic award, namely the existence of a patent illegality
apparent on the face of the award. Justice R F Nariman, speaking for
the two-judge Bench, observed that:
“34. What is clear, therefore, is that the expression “public policy
of India”, whether contained in Section 34 or in Section 48, would
G now mean the “fundamental policy of Indian law” as explained in
paras 18 and 27 of Associate Builders [Associate Builders v.
DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] i.e. the
29
(2019) 15 SCC 131 [“Ssangyong Engineering”]
30
(2019) 20 SCC 1
H 31
(2015) 3 SCC 49
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fundamental policy of Indian law would be relegated to A
“Renusagar” understanding of this expression. This would
necessarily mean that Western Geco [ONGC v. Western Geco
International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12]
expansion has been done away with. In short, Western Geco
[ONGC v. Western Geco International Ltd., (2014) 9 SCC 263
B
: (2014) 5 SCC (Civ) 12] , as explained in paras 28 and 29
of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC
49 : (2015) 2 SCC (Civ) 204] , would no longer obtain, as under
the guise of interfering with an award on the ground that the
arbitrator has not adopted a judicial approach, the Court’s
intervention would be on the merits of the award, which cannot C
be permitted post amendment. However, insofar as principles
of natural justice are concerned, as contained in Sections
18 and 34(2)(a)(iii) of the 1996 Act, these continue to be
grounds of challenge of an award, as is contained in para 30
of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC
D
49 : (2015) 2 SCC (Civ) 204] .
[…]
41. What is important to note is that a decision which is perverse,
as understood in paras 31 and 32 of Associate Builders [Associate
Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , E
while no longer being a ground for challenge under “public policy
of India”, would certainly amount to a patent illegality appearing
on the face of the award. Thus, a finding based on no evidence
at all or an award which ignores vital evidence in arriving
at its decision would be perverse and liable to be set aside
on the ground of patent illegality. Additionally, a finding F
based on documents taken behind the back of the parties
by the arbitrator would also qualify as a decision based on
no evidence inasmuch as such decision is not based on
evidence led by the parties, and therefore, would also have
to be characterised as perverse.” G
(emphasis supplied)
37. In this backdrop, it has been held that:
(i) A mere contravention of substantive law is not a ground to
set aside an award;
H
964 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (ii) The court while exercising the power of judicial review
should not reappreciate evidence;
(iii) The construction of a contract is essentially a matter for
the arbitral tribunal to decide;
(iv) An award can be construed to be perverse only if it is based
B on no evidence or has ignored vital evidence;
(v) The illegality of an award must be of such a nature or
character so as to go to the root of the award; and
(vi) Judicial intervention under Section 34 would not be
C warranted only because an alternative view on facts or the
construction of the award is available.
38. Mr KM Nataraj, ASG, urged that when an appeal arises under
Section 37(2)(a) against an order of the arbitral tribunal accepting the
plea under Section 16 that it has no jurisdiction, the parameters for the
