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e. Declarations, injunctions, losses, damages to which DLF is entitled to.

Submissions of the Parties

24. Learned senior counsel for DLF has submitted that the arbitration clause within the SPA is drafted in expansive terms to encompass the disputes, claims, and differences "arising out of", "in connection with", or "in the performance of'" the agreement (SPA). It is submitted, this clause is not restricted solely to the parties directly involved in the SPA but extends to non-signatories, beneficiaries, and third parties as well. Moreover, the definition of "Parties" within the SPA includes the assignees and successors of each party. It is argued that even a cursory examination of the default notice dated 02.11.2022 reveals that all disputes sought to be referred to arbitration are directly related to the SPA. The offer for the purchase of shares of JHL was evidently made under the SPA, and DLF was the only shareholder to accept PNBHFL's offer by its letter dated 10.11.2022, within the specified timeframe outlined in the default notice. It is contended that the assignment of the SPA to Omkara was executed unlawfully by PNBHFL as part of a collusive scheme, as evidenced by subsequent events. Furthermore, it is alleged that Omkara illegally sold DLF's shares to an entity closely associated with Hubtown, namely, Twenty-Five South, thereby illicitly transferring control of JHL to Hubtown. Subsequently, Hubtown increased the share capital of JHL, diluting DLF's 37.5% shareholding to a mere 1%. Additionally, it is argued that the recipient of the fresh share capital, namely Akruti, is also closely associated with Hubtown. It is contended that these parties, acting as a single economic entity, collusively manipulated the shareholding and control of JHL, thereby undermining DLF's rights derived from the SPA. Moreover, it is asserted that Twenty-Five South and Akruti are bound by the arbitration agreement as they are an 'alter ego' of Hubtown. It is also asserted that Twenty-Five South, as the successor to the shares and a direct beneficiary of the illegal actions of PNBHFL, Omkara, and Hubtown, is bound by the arbitration clause. Similarly, Akruti, as the ultimate beneficiary of the illegal actions of PNBHFL, Omkara, and Hubtown, is also bound by the arbitration clause. Furthermore, it is emphasized that there is no specific denial of the allegations regarding the interconnection between Hubtown, Twenty-Five South, and Akruti in the replies filed by the said parties. It is argued that DLF is neither a party to the MOU dated 27.10.2022 nor is not aggrieved by it. Therefore, any reliance placed on this MOU by Omkara is misplaced. It is again asserted that the offer to purchase JHL's shares was made in accordance with the provisions of the SPA. It is emphasized that the jurisdiction of the referral court is extremely limited. Once the existence of an arbitration clause is prima facie established, all issues and contentions raised by the parties are to be deferred for determination by the arbitral tribunal. Furthermore, it is argued that the inclusion of non-signatories in arbitration proceedings is contingent upon specific facts and can be justified under various legal theories and doctrines. It is emphasized that the Supreme Court has explicitly stated that the referral court should refrain from deciding whether a non-signatory is indeed a party to the arbitration agreement and should instead leave this determination to the arbitral tribunal. In support of these submissions reliance has been placed on Renusagar Power Co. Ltd. v. General Electric Co.1, Black Law's Dictionary, National Insurance Co. Ltd. v. BogharaPolyfab (P) Ltd. 2 , (1984) 4 SCC 679, (2009) 1 SCC 267 Vidya Drolia v. Durga Trading Corpn. 3 , Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re4, Cox & Kings Ltd. v. SAP India (P) Ltd. 5, Gaurav Dhanuka v. Surya Maintenance Agency (P) Ltd. 6, and Shapoorji Pallonji and Co. Pvt. Ltd. v. Rattan India Power Ltd.7

171. 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 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.

"103.1. The first theory is that of implied consent, third-party beneficiaries, guarantors, assignment and other transfer mechanisms of contractual rights. This theory relies on the discernible intentions of the parties and, to a large extent, on good faith principle. They apply to private as well as public legal entities.

103.2. The second theory includes the legal doctrines of agent-principal relations, apparent authority, piercing of veil (also called "the alter ego"), joint venture relations, succession and estoppel. They do not rely on the parties' intention but rather on the force of the applicable law."

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 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."