Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 1401
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14647 OF 2025
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 25803 of 2025)
Hindustan Petroleum Corporation Ltd. …Appellant(s)
Versus
BCL Secure Premises Pvt. Ltd. …Respondent(s)
J U D G M E N T
K.V. Viswanathan, J.
1. Leave granted.
2. The present appeal calls in question the correctness of
the judgment and order dated 07.04.2025 passed by the
learned Single Judge of the High Court of Judicature at
Bombay in Comm. Arbitration Application No.125/2025. By
the said order, the learned Single Judge allowed the Section
11(4)-Application filed under the Arbitration and Conciliation
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.12.09
13:40:28 IST
Reason:
Act, 1996 (for short the “A&C Act) of the respondent-BCL
Secure Premises Pvt. Ltd. (hereinafter referred to as the
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“BCL”) and appointed an arbitrator to adjudicate upon the
disputes and differences between the parties herein.
Aggrieved, the appellant-Hindustan Petroleum Corporation
Ltd. (for short ‘Corporation’) is in appeal.
3. The facts giving rise to the appeal are as follows:
4. The appellant-Corporation floated a tender for design,
supply, installation, integration, testing, commissioning and
post-commissioning warranty support services of Tank Truck
Locking System (for short the “TTLS”).
5. The tender conditions had a specific clause stating that
the contractor shall not be entitled to sublet, transfer or assign,
the work under the contract without the prior consent of the
owner obtained in writing. The relevant clauses of the tender
conditions are set out hereinbelow:-
“2.6 The “Contract” between the Owner and the Contractor
shall mean and include all documents like enquiry, tender
submitted by the contractor and the purchase order issued
by the owner and other documents connected with the issue
of the purchase order and orders, instruction, drawings,
change orders, directions issued by the Owner/Engineer-in-
Charge/Site-in-Charge for the execution, completion and
commissioning of the works and the period of contract
mentioned in the Contract including such periods of time
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extensions as may be granted by the owner at the request of
the contractor and such period of time for which the work is
continued by the contractor for purposes of completion of the
work.
3.17 Contractor shall not be entitled to sublet, subcontract or
assign; the work under this Contract without the prior consent
of the Owner obtained in writing.
5.c SUBLETTING OF WORK
5.c.1 No part of the contract nor any share or interest thereof
shall in any manner or degree be transferred, assigned or
sublet, by the Contractor, directly or indirectly to any firm or
corporation whatsoever without the prior consent in writing
of the Owner.
14. ARBITRATION
14.1 All disputes and differences of whatsoever nature,
whether existing or which shall at any time arise between the
parties hereto touching or concerning the agreement,
meaning, operation or effect thereof or to the rights and
liabilities of the parties or arising out of or in relation thereto
whether during or after completion of the contract or whether
before after determination, foreclosure, termination or
breach of the agreement (other than those in respect of which
the decision of any person is, by the contract, expressed to
be final and binding) shall, after written notice by either party
to the agreement to the other of them and to the Appointing
Authority hereinafter mentioned, be referred for
adjudication to the Sole Arbitrator to be appointed as
hereinafter provided.
14.9 Subject to the aforesaid, the provisions of the Arbitration
and Conciliation Act, 1996 or any statutory modification or re-
enactment thereof and the rules made thereunder, shall
apply to the Arbitration proceedings under this Clause.
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14.10 The Contract shall be governed by and constructed
according to the laws in force in India. The parties hereby
submit to the exclusive jurisdiction of the Courts situated at
Mumbai for all purposes. The Arbitration shall be held at
Mumbai and conducted in English language.”
6. On 20.08.2013, the appellant issued a purchase order in
favour of the successful tenderer-M/s AGC Networks Ltd (for
short “AGC”) (presently known as Black Box Limited) and
AGC duly accepted the purchase order by a letter of
acceptance on 21/22.08.2013. On 08.09.2016, the appellant
issued a notice to AGC with regard to non-functioning of
Electro Magnetic Locking System [for short ‘EMLS’] at Pilot
locations of Vashi and Manmad. Further, on 02.02.2017, the
appellant issued a show cause notice to AGC for unsatisfactory
performance of EMLS at the said two locations.
7. On 14.06.2018, the respondent-BCL informed the
appellant that they were working as sub-vendor of AGC and
were entitled to receive 94% of the payment due. On
25.06.2018, appellant informed AGC that since it could not
complete the project successfully, no payment was due to
them. On 26.06.2018, appellant informed respondent-BCL in
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reply to BCL’s letter dated 14.06.2018 stating that the
appellant had not entered into any contract with BCL and as
such no payments are due to BCL from the appellant.
Thereafter, a series of proceedings ensued between the
respondent-BCL and the AGC.
8. On 27.07.2018, a civil suit came to be filed by BCL against
AGC before Patiala House Court at New Delhi seeking
injunction against AGC from invoking the bank guarantee
submitted by BCL. The appellant was not a party to this suit.
Thereafter, a Section 9-Petition under the Insolvency and
Bankruptcy Code, 2016 was filed by BCL against AGC. The
Section 9-Petition came to be rejected on 17.07.2019.
9. In 2020, BCL filed its first claim (No. 1446/2020) with the
Micro, Small and Medium Enterprises (MSME) Facilitation
Council, Haryana against AGC for the payment of outstanding
dues. The matter was referred to arbitration and here again
the appellant was not a party. On 20.06.2020, the respondent
BCL withdrew the claim from the Arbitral Tribunal in view of
the amicable settlement with AGC. On 17.07.2020,
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respondent-BCL withdrew the civil suit filed against AGC.
10. In 2021, respondent-BCL filed its second claim (No.
2411/2021) against AGC with the MSME Facilitation Council.
The matter was referred to arbitration and here again the
appellant was not a party.
11. On 25.11.2022, the second claim was rejected by the
arbitrator as not maintainable due to relinquishment of rights
by BCL under the 20.06.2020 settlement.
12. On 25.03.2023, third claim was filed against AGC by BCL
in MSME Facilitation Council, Haryana and this was rejected
as not maintainable.
13. On 28.08.2024, respondent-BCL issued a notice to the
appellant invoking arbitration under Section 21 of the A&C
Act, setting out the following:-
A. After AGC was awarded a purchase order, AGC entered
into an agreement dated 15.01.2014 on back-to-back basis
with BCL wherein entire performance concerning the
supply of TTLS was to be undertaken by BCL.
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B. That as per the said contractual arrangement of
15.01.2014, BCL was obligated to perform the services
and AGC was merely an intermediary since 96% of the
total amount payable by HPCL was accruing in favour of
BCL. The relevant clauses of the contractual arrangement
between BCL and AGC are set out hereinbelow:-
“And whereas “AGC” wishes to engage “BCL” and “BCL”
has agreed to supply install integrate test commission and
warranty and post-warranty support services of HPCL TTLS
(Tank Truck Locking System) to “AGC” on a back-to-back
basis and more specifically described in the referred Tender
as per Annexure - I forming an integral part of this Agreement
BCL has reviewed all the annexures, fully understood HPCL’s
requirement and has agreed to bear all costs take full
responsibility and to Indemnify AGC in case of this Pilot
Project not being successful and resultant cancellation of
contract by HPCL.
4. OBLIGATIONS OF “BCL”
4.1 “BCL” shall provide a Project Manager at its own cost
and towards the successful completion of the entire HPCL
TTLS project The Project Manager shall be responsible
for the communication and co-ordination between
BCL/AGC/HPCL. However, the Project Manager
mentioned herein above shall not make any such
communication/co-ordination with HPCL without
obtaining the prior written approval from AGC.”
11. ARBITRATION
Any and all dispute(s) or difference(s) between the parties
hereto arising out of or relating to this agreement and which
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is not amicably settled between the parties within 60 (Sixty)
days from the date of such dispute or difference, the same
shall be referred for arbitration to such person as may be
appointed by the parties hereto and the same shall be
adjudicated in accordance with the Arbitration and Re-
Conciliation Act 1996 and its latest amendments.
The cost of any such Arbitration shall be solely borne by the
defending party. The place of arbitration shall be jurisdiction
of New Delhi/Mumbai Court. The language of the arbitration
shall be English. Award of Arbitration shall be final and
binding on both the parties.”
(Emphasis supplied)
C. That after the resolution of disputes between BCL and
AGC, a Settlement-cum-Assignment Agreement was
signed by AGC and BCL on 31.10.2023, to assign the
receivables of AGC against HPCL to BCL. Relevant clauses
read as under: -
“2. ASSIGNMENT OF RECEIVABLES
2.1 The present Agreement further records the existing
position that all claims and counter-claims of Parties against
each other have been settled, relinquished, closed and
Parties are discharged against each other for all future
claims and liabilities. However, it is understood that BCL
may be desirous of proceeding against HPCL. by filing the
necessary application/petition before the competent
authority or court for recovery of purported dues arising out
of the HPCL PO. It is however agreed by BCL that, Black Box
shall not be impleaded or joined as a party to any such legal
action or litigation/proceedings that may be initiated by
BCL and such actions of BCL shall not result in any adverse
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action or cause any prejudice to Black Box.
