SOUMEN SEN, J.

The initiation of proceeding under the arbitration rules of the United Nations Commission on International Trade Law, 1976 by a French National being the respondent no.1 on the basis of a Bilateral Treaty Agreement (hereinafter referred to as BIT) between the Government of India and the Government of France on the Reciprocal Promotion and protection of investments 1997 is the subject matter of challenge in this proceeding. Mr. Sudipto Sarkar the learned Senior Counsel appearing with Mr. Jishnu Chaudhury the Senior Advocate on behalf of the respondent no.1 submits invited this Court to decide the matter without affidavit since it is contended that it is purely a jurisdictional issue for which no affidavit as such is required.

This is an application for injunction restraining the respondent no.1 from taking further steps on the basis of a notification of claim dated 11th November, 2013 and the notices of arbitration dated 17th April, 2014 and 19th May, 2014 respectively.

The plaintiff/petitioner essentially seeks restrain order upon the respondent no.1 to proceed with the arbitration proceeding in terms of the aforesaid notices.

The arbitration reference has been made by one Louis Dreyfus Armatures SAS (hereinafter referred to as LDA) respondent no.1 against the Government of India.

The genesis of the dispute is the awarding of a contract executed by Port Trust in favour of the Haldia Bulk Terminals Private Limited (hereinafter referred to as HBT) for operation and maintenance of berth nos. 2 and 8 of the Haldia Dock Complex of the Port Trust.

The plaintiff and HBT had entered into a contract on 16th October, 2009. The said contract contains an arbitration clause. The said Arbitration Agreement has already been invoked and arbitral tribunal has been constituted thereafter. The respondent no.3 as claimant has filed the statement of claim. The claim of the respondent no.3 against the plaintiff/petitioner is essentially one for damages allegedly suffered by the respondent no.3, as a result of alleged breach of contract dated 16th October, 2009 by the petitioner. The arbitral reference is continuing on a regular basis. The petitioner has also filed its counter statement and counter claim. The counter claim of the petitioner also arises out of the said contract. The petitioner alleged to have suffered loss and damages and hence made the counterclaim against the respondent no.3. On 11th of November, 2013 the Government of India, State of West Bengal and the Port Trust received notice of claim issued on behalf of the defendant no.1, in respect of investment in the contract for the supply, operation and maintenance of cargo handling equipment at berth nos. 2 and 8 of Haldia Dock Complex in West Bengal. The said notification of claim is purported to have been issued under Article 9 of a Bilateral Treaty Agreement between the Government of India and the Government of Republic of France on the reciprocal, promotion and protection of investment of 1997 (hereinafter referred to as the Treaty).

Mr. Abhrajit Mitra the Ld. Senior Counsel appearing on behalf of the petitioner submits that a bare reading of notification of claim would show that the claim relates entirely to the disputes already pending before the arbitral Tribunal. The claim is directed against Port Trust. The subject matter of the dispute is wholly and completely connected with the dispute arising out of the said Agreement dated October 16, 2009 between the Port Trust and HBT which is pending before the Arbitral Tribunal. There is no Arbitration Agreement between the petitioner and the respondent no.1 or the respondent nos. 4, 5 and the respondent no.1.

The respondent no.1 is not a contracting party to the Treaty. It is also not an investor, either direct or indirect within the meaning of Article 2 of the said Treaty. The respondent no.1 is not claiming to have made any investment in the respondent no.3 which is the company who allegedly suffered loss