The main legal point established in the judgment is that the plaintiff was not a party to the arbitration agreement and could not be roped into the arbitration proceedings. The court also emphasized the importance of considering the balance of convenience and irreparable loss in granting injunctions.

The plaintiff has filed the present suit for a declaration that there is no arbitration agreement between the plaintiff and defendant No.1 including in relation to contract No.4600006177 dated 7th September 2006 as amended on 4th July 2007. The plaintiff has also taken out a notice of motion praying for an order of restraint restraining defendant No.1 from proceeding with or prosecuting the arbitration proceeding initiated by it before the International Chamber of Commerce vide letter dated 24th May 2012 on the basis of the aforesaid contract. The plaintiff had also moved this court for ex parte ad-interim relief. Vide order dated 3rd July 2012, I had granted ad-interim relief in terms of prayer clause (a). The said order was carried in appeal before the Division Bench. The Division Bench, vide order dated 6th August 2012, has disposed of the appeal requesting this court to take up the notice of motion for hearing and to grant the opportunity of hearing to the appellant-defendant on the question of extension or otherwise of the ad-interim relief, if the motion cannot be heard finally on that date. Accordingly, the matter was listed before me on 14th August 2012. On the said date, it was submitted on behalf defendant No.1-firm that on the question as to whether the proceedings are vexatious or oppressive was a matter of interpretation and for that affidavit-in-reply was not necessary. I have, therefore, recorded a statement that the defendant No.1 was willing to proceed with the motion without filing affidavit-in-reply, in the order dated 14th August 2012. As such, I have heard the learned counsel for the plaintiff and defendant No.1 on the motion without there being any affidavit-in-reply on behalf of defendant No.1.

2. Shri Tulzapurkar, learned senior counsel appearing for the plaintiff submits that there is no privity of contract between the plaintiff and defendant No.1. It is submitted that though defendant No.2 is a subsidiary of the plaintiff, it has an independent existence and, as such, independent contracting capacity. The learned counsel submits that defendant No.2 had placed an order on defendant No.1 on 6th November 2002 for refurbishment, supervision of erection and commissioning of two generators at Power Project at village-Dolvi, district-Raigad in the State of Maharashtra. It is the case of the plaintiff that on 7th September 2006, another contract was entered into between defendant No.1 and defendant No.2. The learned counsel submits that as per clause-18 of the said contract, the general terms and condition attached at Annexure-A was to constitute and form part of the contract. Learned counsel submits that per the said terms and conditions, the term “owner” would mean the defendant No.2 and term “contractor” would the defendant No.1. The learned counsel submits that the parties have also been defined as the owner and contractor. Learned counsel submits that clause-28 of the said terms and conditions deals with dispute resolution and arbitration and the same also refer to the parties. Learned counsel further submits that the contract has been further amended on 4th July 2007. It is submitted that in the said amended contract also the plaintiff has no role to play. Learned counsel further submits that even notice demanding the payment by defendant No.1 is only addressed to defendant No.2 and the correspondent with regard to that is only between defendant No.1 and defendant No.2. It is further submitted that the plaintiff without being in any way involved in the contract between defendant No.1 and defendant No.2, has been dragged by defendant No.1 in the arbitration proceeding. The learned counsel relying on the judgment of the Apex Court in the case of IndowindEnergy Ltd. v. Wescare (I) Ltd. & Anr., AIR 2010 SC 1793 submits that since there is no privity of contract between the plaintiff and defendant No.1, the arbitration proceedings initiated against the plaintiff are not sustainable on law. In reply