2.2 Subject to compliance of the reciprocal obligations
under this Agreement by the BCL Black Box hereby
represents and warrants that any amount/receivables
accruing to Black Box as a result of the
litigation/proceedings initiated by BCL against HPCL shall
stand transferred/assigned to, BCL in entirety. Black Box
shall not retain any amount/receivable that may accrue to it
in terms of the order/direction of the competent authority or
court in any such litigation/proceedings initiated against
HPCL.
3.20 GOVERNING LAW, DISPUTE RESOLUTION AND
JURISDICTION:
This Agreement shall be governed by and construed in
accordance with the laws of India and shall be subject to the
exclusive jurisdiction of the competent courts in New Delhi
only.
Both Parties agree that all disputes and/or differences
arising out of or relating to or under this Agreement
between the Parties shall, unless amicably resolved within
30 days of mutual discussions, be finally settled by
reference to arbitration in accordance with the Arbitration
and Conciliation Act, 1996 read with its subsequent
amendments and the Rules framed thereunder. The
Arbitration shall be conducted at New Delhi. The
Arbitration proceedings shall be conducted in English
language. The decision of the arbitral tribunal shall be
binding on the Parties.”
D. That BCL has entered into the position of AGC and can
agitate all pending claims with the appellant and a claim
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was raised to the tune of Rs. 3,00,01,810/- along with 18%
interest.
14. The Arbitration Clause for Indian Bidders issued in the
tender of the appellant was invoked vide legal notice dated
28.08.2024.
15. On 26.09.2024, appellant sent a reply denying the
contentions made by BCL setting out the following grounds:-
A. There was no privity of contract between the appellant
and BCL.
B. The claim amount and assignment agreement were
unfounded, false and denied.
C. That the purported assignment agreement was not valid in
law as no prior written consent was obtained from HPCL
by AGC.
D. There was no valid purchase order between HPCL and
BCL.
16. BCL issued another notice dated 12.11.2024 and followed
it up with a petition under Section 11(4) of the A&C Act before
the High Court of Judicature at Bombay dated 28.02.2025. The
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appellant-Corporation objected by raising all the contentions
set out in their reply along with the additional contention that
the application was time-barred.
17. By the judgment dated 07.04.2025, the High Court
allowed the Section 11-Application with the following
reasoning:-
“3. This to my mind raises a clear capacity for the
Respondent to file an application under Section 16 of the Act,
whereby the arbitral tribunal should decide the arbitrability
of the disputes. In the peculiar facts of this case, while
allowing this Section 11 Application by making a reference to
the arbitral tribunal, it is directed that the arbitrability of the
disputes should be decided as preliminary issue upfront by
the arbitral tribunal, so that the interests of the parties are
well balanced and protected and unnecessary time is not
wasted, should the arbitral tribunal reach a conclusion that
the arbitration agreement would not bind the Respondent
with the assignee of AGC Networks Limited.
4. Being satisfied that an arbitration agreement is in
existence but taking into account the objection raised by the
Respondent that the Respondent had a right to approve the
counter-party prior to the assignment of rights of the
Applicant, this aforesaid request to the Arbitral Tribunal,
asking for the Section 16 Application to be decided first as a
preliminary issue is being made.”
18. Aggrieved, the appellant-Corporation is before us.
19. We have heard Mr. Tushar Mehta, learned Solicitor
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General and Mr. Sanjay Kapur, learned counsel for the
appellant. We have also heard Mr. Nalin Kohli, learned senior
counsel for the respondent. We have perused the records.
CONTENTIONS OF THE APPELLANT:-
20. Mr. Tushar Mehta, the learned Solicitor General,
appearing for the appellant contends that there is no legal
relationship between the appellant and the respondent
inasmuch as there was no privity of contract between them.
Learned Solicitor General contends that, at no stage, BCL was
ever involved either in the preliminary negotiation or at the
execution stage. It is further contended that there is no
material/document which discloses that the appellant had the
knowledge of BCL participating in the performance of the
underlying contract. Learned Solicitor General contended
that the respondent had entered into series of litigation with
AGC, and the court below had not made any reference to it in
the impugned order. Learned Solicitor General contends that
the claim was also ex facie time-barred and it is manifest from
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the record. Learned Solicitor General contends that at the
Section 11 stage that the court has an obligation to prima facie
examine whether the dispute is arbitrable and even applying
that limited test, the records reveal that the dispute was not
arbitrable. Learned Solicitor General extensively relied on
Clauses 3.17 and 5 of the General Terms and Conditions of
Works Contract to contend that there was express prohibition
to sub-let, sub-contract or assign the work or any share of
interest thereof without the prior consent of the owner
obtained in writing.
21. Refuting the submissions, Mr. Nalin Kohli, learned Senior
Advocate, appearing for the respondent contended that the
test whether a non-signatory would be bound by an
arbitration agreement entails a fact-intensive inquiry
involving a mixed question of fact and law and, therefore, the
arbitral tribunal would be the more appropriate forum to carry
out the said inquiry. Mr. Kohli, learned Senior Advocate,
further contends that the appellant had knowledge of the sub-
letting agreement between the respondent and AGC,
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presently known as Black Box Limited. Mr. Kohli, learned
Senior Advocate, referred to the agreement signed between
the respondent and the AGC dated 15.01.2014; the purchase
orders issued to the respondent by AGC, the escrow account
opened by AGC; the monies transferred to the escrow account
by the appellant. Mr. Kohli also referred to certain email
communications, copies of which are marked to the appellant.
Mr. Kohli further referred to the Settlement-cum-Assignment
Agreement dated 31.10.2023 assigning the right to
receivables and AGC giving up its rights and invoked the
veritable party doctrine to sustain the impugned order. Mr.
Kohli, learned Senior Advocate, prayed for the dismissal of the
appeal.
22. We have considered the rival submissions and perused
the records of the case.
QUESTION FOR CONSIDERATION: -
23. The question that arises for consideration is whether the
High Court, on facts, was justified in referring the parties to
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arbitration by allowing the Section 11(4) petition filed by the
respondent?
24. The scope of jurisdiction of the referral court hearing a
Section 11-Petition when faced with an issue of joinder of a
non-signatory to the arbitration agreement has been lucidly
set out by the five-judge Bench of this Court in Cox and Kings
1
Limited vs. Sap India Private Limited and Another . Though
said in the context of considering the Group of Companies
doctrine, the said judgment has a great bearing for the
present case. This Court, speaking through Chief Justice D.Y.
Chandrachud, held as under:-
“84. It is presumed that the formal signatories to an
arbitration agreement are parties who will be bound by it.
However, in exceptional cases persons or entities who have
not signed or formally assented to a written arbitration
agreement or the underlying contract containing the
arbitration agreement may be held to be bound by such
agreement. As mentioned in the preceding paragraphs, the
doctrine of privity limits the imposition of rights and liabilities
on third parties to a contract. Generally, only the parties to an
arbitration agreement can be subject to the full effects of the
agreement in terms of the reliefs and remedies because they
consented to be bound by the arbitration agreement.
Therefore, the decisive question before the Courts or
1
(2024) 4 SCC 1
Page 15 of 33
tribunals is whether a non-signatory consented to be bound
by the arbitration agreement. To determine whether a non-
signatory is bound by an arbitration agreement, the Courts
and tribunals apply typical principles of contract law and
corporate law. The legal doctrines provide a framework for
evaluating the specific contractual language and the factual
settings to determine the intentions of the parties to be bound
by the arbitration agreement. [Gary Born, International
Arbitration Law and Practice, (3rd Edn., 2021) at p. 1531.]
101. A formalistic construction of an arbitration agreement
would suggest that the decision of a party to not sign an
arbitration agreement should be construed to mean that the
mutual intention of the parties was to exclude that party from
the ambit of the arbitration agreement. Indeed, corporate
entities have the commercial and contractual freedom to
structure their businesses in a manner to limit their liability.
However, there have been situations where a corporate
entity deliberately made an effort to be not bound by the
underlying contract containing the arbitration agreement,
but was actively involved in the negotiation and performance
of the contract. The level of the non-signatory party's
involvement was to the extent of making the other party
believe that it was a veritable party to the contract, and
the arbitration agreement contained under it. Therefore,
the Group of Companies doctrine is applied to ascertain
the intentions of the parties by analysing the factual
circumstances surrounding the contractual
arrangements . [Gary Born, International Arbitration Law
and Practice, (3rd Edn., 2021) at p. 1568.]
126. Evaluating the involvement of the non-signatory party 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
Page 16 of 33
party to the contract containing the arbitration
agreement; second, the conduct of the non-signatory 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.
