An Arbitration Agreement can be inferred from the conduct and correspondence of the parties, even without a signed document, as per Section 7(4) of the Arbitration and Conciliation Act, 1996.

JUDGMENT :

Navin Chawla, J.

This petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") has been filed inter-alia praying for the following reliefs:

"i) Pass an ad-interim measure of protection in favour of the Petitioner in terms of Section 9 (ii) (b) of the Arbitration and Conciliation Act, 1996 for securing the amount of Rs.2,17,57,100 (Rupees two crores seventeen lacs fifty seven thousand and one hundred) by directing the Respondent No.1 company to deposit the said amount before this Hon'ble Court pending resolution of disputes before the Arbitrator(s);

(ii) Pass an ad-interim measure of protection in terms of Section 9 (ii)(c) and/or (d) of the Act directing/restraining the Respondent No.1 company not to de-register, change the ownership and/or export its helicopters VT-UTA, VT-UTB and VT-UTC out of the country pending resolution of disputes before the Arbitrator(s)."

2. The primary issue to be determined in the present petition is as to whether there is a binding Arbitration Agreement between the parties.

3. It is the case of the petitioner that on 05.09.2017 the petitioner met respondent Nos.4 and 5 to negotiate the terms of hiring two helicopters out of three owned by the respondent no.1 company for the Heli-skiing Season 2018-19. It is further averred that the parties had similar agreements in 2011, 2012, 2015, and 2016-17. Vide email dated 18.09.2017, the respondents communicated the financial terms, including the rate, period of contract and fuel cost etc. to the petitioner for the Heli-skiing Season 2018-19. In the said email the respondent no.5 further stated as under:

"The detailed draft Agreement is under preparation and shall follow. In the meantime (sic), kindly transfer the advance payment in our account."

4. Pursuant to the above email, the petitioner made certain payments to the respondent no.1, while the respondent no.1 by its letter dated 15.11.2017 requested the Embassy of India, Switzerland for employment visa for one of the pilots to visit India.

5. By an email dated 13.02.2018 the respondent informed the petitioner of certain changes in draft Agreement that had been "decided". The said email further states as under:

"Please make the correction as above and send as the signed Agreement today positively."

6. On the same day, the petitioner made a payment of approximately Rs.35,88,000/- to the respondent no.1 towards Flying Charges and Ground Running Charges. Further by an email dated 15.02.2018 the petitioner sent a copy of the Agreement to the respondent no.1 stating as under:

"Goel Sahib, attached is the corrected version of the agreement corrections as per Poojas letter ji...

Call follows ji

Best regards,

Manjeev"

7. It is not disputed by the respondents that the copy of the Agreement attached with this email incorporated all the changes and infact, only those changes which had been "decided" and communicated by the respondents to the petitioner vide email dated 13.02.2018.

8. The respondents thereafter supplied one helicopter to the petitioner on 20.02.2018. The petitioner thereafter made repeated attempts to contact the respondent no.1 and its officers primarily for the supply of the second helicopter, which as per the case of the petitioner, was essential for proper running of its operation.

9. In this process one text message addressed by the petitioner to the respondent no.5 on 17.02.2018 has been relied upon by the counsel for the respondents to suggest that the same indicates that the Agreement was under discussion and had not been finalized. The said text message is reproduced hereinbelow:

"Good morning Goel Sahib l have been trying to talk to you for a few days now. Seems you are really busy... I have been meaning to finalise the agreement with you and secondly request that please send one of your ski basket with the Helos ji,,, BTW we are still awaiting FATAs and I am very nervous about the matter.... Wish you good day ji, Manjeev."

10. Certain payments we