ORDER :

PRAYER: Arbitration Original Petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, pleased to appoint an arbitrator to adjudicate the disputes between the petitioners and the respondents in terms of the arbitration agreement dated 13.02.2020.

The petitioner seeks the constitution of an arbitral tribunal to resolve the dispute purportedly arising out of an agreement dated 13.02.2020, which is tiled as A.R.Rahman Concert, Pune and Hyderabad Investors Agreement (the Agreement).

2. Learned counsel for the petitioner pointed out that clause 10 of the Agreement provides for the resolution of disputes through arbitration and further pointed out that a notice under Section 21 of the Arbitration and Conciliation Act, 1996 (the Arbitration Act) was issued to all the respondents herein on 17.12.2020. Although all the respondents received such notice, it was submitted that only the third respondent replied thereto.

3. Learned counsel contended that the present petition is liable to be allowed for the following reasons:

(i) Although the second and third respondents did not sign the Agreement, they admittedly financed the organization and conduct of concerts pursuant to such Agreement.

(ii) The e-mails addressed by or to the respondents, including by copying the respondents, draw reference to the concerts and the disputes relating thereto. The profit and loss account, including the investors account, was sent to the respondents as attachments to an email.

(iii) The Section 21 notice was dispatched to and received by all the respondents.

4. In order to substantiate these contentions, learned counsel relied upon the following judgments:

(i) Baluram -vs- P.Chellathangam and others, (2015)13 SCC 579, particularly paragraph 15 thereof, with regard to the necessary parties to a dispute.

(ii) Chloro Controls India Private Limited -vs- Severn Trent Water Purification Inc. and Others, (2013)1 SCC 641, particularly paragraph 157 thereof, with regard to the circumstances in which a reference to arbitration is justified even in respect of non-signatories to an arbitration agreement.

5. These contentions were refuted by learned counsel for the first respondent on the following grounds:

(i) The Agreement was admittedly not signed by the second and third respondents herein.

(ii) The Agreement was not signed in view of the inequitable sharing of profit and loss, as provided therein.

(iii) The requirements of Section 7 of the Indian Contract Act, 1872 (the Contract Act) are not satisfied.

(iv) The requirement of Section 2(a) read with Section 7 of the Arbitration Act are not fulfilled in as much as there is neither an arbitration clause - as part of the Agreement, which has been signed by all the parties hereto - nor a separate arbitration agreement between the parties.

6. In support of these contentions, learned counsel relied on the following judgments:

(i) U.P.Rajkiya Nirman Nigam Ltd. -vs- Indure Pvt. Ltd., (1996)2 SCC 667, particularly paragraphs 8 and 19 thereof, for the proposition that the existence of a written agreement to submit existing or future disputes to arbitration is a pre-condition for reference of the dispute to arbitration.

(ii) PSA Mumbai Investments Pte. Limited -vs- Board of Trustees of the Jawaharlal Nehru Port Trust and another, (2018)10 SCC 525, particularly paragraphs 12 and 14 thereof, with regard to the requirements of absolute and unqualified acceptance as per Section 7 of the Contract Act.

(iii) Chloro Controls India Private Limited -vs- Severn Trent Water Purification Inc. and Others (Chloro Controls), particularly paragraph 133 thereof, wherein the Court refused to interfere with the ratio in Sukanya Holdings Pvt. Ltd. -vs- Jayesh H.Pandya and another, (2003)5 SCC 531.

7. Learned counsel for the second respondent submitted as under:

(i) The second respondent financed the concerts to the extent of Rs.1.16 Crore.

(ii) The second respondent was lured into investing on the basis of the petitioner's representat