1. This is the 1st Defendant’s application under Section 8 of the Arbitration and Conciliation Act, 1996. The prayer made is that all the disputes between the Plaintiff and Defendant No. 1 be referrEd to arbitration in terms of the Arbitration Agreement contained in a Term Sheet dated 13th June 2012. That Term Sheet was between the Plaintiff and the 1st Defendant. I must note that Defendants Nos. 2 to 8 all claim to have used the copyright-protected material in question under a sub-licence from Defendant No. 1. None of thE Defendants are using any of that material now. Defendants Nos. 2, 7 and 8 are separately represented. Defendants Nos. 2 to 6 have all filed Affidavits supporting the 1st Defendant and inter alia agreeing to have that disputes referred to arbitration. Defendants Nos. 7 and 8 have confirmed this as well.

2. The Suit itself was first mounted as a copyright action. Some facts are necessary. The Plaintiff produces, distributes and exhibits feature films through various media and in various modes. It owns copyright in several feature films. For others, it has assignments or exclusive licenses. Particulars are set out in Exhibit “A” to the plaint. Thes Plaintiff exploits its copyright through various media, including mobiles phones, tablets, desktops and portable storage devices.

3. In March 2012, Defendant No. 1 (“Telemax”) approached the Plaintiff (“Eros”) saying that it had sufficient expertise in the business of content distribution to manufacturers of devices by which content could be ‘pre-embeded’ or ‘pre-burned’. Telemax offered a sum of Rs. 1.5 Crores as a non-refundable minimum guarantee amount for the grant of content marketing and distribution rights in respect of films. A Term Sheet dated 13th June 2012 was executed between the parties. Plaint, Exhibit “L”, p. 81. Preceding this Term Sheet there was some correspondence in which the Eros alleged that there was copyright infringement by Telemax, but for the present purpose this matters little given the frame of the present Notice of Motion.

4. The Term Sheet itself requires consideration. It contemplates an exclusive licensing contract for various audio-visual materials. It also contemplate the execution of what is called a ‘Long Form Agreement’. This was to be executed within ten days of execution of the Term Sheet. When so executed that Long Form Agreement was to supersede and override the terms and conditions of the Term Sheet. The Long Form Agreement would be the final and binding agreement between the parties.

5. What is of consequence, however, is the Arbitration Agreement, contained in a distinct clause on the last page of the Term Sheet. It is necessary to set this out in full:

Arbitration In case of any dispute or difference arising out of or in connection with this Term Sheet the same shall initially be referred to and resolved by mutual consultation between the parties hereto failing which the same shall be referred to the arbitration of a Sole Arbitrator appointed mutually by Eros and Telemax failing which the Sole Arbitrator will be appointed vide application to the Bombay High Court under Section 11 of the Arbitration and Conciliation Ac, 1996. The Arbitration proceedings shall be in English and held in Mumbai and the Court in Mumbai alone shall have jurisdiction.

6. On the face of it, this Arbitration clause refers to disputes and differences arising out of or in connection with the Term Sheet. In other words it is not limited to disputes and differences arising or stemming from the Long Form Agreement that was yet to be executed. The Arbitration Agreement is in the widest possible terms. It is this Arbitration Agreement that the Telemax seeks to enforce, and it is under this Arbitration Agreement that Telemax seeks that the disputes in this Plaint be referred to arbitration.

7. Eros says that the Term Sheet is not binding. In any case, the condition required by that Term Sheet, i.e., the execution of the Long Form Agreement was never fu