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 non-signatory 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 the Arbitral Tribunal under Section 16.
170.12. At the referral stage, the referral court should leave it
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for the Arbitral Tribunal to decide whether the non-signatory
is bound by the arbitration agreement.”
(Emphasis supplied)
25. A careful reading of the above passage reveals that the
referral court should be prima facie satisfied that there exists
an arbitration agreement and as to whether the non-signatory
is a veritable party. It further holds that even if the referral
court prima facie arrives at the satisfaction that the non-
signatory is a veritable party, the Arbitral Tribunal is not
denuded of its jurisdiction to decide whether the non-
signatory is indeed a party to the arbitration agreement on the
basis of factual evidence and application of legal doctrine.
The Court further reinforces this proposition by holding that
as to whether the non-signatory is bound would be for the
Arbitral Tribunal to decide.
26. But what is primordial is that it should be demonstrated
prima facie before the referral court that the non-signatory is
a veritable party. According to the “Illustrated Oxford
Dictionary (Revised Edition 2003)” the word:
“veritable” means “real; rightly so called
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(a veritable feast) ”,
In substance, it means truly, genuinely or for all intended
purposes. The referral court under Section 11 is not deprived
of its jurisdiction from examining whether the non-signatory is
in the real sense a party to the arbitration agreement. The
answer thereof will depend on the facts and circumstances of
each case after examining the documents pertaining thereto.
27. As was held in In Re: Interplay Between Arbitration
Agreements under Arbitration and Conciliation Act, 1996
2
& Stamp Act, 1899 , since the scope of referral court has to
be within the parameter of Section 11 (6-A), the exercise
carried thereon is “examination of the existence of an
arbitration agreement”. While “examination” does not
contemplate a laborious or a contested inquiry there is an
obligation in the referral court to “inspect and scrutinize” the
dealings, if any, between the parties. Para 167 of Interplay
(supra) reads as under:-
“167. Section 11(6-A) uses the expression “examination of
2
(2024) 6 SCC 1
Page 19 of 33
the existence of an arbitration agreement”. The purport
of using the word “examination” connotes that the
legislature intends that the Referral Court has to inspect
or scrutinise the dealings between the parties for the
existence of an arbitration agreement. Moreover, the
expression “examination” does not connote or imply a
laborious or contested inquiry. [P. Ramanatha Aiyar, The
Law Lexicon (2nd Edn., 1997) 666.] On the other hand,
Section 16 provides that the Arbitral Tribunal can “rule” on
its jurisdiction, including the existence and validity of an
arbitration agreement. A “ruling” connotes adjudication of
disputes after admitting evidence from the parties.
Therefore, it is evident that the Referral Court is only
required to examine the existence of arbitration agreements,
whereas the Arbitral Tribunal ought to rule on its jurisdiction,
including the issues pertaining to the existence and validity
of an arbitration agreement. A similar view was adopted by
this Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. ,
(2005) 7 SCC 234]”
(Emphasis supplied)
28. This principle was reiterated lucidly in SBI General
3
Insurance Company Limited vs. Krish Spinning , wherein
this Court (speaking through one of us, J.B. Pardiwala J.)
observed as under:-
113. The scope of examination under Section 11(6-A) is
confined to the existence of an arbitration agreement on the
basis of Section 7. The examination of validity of the
arbitration agreement is also limited to the requirement of
formal validity such as the requirement that the agreement
should be in writing.
3
(2024) 12 SCC 1
Page 20 of 33
114. The use of the term “examination” under Section
11(6-A) as distinguished from the use of the term “rule”
under Section 16 implies that the scope of enquiry under
Section 11(6-A) is limited to a prima facie scrutiny of the
existence of the arbitration agreement, and does not
include a contested or laborious enquiry, which is left for
the Arbitral Tribunal to “rule” under Section 16. The
prima facie view on existence of the arbitration
agreement taken by the Referral Court does not bind
either the Arbitral Tribunal or the Court enforcing the
arbitral award.
115. The aforesaid approach serves a twofold purpose —
firstly, it allows the Referral Court to weed out non-existent
arbitration agreements, and secondly, it protects the
jurisdictional competence of the Arbitral Tribunal to rule on
the issue of existence of the arbitration agreement in depth.”
(Emphasis supplied)
29. Elaborating further as to the broad features to determine
whether a party is a veritable party or not, this Court in Ajay
Madhusudan Patel and others vs. Jyotrindra S. Patel and
4
others (wherein one of us, J.B. Pardiwala J.) held as under:-
“81. The fact that a non-signatory did not put pen to paper
may be an indicator of its intention to not assume any rights,
responsibilities or obligations under the arbitration
agreement. However, the courts and tribunals should not
adopt a conservative approach to exclude all persons or
entities who intended to be bound by the underlying
contract containing the arbitration agreement through their
conduct and their relationship with the signatory parties.
4
(2025) 2 SCC 147
Page 21 of 33
The mutual intent of the parties, relationship of a non-
signatory with a signatory, commonality of the subject-
matter, composite nature of the transactions and
performance of the contract are all factors that signify the
intention of the non-signatory to be bound by the arbitration
agreement.”
30. Applying the above law to the present set of facts, we find
that even prima facie the respondent has not been able to
establish that it was a veritable party to the contract between
HPCL and AGC. HPCL has no privity at all with the respondent
BCL. Admittedly, to the documentation between AGC and
BCL, HPCL was not a party. After obtaining the contract from
HPCL, AGC appears to have engaged BCL to supply, install,
integrate, test, commission and grant warranty and post-
warranty support services to AGC. In fact, Clause 4 of the
contractual arrangement of 15.01.2014 expressly proscribes
the Project Manager of the respondent-BCL to not make any
communication/coordination with HPCL without obtaining
prior written approval from AGC.
31. Further, the Settlement Agreement of 31.10.2023 also is
between AGC and BCL and between them there is an
arrangement that any receivable accruing to AGC from HPCL
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shall stand transferred/assigned to the respondent BCL. This
does not mean that there is an arbitration agreement existing
between HPCL and BCL or that BCL was a veritable party to
the agreement between HPCL and AGC.
32. On the facts of this case, it is clear that the appellant and
the respondent have been operating on separate orbits. It has
not been established even prima facie that there was any
intention to bind BCL to the contract between HPCL and AGC.
33. Mr. Nalin Kohli, learned Senior Advocate, made a
strenuous effort to sustain the impugned judgment by relying
on the judgment of this Court in ASF Buildtech Private
Limited vs. Shapoorji Pallonji and Company Private
5
Limited , to contend that the Referral Court should leave the
matter to the Arbitral Tribunal to decide the issue. We have
carefully examined the judgment of this Court in ASF
Buildtech (Supra), authored by one of us J.B. Pardiwala J. We
hold that the judgment of this Court in ASF Buildtech (Supra)
5
(2025) 9 SCC 76
Page 23 of 33
is in harmony with the judgments of this Court in Interplay
(Supra) , Krish Spinning (Supra) , Cox & Kings (Supra) , Ajay
Madhusudan Patel (Supra) and ASF Buildtech (Supra) does
not sing any discordant note. For the sake of convenience, the
following crucial Paragraphs in ASF Buildtech (Supra) are
extracted hereinbelow: -
“110. Even if it is assumed for a moment that the Referral
Court in its jurisdiction under Section 11 of the 1996 Act has
the discretion to determine whether a non-signatory is a
veritable party to the arbitration agreement or not, by virtue
of Cox & Kings (1) [ Cox & Kings Ltd. v. SAP (India) (P) Ltd. ,
(2024) 4 SCC 1, the Referral Court should only refrain but
rather loathe the exercise of such discretion. Any discretion
which is conferred upon any authority, be it Referral Courts
must be exercised reasonably and in a fair manner. Fairness
in this context does not just extend to a non-signatory's
rights and its apprehension of prejudice, fairness also
demands that the arbitration proceedings is given due time
to gestate so that the entire dispute is holistically decided.
Any determination even if prima facie by a Referral Court on
such aspects would entail an inherent risk of frustrating the
very purpose of resolution of dispute, if the Referral Courts
opine that a non-signatory in question is not a veritable
party. On the other hand, the apprehensions of prejudice
can be properly mitigated by leaving such question for the
Arbitral Tribunal to decide, as such party can always take
recourse to Section 16 of the 1996 Act and thereafter in
appeal under Section 37, and where it is found that such
party was put through the rigmarole of arbitration
proceedings vexatiously, both the Tribunal and the courts,
as the case may be, should not only require that all costs of
arbitration insofar as such non-signatory is concerned be
borne by the party who vexatiously impleaded it, but the
Arbitral Tribunal would be well within its powers to also
Page 24 of 33
impose costs.
