IMPORTANT POINT
The court emphasized the need for specific prayers or applications when considering restraints against parties and upheld the principle of safeguarding the rights of both parties in arbitration proceedings.

JUDGMENT

ARB. A. (COMM.) 29/2023

1. The present appeal is directed against the order dated 08.05.2023, passed by the Ld. Sole Arbitrator, disposing of the application under Section 17 of the Arbitration and Conciliation Act, 1996 (the "A&C Act"), filed on behalf of the appellant (the claimant in the arbitration proceedings).

2. The Ld. Sole Arbitrator was appointed by this court vide order dated 10.02.2023, at the joint request of the parties while considering a petition under Section 9 of the A&C Act, filed on behalf of the appellant.

3. While appointing the Ld. Sole Arbitrator, this court directed that the said petition under Section 9 of the A&C Act would be placed before the Ld. Sole Arbitrator as an application under Section 17 of the A&C Act.

4. It is in the above background that the impugned order has been passed by the Ld. Sole Arbitrator disposing of the said application under Section 17 of the A&C Act.

5. The disputes between the parties have arisen in context of a Business Transfer Agreement (BTA) dated 29.01.2022, entered into between the parties.

6. Another agreement referred to as the "Consulting Agreement" dated 01.04.2022 was also executed between the parties; however, whether or not disputes under the said consulting agreement can be brought within the fold of arbitration is an aspect which has been left to be considered by the Ld. Sole Arbitrator and which remains to be finally adjudicated upon in the arbitral proceedings. This is also expressly noticed in the impugned order.

7. By virtue of the BTA dated 29.01.2022, the seller transferred to the buyer thereunder the "transferred undertaking" alongwith certain other attendant rights as specified therein. The said agreement defines "transferred undertaking" as under:

"1.1.39. "Transferred Undertaking" means the business undertaking of the Seller on a going concern basis as on the Accounts Date comprising their assets, rights, approvals, Liabilities, obligations, and employees as more particularly described below:

1.1.39.1. Assets;

1.1. 39.2. All rights, benefits and obligations under Assigned Contracts forming part of the Transferred Undertaking;

1.1.39.3. All Authorization (s) to the extent used in, or forming part of the Transferred Undertaking and which are permitted to be transferred in accordance with Applicable Laws and including original documents, related data, and correspondence in possession of the Seller;

1.1.39.4. All claims, rights, credits, causes of actions, defences, rights of set-off (including the right to sue) to the extent arising from, or related to the Transferred Undertaking;

1.1.39.5. The Current Liabilities, Trade Credits related to the Transferred Undertaking;

1.1.39.6. The Records related to the Transferred Undertaking;

1.1.39.7. All direct and indirect tax related statutory benefits, credits, exemptions, related to the Transferred Undertaking, as applicable;

1.1.39.8. All claims or benefits, in, to or under any express or implied warranties from suppliers of goods or services related to the Transferred Undertaking;

1.1.39.9. Any other assets and liabilities as the Seller and the Purchaser mutually agree in writing."

8. Further, the BTA contains the following relevant stipulation:

"2. TRANSFER OF TRANSFERRED UNDERTAKING

2.1 Subject to the fulfilment or waiver of the conditions set out in this Agreement and the receipt of the Purchase Consideration as specified in Clause 5 below, the Seller hereby agrees to sell, transfer, convey, assign and deliver, as the case may be, on an as - is -where-is basis to the Buyer and the Buyer shall, relying on the representations and warranties provided by the Seller in this Agreement, purchase, acquire and accept, as the case may be, from the Seller, free from Encumbrances in each case with effect from the Accounts Date, the Transferred Undertaking and legal and beneficial title to the following:

2.1.1. The benefit of any amount to which the Seller is entitled from a Person (including, without limitation, an insurer) in r