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2017 (12) TMI 1450 - Tri - Companies LawArbitration proceedings - whether the dispute is arbitrable and as per SHA the same should be referred to Arbitration? - exists valid arbitration agreement between the parties? - Whether dispute cannot be referred to arbitration even though some of the respondents are not a party to SHA? - Oppression and mismanagement - Held that:- It is clear that even a non-signatory parties to some agreements can pray and be referred to Arbitration provided they satisfy the prerequisites under sec 44 and 45 of the Arbitration Act 1996. Therefore, it cannot be said that the matter cannot be referred to arbitration because respondents No. 3 to 7 in the CP were not a party to SHA. Since the respondents, No. 3 and 4 are the nominee directors of Rishima, the respondent No. 2 and R-5 to R-7 are also nominee directors. Therefore, on account of non-party to the arbitration agreement, it cannot be said that matter cannot be referred to arbitration. On the above basis, it is clear that the alleged dispute is relating to affirmative voting right and Article 112 of the AOA which is covered by SHA and dispute redressal mechanism is provided in SHA and under Article 122 of the AOA. Therefore, there exists valid arbitration agreement between the parties and respondents No. 3 to 7 are only nominee directors. Thus, they are not a necessary party in the case, and their non-party to SHA will not in any way affect the reference to arbitration. It is also clear from the above that petition under Sec. 241 and 242 is only dressed up a petition with a purpose to bypass the arbitration agreement. So, the issues No. l, 2 and 4 are decided in the affirmative in favour of the petitioner. Regarding the issue No. 3, it is decided that the dispute is arbitrable and should be referred to arbitration and only on the ground of that some of the respondents are not a party to SHA, application for referring the matter to arbitration cannot be refused.On the above basis, it is clear that the interim application filed by the applicant deserves to be allowed.
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