113.Cox & Kings (1) Cox & Kings Ltd. v. SAP (India) (P)
Ltd., (2024) 4 SCC 1, further observed that in case of
joinder of non-signatory parties to an arbitration
agreement, 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. However, it further clarified that, due to the
inherent complexity in determining whether the non-
signatory is indeed a veritable party, the Referral Court
should leave this question for the Arbitral Tribunal to
decide as it can delve into the factual and circumstantial
evidence along with its legal aspects for deciding such
an issue. The relevant observations read as under: (SCC
p. 90, paras 168-69)
“168. … 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 non-signatory 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 non-signatory
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
Page 25 of 33
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 the Arbitral Tribunal under
Section 16.”
114. Thus, even if it is assumed for a moment, that the
question whether a non-signatory is a veritable party to the
arbitration agreement is intrinsically connected with the
issue of “existence” of arbitration agreement, the Referral
Courts should still nevertheless, leave such questions for the
determination of the Arbitral Tribunal to decide, as such an
interpretation gives true effect to the doctrine of
competence-competence enshrined under Section 16 of the
1996 Act.
115. This hands-off approach of Referral Courts in relation
to the question of whether a non-signatory is a veritable
party to the arbitration agreement or not was reiterated
in Cox & Kings (2) [ Cox & Kings Ltd. v. SAP (India) (P) Ltd. ,
(2025) 1 SCC 611, wherein one of us, (J.B. Pardiwala, J.),
observed that once an Arbitral Tribunal stands constituted,
it becomes automatically open to all parties to raise any
preliminary objections, including preliminary objections
touching upon the jurisdiction of such tribunal, and to seek
an early determination thereof. Consequently, the issue of
impleadment of a non-signatory was deliberately left for the
Arbitral Tribunal to decide, after taking into consideration
the evidence adduced before it by the parties and the
principles enunciated under Cox & Kings (1) [ Cox & Kings
Ltd. v. SAP (India) (P) Ltd. , (2024) 4 SCC 1.”
34. In fact, ASF Buildtech (Supra) expressly notices the
holding in Para 169 of Cox & Kings (Supra) to conclude that
Page 26 of 33
the Referral Court was required to prima facie rule on the
existence of the arbitration agreement and whether the non-
signatory was a veritable party. All that it holds further in
reiteration of the earlier line of judgments is that even if the
Court holds that prima facie a party is a veritable party that
will not foreclose the Arbitral Tribunal from concluding to the
contrary after an intensive inquiry.
35. This does not mean that where the Referral Court finds
prima facie a party is not a veritable party still the matter is left
to the Arbitral Tribunal. To hold so, would relegate the
Referral Court to the status of a monotonous automation.
Further, to countenance such an extreme proposition would
lead to disastrous consequences, where absolute strangers
could walk into the Referral Court and contend that the matter
has to perforce go to the Arbitral Tribunal for a decision on the
veritable nature of the party. We are not prepared to accept
such an extreme proposition.
36. It could happen that one party having undertaken a
contract from the other may engage one or more third parties
Page 27 of 33
like in the present case. In such a scenario, if there is nothing
even prima facie to show that there was any semblance of an
intent to effect legal relationship between that party and the
party originally granting the contract and/or to indicate that
such a third party was a veritable party, such parties cannot
be found to be veritable parties. The following pertinent
observations from Cox and Kings (Supra) are relevant: -
“117. ….However, we clarify that mere presence of a
commercial relationship between signatory and non-
signatory parties is not sufficient to infer ‘legal relationship’
between and among the parties. If this factor is applied solely,
any related entity or company may be impleaded even when
it does not have any rights or obligations under the underlying
contract and did not take part in the performance of the
contract. The group of companies doctrine cannot be applied
to abrogate party consent and autonomy….”
As pointed out earlier, on the facts of the present case, we hold
that the parties operated on separate orbits.
37. We are not impressed with the argument that the
respondent had a right to invoke the arbitration clause for the
Indian Bidders in the tender issued by the appellant, despite
being a non-signatory, since the respondent was a person
Page 28 of 33
claiming through or under AGC. Reliance placed in this
regard on Cox and Kings (supra) is completely unjustified. As
held in Cox and Kings (supra), mere legal or commercial
connection is not sufficient for a non-signatory to claim
through or under a signatory party. Para 140 of Cox and Kings
(supra) is extracted hereinbelow :-
“140. An analysis of the cases cited above establishes the
following propositions of law : first, the typical scenarios
where a person or entity can claim through or under a party
are assignment, subrogation, and novation; second, a person
“claiming through or under” can assert a right in a derivative
capacity, that is through the party to the arbitration
agreement, to participate in the agreement; third, the
persons claiming through or under do not possess an
independent right to stand as parties to an arbitration
agreement, but as successors to the signatory parties’
interest; and fourth, mere legal or commercial connection is
not sufficient for a non-signatory to claim through or under a
signatory party.”
38. Apart from the above, not only has the respondent not
shown any consent for assignment as required under clause
3.17 of the tender document, nothing even prima facie has
been shown to establish that there was any semblance of an
intent to effect legal relationship between the respondent and
the party originally granting the contract and/or to indicate
Page 29 of 33
that the respondent was a veritable party.
39. It will be apt to refer to the judgment of this Court in
6
Khardah Company Limited vs. Raymon & Co. wherein this
Court held as under:-
“The law of the subject is well settled and might be stated in
simple terms. An assignment of a contract might result by
transfer either of the rights or of the obligations thereunder.
But there is a well-recognised distinction between these two
classes of assignments. As a rule obligations under a contract
cannot be assigned except with the consent of the promise,
and when such consent is given, it is really a novation
resulting in substitution of liabilities. On the other hand rights
under a contract are assignable unless the contract is
personal in its nature the rights are incapable of assignment
either under the law or under an agreement between the
parties.”
40. Applying the consensual theory or the non-consensual
theory, the respondent has not established its case to show
even prima facie the existence of an arbitration agreement
between HPCL and the respondent. Reference to copies of
group emails being marked to HPCL or the creation of an
escrow account on account of the contract between AGC and
6
1963 3 SCR 183
Page 30 of 33
the respondent BCL, fall far short of making out of a prima
facie case. We have also perused the Settlement-cum-
Assignment Agreement between AGC and respondent-BCL
dated 31.10.2023, and particularly clause 2.2 thereto. Under
this clause, AGC (Black Box) has represented and warranted
that any amount/receivables accruing to AGC (Black Box) as
a result of litigation/proceeding initiated by BCL against the
HPCL was to be transferred to BCL. Here again, the
respondent fails the prima facie test of being a veritable party
to the arbitration agreement between HPCL and AGC. As to
what is the legal status otherwise of clause 2.2 of the
Settlement Agreement dated 31.10.2023 is not for us to
comment in the present proceeding.
41. The judgment in Pravin Electricals Private Limited vs.
7
Galaxy Infra & Engineering Private Limited , cited by Mr.
Nalin Kohli, learned Senior Advocate, has no relevance to the
present case. There was a dispute between employer and the
7
(2021) 5 SCC 671
Page 31 of 33
tendering party directly and the dispute was as to whether
there existed any agreement between them. Hence, Pravin
Electricals (Supra) is also of no help to the respondent.
Equally, the reliance on Cox & Kings Ltd. (2) vs. SAP (India)
8
Pvt. Ltd. , does not carry the case of the respondent any
further. That case turned on its own facts. As is clear from
para 34 of the said judgment, this Court felt that in view of the
complexities involved in the determination of the question as
to whether the respondent No.2 therein was a party to the
arbitration agreement or not, the matter was felt best left to the
arbitral tribunal to take a call. Unlike in Cox & Kings (2)
(supra) , the situation here is simple, leaving us with no
difficulty in arriving at the conclusion that we indeed have
arrived at.
42. In view of our holding on the issue of the non-existence
of an arbitration agreement between the parties herein, we
are not required to go into the issue of whether the claim was
8
(2025) 1 SCC 611
Page 32 of 33
ex-facie time-barred.
43. For the reasons stated above, we allow the appeal and set
aside the judgment and order dated 07.04.2025 passed by the
Learned Single Judge of the High Court of Judicature at
Bombay in Comm. Arbitration Application No.125/2025.
Comm. Arbitration Application No.125/2025, on the file of the
High Court of Judicature at Bombay, shall stand dismissed. If
the respondent has any other remedy available in law, it is at
liberty to pursue the same. If any such proceedings are
resorted to, they have to be decided in accordance with law
and on their own merits. No order as to costs.
……….........................J.
[ J.B. PARDIWALA ]
……….........................J.
[ K. V. VISWANATHAN ]
New Delhi;
th
9 December, 2025
Page 33 of 33
IN THE SUPREME COURT OF INDIA
2025 INSC 1401
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.14647 OF 2025
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 25803 of 2025)
Hindustan Petroleum Corporation Ltd. …Appellant(s)
Versus
BCL Secure Premises Pvt. Ltd. …Respondent(s)
J U D G M E N T
K.V. Viswanathan, J.
