Gujarat High Court
M/S Jai Bharat Steel Company vs Mountain Shipping Ltd on 10 November, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/OJA/5/2025 JUDGMENT DATED: 10/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/O.J.APPEAL NO. 5 of 2025
In R/ADMIRALTY SUIT NO. 20 of 2022
With
CIVIL APPLICATION (OJ) (FOR STAY) NO. 1 of 2025
In R/O.J.APPEAL NO. 5 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
================================================================
Approved for Reporting Yes No
================================================================
M/S JAI BHARAT STEEL COMPANY
Versus
MOUNTAIN SHIPPING LTD & ANR.
================================================================
Appearance:
MR. HARSHIT S. TOLIA, SENIOR ADVOCATE with DHRUV TOLIYA(9249)
for the Appellant(s) No. 1
MR C B UPADHYAYA(3508) for the Opponent(s) No. 2 with MR. PARAM
DAVE, ADVOCATE
===============================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 10/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This appeal has been preferred by the appellant under Section 14 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 for following reliefs:
"A. To set aside oral judgment dated 26.08.2025 passed by the Ld. Single Judge of this Hon'ble Court in Admiralty Suit NO.20 of 2022 with Civil Application No.1 of 2022 in Page 1 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Admiralty Suit No.20 of 2022."
2. By the impugned judgment, the Single Judge has disposed of the Admiralty Suit by relegating the parties to the remedy of Arbitration while keeping all the contentions open and further directed that the amount of Rs.25,00,000/- deposited by the respondent No.2(defendant No.2) to be paid back to respondent No.2 with accrued interest.
3. The challenge is mainly on contentions that (1) the defendant No.2 was not party to the Arbitration Agreement as the Arbitration Agreement is exclusively between the appellant and respondent No.1 only, (2) that the respondent No.2 does not fall in definition of a person claiming through respondent No.1 as is required under Section 45 of Arbitration Act, (3) that the respondent no.2 has not even asserted for reference to the arbitration as issue No.5 decided by impugned judgment does not contemplate reference to arbitration as same issue was already decided, (4) having treated as an issue under Order 14 Rule 2 as an preliminary issue it was a mixed question of law and fact which required a trial, (5) lastly the impugned judgment is completely against the decision of the Apex Court in case of Cox and Kings Limited v/s. SAP India Private Limited and Another, reported in 2024 (4) SCC 1 (2023 INSC 1051).
4. The facts in brief from the long drawn litigation across jurisdiction and relevant for our purpose are that the Appellant had undergone a Memorandum of Agreement (hereinafter referred to as, "MOA") dated 18.09.1998 with the Respondent No.1 (Original Defendant No.1) for the purchase of a vessel namely M. V. Irene for a total purchase price of USD 776,832.00. The Clause 18 of the said MOA stipulated that if any dispute arises in connection with Page 2 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined the interpretation and fulfillment of the said MOA, the same shall be decided by arbitration.
4.1 Pursuant to the MOA, the High Court of Bombay had directed the arrest of the vessel in Admiralty Suit No.79 of 1998. The court would refer to this litigation at an appropriate stage.
4.2 The Appellant had preferred a Special Civil Suit No.36 of 1999 before the Ld. Civil Court at Bhavnagar against Mountain Shipping Limited i.e., the Respondent No.1 herein, seeking damages to the tune of Rs.1,20,00,000/- with an interest of 18%. The Appellant came to the know that an entity named and styled as, "Mountain Shipping Limited (C/o Symco Shipping Ltd.) bearing exactly same address as the Respondent No. 1 namely Anslem Shipping had undergone a MOU dated 28.12.1998 with a firm namely M/s Guru Ashish Shipbreakers. The Appellant preferred an application as per Order 1 Rule 10 read with Order 6 Rule 17 of the Civil Procedure Code, 1908 (hereinafter referred to as, "CPC") below Exh. 14 seeking to join Anslem Shipping (Respondent No.2 herein) as a party to the Special Civil Suit No.36 of 1999. The Special Civil Suit No.36 of 1999 came to be transferred to the Ld. Commercial Court at Rajkot and came to be numbered as the Commercial Civil Suit No.5 of 2018. The Judge of the Commercial Court at Rajkot vide order dated 30.10.2018 passed below Exh.1 transferred the said Commercial Civil Suit No.5 of 2018 to the High Court of Gujarat by determining that the dispute leading to the said suit falls within the definition of a 'Maritime Claim' as per Section 4(r) of the Admiralty Act. The Commercial Civil Suit No.5 of 2018 was transferred to the High Court of Gujarat and the same is the present proceedings being Admiralty Suit No.20 of 2022. This Court vide oral judgment dated 26.08.2025 passed by this Court in Admiralty Suit No.20 of 2022 with Civil Application No.1 of 2022 in Page 3 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Admiralty Suit No.20 of 2022 has decided the Issue No.5 as the preliminary issue and referred the dispute to arbitration.
5. Therefore, the appellant had purchased M.V.Irene Ship for demolition and scrap from the respondent No.1. To enable the appellant, take the possession of M.V.Irene he was supplied with "No Charge" certificate by respondent No.1 which according to the appellant was a forged document as a result of which the appellant though having paid consideration to respondent No.1 had to face obstacle in getting the possession belatedly. The root of the dispute is therefore, an order of the Bombay High Court in Admiralty Suit No. 79 of 1998 came to be served on the plaintiff, wherein a case in connection with the ship was instituted before the Bombay High Court by Saint George Shipping Co., praying for recovery of USD 3,25,000, wherein, though the plaintiff was not made a party, the defendant is a party and the Bombay High Court has arrested the ship. Moreover, the Gujarat Maritime Board had informed the plaintiff about the stay order of the High Court against breaking of the ship. Thus, though the ship bear charge, the defendant conveyed to the plaintiff that there was no charge on the ship and issued a certificate thereof, collected money from the plaintiff and then served this order on the plaintiff. In the case on hand, when the defendant conveyed the physical delivery to the plaintiff, a case was already instituted against the defendant, i.e. the suit came to be admitted before 25.11.1998 and an order of the Court came to be served on the plaintiff thereafter. That means, relying on the defendant's words, the plaintiff remitted the defendant the full amount. However, as this case had been instituted and the High Court had issued a stay order, though the plaintiff had remitted the amount in full, the defendant had put the plaintiff in a situation where the plaintiff cannot make any use of the ship.
