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1 - 10 of 13 (0.30 seconds)Section 9 in The Code of Civil Procedure, 1908 [Entire Act]
M/S Duro Felguera S.A vs M/S. Gangavaram Port Limited on 10 October, 2017
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 balanced The group of companies doctrine is
essentially intended to facilitate the fulflment of a mutually
held intent between the parties, where the circumstances
indicate that the intent was to bind both signatories and
non-signatoriesd The efort is to fnd 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
signatoryd
34d The appellant questions the application of the Chloro
Controls [Chloro Controls India (P) Ltd. v. Severn Trent Water
Purifcation Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ)
689] doctrined Dr Singhvi urged that in Chloro Controls,
there was a joint venture agreement; the mother or parent
agreement contained an arbitration clause and though the
ancillary agreements did not contain an arbitration
agreement, they could not have been performed in the
absence of the mother agreementd The submission
proceeds on a constricted interpretation of the Chloro
Coitrols dictumd The principle which underlies Chloro
Controls is that an arbitration agreement which is entered into
by a company within a group of companies may bind non-
signatory afliates, if the circumstances are such as to
demonstrate the mutual intention of the parties to bind both
signatories and non-signatoriesd In applying the doctrine, the
law seeks to eiforce the commoi iiteitioi of the parties,
where circumstances indicate that both signatories and non-
signatories were intended to be boundd In Duro [Duro
Felguera v. Gangavaram Port Ltdd, (2017) 9 SCC 729 : (2017)
Page 8 of 18
5th March 2021
11-CARBPL87-2020.DOC
4 SCC (Civ) 764], the case was held to stand on a
diferent footing since all the fve diferent packages as
well as the corporate guarantee did not depend on the
terms and conditions of the original package nor on the
memorandum of understanding executed between the
parties. The judgment in Duro does not detract from the
principle which was enunciated in Chloro Coitrolsd
(Emphasis added)
Essar House Pvt. Ltd vs Arcelor Mittal Nippon Steel India Ltd. ... on 1 February, 2021
31. Lest it be argued either here or in any other forum that no
case has been made out under Order 38 Rule 5 of the Code of Civil
Procedure, 1908 ("CPC"), which seems to me more or less the
habitual and automatic chanting of every respondent in a Section 9
Petition, this needs to be stated: that is not the lawd The recent
decision of the Division Bench of this Court (RD Dhanuka and VG
Bhisht JJ) in Essar House Private Limited v Arcellor Mittal Nippon
Steel India Ltd9 makes it clear that there is no requirement that for
such relief an iron-clad case under Order 38 Rule 5 of the Code of
Civil Procedure, 1908 ("CPC") must be made out (or, if not argued,
that the Court must hunt for it)d The Division Bench reafrmed the
principle that has long been settled, and restated repeatedly, but
which seem to be reagitated in the wrong way again and againd The
Division Bench said in the clearest terms that the principles of the
CPC, including especially Order 38 Rule 5, are guides to a Section 9
Court and the order it makes under that Sectiond They are not
fetters upon the Section 9 Court's discretiond On my reading of the
Division Bench order, the position in law is that in such a case an
order of deposit not only can be made, but ought to be maded In
Valentine Maritime Ltd v Kreuz Subsea Pte Ltd & Anr ,10 the Division
Bench of this Court reiterated this position regarding Order 38 Rule
5 and also held that in appropriate case, where the defence is prima
facie untenable, the Petitioner has a chance of success, and the
defence is moonshine, an order of deposit to secure the claim can
and indeed should be made under Section 9d This was also the view
of another Division Bench of this Court in Jagdish Ahuja & Anr v
92021 SCC OnLine Bom 149d
10 2021 SCC OnLine Bom 75, (paragraphs 88, 95 to 97 and 101)d
Page 15 of 18
5th March 2021
11-CARBPL87-2020.DOC
Cupino Ltdd11 All three decisions referenced and explained the
previous Division Bench decision in Nimbus Communications Ltd v
Board of Control for Cricket in India,12 and the Supreme Court
decision in Adhunik Steels Ltd v Orissa Manganese & Minerals (P)
Ltdd13 I followed the Division Bench decisions (referencing this law)
in Parle Agro Pvt Ltd v Shree Aqua Purifer Pvt Ltd 14 and IIFL Finance
Ltd v Shrenik Dhirajmal Siroyad15
Valentine Maritime Ltd vs Kreuz Subsea Pte Ltd. And Another on 22 January, 2021
31. Lest it be argued either here or in any other forum that no
case has been made out under Order 38 Rule 5 of the Code of Civil
Procedure, 1908 ("CPC"), which seems to me more or less the