1. Leave granted.
2. The present appeal calls in question the correctness of
the judgment and order dated 07.04.2025 passed by the
learned Single Judge of the High Court of Judicature at
Bombay in Comm. Arbitration Application No.125/2025. By
the said order, the learned Single Judge allowed the Section
11(4)-Application filed under the Arbitration and Conciliation
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.12.09
13:40:28 IST
Reason:
Act, 1996 (for short the “A&C Act) of the respondent-BCL
Secure Premises Pvt. Ltd. (hereinafter referred to as the
Page 1 of 33
“BCL”) and appointed an arbitrator to adjudicate upon the
disputes and differences between the parties herein.
Aggrieved, the appellant-Hindustan Petroleum Corporation
Ltd. (for short ‘Corporation’) is in appeal.
3. The facts giving rise to the appeal are as follows:
4. The appellant-Corporation floated a tender for design,
supply, installation, integration, testing, commissioning and
post-commissioning warranty support services of Tank Truck
Locking System (for short the “TTLS”).
5. The tender conditions had a specific clause stating that
the contractor shall not be entitled to sublet, transfer or assign,
the work under the contract without the prior consent of the
owner obtained in writing. The relevant clauses of the tender
conditions are set out hereinbelow:-
“2.6 The “Contract” between the Owner and the Contractor
shall mean and include all documents like enquiry, tender
submitted by the contractor and the purchase order issued
by the owner and other documents connected with the issue
of the purchase order and orders, instruction, drawings,
change orders, directions issued by the Owner/Engineer-in-
Charge/Site-in-Charge for the execution, completion and
commissioning of the works and the period of contract
mentioned in the Contract including such periods of time
Page 2 of 33
extensions as may be granted by the owner at the request of
the contractor and such period of time for which the work is
continued by the contractor for purposes of completion of the
work.
3.17 Contractor shall not be entitled to sublet, subcontract or
assign; the work under this Contract without the prior consent
of the Owner obtained in writing.
5.c SUBLETTING OF WORK
5.c.1 No part of the contract nor any share or interest thereof
shall in any manner or degree be transferred, assigned or
sublet, by the Contractor, directly or indirectly to any firm or
corporation whatsoever without the prior consent in writing
of the Owner.
14. ARBITRATION
14.1 All disputes and differences of whatsoever nature,
whether existing or which shall at any time arise between the
parties hereto touching or concerning the agreement,
meaning, operation or effect thereof or to the rights and
liabilities of the parties or arising out of or in relation thereto
whether during or after completion of the contract or whether
before after determination, foreclosure, termination or
breach of the agreement (other than those in respect of which
the decision of any person is, by the contract, expressed to
be final and binding) shall, after written notice by either party
to the agreement to the other of them and to the Appointing
Authority hereinafter mentioned, be referred for
adjudication to the Sole Arbitrator to be appointed as
hereinafter provided.
14.9 Subject to the aforesaid, the provisions of the Arbitration
and Conciliation Act, 1996 or any statutory modification or re-
enactment thereof and the rules made thereunder, shall
apply to the Arbitration proceedings under this Clause.
Page 3 of 33
14.10 The Contract shall be governed by and constructed
according to the laws in force in India. The parties hereby
submit to the exclusive jurisdiction of the Courts situated at
Mumbai for all purposes. The Arbitration shall be held at
Mumbai and conducted in English language.”
6. On 20.08.2013, the appellant issued a purchase order in
favour of the successful tenderer-M/s AGC Networks Ltd (for
short “AGC”) (presently known as Black Box Limited) and
AGC duly accepted the purchase order by a letter of
acceptance on 21/22.08.2013. On 08.09.2016, the appellant
issued a notice to AGC with regard to non-functioning of
Electro Magnetic Locking System [for short ‘EMLS’] at Pilot
locations of Vashi and Manmad. Further, on 02.02.2017, the
appellant issued a show cause notice to AGC for unsatisfactory
performance of EMLS at the said two locations.
7. On 14.06.2018, the respondent-BCL informed the
appellant that they were working as sub-vendor of AGC and
were entitled to receive 94% of the payment due. On
25.06.2018, appellant informed AGC that since it could not
complete the project successfully, no payment was due to
them. On 26.06.2018, appellant informed respondent-BCL in
Page 4 of 33
reply to BCL’s letter dated 14.06.2018 stating that the
appellant had not entered into any contract with BCL and as
such no payments are due to BCL from the appellant.
Thereafter, a series of proceedings ensued between the
respondent-BCL and the AGC.
8. On 27.07.2018, a civil suit came to be filed by BCL against
AGC before Patiala House Court at New Delhi seeking
injunction against AGC from invoking the bank guarantee
submitted by BCL. The appellant was not a party to this suit.
Thereafter, a Section 9-Petition under the Insolvency and
Bankruptcy Code, 2016 was filed by BCL against AGC. The
Section 9-Petition came to be rejected on 17.07.2019.
9. In 2020, BCL filed its first claim (No. 1446/2020) with the
Micro, Small and Medium Enterprises (MSME) Facilitation
Council, Haryana against AGC for the payment of outstanding
dues. The matter was referred to arbitration and here again
the appellant was not a party. On 20.06.2020, the respondent
BCL withdrew the claim from the Arbitral Tribunal in view of
the amicable settlement with AGC. On 17.07.2020,
Page 5 of 33
respondent-BCL withdrew the civil suit filed against AGC.
10. In 2021, respondent-BCL filed its second claim (No.
2411/2021) against AGC with the MSME Facilitation Council.
The matter was referred to arbitration and here again the
appellant was not a party.
11. On 25.11.2022, the second claim was rejected by the
arbitrator as not maintainable due to relinquishment of rights
by BCL under the 20.06.2020 settlement.
12. On 25.03.2023, third claim was filed against AGC by BCL
in MSME Facilitation Council, Haryana and this was rejected
as not maintainable.
13. On 28.08.2024, respondent-BCL issued a notice to the
appellant invoking arbitration under Section 21 of the A&C
Act, setting out the following:-
A. After AGC was awarded a purchase order, AGC entered
into an agreement dated 15.01.2014 on back-to-back basis
with BCL wherein entire performance concerning the
supply of TTLS was to be undertaken by BCL.
Page 6 of 33
B. That as per the said contractual arrangement of
15.01.2014, BCL was obligated to perform the services
and AGC was merely an intermediary since 96% of the
total amount payable by HPCL was accruing in favour of
BCL. The relevant clauses of the contractual arrangement
between BCL and AGC are set out hereinbelow:-
“And whereas “AGC” wishes to engage “BCL” and “BCL”
has agreed to supply install integrate test commission and
warranty and post-warranty support services of HPCL TTLS
(Tank Truck Locking System) to “AGC” on a back-to-back
basis and more specifically described in the referred Tender
as per Annexure - I forming an integral part of this Agreement
BCL has reviewed all the annexures, fully understood HPCL’s
requirement and has agreed to bear all costs take full
responsibility and to Indemnify AGC in case of this Pilot
Project not being successful and resultant cancellation of
contract by HPCL.
4. OBLIGATIONS OF “BCL”
4.1 “BCL” shall provide a Project Manager at its own cost
and towards the successful completion of the entire HPCL
TTLS project The Project Manager shall be responsible
for the communication and co-ordination between
BCL/AGC/HPCL. However, the Project Manager
mentioned herein above shall not make any such
communication/co-ordination with HPCL without
obtaining the prior written approval from AGC.”
11. ARBITRATION
Any and all dispute(s) or difference(s) between the parties
hereto arising out of or relating to this agreement and which
Page 7 of 33
is not amicably settled between the parties within 60 (Sixty)
days from the date of such dispute or difference, the same
shall be referred for arbitration to such person as may be
appointed by the parties hereto and the same shall be
adjudicated in accordance with the Arbitration and Re-
Conciliation Act 1996 and its latest amendments.
The cost of any such Arbitration shall be solely borne by the
defending party. The place of arbitration shall be jurisdiction
of New Delhi/Mumbai Court. The language of the arbitration
shall be English. Award of Arbitration shall be final and
binding on both the parties.”
(Emphasis supplied)
C. That after the resolution of disputes between BCL and
AGC, a Settlement-cum-Assignment Agreement was
signed by AGC and BCL on 31.10.2023, to assign the
receivables of AGC against HPCL to BCL. Relevant clauses
read as under: -
“2. ASSIGNMENT OF RECEIVABLES
2.1 The present Agreement further records the existing
position that all claims and counter-claims of Parties against
each other have been settled, relinquished, closed and
Parties are discharged against each other for all future
claims and liabilities. However, it is understood that BCL
may be desirous of proceeding against HPCL. by filing the
necessary application/petition before the competent
authority or court for recovery of purported dues arising out
of the HPCL PO. It is however agreed by BCL that, Black Box
shall not be impleaded or joined as a party to any such legal
action or litigation/proceedings that may be initiated by
BCL and such actions of BCL shall not result in any adverse
Page 8 of 33
action or cause any prejudice to Black Box.