exercise of the appellate jurisdiction of the court would not be constricted
D
by the principles which apply to a challenge to an arbitral award under
Section 34. The ASG submitted that this is for a valid reason, which is
that upon the acceptance of a plea that there is a lack of jurisdiction, the
matter goes out of the fold of arbitration. Such a determination cannot
be subject to the governing principles which apply to a challenge to an
E arbitral award under Section 34.
39. Sub-section(1) of Section 37 provides for appeals to the court
against orders of the arbitral tribunal meeting one of the descriptions
specified in clauses (a), (b) and (c). Sub-section (2) provides that an
appeal shall also lie to the court from an order of the arbitral tribunal
F accepting a plea under sub-sections (2) or (3) of Section 16 (of a want
of jurisdiction) and for granting or refusing a measure under Section 17.
It is true that Parliament has not specifically constricted the powers of
the court while considering an appeal under clause (a) of sub-section (2)
of Section 37 by the grounds on which an award can be challenged
under Section 34. The expression “arbitral award” is defined in Section
G 2(1)(c) to include an interim award. The grounds of challenge to an
arbitral award under Section 34 are specified by the parameters which
are spelt out in that provision. However, with regard to challenges to the
jurisdiction of the tribunal, Section 16 stipulates that where the tribunal
rejects a plea of a lack of jurisdiction, it must continue with the arbitral
H proceedings and make an award and the remedy of a challenge to the
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award would lie under Section 34. However, if the arbitral tribunal accepts A
a plea that it lacks jurisdiction, the order of the tribunal is amenable to a
challenge in appeal under Section 37(2)(a). In the exercise of the appellate
jurisdiction, the court must have due deference to the grounds which
have weighed with the tribunal in holding that it lacks jurisdiction having
regard to the object and spirit underlying the statute which entrusts the
B
arbitral tribunal with the power to rule on its own jurisdiction. The decision
of the tribunal that it lacks jurisdiction is not conclusive because it is
subject to an appellate remedy under Section 37(2)(a). However, in the
exercise of this appellate power, the court must be mindful of the fact
that the statute has entrusted the arbitral tribunal with the power to rule
on its own jurisdiction with the purpose of facilitating the efficacy of C
arbitration as an institutional mechanism for the resolution of disputes.
40. Now it is in this backdrop that the Court must approach the
task at hand. In the present batch of cases, there are two parallel
proceedings arising out of the constitution of two sets of arbitral tribunals.
In the first proceeding, the Arbitral Tribunal consisted of Mr Justice SP D
Kurdukar, Mr Justice MS Rane and Mr S Venkateswaran. Both DEPL
and JDIL were made parties by ONGC, which is the claimant. The
application filed by JDIL under Section 16 was allowed by the Arbitral
Tribunal by its interim award dated 27 October 2010. The appeal filed
by ONGC was dismissed by the Bombay High Court on 27 June 2012.
In pursuance of the arbitration proceedings, the Arbitral Tribunal made a E
final award on 6 June 2013 in favour of ONGC against DEPL.
41. The second set of proceedings involved four agreements
between ONGC and JDIL which are tabulated below: -