habitual and automatic chanting of every respondent in a Section 9
Petition, this needs to be stated: that is not the lawd The recent
decision of the Division Bench of this Court (RD Dhanuka and VG
Bhisht JJ) in Essar House Private Limited v Arcellor Mittal Nippon
Steel India Ltd9 makes it clear that there is no requirement that for
such relief an iron-clad case under Order 38 Rule 5 of the Code of
Civil Procedure, 1908 ("CPC") must be made out (or, if not argued,
that the Court must hunt for it)d The Division Bench reafrmed the
principle that has long been settled, and restated repeatedly, but
which seem to be reagitated in the wrong way again and againd The
Division Bench said in the clearest terms that the principles of the
CPC, including especially Order 38 Rule 5, are guides to a Section 9
Court and the order it makes under that Sectiond They are not
fetters upon the Section 9 Court's discretiond On my reading of the
Division Bench order, the position in law is that in such a case an
order of deposit not only can be made, but ought to be maded In
Valentine Maritime Ltd v Kreuz Subsea Pte Ltd & Anr ,10 the Division
Bench of this Court reiterated this position regarding Order 38 Rule
5 and also held that in appropriate case, where the defence is prima
facie untenable, the Petitioner has a chance of success, and the
defence is moonshine, an order of deposit to secure the claim can
and indeed should be made under Section 9d This was also the view
of another Division Bench of this Court in Jagdish Ahuja & Anr v
92021 SCC OnLine Bom 149d
10 2021 SCC OnLine Bom 75, (paragraphs 88, 95 to 97 and 101)d
Page 15 of 18
5th March 2021
11-CARBPL87-2020.DOC
Cupino Ltdd11 All three decisions referenced and explained the
previous Division Bench decision in Nimbus Communications Ltd v
Board of Control for Cricket in India,12 and the Supreme Court
decision in Adhunik Steels Ltd v Orissa Manganese & Minerals (P)
Ltdd13 I followed the Division Bench decisions (referencing this law)
in Parle Agro Pvt Ltd v Shree Aqua Purifer Pvt Ltd 14 and IIFL Finance
Ltd v Shrenik Dhirajmal Siroyad15
Purple Medical Solutions Pvt Ltd vs Miv Therapeutics Inc on 27 January, 2015
12. Chloro Controls has never been over-ruledd It has never been
held not to be good lawd It was applied in Chatterjee Petrochem Co v
Page 6 of 18
5th March 2021
11-CARBPL87-2020.DOC
Haldia Petrochemicals Ltdd3 In Purple Medical Solutions (P) Ltd v MIV
Therapeutics Inc,4 the Supreme Court observed that the involvement
of the 2nd respondent in that case brought it squarely within the
frame of Chloro Controlsd
3. The Hon'Ble Supreme Court In The Case ... vs . Orissa Manganese And Minerals Pvt. ... on 2 April, 2013
31. Lest it be argued either here or in any other forum that no
case has been made out under Order 38 Rule 5 of the Code of Civil
Procedure, 1908 ("CPC"), which seems to me more or less the
habitual and automatic chanting of every respondent in a Section 9
Petition, this needs to be stated: that is not the lawd The recent
decision of the Division Bench of this Court (RD Dhanuka and VG
Bhisht JJ) in Essar House Private Limited v Arcellor Mittal Nippon
Steel India Ltd9 makes it clear that there is no requirement that for
such relief an iron-clad case under Order 38 Rule 5 of the Code of
Civil Procedure, 1908 ("CPC") must be made out (or, if not argued,
that the Court must hunt for it)d The Division Bench reafrmed the
principle that has long been settled, and restated repeatedly, but
which seem to be reagitated in the wrong way again and againd The
Division Bench said in the clearest terms that the principles of the
CPC, including especially Order 38 Rule 5, are guides to a Section 9
Court and the order it makes under that Sectiond They are not
fetters upon the Section 9 Court's discretiond On my reading of the
Division Bench order, the position in law is that in such a case an
order of deposit not only can be made, but ought to be maded In
Valentine Maritime Ltd v Kreuz Subsea Pte Ltd & Anr ,10 the Division
Bench of this Court reiterated this position regarding Order 38 Rule
5 and also held that in appropriate case, where the defence is prima
facie untenable, the Petitioner has a chance of success, and the
defence is moonshine, an order of deposit to secure the claim can
and indeed should be made under Section 9d This was also the view
of another Division Bench of this Court in Jagdish Ahuja & Anr v
92021 SCC OnLine Bom 149d
10 2021 SCC OnLine Bom 75, (paragraphs 88, 95 to 97 and 101)d
Page 15 of 18
5th March 2021
11-CARBPL87-2020.DOC
Cupino Ltdd11 All three decisions referenced and explained the
previous Division Bench decision in Nimbus Communications Ltd v
Board of Control for Cricket in India,12 and the Supreme Court
decision in Adhunik Steels Ltd v Orissa Manganese & Minerals (P)
Ltdd13 I followed the Division Bench decisions (referencing this law)