Page 4 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined 5.1 The respondent No.1 herein has committed a fraud with the plaintiff and has put the plaintiff in a bankruptcy-like situation, cheated, collected money, willfully fabricated the documents and handed over the plaintiff such documents and collected a sum of USD 6,85,797, i.e. Rs.2,91,4 (sic.). Though there was a charge on the ship and an injunction had been issued by the Court, the defendant concealed these facts and collected a huge amount from the plaintiff and thereby put the plaintiff in huge losses and absolved himself from all the liabilities. Therefore, the plaintiff is entitled to recover, from the defendant, all the losses likely to be caused until obtaining back the possession of the ship from the defendant and the loss-amount of Rs. 1,20,00,000/- already caused to the plaintiff.
6. With this cause of action, the appellant filed the Special Civil Suit No.36 of 1999 before Bhavnagar Civil Court (S.D.) praying inter alia as under:-
"B. That the plaintiff may be able to recover the amount if the Court is pleased to issue a permanent injunction to the effect that, until recovery of dues and release of our ship 'Irin-P', the defendant owned ship namely M.V. Orient Strides which is anchored at Alang at present shall not, either by self or through any servant, agent or a third party, be sold or conveyed its possession to anyone or breached anywhere else, directly or indirectly."
7. Learned senior advocate has therefore, argued that Special Civil Suit No.36 of 1999 before the Ld. Civil Court at Bhavnagar only against Mountain Shipping Limited as the Defendant Party i.e., the Respondent No.1 herein, seeking damages to the tune of Rs.1,20,00,000/- with an interest of 18%. In the meantime, the Appellant came to the knowledge that an entity named and styled as, "Mountain Shipping Limited" (C/o Symco Shipping Ltd.) bearing exactly same address as the Respondent No.1 namely Anslem Page 5 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Shipping had undergone a MOU dated 28.12.1998 with a firm namely M/s Guru Ashish Shipbreakers. In light of the above, the Appellant preferred an application as per Order 1 Rule 10 read with Order 6 Rule 17 of the Civil Procedure Code, 1908 (hereinafter referred to as, "CPC") below Exh.14 seeking to join Anslem Shipping as a 99. party to the Special Civil Suit No.36 of 1999. That, the Appellant before the Ld. Single Judge was Respondent No.2 was joined as a party to the suit only with a view to ensure proper service. Although, there is no explicit agreement and/or MOU much less an arbitration clause between the Appellant and the Respondent No.2.
7.1 While the Respondent No.1 has gone unrepresented before this Court, the contention of the Respondent No.2 was that nowhere in the entire suit or before this Court, the Appellant had raised the plea that the Respondent no.2 was not signatory to the MOA dated 18.09.1998. Therefore, the Single Judge erred in not considering that the arbitration agreement in Clause 18 of the MOA dated 18.09.1998 was executed solely between the Appellant and the Respondent No.1. The Respondent No.2 was not a signatory.
8. It is submitted that the Single Judge erred in not considering the settled law (e.g., Delhi Iron & Steel Co. v. U.P. Electricity Board 2001 SCC OnLine Del 491; Vishranti CHSL v. Tattva Mittal 2020 SCC OnLine Bom 7618) that arbitration agreements, being personal in character, cannot be transferred without explicit written consent. Therefore also, impugned order is required to be set aside.
8.1 It is submitted that Single Judge erred by not considering that the existence of an expressed and explicit arbitration clause is Page 6 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined purely consensual and corporate identity doctrines cannot substitute the requirement of express consent. Even if Respondents 1 and 2 are "under the same corporate umbrella," that only establishes potential liability and in any case, does not substitute contractual arbitration obligations. The Single Judge conflated these two distinct legal doctrines and thereby erred. Therefore also, impugned order is required to be set aside.
8.2 It is submitted that impugned judgment essentially hinges on the judgment of the Hon'ble Supreme Court passed in the case of Cox & Kings Limited v. SAP India Pvt. Ltd. reported in (2024) 4 SCC 1 (hereinafter referred to as, "Cox & Kings"). It is submitted that nowhere does the said judgment mandate reference of every dispute involving a non-signatory to arbitration but it only recognizes that, in limited situations (e.g., group of companies doctrine), a non-signatory may be bound if a clear intention is demonstrated. It is submitted that the Issue No.5 ("Whether the suit is maintainable in its present form") is a mixed question of fact and law. The question whether arbitration applies to a non- signatory requires leading of evidence. The Civil Court in the earlier occasions had already held that maintainability was not a pure legal issue but required trial. Despite this, the Ld. Single Judge treated it as a preliminary legal issue under Order XIV Rule 2 CPC, contrary to several rulings of the Hon'ble Supreme Court of India. Therefore also, impugned order is required to be set aside.
8.3 It is submitted that the Respondent No.2 had previously moved multiple applications (Exh.21, Exh.46, Exh.121) seeking reference to arbitration before the Ld. Civil Court at Bhavnagar and the same were rejected vide well-reasoned and detailed orders which were never challenged by the Respondent No.2. The doctrine of estoppel and constructive res judicata barred the Respondent Page 7 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined No.2 from re-agitating the same issue. The finality of earlier orders rejecting the application of Respondent No.2 under the A&C Act have been completely overlooked and therefore, the impugned order requires to be quashed and set aside.
