Collaborator Party to Deed of Joint Undertaking is Veritable Party to Contract Entitled to Invoke Arbitration

The Appellant (Collaborator) provided technical design and equipment to the 2nd Respondent (Contractor) to enable the Contractor to meet the eligibility criteria for a Coal Handling Plant project awarded by the 1st Respondent (Employer)

As required by the bid, the Collaborator and Contractor executed a ‘Deed of Joint Undertaking’ (DJU) in favor of the Employer, establishing joint and several liability

When the Contractor entered liquidation in 2020, a tripartite agreement was signed in 2016 to facilitate direct payments to the Collaborator

Disputes arose regarding project delays and the encashment of the Collaborator's bank guarantee

The Collaborator invoked arbitration under Section 21 of the Arbitration and Conciliation Act, 1996, but the Employer refused, citing a lack of privity of contract

The High Court dismissed the Section 11(6) petition, finding the Collaborator was not a signatory to the main arbitration agreement

1. Whether a non-signatory collaborator, who executed a Deed of Joint Undertaking (DJU) essential to the main contract, can be considered a "veritable party" to the arbitration agreement

2. Whether the lack of an explicit arbitration clause in a subsequent tripartite agreement eclipses the arbitration clause in the original contract to which the collaborator is inextricably linked

The Court applied Section 11(6) and Section 21 of the Arbitration and Conciliation Act, 1996 regarding the appointment of arbitrators

It relied on the "Group of Companies" or "Veritable Party" doctrine, which stipulates that non-signatories to an agreement may invoke an arbitration clause if they are inextricably connected to the performance of the contract and the underlying transaction

The Court also emphasized the principle of "joint and several liability" arising from composite commercial transactions where a Deed of Joint Undertaking (DJU) forms an integral part of the main contract

The Court reasoned that the Collaborator was an "inseparable part" of the contract because the Contractor would not have qualified for the bid without the Collaborator's technical expertise and the submission of the DJU

The DJU established "joint and several" responsibility, which the Employer itself invoked when threatening the Collaborator with risk-and-cost execution after the Contractor’s default

The Court found the High Court erred in focusing on the Collaborator’s request for "consent" in the Section 21 notice; this was interpreted not as an admission of the absence of an arbitration clause, but as a procedural suggestion for a specific forum

Since the tripartite agreement merely facilitated direct payment and did not "wipe out" the original contractual framework, the arbitration clause in the main contract extended to the Collaborator as a "veritable party"

The Court appointed Justice (Retd.) Chakradhari Sharan Singh as the sole Arbitrator to adjudicate the disputes. The Arbitrator was directed to file a disclosure under Section 12 and proceed in accordance with the Fourth Schedule of the Act