F

G

JDIL invoked the arbitration on 4 February 2010 and an Arbitral
Tribunal consisting of Ms Justice Sujata Manohar, Mr Justice BN
Srikrishna and Mr Justice MS Rane was constituted. The Arbitral Tribunal
rendered a final award on 9 October 2013 (the arbitral award in the H
966 SUPREME COURT REPORTS [2022] 4 S.C.R.

A second proceeding) in favour of JDIL and accepted its claim amounting
toUS$14,772,495.55 together with interest of 4% per annum from the
date of the invoice until payment or realisation. ONGC instituted
proceedings under Section 34 before the Bombay High Court. By a
judgment dated 28 April 2015, a Single Judge of the Bombay High Court
upheld the arbitral award. The appeals against the judgment of the Single
B
Judge under Section 37 were pending when ONGC applied for transfer
of the appeals to this Court. By an order dated 1 September 2016, the
appeals have been transferred to this Court on the ground that “there is
some connection” between the special leave petition arising from the
judgment of the Bombay High Court affirming the decision of the Arbitral
C Tribunal that it lacked jurisdiction on the claim against JDIL. Now at this
stage, it would be material to note that the Single Judge of the Bombay
High Court, while considering the challenge to the arbitral award dated
9 October 2013 in favour of JDIL held that :
“In my view the arbitral tribunal has considered the evidence led
D by the parties in the impugned award independently and have
rendered findings of facts that i) the petitioners had failed to prove
that the said DEPL and the respondents herein were one and the
same company; ii) both the companies had independent legal
existence; iii) the petitioners had failed to produce any evidence
to prove that the petitioners had awarded the said contract to
E DEPL because it was in fact the respondents herein and/or was
supported by the respondents; iv) there was no evidence to show
that in order to secure the said contract, DEPL had represented
that it was a part of the respondents group; v) the witness examined
by the petitioners was not present in the meeting held by the
F Executive Purchase Committee and did not produce Minutes of
Meeting held by the said Committee for short listing of the bidders;
vi) the respondents herein had not issued any guarantee or letter
of comfort from the respondents to the petitioners in respect of
the liabilities, if any, of DEPL under its contract with the petitioners
and vii) the petitioners had failed to provide any particulars of the
G alleged fraud or that the said DEPL was incorporated in order to
defraud the creditors. In my view, all the aforesaid findings
rendered by the arbitral tribunal are based on the pleadings,
documents and the evidence led by the parties and are not perverse
and thus no interference with such findings of facts is permissible
H under Section 34 of the Arbitration Act.”
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42. The Single Judge noted that ONGC had not denied the claims A
which were made by JDIL (the original claimant). The only defence of
ONGC was that it was entitled to adjust the amount which was claimed
by JDIL under the four contracts against ONGC’s claim qua DEPL. In
the course of the Arbitral Award in the second proceeding, the Arbitral
Tribunal has also observed that the claims of JDIL were not disputed by
B
ONGC. The award of the Arbitral Tribunal noted that:
“The above claims of the Claimant are not denied by the
Respondent ONGC. The defence of ONGC to the claims made
by the Claimant in these arbitration proceedings is essentially to
the effect that the Respondent is entitled to appropriate the sums
payable by it to the Claimant under these 4 contracts against the C
claim of the Respondent against DEPL under its contract with
DEPL.”
43. The basis on which ONGC claimed the above adjustment
was that DEPL and JDIL constitute one economic entity and that DEPL
is a group company of JDIL. The Arbitral Tribunal rejected the submission D
of ONGC, observing thus :
“It is contended by Mr Rajiv Kumar, learned senior counsel for
the Respondent that the corporate veil should be lifted in order to
treat the two companies as one because throughout, it was the
Claimant which acted on behalf of DEPL. The Respondent has E
placed strong reliance on the case of State of UP v. Renusagar
Power Co. and Another [1988 4 SCC 59]. The Supreme Court
has observed that in the expanding horizon of modern jurisprudence,
lifting of corporate veil is permissible if two associated companies
are so inextricably mixed as to constitute one entity. Its frontiers F
are unlimited. It must, however, depend primarily on the realities
of the situation. It held on the facts of that case that at no point of
time had the Respondent Renusagar showed any independent
volition and had been controlled fully by Hindalco which controlled
even day-to-day affairs of the Respondent. Even the profits of
the Respondent had been treated as the profits of Hindalco. The G
court held that the Respondent and Hindalco can be treated as
one concern. The facts of the present case are totally different
and do not warrant lifting of corporate veil, assuming there is one.
The evidence in the present case does not justify the application
of “lifting the corporate veil”. In respect of the contract which H
968 SUPREME COURT REPORTS [2022] 4 S.C.R.