9. The Respondent No.2, after an inordinate lapse of 23 years sought to exercise powers of this Hon'ble Court under Order 14 Rule 2 of the CPC in the captioned Admiralty Suit No.20 of 2022 to determine and dispose off the Issue No.5 - 'Whether the suit is maintainable at law in the present form?' as a preliminary issue. It is further submitted that from the beginning that is from the time respondent No.2 is arraigned as party respondent in the Civil Court it has been his consistent stand that he cannot be arraigned as party as he is not a signatory to 1998 MOA and therefore, he cannot take a U-turn and take shelter of the very MOA.
10. Learned advocate for respondent in support of the impugned judgment submitted that as a matter of fact the appellant has liquidated the assets M.V.Irene and has therefore, received his worth of the consideration paid for the transaction and therefore, there is no cause for this admiralty claim especially against the vessel M.V.Orient Stride.
11. It is submitted that it is the appellant's own conduct of joining, respondent No.2 as a party respondent and therefore, now it cannot be permitted to take a stand that the respondent No.2 does not become a party claiming through respondent No.1.
12. Learned advocate has taken this Court through the order dated 15.06.2023 passed in Admiralty Suit No. 20 of 2022 to submit that this order already concluded that the case is made out for reference to arbitration which has not been challenged by the appellant and therefore, finding has attained finality.
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13. The Court has heard learned advocates for the parties and perused the documents placed on record. It is a case where the learned Judge of this Court in the impugned order came to the conclusion that the Admiralty Suit of the appellant is not required to be proceeded further, but instead is now required to be referred to the Arbitration in view of the Arbitration Clause in an agreement dated 18.09.1998 between the appellant and respondent No.1. It appears that the respondent No.1 is no more interested in the litigation.
14. The Suit was filed in the Bhavnagar Civil Court for recovery and arrest of the vessel M.V. Orient Stride with a prayer clause as mentioned in the preceding paras. Originally, the suit was only against respondent No.1, later on when the appellant received information or knowledge about commonality of ownership/rights of respondent No.2, that an application for joining respondent No.2 as defendant was filed and allowed. This aspect of joining reached till Hon'ble Supreme Court. Thereafter, the suit was transferred to the Commercial Court constituted. Pending the suit under the Commercial Court Act, the Commercial Court at Rajkot passed an order treating it to be a proceeding under admiralty jurisdiction, thereby transferring the entire suit proceedings to this Court under the admiralty jurisdiction.
15. The brief facts of how the case proceeded is that Pending the proceedings for these many years, various applications were filed and decided. However, some of the applications which will be necessary for our purpose are referred to.
(a) Appellant filed application Exh.14 before the Civil Court at Bhavnagar praying for joining respondent No.2 as defendant No.2 with a specific contention that respondent No.2-Anslem Shipping Limited and respondent No.1- Page 9 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Mountain Shipping Limited are one and the same. The ownership, holding are same and dealings are taking place from the same place. This application was allowed by an order dated 08.02.1999 and the cause title was amended to add defendant No.2.
(b) Application Exh.21 was given by respondent No.1, specifically praying that the Civil Court at Bhavnagar lacks jurisdiction to try the suit in view of Section 20 of Code of Civil Procedure and Arbitration and Conciliation Act, 1996 and praying for "maintainability" to be decided as a preliminary issue. This application was decided by order dated 02.08.2002 below Exh.21, which reads as under:-
"1. Heard the learned advocate of both the sides at length. Read the application and reply filed at Ex.34. Mr.B.H. Upadhvav has made submission that present suit is not tenable as there is a specific clause of arbitration in Mon executed between the parties and as per the clause if any dispute arises between the parties that can be solved only preferring Metter before arbitration, therefore, this Court has Learned advocate got no jurisdiction. Hence, preliminary issue regarding to jurisdiction is required to be framed and urged to frame preliminary Issue and decide instead of taking full fledged evidence. While Mr.V.N.Ravani defendant has made fraud in executing MOA by suppressing material fact to has made submission that of pending litigation in Admiral Court at Bombay and prior cannot of execution of MOA. Admiral Court had issued warrant against this disputed ship. Therefore, MOA is basically executed by fraud. So now, defendant cannot raise this dispute of jurisdiction under the guise of clause of arbitration and urged to raise preliminary issue of jurisdiction. From, rival contention and record. it appears that the mixed question facts and law is involved in present case and decide whether defendant has committed fraud in executing MOA with plaintiff. Therefore, for the reasons stated above. I come to the conclusion to reject present application and pass the following order Page 10 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Present application stands rejected."
(c) Application Exh.32 was filed by respondent No.2 for setting aside the order of status-quo regarding the vessel where the main contention of the defendant No.2 was that both the defendants are separate parties and have no connection whatsoever with the constitution of the company or its business. This application was heard and decided alongwith application Exh.5 and 6 by an order dated 25.02.1999. The operative order would read as under:
"The plaintiff's applications at Exhibit-5 and Exhibit-6 are hereby rejected.
The order dated 19-02-1989, passed below Exhibit-22 in the application directing maintenance of status quo concerning the property of Orient Stride Vessel, is hereby set aside.
In view of the above, since the order to maintain status quo has been cancelled, no further order is required to be passed on the defendant's application at Exhibit-32. Hence, both the said applications stand disposed of accordingly.