in Parle Agro Pvt Ltd v Shree Aqua Purifer Pvt Ltd 14 and IIFL Finance
Ltd v Shrenik Dhirajmal Siroyad15
Parle Agro Pvt Ltd vs Shree Aqua Purifier Pvt Ltd on 12 February, 2021
31. Lest it be argued either here or in any other forum that no
case has been made out under Order 38 Rule 5 of the Code of Civil
Procedure, 1908 ("CPC"), which seems to me more or less the
habitual and automatic chanting of every respondent in a Section 9
Petition, this needs to be stated: that is not the lawd The recent
decision of the Division Bench of this Court (RD Dhanuka and VG
Bhisht JJ) in Essar House Private Limited v Arcellor Mittal Nippon
Steel India Ltd9 makes it clear that there is no requirement that for
such relief an iron-clad case under Order 38 Rule 5 of the Code of
Civil Procedure, 1908 ("CPC") must be made out (or, if not argued,
that the Court must hunt for it)d The Division Bench reafrmed the
principle that has long been settled, and restated repeatedly, but
which seem to be reagitated in the wrong way again and againd The
Division Bench said in the clearest terms that the principles of the
CPC, including especially Order 38 Rule 5, are guides to a Section 9
Court and the order it makes under that Sectiond They are not
fetters upon the Section 9 Court's discretiond On my reading of the
Division Bench order, the position in law is that in such a case an
order of deposit not only can be made, but ought to be maded In
Valentine Maritime Ltd v Kreuz Subsea Pte Ltd & Anr ,10 the Division
Bench of this Court reiterated this position regarding Order 38 Rule
5 and also held that in appropriate case, where the defence is prima
facie untenable, the Petitioner has a chance of success, and the
defence is moonshine, an order of deposit to secure the claim can
and indeed should be made under Section 9d This was also the view
of another Division Bench of this Court in Jagdish Ahuja & Anr v
92021 SCC OnLine Bom 149d
10 2021 SCC OnLine Bom 75, (paragraphs 88, 95 to 97 and 101)d
Page 15 of 18
5th March 2021
11-CARBPL87-2020.DOC
Cupino Ltdd11 All three decisions referenced and explained the
previous Division Bench decision in Nimbus Communications Ltd v
Board of Control for Cricket in India,12 and the Supreme Court
decision in Adhunik Steels Ltd v Orissa Manganese & Minerals (P)
Ltdd13 I followed the Division Bench decisions (referencing this law)
in Parle Agro Pvt Ltd v Shree Aqua Purifer Pvt Ltd 14 and IIFL Finance
Ltd v Shrenik Dhirajmal Siroyad15
Iifl Finance Ltd. (Erstwhile India ... vs Shrenik Dhirajmal Siroya on 18 February, 2021
31. Lest it be argued either here or in any other forum that no
case has been made out under Order 38 Rule 5 of the Code of Civil
Procedure, 1908 ("CPC"), which seems to me more or less the
habitual and automatic chanting of every respondent in a Section 9
Petition, this needs to be stated: that is not the lawd The recent
decision of the Division Bench of this Court (RD Dhanuka and VG
Bhisht JJ) in Essar House Private Limited v Arcellor Mittal Nippon
Steel India Ltd9 makes it clear that there is no requirement that for
such relief an iron-clad case under Order 38 Rule 5 of the Code of
Civil Procedure, 1908 ("CPC") must be made out (or, if not argued,
that the Court must hunt for it)d The Division Bench reafrmed the
principle that has long been settled, and restated repeatedly, but
which seem to be reagitated in the wrong way again and againd The
Division Bench said in the clearest terms that the principles of the
CPC, including especially Order 38 Rule 5, are guides to a Section 9
Court and the order it makes under that Sectiond They are not
fetters upon the Section 9 Court's discretiond On my reading of the
Division Bench order, the position in law is that in such a case an
order of deposit not only can be made, but ought to be maded In
Valentine Maritime Ltd v Kreuz Subsea Pte Ltd & Anr ,10 the Division
Bench of this Court reiterated this position regarding Order 38 Rule
5 and also held that in appropriate case, where the defence is prima
facie untenable, the Petitioner has a chance of success, and the
defence is moonshine, an order of deposit to secure the claim can
and indeed should be made under Section 9d This was also the view
of another Division Bench of this Court in Jagdish Ahuja & Anr v
92021 SCC OnLine Bom 149d
10 2021 SCC OnLine Bom 75, (paragraphs 88, 95 to 97 and 101)d
Page 15 of 18
5th March 2021
11-CARBPL87-2020.DOC
Cupino Ltdd11 All three decisions referenced and explained the
previous Division Bench decision in Nimbus Communications Ltd v
Board of Control for Cricket in India,12 and the Supreme Court
decision in Adhunik Steels Ltd v Orissa Manganese & Minerals (P)
Ltdd13 I followed the Division Bench decisions (referencing this law)
in Parle Agro Pvt Ltd v Shree Aqua Purifer Pvt Ltd 14 and IIFL Finance
Ltd v Shrenik Dhirajmal Siroyad15