A was entered into by the Respondent with DEPL, the tender was
floated by ONGC in 2005 and the contract was entered into in
2006. There is no material to show that the Respondent awarded
the contract to DEPL because it was in fact the Claimant and/or
was supported by the Claimant. The minutes of the meeting held
by the Respondents for short-listing of bidders in respect of that
B
contract have not been produced. The only witness produced by
ONGC was not present at the meetings held by the executive
purchase committees when deliberations on the award of the
contract to the recommended bidder took place [Of Answer to
Question 39 in the cross-examination of the same witness in the
C first arbitration between ONGC and DEPL relied upon in this
arbitration]. There is no evidence to show that in order to secure
the said contract, DEPL represented that it was a part of the
Claimant group. The Respondent contends that an employee of
the Claimant namely Mr Mohan Ramanathan attended the pre-
D bid meeting and customs hearing in connection with their contract
with DEPL. The Claimant in the evidence of its witness CW-2
Ms. Dalvi has stated that Mr Ramanathan had attended the pre-
bid meeting and customs hearing at the request of DEPL and as a
representative of DEPL on account of his expertise in these areas.
She has also stated that she was asked by Mr. Ramanathan to
E attend the customs duty hearing on behalf of DEPL. The Claimant
has also pointed out that Mr. G.D. Sharma, an employee of the
Claimant attended certain meetings and signed letters etc. only
on behalf of DEPL and has signed these expressly on behalf of
DEPL.”
F 44. The Tribunal also observed that JDIL had not furnished any
guarantee or letter of comfort to ONGC in respect of the liabilities of
DEPL. The emails addressed by the Managing Director of JDIL to the
owners of the vessel were not from an official email address but from
personal email addresses. The Arbitral Tribunal held that there was no
G basis for the allegation that DEPL was incorporated to defraud the
creditors. Thus, the Tribunal observed that JDIL and DEPL maintained
a separate legal character throughout.
45. In the earlier proceedings instituted by ONGC against both
DEPL and JDIL, the Arbitral Tribunal had by its interim award dated 27
October 2010 upheld JDIL’s plea of a lack of jurisdiction and held that
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JDIL could not be impleaded. In paragraph 31 of the Arbitral Award in A
the second proceeding, dated 9 October 2013 between ONGC and JDIL,
the Arbitral Tribunal adverted to the interim award 27 October 2010 in
the first proceeding and agreed with those findings. The relevant extract
reads as follows:
“31. In the present case the Respondent ONGC had earlier initiated B
arbitration proceedings against both DEPL and the Claimant before
an Arbitral Tribunal consisting of Justice Kurudukar [presiding
arbitrator], Justice Rane and Mr Venkateshwaran, Senior
Advocate. By its ‘interim final award’ dated 27-10-2010 the
Arbitral Tribunal held that in the dispute between the Respondent
and DEPL, the Claimant could not be impleaded. It rejected the C
contention of ONGC that the Claimant was liable under the said
contract between ONGC and DEPL. The arguments advanced
before us were also advanced before it. In fact the evidence of
Respondents witness Anindya Bhattarcharya is common in both
the arbitrations. That Arbitral Tribunalrejected the contention of D
the Respondent and directed that the name of Claimant should be
deleted from the said proceedings. The order has been upheld by
the High Court in the petition filed by ONGC under Section 16 of
the Arbitration and Conciliation Act 1996 by its order dated 27
June 2012. We are informed that an SLP is pending. There is now
a final award dated 6 June 2013 given by the aforesaid Arbitral E
Tribunal in the arbitration proceedings between the Respondent
and DEPL where the Respondents have been held entitled to
recover from DEPL a sum of Rs 6387.37 lakhs as well as US
dollars 1756197.50 with interest at 9% per annum as set out therein
and have been granted other reliefs as set out therein. After the F
Claimant took out the present arbitration proceedings, ONGC has
filed a suit in the High Court being Suit Number 2947/2011 against
the Claimant and DEPL. The findings of the earlier Arbitral
Tribunal and the High Court in its order of 27 June 2012
support our present conclusions, and we respectfully agree
with the same.” G

(emphasis supplied)
46. It is important to note that in the Arbitral Award in the second
proceeding, no issue of jurisdiction arose since only JDIL and ONGC
were parties and the claim of JDIL arose under four distinct contracts H
970 SUPREME COURT REPORTS [2022] 4 S.C.R.