A certified copy of this order shall be placed in the records of the applications at Exhibit-6 and Exhibit-32"
This order was a subject matter of challenge in Appeal From Order No.109 of 1999 and 110 of 1999 by the appellant herein. The said Appeal From Order was disposed of by a detailed order dated 08-09-03.1999. The Court may reproduce certain observations and findings in this order as ultimately this order was confirmed by the Hon'ble Supreme Court. It is very pertinent to observe that here the stand of the appellant that respondent Nos.1 and 2 are the same corporate entities and urged the Court to lift the corporate veil. This Court in para-8 held as under:-
"8. There is no dispute that the subject matter of the Page 11 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined sale between the plaintiff and the first defendant was in respect of ship IRENE P, that the plaintiff had paid full consideration representing the purchase price to the first defendant, and that the reliefs sought in the suit against the first defendant pertains to this ship and this transaction alone. There is also no dispute that ostensibly and so far as the records are concerned, the ship M.V. ORIENT STRIDE belongs to the second defendant. However, in view of the lengthy and detailed allegations made against the conduct of the defendants and the conduct of the business of both the defendants, it is the plaintiff's case that the business of two defendants and the sale by the first defendant to the plaintiff in the ship of IRENE-P are so intimately and inextricably intertwined, that for all practical purposes, defendant nos.1 and 2 must be regarded to be one entity, and/or must be deemed to be sharing a common shelter or umbrella of common management, common finances, common aims, common conduct of business, etc., and it is in this context that the plaintiff invokes the doctrine of "lifting the corporate veil."
In para-15, it is held as under:
"15. There is yet another factual aspect of the matter which cannot be over-emphasised. It appears that before the ship IRENE-P was actually sold to the plaintiff, the same was preceded by negotiations. Such negotiations ultimately culminated in an informal agreement, i.e. there was a meeting of minds whereby the plaintiff was willing to purchase the ship in question, on the various terms and conditions being agreeable to the parties. As is customary in the trade, the contract of sale of the ship in question was to be formalised by what is called a Memorandum of Agreement (MOA). When the seller and the purchaser had signed the MOA, the same would have resulted in a concluded sale (subject to the passing of the consideration contemplated therein). At this stage the formal document called the MOA, which would have required the signature of the purchaser viz. the plaintiff, was forwarded to the plaintiff. What is most significant in this regard is that three separate and distinct MOAs were forwarded to the plaintiff, one each by the first defendant, the second defendant and Symco Shipping Limited. Thus, it becomes obvious that Page 12 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined each of the three legal entities which professed to be separate legal entities viz. the first defendant, the second defendant and Symco Shipping Limited, were willing to enter into a formal contract of sale with the plaintiff in respect of the very same ship viz. IRENE-P. At the very least it could be said that each of these three legal entities professed to being capable of transferring complete and legal title in respect of the ship, free from all encumbrances to the plaintiff. Thus, this conduct on the part of the first defendant, second defendant and Symco Shipping Limited establishes the common management, the common policy or at the very least a community of interest shared by the first defendant, second defendant and Symco Shipping Limited."
Ultimately, in para-18, this Court concluded on the defendants share a community of interest.
"18. In view of the aforesaid situation, and the state of the evidentiary material on record, I am satisfied that the doctrine of "lifting the corporate veil" can be justifiably invoked and once this is done, there is sufficient material on record to hold at least on a prima facie basis that the two defendants share a community of interest, even if they do not share a common management, common finances and/or a common corporate umbrella under Symco Shipping Limited."
However, in the penultimate para this Court also observed that the defendants are at liberty for referring the entire dispute for arbitration under Arbitration and Conciliation Act, 1996.
This order was challenged before the Apex Court by respondent No.2 in Special Leave to Appeal (Civil) No.4853- 4856 of 1999 and came to be disposed by under order dated 08.04.1999, permitting respondent No.2 to withdraw. It appears that pursuant to aforesaid direction in Appeal from Order, respondent No.1 furnished the cash security of Rs.25,00,000/- with the Bhavnagar Court, against the release of the vessel 'M.V. Orient Stride'.
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(d) It appears that in the meantime, respondent No.1 had already filed application Exh.46 invoking Section 45 of the Arbitration and Conciliation Act, 1996 seeking arbitration under Clause 18 of the MOA. Clause 18 of the MOA reads as under:-
"18. If any dispute should arise in connection with the interpretation and fulfillment of this agreement, the same shall be decided by arbitration in the City of London, United Kingdom, with English Law to apply and shall be referred to a single Arbitrator to be appointed by the parties hereto. If the parties cannot agree upon the appointment of the single arbitrator, the dispute shall be settled by 3 (three) arbitrators, each party appointing 1 (one) Arbitrator, the third being appointed by London Maritime Arbitration Association in London. If either of the appointed Arbitrators refuses or is incapable of acting, the party who appointed him shall appoint a new Arbitrator in his place. Arbitrators shall be commercial men and not lawyers.
If one party fails to appoint an Arbitrator either originally or by way of substitution for two weeks after the other patty having appointed his Arbitrator, has sent the party default notice, by mail cable or telex to intake the appointment, The London Maritime Arbitration Association shall after application from the party having appointed his Arbitrator also appoint an Arbitrator on behalf of the party making default The award rendered by the Arbitration Court shall be final binding upon the parties and may if necessary be enforced by the Court or any other competent authority in the same manner as a Judgment in the Court of Justice."
No decision was taken of application Exh.46 for a while and another application Exh.121 came to be filed by the defendants invoking arbitration Act definition Clause 2(e) and Order 14 Rule 2 and Section 69 of Partnership Act rejecting the plain again on the ground of lack of jurisdiction.
Both the applications Exh.46 and Exh. 121 came to be decided by a common order dated 30.11.2010. The main Page 14 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined contention of the respondents that only a District Court will have the jurisdiction to try the suit and not the Principal Senior Civil Judge. The contention was rejected and the applications Exh.46 and 121 came to be rejected.