2.2 Subject to compliance of the reciprocal obligations
under this Agreement by the BCL Black Box hereby
represents and warrants that any amount/receivables
accruing to Black Box as a result of the
litigation/proceedings initiated by BCL against HPCL shall
stand transferred/assigned to, BCL in entirety. Black Box
shall not retain any amount/receivable that may accrue to it
in terms of the order/direction of the competent authority or
court in any such litigation/proceedings initiated against
HPCL.
3.20 GOVERNING LAW, DISPUTE RESOLUTION AND
JURISDICTION:
This Agreement shall be governed by and construed in
accordance with the laws of India and shall be subject to the
exclusive jurisdiction of the competent courts in New Delhi
only.
Both Parties agree that all disputes and/or differences
arising out of or relating to or under this Agreement
between the Parties shall, unless amicably resolved within
30 days of mutual discussions, be finally settled by
reference to arbitration in accordance with the Arbitration
and Conciliation Act, 1996 read with its subsequent
amendments and the Rules framed thereunder. The
Arbitration shall be conducted at New Delhi. The
Arbitration proceedings shall be conducted in English
language. The decision of the arbitral tribunal shall be
binding on the Parties.”
D. That BCL has entered into the position of AGC and can
agitate all pending claims with the appellant and a claim
Page 9 of 33
was raised to the tune of Rs. 3,00,01,810/- along with 18%
interest.
14. The Arbitration Clause for Indian Bidders issued in the
tender of the appellant was invoked vide legal notice dated
28.08.2024.
15. On 26.09.2024, appellant sent a reply denying the
contentions made by BCL setting out the following grounds:-
A. There was no privity of contract between the appellant
and BCL.
B. The claim amount and assignment agreement were
unfounded, false and denied.
C. That the purported assignment agreement was not valid in
law as no prior written consent was obtained from HPCL
by AGC.
D. There was no valid purchase order between HPCL and
BCL.
16. BCL issued another notice dated 12.11.2024 and followed
it up with a petition under Section 11(4) of the A&C Act before
the High Court of Judicature at Bombay dated 28.02.2025. The
Page 10 of 33
appellant-Corporation objected by raising all the contentions
set out in their reply along with the additional contention that
the application was time-barred.
17. By the judgment dated 07.04.2025, the High Court
allowed the Section 11-Application with the following
reasoning:-
“3. This to my mind raises a clear capacity for the
Respondent to file an application under Section 16 of the Act,
whereby the arbitral tribunal should decide the arbitrability
of the disputes. In the peculiar facts of this case, while
allowing this Section 11 Application by making a reference to
the arbitral tribunal, it is directed that the arbitrability of the
disputes should be decided as preliminary issue upfront by
the arbitral tribunal, so that the interests of the parties are
well balanced and protected and unnecessary time is not
wasted, should the arbitral tribunal reach a conclusion that
the arbitration agreement would not bind the Respondent
with the assignee of AGC Networks Limited.
4. Being satisfied that an arbitration agreement is in
existence but taking into account the objection raised by the
Respondent that the Respondent had a right to approve the
counter-party prior to the assignment of rights of the
Applicant, this aforesaid request to the Arbitral Tribunal,
asking for the Section 16 Application to be decided first as a
preliminary issue is being made.”
18. Aggrieved, the appellant-Corporation is before us.
19. We have heard Mr. Tushar Mehta, learned Solicitor
Page 11 of 33
General and Mr. Sanjay Kapur, learned counsel for the
appellant. We have also heard Mr. Nalin Kohli, learned senior
counsel for the respondent. We have perused the records.
CONTENTIONS OF THE APPELLANT:-
20. Mr. Tushar Mehta, the learned Solicitor General,
appearing for the appellant contends that there is no legal
relationship between the appellant and the respondent
inasmuch as there was no privity of contract between them.
Learned Solicitor General contends that, at no stage, BCL was
ever involved either in the preliminary negotiation or at the
execution stage. It is further contended that there is no
material/document which discloses that the appellant had the
knowledge of BCL participating in the performance of the
underlying contract. Learned Solicitor General contended
that the respondent had entered into series of litigation with
AGC, and the court below had not made any reference to it in
the impugned order. Learned Solicitor General contends that
the claim was also ex facie time-barred and it is manifest from
Page 12 of 33
the record. Learned Solicitor General contends that at the
Section 11 stage that the court has an obligation to prima facie
examine whether the dispute is arbitrable and even applying
that limited test, the records reveal that the dispute was not
arbitrable. Learned Solicitor General extensively relied on
Clauses 3.17 and 5 of the General Terms and Conditions of
Works Contract to contend that there was express prohibition
to sub-let, sub-contract or assign the work or any share of
interest thereof without the prior consent of the owner
obtained in writing.
21. Refuting the submissions, Mr. Nalin Kohli, learned Senior
Advocate, appearing for the respondent contended that the
test whether a non-signatory would be bound by an
arbitration agreement entails a fact-intensive inquiry
involving a mixed question of fact and law and, therefore, the
arbitral tribunal would be the more appropriate forum to carry
out the said inquiry. Mr. Kohli, learned Senior Advocate,
further contends that the appellant had knowledge of the sub-
letting agreement between the respondent and AGC,
Page 13 of 33
presently known as Black Box Limited. Mr. Kohli, learned
Senior Advocate, referred to the agreement signed between
the respondent and the AGC dated 15.01.2014; the purchase
orders issued to the respondent by AGC, the escrow account
opened by AGC; the monies transferred to the escrow account
by the appellant. Mr. Kohli also referred to certain email
communications, copies of which are marked to the appellant.
Mr. Kohli further referred to the Settlement-cum-Assignment
Agreement dated 31.10.2023 assigning the right to
receivables and AGC giving up its rights and invoked the
veritable party doctrine to sustain the impugned order. Mr.
Kohli, learned Senior Advocate, prayed for the dismissal of the
appeal.
22. We have considered the rival submissions and perused
the records of the case.
QUESTION FOR CONSIDERATION: -
23. The question that arises for consideration is whether the
High Court, on facts, was justified in referring the parties to
Page 14 of 33
arbitration by allowing the Section 11(4) petition filed by the
respondent?
24. The scope of jurisdiction of the referral court hearing a
Section 11-Petition when faced with an issue of joinder of a
non-signatory to the arbitration agreement has been lucidly
set out by the five-judge Bench of this Court in Cox and Kings
1
Limited vs. Sap India Private Limited and Another . Though
said in the context of considering the Group of Companies
doctrine, the said judgment has a great bearing for the
present case. This Court, speaking through Chief Justice D.Y.
Chandrachud, held as under:-
“84. It is presumed that the formal signatories to an
arbitration agreement are parties who will be bound by it.
However, in exceptional cases persons or entities who have
not signed or formally assented to a written arbitration
agreement or the underlying contract containing the
arbitration agreement may be held to be bound by such
agreement. As mentioned in the preceding paragraphs, the
doctrine of privity limits the imposition of rights and liabilities
on third parties to a contract. Generally, only the parties to an
arbitration agreement can be subject to the full effects of the
agreement in terms of the reliefs and remedies because they
consented to be bound by the arbitration agreement.
Therefore, the decisive question before the Courts or
1
(2024) 4 SCC 1
Page 15 of 33
tribunals is whether a non-signatory consented to be bound
by the arbitration agreement. To determine whether a non-
signatory is bound by an arbitration agreement, the Courts
and tribunals apply typical principles of contract law and
corporate law. The legal doctrines provide a framework for
evaluating the specific contractual language and the factual
settings to determine the intentions of the parties to be bound
by the arbitration agreement. [Gary Born, International
Arbitration Law and Practice, (3rd Edn., 2021) at p. 1531.]
101. A formalistic construction of an arbitration agreement
would suggest that the decision of a party to not sign an
arbitration agreement should be construed to mean that the
mutual intention of the parties was to exclude that party from
the ambit of the arbitration agreement. Indeed, corporate
entities have the commercial and contractual freedom to
structure their businesses in a manner to limit their liability.
However, there have been situations where a corporate
entity deliberately made an effort to be not bound by the
underlying contract containing the arbitration agreement,
but was actively involved in the negotiation and performance
of the contract. The level of the non-signatory party's
involvement was to the extent of making the other party
believe that it was a veritable party to the contract, and
the arbitration agreement contained under it. Therefore,
the Group of Companies doctrine is applied to ascertain
the intentions of the parties by analysing the factual
circumstances surrounding the contractual
arrangements . [Gary Born, International Arbitration Law
and Practice, (3rd Edn., 2021) at p. 1568.]