A of JDIL with ONGC. DEPL was not a party to that proceeding. The
examination-in-chief of ONGC’s witness in the first arbitration proceeding
was treated as an affidavit in the subsequent arbitration involving the
claim by JDIL against ONGC. This Court has been informed that the
cross-examination of the witness in the first arbitral proceeding leading
up to the interim award dated 27 October 2010 was also treated as a
B
cross-examination in the subsequent arbitration. JDIL also led evidence,
inter alia, of its manager in support of its assertion that there were
neither any common directors between JDIL and DEPL nor did JDIL
hold any shares in DEPL.
47. The above narration indicates that the batch of cases which
C
has-been transferred to this Court arises from a claim in arbitration by
JDIL against ONGC under four contracts. The Arbitral Tribunal by its
award dated 9 October 2013 (the Arbitral Award in the second
proceeding) allowed the claim. ONGC did not plead any defence to the
claim on merits. However, ONGC asserted a right to adjust the amounts
D which were due to JDIL against the claims which ONGC had against
DEPL under a distinct contract. ONGC asserted that JDIL and DEPL
form one common economic entity and that the group of companies
doctrine would apply. Thus essentially, the grounds on which ONGC
opposed JDIL’s application under Section 16 in the first arbitral proceeding
overlap with the basis on which ONGC sought adjustment of the claims
E
due to JDIL in the second arbitral proceeding. There is thus a significant
degree of overlap between the issues which arose before the first Arbitral
Tribunal in its interim award dated 27 October 2010 and those on which
the Arbitral Tribunal rendered its Arbitral Award dated 9 October 2013
in the second proceeding. As we have seen above, Arbitral Award in the
F second proceeding relied on the findings contained in the interim award
of the first Arbitral Tribunal dated 27 October 2010. In opposing JDIL’s
application under Section 16 before the Arbitral Tribunal consisting of
Mr Justice SP Kurdukar, Mr Justice MS Rane and Mr S Venkateswaran,
ONGC invoked the group of companies doctrine. In the course of its
G statement of claim, ONGC pleaded that DEPL was awarded the contract
by relying on the fact that it is a group company of the DP Jindal Group
of Companies and that JDIL has a vital business interest in DEPL, which
can be said to be an alter ego of JDIL.
48. ONGC pleaded that it had a continuing business relationship
with JDIL for the past several years and this was a major factor which
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weighed with ONGC while deciding to award the contract in favour of A
the DEPL. On the date of the submission of the claim, ONGC had three
subsisting contracts with JDIL. ONGC claimed that DEPL has a close
corporate unity with the Jindal Group of Companies and that it has
consistently represented that they are a group company within the DP
Jindal Group of Companies. According to ONGC, besides the letterheads
B
of DEPL which indicate that it belongs to the DP Jindal Group of
Companies, JDIL has also acknowledged this position on its website.
ONGC also indicated that since DEPL is liable to compensate ONGC
for the loss suffered by it, ONGC has adjusted the monies payable to
JDIL as security to satisfy the award. ONGC led the evidence of its
Chief Manager (MM), Anindya Bhattacharya. The witness for ONGC C
deposed that:
(i) At the pre-bid conference which was held on 7 October
2005, DEPL was represented by Mohan Ramanathan
together with two other persons and he is an employee of
JDIL; D
(ii) In response to the second expression of interest dated 17
October 2005, DEPL submitted its offer which was signed
by GD Sharma on behalf of DEPL;
(iii) GD Sharma holds the position of Manager (Commercial
and Development) with JDIL; E
(iv) In response to ONGC’s invitation for sealed bids from
shortlisted parties on 31 October 2005, DEPL submitted its
bid under a cover letter dated 4 November 2005. The
annexure to the letter contained a resume of DEPL declaring
that it is a part of the DP Jindal Group of Companies which F
has a strong presence in the oil and gas sector and is
engaged in off shore drilling for oil and gas;
(v) Both DEPL and JDIL shared a common addresses and
telephone numbers;
(vi) DEPL was created by the Jindal Group with the definite G
purpose of rendering a particular service to the oil and gas
sector and DEPL has indicated on the website that it works
under the “fraternal hood of the said group”;
(vii) DEPL is promoted and managed by the son and daughter
in law of the Managing Director of JDIL; H
972 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (viii) The bid submitted by DEPL was signed by GD Sharma as
an authorized signatory who is an employee of JDIL;
(ix) The Managing Director of JDIL, Mr Naresh Kumar, had
negotiated with the owners of the vessel for hiring on behalf
DEPL;
B (x) DEPL was incorporated in 2003;
(xi) Mohan Ramanathan who attended the office of ONGC in
connection with the subject contract was the General
Manager of JDIL; and

C (xii) Almost all senior officers of JDIL including its Managing
Director actively took part in matters relating to the hiring
of the vessel, its deployment, performance and related
issues. Therefore, a corporate, financial and functional unity
exists between DEPL and JDIL.