(e) The respondent then filed Application Exh.125 under Order 7 Rule 10 and Order 7 Rule 11(d) of the Code of Civil Procedure for dismissal of the suit and return of the plaint on lack of jurisdiction. By order dated 30.01.2012, application Exh.125 was rejected by holding as under.
"7. It is to be noted here that Hon'ble High Court has decided that Civil Court has jurisdiction to try the application under section 45 of the Arbitration and Conciliation Act First Appeal No.3065 of 2011. It is further to be noted that in the order of this very same Court Hon'ble High Court decided the principle that Civil Court has jurisdiction to try the application under section 45 of the Act. Order below Ex.121 and 46 this Court has observed that this Court has no jurisdiction to try the application under section 45 of the Act. Of course, not observed about the suit and when Hon'ble High Court has decided that the Civil Court has jurisdiction to try the application under the section 45 of the Act Civil Court has jurisdiction then the this application is not maintainable if an error made by Civil Court can be rectified in further proceeding. When it is under the special knowledge of this particular civil Court that Civil Court has jurisdiction to try the application under section 45 of the Act. Even though, the Court cannot suo moto refer the matter to arbitrator.
8. So, as per above all discussion, when the Civil Court has jurisdiction to try the application under, section 45 of the Arbitration and Conciliation Act the suit cannot be rejected on that ground that earlier order under Ex.121 and 46 this Court observed that this Court has no jurisdiction to try the application under section 45 and even in this order the Court has not observed about the suit and that is why also the application is not maintainable and I pass the following final, order."Page 15 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025
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(f) Application Ex.142 and Exh.150 came to be filed by appellant under Order 14 Rule 5 and Section 151 for amendment to plaint and framing of an additional issue which came to be allowed and the Bhavnagar Court had formed the issues vide Exh.130. One of the 9 issues framed vide Exh.130 is issue No.5 was whether the suit is maintainable at law in its present form?
16. After the case was transferred to this Court under admiralty jurisdiction, a purshish came to be filed on 15.06.2023, praying for adjudicating issue No.5 as a preliminary issue. This application was filed by respondent No.2 and from and time to time orders were passed however, the Court may refer to one particular order dated 15.06.2023. In this order, after referring to previous order, the Single Judge held that the preliminary issue will have to be decided. It is observed as under:-
"14. Furthermore, as far as the issue No.5 is concerned, since it appears that the said issue is an issue of law more particularly with regard to jurisdiction of this Court and could be decided as such, more particularly without delving into the facts, this Court deems it appropriate to take up the issue as an issue of law under Order 14 Rule 2(2)(a) of the CPC. Furthermore, since it appears that the defendant has not preferred a specific application for taking up the issue No.5 as an issue under Order 14 Rule 2(2) of the CPC and whereas though in the considered opinion of this Court, in view of the dictum of the Hon'ble Apex Court in case of Abdul Rahman Vs. Parsonyn Bai, reported in (2003) 1 SCC 488 that "For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court....", yet to ensure that appropriate opportunity is afforded to the plaintiff to make his submissions on the aspect as to why the issue No.5 should not be taken up as a preliminary issue under Order 14 Rule 2(2)(a) of the CPC and the suit be decided on the said preliminary issue and also to make submissions on the aspect as to why this Court ought not to refer the dispute to be decided by arbitration as per Clause 18 of the Page 16 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined memorandum of agreement between the parties dated 18.09.1998, list these matters on 07.07.2023 for further submissions."
16.1 The aforesaid observation virtually concludes that dispute is to be referred to arbitration. Now, the findings and observations of this order are not challenged by the appellant.
17. Based on the aforesaid order, the matter was again taken up and the impugned judgment was delivered referring the dispute to arbitration.
18. The Court has observed that both the sides are now taking diametrically opposite stand in deciding the preliminary issue to the stand taken by respective parties before the Civil Court at Bhavnagar. Meaning thereby, the appellant's stand was that respondent Nos.1 and 2 are one and the same, which stand has been in a way approved till the Apex Court. While the stand of the respondents has been that both the respondent are two different entities and respondent No.2 not being a signatory to the MOA cannot be brought in its fold. Now, the stand is quite different where appellant's stand is that the respondents, particularly respondent No.2 cannot be treated as a party claiming through respondent No.1 and therefore, cannot invoke arbitration clause of the very MOA and the respondents are claiming that respondent No.2 though not a signatory can invoke arbitration cause of the MOA.
19. Therefore, with this factual background and shifting of stands, the Court is required to consider the application of Section 45 of the Arbitration Clause.
19.1 It is an argument of learned senior advocate for the appellant that to fulfill requirement of Section 45, there has to be request on Page 17 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined behalf of respondent No.2 to refer the dispute to arbitration and the purshish filed by respondent No.2 cannot be treated as such a request. In this contention, the Court is of the view that the framing of the issue No.5 itself amounts to invoking Section 45. Moreover, the order dated 15.06.2023 has permitted issue No.5 to be treated as preliminary issue and therefore, when this Court in the impugned judgment took on itself to decide preliminary issue, it necessarily amounts to invoking of Section 45 of Arbitration and Conciliation Act.
20. The another issue regarding Section 45 is whether respondent No.2 can be treated to be a party claiming through respondent No.1. For this, the Court in the preceding paras has already referred extensively to the orders passed by this Court in the Appeal from Order, which reached till the Apex Court and the conclusive findings of the fact that both the respondent Nos.1 and 2 are one and the same. The Court does not find any reason on fact to differ from such concluded findings.
