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10) Mr. Kumbhakoni would further submit that there is no Arbitration Agreement between the Petitioner and Evergreen for resolution of disputes pertaining to the period 1 April 2009 to 11 March 2011. That an Arbitration Agreement is an agreement within the agreement. That therefore mere assignment of rights in favour of Evergreen by Tripartite Assignment Agreement dated 1 April 2009 did not result in automatic creation of Arbitration Agreement between the Petitioner and Evergreen. That under Tripartite Assignment Agreement, only the enumerated rights under the Concept Agreement of 1999 would get assigned to Evergreen. That there was no intention between the parties to resolve the disputes between the Petitioner and Evergreen by arbitration under Tripartite Assignment Agreement dated 1 April 2009.

12) Mr. Kumbhakoni would submit that the merged entity CHPL is essentially exercising rights of Evergreen under the Tripartite Assignment Agreement dated 1 April 2009 and that there is absence of Arbitration Agreement between the Petitioner and Evergreen. If on the other hand, the merged entity CHPL claims to have exercised rights of Concept under the Concept Agreement of 1999, the exclusion benefit under Section 43(4) of the Arbitration Act cannot be claimed as Concept was not a party to Evergreen Arbitration in which the previous Award was set aside. That Concept in such case cannot rely on Evergreen arbitration proceedings to claim exclusion of time for limitation under Section 43(4) of the Arbitration Act. Also if Respondent's contention of incorporation of arbitration clause in Tripartite Assignment Agreement is to be accepted, then Concept would lose right to invoke arbitration even under Concept Agreement of 1999. However, Concept, on its own, invoked arbitration on 12 March 2013 much after execution of Tripartite Assignment Agreement dated 1 April 2009, secured Arbitration Application(L) decided on 19/10/2020 _____________________________________________________________________________ PAGE NO. 8 of 48 17 DECEMBER 2025 Neeta Sawant FC-CARBP- 19 OF 2024 Award in its favour and recovered money from the Petitioner. That this factor indicates that the Concept retained right to arbitrate with Petitioner in respect of the period covered by the Concept Agreement of 1999 notwithstanding execution of Tripartite Assignment Agreement dated 1 April 2009. This would essentially mean that Evergreen did not secure any right to arbitrate under the Tripartite Assignment Agreement dated 1 April 2009, which remained with Concept and was exercised independently vide invocation dated 12 March 2013.

15) Mr. Rai would further submit that the Tripartite Assignment Agreement incorporates arbitration clause from Concept Agreement of 1999. That there is no 'general reference' to arbitration clause but 'incorporation' thereof under Tripartite Assignment Agreement dated 1 April 2009. He would submit that the Apex Court in M.R. Engineers and Contractors (supra) has held that there is a difference between 'reference to another document in a contract' and 'incorporation of another document in a contract'. That the Apex Court in NBCC (India) Ltd. also noticed in paragraph 23 of the judgment that the acts therein involved a case of _____________________________________________________________________________ PAGE NO. 10 of 48 17 DECEMBER 2025 Neeta Sawant FC-CARBP- 19 OF 2024 'reference' and not of 'incorporation'. He relies on judgment of the Apex Court in Shinhan Bank V/s. Carol Info Services Limited 5 in support of his contention that when all terms and conditions are made integral part of another contract, it would also incorporate arbitration clause. That in the present case there is an incorporation of all clauses of original Management Agreement in the Tripartite Assignment Agreement. That therefore the Tripartite Assignment Agreement is a case of 'incorporation' and not of 'reference' in terms of M.R. Engineers and Contractors. Referring to Recital No.1 and Clauses 3 and 9 of the Assignment Agreement, Mr. Rai would submit that arbitration clause got incorporated and intent to arbitrate was express and clear. He would further submit that there is no question of assignment of Arbitration Agreement. That when all rights under one agreement are assigned, arbitration clause also gets incorporated in the new contract. That in Vishranti CHSL (supra) also this Court has expressly clarified in paragraph 16 of the judgment that incorporation or otherwise of arbitration clause depends on interpretation of contract and not by mere nomenclature thereof. That the said judgment is not applicable to the facts of the present case as the contract therein involved case of 'reference' and not 'incorporation'.

52) During the course of oral submissions, Mr. Kumbhakoni has strenuously contended that there is no Arbitration Agreement between the Petitioner and Evergreen for resolution of dispute pertaining to the invoices for the period 1 April 2009 to 11 March 2011. As observed above, the initial Hotel Management Agreement was executed in favour of Concept by the Petitioner on 27 September 1999. The rights and obligations arising out of Hotel Management Agreement dated 27 September 1999 were brought over by Evergreen through Tripartite Assignment Agreement dated 1 April 2009. The Hotel Management Agreement dated 27 September 1999 undoubtedly contains Arbitration Agreement. Thus, there was an agreement to arbitrate between Concept and Petitioner. The issue for consideration is whether assignment of rights and obligations under Hotel Management Agreement dated 27 September 1999 in favour of Evergreen would also have the effect of creation of Arbitration Agreement between Petitioner and Evergreen. This is because there is no distinct arbitration clause under Tripartite Assignment Agreement dated 1 April 2009, which merely seeks to assign rights and obligations vested in Concept under Hotel Management Agreement dated 27 September 1999 to Evergreen.