D 49. At the hearing before the first Arbitral Tribunal on 7 July 2009,
the documents which were produced by ONGC’s witness were taken
on the record. Counsel for JDIL objected to these documents on the
ground of relevance and admissibility but stated that he would cross-
examine the witness without prejudice to those contentions. The first
Arbitral Tribunal observed that the rival contentions would be decided
E while disposing of the application under Section 16. ONGC also filed an
application for discovery and inspection before the first Arbitral Tribunal
and the annexure to the application contained a schedule indicating the
disclosures which were sought. The order of the first Arbitral Tribunal
notes the submission of ONGC that the applications for discovery and
F inspection must be decided first and it is only on the completion of the
process that JDIL’s challenge to jurisdiction under Section 16 could be
addressed. The first Arbitral Tribunal deferred a decision on the two
applications until the issue of jurisdiction was decided. The net result is
that the applications for discovery and inspection which were crucial to
ONGC’s claim that there existed functional, financial and economic unity
G between DEPL and JDIL remained to be decided before the application
under Section 16 was taken up. There is merit in the submission which
was been urged on behalf of the ONGC that the application for discovery
and inspection had to be decided before the plea of jurisdiction was
adjudicated upon. The application for discovery and inspection was
intended to facilitate ONGC in its plea that there existed functional,
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financial and economic unity between the two companies. The failure of A
the first Arbitral Tribunal to hear the application for discovery and
inspection goes to the root of its interim award dated 27 October 2010
holding an absence of jurisdiction qua JDIL. The interim award of the
Arbitral Tribunal in the first proceeding, dated 27 July 2010 refers to the
documents which were produced by ONGC and to the submission that
B
neither DEPL nor JDIL had led any evidence to controvert the
documentary and oral evidence adduced by ONGC. The first Arbitral
Tribunal upheld the plea of jurisdiction that JDIL is neither a party to the
contract nor had it submitted a bid to ONGC which resulted in the
formation of the contract. The Tribunal held that the agreement was
only between ONGC and DEPL and that in terms of Section 7, an C
agreement to arbitrate is between the parties to the agreement. While
observing that the arbitration agreement was only between DEPL and
ONGC, the Tribunal held that neither was there an arbitration agreement
between ONGC and JDIL nor was JDIL a signatory to the agreement
between ONGC and DEPL. After noting the documents which were
D
relied upon by ONGC, the Tribunal held that there was “no tickle of
evidence to indicate that JDIL”, a distinct incorporated legal entity, ever
played any role to find itself in the contract between JDIL and ONGC.
The executives of JDIL who participated in the contractual dealing were
held to be representatives of DEPL. Reading the interim award dated
27 October 2010 of the first Arbitral Tribunal, the unmistakable impression E
which emerges from the record is that the primary basis for the
determination of an absence of jurisdiction is that the arbitration agreement
was between ONGC and DEPL. The legal foundation of the group of
companies doctrine has not been evaluated, on facts or law. True enough,
the judgment of this Court in Cholo Controls (supra) is of 2013, Cheran
F
Properties (supra) is of 2018 and MTNL (supra) came in 2020.
However, ONGC had clearly laid out the factual and legal foundation
for setting up a case in opposition to the plea of JDIL. The first Arbitral
Tribunal has made a fundamental error of law in not deciding the
application by ONGC on discovery and inspection of documents before
it ruled on jurisdiction. In doing so, the first Arbitral Tribunal’s interim G
award dated 27 October 2010 goes against the principles of natural
justice. The failure to consider the application for discovery and inspection
of documents results in a situation where vital evidence that could have
assisted the Tribunal in its determination of the challenge under Section
16 was shut out. As a matter of fact, it emerged from the record that no
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974 SUPREME COURT REPORTS [2022] 4 S.C.R.