21. However, in this very connection i.e. to interpret "person claiming through", it is argued by the learned senior advocate for the appellant that the learned Single Judge has erred in giving correct meaning to the law interpreted by the Apex Court in case of Cox and Kings (Supra). It is submitted that the Single Judge has to conclude that respondent No.2 being non-signatory to the MOA is veritable party and that the cumulative factors as prescribed in case of Oil and Natural Gas Corporation Ltd v. Discovery Enterprises Pvt. Ltd. (P) Limited, reported in 2022 (8) SCC 42 existed.
22. The Court will be guided by the authoritative pronouncement of the Apex Court in case of Cox and Kings (Supra). The Court Page 18 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined finds that the learned Single Judge did extensively refer to the aforesaid judgment, but to appreciate the argument of learned senior advocate for the appellant, the Court may once again refer to the same and reproduce certain relevant paras.
23. In the judgment of Cox and Kings (Supra), the bench of five Judges was called upon to determine the validity of "Group of Companies' doctrine in the jurisprudence of arbitration in India. The Bench observed the friction between two decisions of the Apex Court in case of Chloro Controls India (P) Ltd v. Severn Trent Water Purification Inc, reported in, (2013) 1 SCC 641 and Discovery Enterprises Pvt. Ltd (supra) to answer two questions, one of them being 4.1(a) whether the phrase 'claiming through or under' in Sections 8 and 11 could be interpreted to include the 'Group of Companies' doctrine. The question of law for determination of larger Bench were mentioned in paras 5.1 to 5.4. The judgment in Cox and Kings (Supra) devotes chapter E and F to the "Group of Companies doctrine" and "the group of companies doctrine has independent existence".
"115. In Discovery Enterprises (supra), this Court refined and clarified the cumulative factors that the courts and tribunals should consider in deciding whether a company within a group of companies is bound by the arbitration agreement:
"40. 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) i. The mutual intent of the parties;
(ii) ii.The relationship of a non-signatory to a party which is a signatory to the agreement;
(iii) iii. The commonality of the subject-matter; (iv. The composite nature of the transactions; and
(v) The performance of the contract."
116. Since the group of companies doctrine is a consent based theory, its application depends upon the consideration of a variety of factual elements to establish the mutual Page 19 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined intention of all the parties involved. In other words, the group of companies doctrine is a means to infer the mutual intentions of both the signatory and non-signatory parties to be bound by the arbitration agreement. The relationship between and among the legal entities within the corporate group structure and the involvement of the parties in the performance of the underlying contractual obligations are indicators to determine the mutual intentions of the parties. The other factors such as the commonality of the subject matter, composite nature of the transactions, and the performance of the contract ought to be cumulatively considered and analysed by courts and tribunals to identify the intention of the parties to bind the non-signatory party to the arbitration agreement. The party seeking joinder of a non-signatory bears the burden of proof of satisfying the above factors to the satisfaction of the court or tribunal, as the case may be."
XXXXX XXXXX "123. The participation of the non-signatory in the performance of the underlying contract is the most important factor to be considered by the courts and tribunals. The conduct of the non-signatory parties is an indicator of the intention of the non-signatory to be bound by the arbitration agreement. The intention of the parties to be bound by an arbitration agreement can be gauged from the circumstances that surround the participation of the nonsignatory party in the negotiation, performance, and termination of the underlying contract containing such agreement. The UNIDROIT Principle of International Commercial Contract, 2016 provides that the subjective intention of the parties could be ascertained by having regard to the following circumstances:
(a) preliminary negotiations between the parties;
(b) practices which the parties have established between themselves;
(c) the conduct of the parties subsequent to the conclusion of the contract;
(d) the nature and purpose of the contract;
(e) the meaning commonly given to terms and expressions in the trade concerned; and
(f) usages.
XXXXX XXXXX "126. Evaluating the involvement of the non-signatory party Page 20 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined in the negotiation, performance, or termination of a contract is an important factor for a number of reasons. First, by being actively involved in the performance of a contract, a non- signatory may create an appearance that it is a veritable party to the contract containing the arbitration agreement; second, the conduct of the nonsignatory may be in harmony with the conduct of the other members of the group, leading the other party to legitimately believe that the non-signatory was a veritable party to the contract; and third, the other party has legitimate reasons to rely on the appearance created by the non-signatory party so as to bind it to the arbitration agreement."
XXXXX XXXXX.
"133. We hold that all the cumulative factors laid down in Discovery Enterprises must be considered while determining the applicability of the group of companies doctrine. However, the application of the above factors has to be fact- specific, and this Court cannot tie the hands of the courts or tribunals by laying down how much weightage they ought to give to the above factors. This approach ensures that a dogmatic emphasis on express consent is eschewed in favour of a modern approach to consent which focuses on the factual analysis, complexity of commercial projects, and thereby increases the relevance of arbitration in multi-party disputes. Moreover, it is also keeping in line with the objectives of the Arbitration Act which aims to make the Indian arbitration law more responsive to the contemporary requirements."
XXXXX XXXXX "143. An arbitration is founded upon the consent of the parties to refer their disputes to an alternative dispute resolution mechanism. Consequently, third parties typically cannot be compelled to arbitrate based on an agreement to which they have not consented. The phrase "claiming through or under" has not been used either in Section 2(1)(h) or Section 7 of the Arbitration Act. This is because those provisions are based on the concept of party autonomy and party independence, which requires the party to provide consent to submit their disputes to arbitration. On the contrary, a person claiming through or under a party to an arbitration agreement is merely standing in the shoes of the original party to the extent that it is merely agitating the right of the original party to the arbitration agreement."