126. Evaluating the involvement of the non-signatory party 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
Page 16 of 33
party to the contract containing the arbitration
agreement; second, the conduct of the non-signatory 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.
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 non-signatory 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 the Arbitral Tribunal under Section 16.
170.12. At the referral stage, the referral court should leave it
Page 17 of 33
for the Arbitral Tribunal to decide whether the non-signatory
is bound by the arbitration agreement.”
(Emphasis supplied)
25. A careful reading of the above passage reveals that the
referral court should be prima facie satisfied that there exists
an arbitration agreement and as to whether the non-signatory
is a veritable party. It further holds that even if the referral
court prima facie arrives at the satisfaction that the non-
signatory is a veritable party, the Arbitral Tribunal is not
denuded of its jurisdiction to decide whether the non-
signatory is indeed a party to the arbitration agreement on the
basis of factual evidence and application of legal doctrine.
The Court further reinforces this proposition by holding that
as to whether the non-signatory is bound would be for the
Arbitral Tribunal to decide.
26. But what is primordial is that it should be demonstrated
prima facie before the referral court that the non-signatory is
a veritable party. According to the “Illustrated Oxford
Dictionary (Revised Edition 2003)” the word:
“veritable” means “real; rightly so called
Page 18 of 33
(a veritable feast) ”,
In substance, it means truly, genuinely or for all intended
purposes. The referral court under Section 11 is not deprived
of its jurisdiction from examining whether the non-signatory is
in the real sense a party to the arbitration agreement. The
answer thereof will depend on the facts and circumstances of
each case after examining the documents pertaining thereto.
27. As was held in In Re: Interplay Between Arbitration
Agreements under Arbitration and Conciliation Act, 1996
2
& Stamp Act, 1899 , since the scope of referral court has to
be within the parameter of Section 11 (6-A), the exercise
carried thereon is “examination of the existence of an
arbitration agreement”. While “examination” does not
contemplate a laborious or a contested inquiry there is an
obligation in the referral court to “inspect and scrutinize” the
dealings, if any, between the parties. Para 167 of Interplay
(supra) reads as under:-
“167. Section 11(6-A) uses the expression “examination of
2
(2024) 6 SCC 1
Page 19 of 33
the existence of an arbitration agreement”. The purport
of using the word “examination” connotes that the
legislature intends that the Referral Court has to inspect
or scrutinise the dealings between the parties for the
existence of an arbitration agreement. Moreover, the
expression “examination” does not connote or imply a
laborious or contested inquiry. [P. Ramanatha Aiyar, The
Law Lexicon (2nd Edn., 1997) 666.] On the other hand,
Section 16 provides that the Arbitral Tribunal can “rule” on
its jurisdiction, including the existence and validity of an
arbitration agreement. A “ruling” connotes adjudication of
disputes after admitting evidence from the parties.
Therefore, it is evident that the Referral Court is only
required to examine the existence of arbitration agreements,
whereas the Arbitral Tribunal ought to rule on its jurisdiction,
including the issues pertaining to the existence and validity
of an arbitration agreement. A similar view was adopted by
this Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. ,
(2005) 7 SCC 234]”
(Emphasis supplied)
28. This principle was reiterated lucidly in SBI General
3
Insurance Company Limited vs. Krish Spinning , wherein
this Court (speaking through one of us, J.B. Pardiwala J.)
observed as under:-
113. The scope of examination under Section 11(6-A) is
confined to the existence of an arbitration agreement on the
basis of Section 7. The examination of validity of the
arbitration agreement is also limited to the requirement of
formal validity such as the requirement that the agreement
should be in writing.
3
(2024) 12 SCC 1
Page 20 of 33
114. The use of the term “examination” under Section
11(6-A) as distinguished from the use of the term “rule”
under Section 16 implies that the scope of enquiry under
Section 11(6-A) is limited to a prima facie scrutiny of the
existence of the arbitration agreement, and does not
include a contested or laborious enquiry, which is left for
the Arbitral Tribunal to “rule” under Section 16. The
prima facie view on existence of the arbitration
agreement taken by the Referral Court does not bind
either the Arbitral Tribunal or the Court enforcing the
arbitral award.
115. The aforesaid approach serves a twofold purpose —
firstly, it allows the Referral Court to weed out non-existent
arbitration agreements, and secondly, it protects the
jurisdictional competence of the Arbitral Tribunal to rule on
the issue of existence of the arbitration agreement in depth.”
(Emphasis supplied)
29. Elaborating further as to the broad features to determine
whether a party is a veritable party or not, this Court in Ajay
Madhusudan Patel and others vs. Jyotrindra S. Patel and
4
others (wherein one of us, J.B. Pardiwala J.) held as under:-
“81. The fact that a non-signatory did not put pen to paper
may be an indicator of its intention to not assume any rights,
responsibilities or obligations under the arbitration
agreement. However, the courts and tribunals should not
adopt a conservative approach to exclude all persons or
entities who intended to be bound by the underlying
contract containing the arbitration agreement through their
conduct and their relationship with the signatory parties.
4
(2025) 2 SCC 147
Page 21 of 33
The mutual intent of the parties, relationship of a non-
signatory with a signatory, commonality of the subject-
matter, composite nature of the transactions and
performance of the contract are all factors that signify the
intention of the non-signatory to be bound by the arbitration
agreement.”
30. Applying the above law to the present set of facts, we find
that even prima facie the respondent has not been able to
establish that it was a veritable party to the contract between
HPCL and AGC. HPCL has no privity at all with the respondent
BCL. Admittedly, to the documentation between AGC and
BCL, HPCL was not a party. After obtaining the contract from
HPCL, AGC appears to have engaged BCL to supply, install,
integrate, test, commission and grant warranty and post-
warranty support services to AGC. In fact, Clause 4 of the
contractual arrangement of 15.01.2014 expressly proscribes
the Project Manager of the respondent-BCL to not make any
communication/coordination with HPCL without obtaining
prior written approval from AGC.
31. Further, the Settlement Agreement of 31.10.2023 also is
between AGC and BCL and between them there is an
arrangement that any receivable accruing to AGC from HPCL
Page 22 of 33
shall stand transferred/assigned to the respondent BCL. This
does not mean that there is an arbitration agreement existing
between HPCL and BCL or that BCL was a veritable party to
the agreement between HPCL and AGC.
32. On the facts of this case, it is clear that the appellant and
the respondent have been operating on separate orbits. It has
not been established even prima facie that there was any
intention to bind BCL to the contract between HPCL and AGC.
33. Mr. Nalin Kohli, learned Senior Advocate, made a
strenuous effort to sustain the impugned judgment by relying
on the judgment of this Court in ASF Buildtech Private
Limited vs. Shapoorji Pallonji and Company Private
5
Limited , to contend that the Referral Court should leave the
matter to the Arbitral Tribunal to decide the issue. We have
carefully examined the judgment of this Court in ASF
Buildtech (Supra), authored by one of us J.B. Pardiwala J. We
hold that the judgment of this Court in ASF Buildtech (Supra)
5
(2025) 9 SCC 76
Page 23 of 33
is in harmony with the judgments of this Court in Interplay
(Supra) , Krish Spinning (Supra) , Cox & Kings (Supra) , Ajay
Madhusudan Patel (Supra) and ASF Buildtech (Supra) does
not sing any discordant note. For the sake of convenience, the
following crucial Paragraphs in ASF Buildtech (Supra) are
extracted hereinbelow: -
“110. Even if it is assumed for a moment that the Referral
Court in its jurisdiction under Section 11 of the 1996 Act has
the discretion to determine whether a non-signatory is a
veritable party to the arbitration agreement or not, by virtue
of Cox & Kings (1) [ Cox & Kings Ltd. v. SAP (India) (P) Ltd. ,
(2024) 4 SCC 1, the Referral Court should only refrain but
rather loathe the exercise of such discretion. Any discretion
which is conferred upon any authority, be it Referral Courts
must be exercised reasonably and in a fair manner. Fairness
in this context does not just extend to a non-signatory's
rights and its apprehension of prejudice, fairness also
demands that the arbitration proceedings is given due time
to gestate so that the entire dispute is holistically decided.
Any determination even if prima facie by a Referral Court on
such aspects would entail an inherent risk of frustrating the
very purpose of resolution of dispute, if the Referral Courts
opine that a non-signatory in question is not a veritable
party. On the other hand, the apprehensions of prejudice
can be properly mitigated by leaving such question for the
Arbitral Tribunal to decide, as such party can always take
recourse to Section 16 of the 1996 Act and thereafter in
appeal under Section 37, and where it is found that such
party was put through the rigmarole of arbitration
proceedings vexatiously, both the Tribunal and the courts,
as the case may be, should not only require that all costs of
arbitration insofar as such non-signatory is concerned be
borne by the party who vexatiously impleaded it, but the
Arbitral Tribunal would be well within its powers to also
Page 24 of 33
impose costs.
