The main legal point established is that the interpretation of an arbitration agreement should consider the intention of the parties and the commercial nature of the agreement, and the absence of a signature does not necessarily invalidate the agreement.

1. This Petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter called `ACA 1996) was filed on 12.07.2007 by M/s. Wescare Limited, praying for appointment of a sole Arbitrator to arbitrate upon the disputes between the petitioner and the respondents arising out of an agreement dated 24.02.2006 and pass an award thereof.

2. The material facts are that the petitioner and the second respondent are all Companies registered under the Companies Act and having their Registered Offices in Chennai.

3. The case of the petitioner is that it is engaged inter alia in the business of setting up of operation and management of wind farms for generation of power from wind electric generators. The first respondent is the promoter of the second respondent and both the first and the second respondent approached the petitioner some time in the month of January/February, 2006 to the effect that they were in the process of developing the business of the second respondent and expressed their desire to purchase certain business assets of the petitioner for and on behalf of the second respondent. The petitioners case is that the respondents offered to purchase liabilities and obligations of the petitioner for a total sale consideration of Rs.98,19,00,000/-. The further case is that though the assets were to be sold for the benefit and consumption of the second respondent, the respondents wanted the agreement to be signed only by the first respondent as the second respondent was coming out with a public issue.

4. Accordingly, an agreement for sale was entered into between the petitioner and both the respondents on 22. 2006. The same was signed by the first respondent for and on behalf of the second respondent for selling the petitioners business assets to the second respondent for the aforesaid total consideration of Rs.98,19,00,000/-. In the said agreement, there is an arbitration clause, which runs as follows:

"This agreement shall be governed by and interpreted in accordance with, the laws of India. The Parties submit to the exclusive jurisdiction of the Courts in the city of Chennai, Tamil Nadu. Any disputes, differences, claims or questions arising under this agreement or concerning any matter covered by this Agreement or touching upon this agreement, the same shall be referred to arbitration before a Sole Arbitrator to be appointed by consent of Seller, Buyer/IW. The decision/ award of the Sole Arbitrator shall be final and binding on all parties. The provisions of the Arbitration and Conciliation Act, 1996 with such amendments thereto as may be applicable, shall apply to the proceedings. The venue of the arbitration shall be Chennai and the language of the Arbitration shall be English."

It is common ground that IW is an abbreviation for ludo Wind, the second respondent.

5. In this matter, a counter statement has been filed by the second respondent. In paragraph-4 of the counter statement, it has been stated that the second respondent is not a signatory to the agreement dated 22. 2006 and no privity of contract exists between this petitioner and the second respondent. The second respondent has also referred to an order passed by this Court dated 28. 2007 in a proceeding under Section 9 of ACA initiated at the instance of the petitioner and to certain observation of the learned Judge to the effect "a genuine doubt arises as to the binding nature of the agreement on the second respondent, who is not a signatory to the agreement." However, Section 9 Petition filed by the petitioner was dismissed by an order wherein it is stated:

"the said order is not in any manner intended to be the findings on the merits of the case and it is open to the applicant to commence arbitration proceedings and prove the case before the Tribunal. Needless to add that what has been said in this order is only for the purpose of disposal of Section 9 Applications, leaving all the questions open to be determined by the Arbitrator uninf