Page 21 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined "144. The phrase "claiming through or under" has been used in Sections 8, 35, and 45 in their specific contexts. Section 8 contains a mandate that when an action is brought before a judicial authority which is the subject of an arbitration agreement, the dispute shall be referred to arbitration on an application made by a party or any person claiming through or under him. As mentioned above, the phrase "claiming through or under" was inserted in Section 8 to bring it in line with Section 45. Sections 8 and 45 are peremptory in nature mandating the court to refer the parties to arbitration if there is a valid arbitration agreement.118 In A Ayyasamy, it was held that Section 8 imposes an affirmative obligation on every judicial authority to "hold down parties to the terms of the agreement entered into between them to refer disputes to arbitration."119 Thus, the legislative intent behind Sections 8 and 45 is to ensure that parties fulfil their mutual intention of settling disputes arising between or among them by way of arbitration."
"145. Section 35 of the Arbitration Act provides that an arbitral award shall be final and binding on the parties and persons claiming under them respectively. In Cheran Properties, this Court rightly observed that the expression "persons claiming under them" is "a legislative recognition of the doctrine that besides the parties, an arbitral award binds every person whose capacity or position is derived from and is the same as a party to the proceedings." It was further observed that "[h]aving derived its capacity from a party and being in the same position as a party to the proceedings binds a person who claims under it." Similarly, Section 73 also provides that a settlement agreement signed by the parties shall be final and binding "on the parties and persons claiming under them respectively."
"146. Sections 8, 35, and 45 use the phrase "parties or any person claiming through or under". The word "or" is used in Section 8 and 45 as a disjunctive particle to express an alternative or give a choice between "parties" or "any person claiming through or under". Consequently, either the party to an arbitration agreement or any person claiming through or under the party can make an application to the judicial authority to refer the dispute to arbitration. It is in the interest of respecting the intention of the parties and promoting commercial efficacy, that the above provisions allow either the party or any person "claiming through or under him" to refer the disputes to arbitration."
Page 22 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined "147. On the other hand, Sections 35 and 73 use the phrase "parties and persons claiming under them". The use of the word "and" in Sections 35 and 73 conveys the idea that "parties" is to be added or taken together with the subsequent phrase "any person claiming through or under." The above provisions provide that an arbitration award binds not only the parties but also all such persons who derive their capacity from the party to the arbitration agreement. Again, the foundational basis for this provision is commercial efficacy as it ensures that an arbitral award leads to finality, such that both the parties and all persons claiming through or under them do not reagitate the claims. Moreover, the use of the word "and" in Sections 35 and 73 leads to an unmistakable conclusion that under the Arbitration Act, the concept of a "party" is distinct and different from the concept of "persons claiming through or under" a party to the arbitration agreement."
XXXXX XXXXX "166. The above position of law leads us to the inevitable conclusion that at the referral stage, the court only has to determine the prima facie existence of an arbitration agreement. If the referral court cannot decide the issue, it should leave it to be decided by the arbitration tribunal. The referral court should not unnecessarily interfere with arbitration proceedings, and rather allow the arbitral tribunal to exercise its primary jurisdiction. In Shin-Etsu Chemical Co Ltd v. Aksh Optifibre Ltd, 125 this Court observed that there are distinct advantages to leaving the final determination on matters pertaining to the validity of an arbitration agreement to the tribunal:
"74.... Even if the Court takes the view that the arbitral agreement is not vitiated or that it is not valid, inoperative or unenforceable, based upon purely a prima facie view, nothing prevents the arbitrator from trying the issue fully rendering a final decision thereupon. If the arbitrator finds the agreement valid, there is no problem as the arbitration will proceed and the award will be made. However, if the arbitrator finds the agreement invalid, inoperative or void, this means that the party who wanted to proceed for arbitration was given an opportunity of proceedings to arbitration, and the arbitrator after fully trying the Page 23 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined issue has found that there is no scope for arbitration."
"167. In Chloro Controls, this Court held that it is the legislative intent of Section 45 of the Arbitration Act to give a finding on whether an arbitration agreement is "null and void, inoperative and incapable of being performed" before referring the parties to arbitration. In 2019, the expression "unless it prima facie finds" was inserted in Section 45. In view of the legislative amendment, the basis of the above holding of Chloro Controls has been expressly taken away. The present position of law is that the referral court only needs to give a prima facie finding on the validity or existence of an arbitration agreement."
"168. In Deutsche Post Bank Home Finance Ltd v. Taduri Sridhar, two Judge Bench of this Court held that when a third party is impleaded in a petition under Section 11(6) of the Arbitration Act, the referral court should delete or exclude such third party from the array of parties before referring the matter to the tribunal. This observation was made prior to the decision of this Court in Chloro Controls and is no longer relevant in light of the current position of law. Thus, when a non-signatory person or entity is arrayed as a party at Section 8 or Section 11 stage, the referral court should prima facie determine the validity or existence of the arbitration agreement, as the case may be, and leave it for the arbitral tribunal to decide whether the nonsignatory is bound by the arbitration agreement."
"169. In case of joinder of non-signatory parties to an arbitration agreement, the following two scenarios will prominently emerge: first, where a signatory party to an arbitration agreement seeks joinder of a non-signatory party to the arbitration agreement; and second, where a non- signatory party itself seeks invocation of an arbitration agreement. In both the scenarios, the referral court will be required to prima facie rule on the existence of the arbitration agreement and whether the non-signatory is a veritable party to the arbitration agreement. In view of the complexity of such a determination, the referral court should leave it for the arbitral tribunal to decide whether the nonsignatory party is indeed a party to the arbitration agreement on the basis of the factual evidence and application of legal doctrine. The tribunal can delve into the factual, circumstantial, and legal aspects of the matter to decide whether its jurisdiction extends to the non-signatory party. In the process, the tribunal should comply with the Page 24 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined requirements of principles of natural justice such as giving opportunity to the non-signatory to raise objections with regard to the jurisdiction of the arbitral tribunal. This interpretation also gives true effect to the doctrine of competence-competence by leaving the issue of determination of true parties to an arbitration agreement to be decided by arbitral tribunal under Section 16."