113.Cox & Kings (1) Cox & Kings Ltd. v. SAP (India) (P)
Ltd., (2024) 4 SCC 1, further observed that in case of
joinder of non-signatory parties to an arbitration
agreement, 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. However, it further clarified that, due to the
inherent complexity in determining whether the non-
signatory is indeed a veritable party, the Referral Court
should leave this question for the Arbitral Tribunal to
decide as it can delve into the factual and circumstantial
evidence along with its legal aspects for deciding such
an issue. The relevant observations read as under: (SCC
p. 90, paras 168-69)
“168. … 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 non-signatory 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 non-signatory
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
Page 25 of 33
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 the Arbitral Tribunal under
Section 16.”
114. Thus, even if it is assumed for a moment, that the
question whether a non-signatory is a veritable party to the
arbitration agreement is intrinsically connected with the
issue of “existence” of arbitration agreement, the Referral
Courts should still nevertheless, leave such questions for the
determination of the Arbitral Tribunal to decide, as such an
interpretation gives true effect to the doctrine of
competence-competence enshrined under Section 16 of the
1996 Act.
115. This hands-off approach of Referral Courts in relation
to the question of whether a non-signatory is a veritable
party to the arbitration agreement or not was reiterated
in Cox & Kings (2) [ Cox & Kings Ltd. v. SAP (India) (P) Ltd. ,
(2025) 1 SCC 611, wherein one of us, (J.B. Pardiwala, J.),
observed that once an Arbitral Tribunal stands constituted,
it becomes automatically open to all parties to raise any
preliminary objections, including preliminary objections
touching upon the jurisdiction of such tribunal, and to seek
an early determination thereof. Consequently, the issue of
impleadment of a non-signatory was deliberately left for the
Arbitral Tribunal to decide, after taking into consideration
the evidence adduced before it by the parties and the
principles enunciated under Cox & Kings (1) [ Cox & Kings
Ltd. v. SAP (India) (P) Ltd. , (2024) 4 SCC 1.”
34. In fact, ASF Buildtech (Supra) expressly notices the
holding in Para 169 of Cox & Kings (Supra) to conclude that
Page 26 of 33
the Referral Court was required to prima facie rule on the
existence of the arbitration agreement and whether the non-
signatory was a veritable party. All that it holds further in
reiteration of the earlier line of judgments is that even if the
Court holds that prima facie a party is a veritable party that
will not foreclose the Arbitral Tribunal from concluding to the
contrary after an intensive inquiry.
35. This does not mean that where the Referral Court finds
prima facie a party is not a veritable party still the matter is left
to the Arbitral Tribunal. To hold so, would relegate the
Referral Court to the status of a monotonous automation.
Further, to countenance such an extreme proposition would
lead to disastrous consequences, where absolute strangers
could walk into the Referral Court and contend that the matter
has to perforce go to the Arbitral Tribunal for a decision on the
veritable nature of the party. We are not prepared to accept
such an extreme proposition.
36. It could happen that one party having undertaken a
contract from the other may engage one or more third parties
Page 27 of 33
like in the present case. In such a scenario, if there is nothing
even prima facie to show that there was any semblance of an
intent to effect legal relationship between that party and the
party originally granting the contract and/or to indicate that
such a third party was a veritable party, such parties cannot
be found to be veritable parties. The following pertinent
observations from Cox and Kings (Supra) are relevant: -
“117. ….However, we clarify that mere presence of a
commercial relationship between signatory and non-
signatory parties is not sufficient to infer ‘legal relationship’
between and among the parties. If this factor is applied solely,
any related entity or company may be impleaded even when
it does not have any rights or obligations under the underlying
contract and did not take part in the performance of the
contract. The group of companies doctrine cannot be applied
to abrogate party consent and autonomy….”
As pointed out earlier, on the facts of the present case, we hold
that the parties operated on separate orbits.
37. We are not impressed with the argument that the
respondent had a right to invoke the arbitration clause for the
Indian Bidders in the tender issued by the appellant, despite
being a non-signatory, since the respondent was a person
Page 28 of 33
claiming through or under AGC. Reliance placed in this
regard on Cox and Kings (supra) is completely unjustified. As
held in Cox and Kings (supra), mere legal or commercial
connection is not sufficient for a non-signatory to claim
through or under a signatory party. Para 140 of Cox and Kings
(supra) is extracted hereinbelow :-
“140. An analysis of the cases cited above establishes the
following propositions of law : first, the typical scenarios
where a person or entity can claim through or under a party
are assignment, subrogation, and novation; second, a person
“claiming through or under” can assert a right in a derivative
capacity, that is through the party to the arbitration
agreement, to participate in the agreement; third, the
persons claiming through or under do not possess an
independent right to stand as parties to an arbitration
agreement, but as successors to the signatory parties’
interest; and fourth, mere legal or commercial connection is
not sufficient for a non-signatory to claim through or under a
signatory party.”
38. Apart from the above, not only has the respondent not
shown any consent for assignment as required under clause
3.17 of the tender document, nothing even prima facie has
been shown to establish that there was any semblance of an
intent to effect legal relationship between the respondent and
the party originally granting the contract and/or to indicate
Page 29 of 33
that the respondent was a veritable party.
39. It will be apt to refer to the judgment of this Court in
6
Khardah Company Limited vs. Raymon & Co. wherein this
Court held as under:-
“The law of the subject is well settled and might be stated in
simple terms. An assignment of a contract might result by
transfer either of the rights or of the obligations thereunder.
But there is a well-recognised distinction between these two
classes of assignments. As a rule obligations under a contract
cannot be assigned except with the consent of the promise,
and when such consent is given, it is really a novation
resulting in substitution of liabilities. On the other hand rights
under a contract are assignable unless the contract is
personal in its nature the rights are incapable of assignment
either under the law or under an agreement between the
parties.”
40. Applying the consensual theory or the non-consensual
theory, the respondent has not established its case to show
even prima facie the existence of an arbitration agreement
between HPCL and the respondent. Reference to copies of
group emails being marked to HPCL or the creation of an
escrow account on account of the contract between AGC and
6
1963 3 SCR 183
Page 30 of 33
the respondent BCL, fall far short of making out of a prima
facie case. We have also perused the Settlement-cum-
Assignment Agreement between AGC and respondent-BCL
dated 31.10.2023, and particularly clause 2.2 thereto. Under
this clause, AGC (Black Box) has represented and warranted
that any amount/receivables accruing to AGC (Black Box) as
a result of litigation/proceeding initiated by BCL against the
HPCL was to be transferred to BCL. Here again, the
respondent fails the prima facie test of being a veritable party
to the arbitration agreement between HPCL and AGC. As to
what is the legal status otherwise of clause 2.2 of the
Settlement Agreement dated 31.10.2023 is not for us to
comment in the present proceeding.
41. The judgment in Pravin Electricals Private Limited vs.
7
Galaxy Infra & Engineering Private Limited , cited by Mr.
Nalin Kohli, learned Senior Advocate, has no relevance to the
present case. There was a dispute between employer and the
7
(2021) 5 SCC 671
Page 31 of 33
tendering party directly and the dispute was as to whether
there existed any agreement between them. Hence, Pravin
Electricals (Supra) is also of no help to the respondent.
Equally, the reliance on Cox & Kings Ltd. (2) vs. SAP (India)
8
Pvt. Ltd. , does not carry the case of the respondent any
further. That case turned on its own facts. As is clear from
para 34 of the said judgment, this Court felt that in view of the
complexities involved in the determination of the question as
to whether the respondent No.2 therein was a party to the
arbitration agreement or not, the matter was felt best left to the
arbitral tribunal to take a call. Unlike in Cox & Kings (2)
(supra) , the situation here is simple, leaving us with no
difficulty in arriving at the conclusion that we indeed have
arrived at.
42. In view of our holding on the issue of the non-existence
of an arbitration agreement between the parties herein, we
are not required to go into the issue of whether the claim was
8
(2025) 1 SCC 611
Page 32 of 33
ex-facie time-barred.
43. For the reasons stated above, we allow the appeal and set
aside the judgment and order dated 07.04.2025 passed by the
Learned Single Judge of the High Court of Judicature at
Bombay in Comm. Arbitration Application No.125/2025.
Comm. Arbitration Application No.125/2025, on the file of the
High Court of Judicature at Bombay, shall stand dismissed. If
the respondent has any other remedy available in law, it is at
liberty to pursue the same. If any such proceedings are
resorted to, they have to be decided in accordance with law
and on their own merits. No order as to costs.
……….........................J.
[ J.B. PARDIWALA ]
……….........................J.
[ K. V. VISWANATHAN ]
New Delhi;
th
9 December, 2025
Page 33 of 33