A evidence was adduced by JDIL in support of its plea of the absence of
jurisdiction under Section 16. JDIL having taken the plea of absence of
jurisdiction was required to establish the grounds on which it set about to
establish its plea.
50. Based on the above discussion, the interim award of the first
B Arbitral Tribunal stands vitiated because of:
(i) The failure of the arbitral tribunal to decide upon the
application for discovery and inspection filed by ONGC;
(ii) The failure of the arbitral tribunal to determine the legal
C foundation for the application of the group of companies
doctrine; and
(iii) The decision of the arbitral tribunal that it would decide
upon the applications filed by ONGC only after the plea of
jurisdiction was disposed of.
D D Conclusion
51. For all the above reasons we have come to the conclusion
that there was a fundamental failure of the first Arbitral Tribunal to
address the plea raised by ONGC for attracting the group of companies
doctrine. Moreover, by leaving the application filed by ONGC for
E discovery and inspection unresolved, the first Arbitral Tribunal failed to
allow evidence which may have had a bearing on the issue of whether
JDIL could be considered to have an economic unity with DEPL and
could hence be made a party to the arbitral proceedings.
52. For the above reasons, we are of the view that:
F
(i) The interim award of the Arbitral Tribunal dated 27 July
2010 on the plea raised by JDIL under Section 16 has to be
set aside;
(ii) The judgment of the Single Judge of the Bombay High Court
G dated 27 June 2012 dismissing ONGC’s appeal under Section
37 would have to be set aside;
(iii) The plea by JDIL that the Arbitral Tribunal lacks jurisdiction
would have to be decided afresh. In this regard, this Court
was informed that one of the three arbitrators has died and
H that the Arbitral Tribunal cannot be reconstituted. We
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accordingly direct that ONGC and JDIL shall each nominate A
their arbitrators within a period of two weeks from the date
of this judgment while the two arbitrators shall nominate
and appoint the third arbitrator. The Arbitral Tribunal so
reconstituted shall decide afresh upon the plea of JDIL in
regard to the absence of jurisdiction after furnishing to the
B
parties the opportunity of leading any further evidence or
seeking the production of further documentary material on
the record. The evidence and documentary evidence which
has been already adduced before the earlier Arbitral Tribunal
shall however form part of the record of the newly
constituted Tribunal; C
(iv) As regards the cases which have been transferred to this
Court, we would order and direct that these cases be
remitted back to the Bombay High Court. The decision on
those appeals which arose from the dismissal by the Single
Judge of the petition under Section 34 challenging the Arbitral D
Award dated 9 October 2013 in the second proceeding, in
favour of JDIL, shall be held in abeyance and remain
adjourned sine die until the Arbitral Tribunal which is
reconstituted in terms of the above directions rules on its
jurisdiction and in the event that it rejects the plea challenging
E
its jurisdiction, until the arbitral award is delivered in relation
to ONGC’s claim against JDIL; and
(v) During the pendency of these proceedings, ONGC was
directed to deposit the amount due under the Arbitral Award
in the second proceeding dated 9 October 2013, which was
F
permitted to be withdrawn by JDIL subject to furnishing a
bank guarantee which shall be kept alive during the
pendency of the proceedings before the Bombay High
Court. The bank guarantee furnished by JDIL shall be kept
alive to the satisfaction of the Prothonotary and Senior
master of the Bombay High Court. G
53. For the above reasons, we issue the following directions:
(i) The judgment of the Single Judge of the Bombay High Court
dated 27 June 2012 in Arbitration Petition No 814 of 2011 is
set aside;
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976 SUPREME COURT REPORTS [2022] 4 S.C.R.

A (ii) The appeal filed by ONGC under Section 37 of the Act of
1996 against the interim award of the Arbitral Tribunal dated
27 October 2010 is allowed and the interim award of the
Tribunal dated 27 October 2010 shall stand set aside;
(iii) A fresh Arbitral Tribunal shall be constituted by ONGC and
B JDIL each nominating their arbitrators within a period of
two weeks from the date of this judgment and the two
arbitrators thereafter will jointly appoint the third arbitrator;
(iv) The present judgment will not have any bearing on the arbitral
award dated 6 June 2013 passed in favour of ONGC against
C DEPL;
(v) The transferred cases shall stand remitted back to the
Bomaby High Court. The hearing of the transferred cases
is adjourned sine die so as to await the outcome of the
arbitral proceedings between ONGC and JDIL in terms of
D (iii) above;
(vi) In pursuance of the interim orders of this Court, ONGC
was directed to deposit the amount due to JDIL under the
Arbitral Award in the second proceeding dated 9 October
2013 which was permitted to be withdrawn by JDIL subject
E to furnishing a bank guarantee. The bank guarantee
furnished by JDIL shall be kept alive to the satisfaction of
the Prothonotary and Senior master of the Bombay High
Court pending the disposal of the arbitration appeals against
the judgment of the Single Judge dated 28 April 2015
dismissing the petition under Section 34 challenging the
F arbitral award dated 9 October 2013; and
(vii) Upon the reconstitution of the Arbitral Tribunal, the plea of
JDIL under Section 16 shall be decided afresh. All the rights
and contentions in that regard are kept open to be decided
by the arbitral tribunal. The oral and documentary evidence
G which was produced before the earlier arbitral tribunal shall
form part of the proceedings before the fresh Arbitral
Tribunal to be constituted in pursuance of the above
directions. ONGC would be at liberty to pursue its
application for discovery and inspection and to seek further
directions before the Arbitral Tribunal. Parties would be at
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liberty to apply for leading further evidence before the A
Arbitral Tribunal if they are so advised.
54. The appeal is allowed in the above terms. The transferred
cases are remitted back to the Bombay High Court for disposal in the
light of the above directions.
55. Pending application(s), if any, stand disposed of. B

Bibhuti Bhushan Bose Appeal allowed.
(Assisted by : Neha Sharma, LCRA)

C

D

E

F

G

H