Thereafter, the Apex Court has proceeded to draw conclusion in Chapter H, which is already reproduced in impugned judgment.
24. In the context of the present case, which arises out of admiralty jurisdiction and where the maritime claim is to be satisfied by making a claim in Rem and particularly where the concept for proceeding against the sister Vessel is very much provided in a maritime claim, the sister vessel is always amenable to the maritime claim. This Court while dealing with a maritime claim now under the Admiralty Act, 2017 has held in O.J. Appeal No.2 of 2023 in Admiralty Suit No.03 of 2016 in case of Monjasa Ltd. v/s. M.T.Alpine Duke (IMO 9470909) in para 89 to 91 as under:-
"89. The argument that the owner of a vessel need not be made a party since the claim is an action in rem and it would be sufficient to array only the vessel, as held by the Apex Court in MV Elizabeth's case, cannot be accepted. It is to be stated here that when the Apex Court rendered its decision in 1992, the 2017 Act was not in existence and the Apex Court was considering a case in which the jurisdiction of the Andhra High Court in exercising its admiralty jurisdiction was being questioned on the ground that the said High Court had no jurisdiction under the then existing laws. The Apex Court on a comparison of the traditional principles governing admiralty jurisdiction which were regulated in India under the colonial laws held that there did exist jurisdiction in the High Courts and the High Courts could devise procedural rules to exercise the admiralty jurisdiction. However, the Apex court pointed out the pressing need for a statute to be enacted to clearly regulate the admiralty jurisdiction. Thus, the principles laid down there in relation to an action in rem in MV Elizabeth's case cannot ipso facto apply after the 2017 Page 25 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Act has been enacted and brought into force.
90. Once there is a statute which defines and regulates the exercise of admiralty jurisdiction, it would not be proper to rely upon traditional principles of admiralty jurisdiction, and it would be essential the law as enacted after the judgment was pronounced be applied. Consequently, the reliance placed in MV Elizabeth's case to contend that an action in rem would enable a plaintiff to proceed against the vessel would be incorrect.
91. As already pointed above, since S. 5 (1) (a) of the Act clearly stipulates that the Court can order the arrest of a vessel in action in rem only if it has reason to believe that the owner of the vessel was responsible for the claim when the maritime claim arose and continued to be the owner when the order of arrest is being passed, the High Courts are bound to ascertain the ownership of the vessel and for this exercise, the presence of the owner in such a proceeding, even if it is an action in rem, would be absolutely necessary."
The aforesaid observations by this court therefore makes it imperative to make the owner of the sister vessel to be party in the admiralty suit.
24.1 Therefore, in the opinion of the Court, the principles enunciated by the Apex Court in Cox and Kings (Supra) "Person claiming through" should apply with much more vigor to the Admiralty Suit.
25. This Court would particularly refer to the para-169 of the Cox and Kings (supra) to conclude that the issues would be still at large for the Tribunal to decide. To answer the argument about "Veritable Party", advanced by the learned senior advocate for the appellant, the Court may refer to the dictionary meaning of word 'Veritable'. Oxford English Reference Dictionary states meaning of 'Veritable' to mean 'real', 'rightly so called'. This is therefore, used in the context of the non-signatory party is a genuine, existent and identifiable party and not any imaginary non existing one. This Page 26 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined Court on more than one occasion has given the finding of respondent No.2 to be a veritable party and can be said to be claiming through respondent No.1.
26. With regard to the existence of the cumulative factors laid down in Discovery (Supra), being (i) mutual intent of the parties,
(ii) The relationship of a non-signatory to a party, which is signatory to the agreement, (iii) commonality of the subject matter,
(iv) the composite nature of transaction and (iv) The performance of the contract. In para-133 of Cox and Kings (Supra), the Apex Court has held as under:-
"133. We hold that all the cumulative factors laid down in Discovery Enterprises must be considered while determining the applicability of the group of companies doctrine. However, the application of the above factors has to be fact- specific, and this Court cannot tie the hands of the courts or tribunals by laying down how much weightage they ought to give to the above factors. This approach ensures that a dogmatic emphasis on express consent is eschewed in favour of a modern approach to consent which focuses on the factual analysis, complexity of commercial projects, and thereby increases the relevance of arbitration in multi-party disputes. Moreover, it is also keeping in line with the objectives of the Arbitration Act which aims to make the Indian arbitration law more responsive to the contemporary requirements."
27. It cannot be said that the decision of the Apex Court in Cox and Kings (Supra) requires the examination of the five cumulative factors at the threshold of making reference to arbitration, but are the factors to guide the decision based on evidence and claim whether a person or party is claiming under or through the another party. This in itself will also be the subject for the Arbitral Tribunal to delve upon which the Single Judge in the impugned judgment has already held.
28. For the reasons assigned in the impugned judgment as also the reason assigned hereinabove, the Court does not find any Page 27 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025 NEUTRAL CITATION C/OJA/5/2025 JUDGMENT DATED: 10/11/2025 undefined reason to interfere with the impugned judgment dated 26.08.2025 passed in Admiralty Suit No.20 of 2022. Hence, present appeal deserves to and the same is hereby dismissed.
29. The arrangement which was made pending the hearing of the present appeal to continue for a period of six weeks.
30. In view of the dismissal of Appeal, Civil Application for stay does not survive. Hence, the same stands disposed of accordingly.
(A.Y. KOGJE, J) (J. L. ODEDRA, J) SIDDHARTH Page 28 of 28 Uploaded by SIDDHARTH(HC01065) on Wed Nov 12 2025 Downloaded on : Wed Nov 12 21:35:29 IST 2025