Judgment Name: Cox and Kings Ltd. v SAP India Pvt Limited and Anr.

Citation: Arbitration Petition No. 38 of 2020

Court: Supreme Court of India

Coram: N.V. Ramana; CJI, Surya Kant & AS Bopanna, JJ.

Date: 6th June 2022

Keywords: Group of Companies Doctrine, Section 11, Section 2(H), Section 8, Chloro Controls

Facts

On 14th December 2010, the Applicant and Respondent No. 1 entered into an SAP Software End User License Agreement and SAP Enterprise Support Schedule under which the Applicant was made a licensee of a certain software developed and owned by the Respondents. The agreement was divided into three separate transactions. First, the Software License and Support Agreement- Software Order Form 3 was signed between the Applicant and Respondent No. 1 for the purchase of the SAP Hybris Software License; Second, the Services General Terms and Conditions Agreement (“GTC”) containing the terms and conditions governing the implementation of the software was signed between the parties; Third, an agreement was entered into for the customization of the software.

The GTC contained a dispute resolution clause under which, in the event of a conflict, the parties were obligated to settle their disputes amicably before referring it to a bench of three arbitrators.

In 2016, a conflict arose, and the Applicant requested Respondent no. 2 (holding company of Respondent No. 1) to intervene. In response, Respondent No. 2 gave assurances to the Applicant. Subsequently, the contract could not be fulfilled despite the extended timelines and additional manpower, so it was rescinded on 15th November 2016, after which the Respondents withdrew their resources from the project. Pursuantly, the Applicant, demanded a refund of Rs. 45 crores.

The conflict could not be settled amicably, and thereafter on 29th October 2017, Respondent No. 1 issued a notice invoking arbitration as per the GTC for the alleged wrongful termination of the contract and demanded payment of Rs. 17 crores. An Arbitral Tribunal was constituted, and Respondent No. 2 was not made a part of the proceedings. During the proceedings, the Applicant filed an application under Section 16 of the Arbitration and Conciliation Act, 1996 (“Act”) before the Tribunal, contending that the four agreements entered between the parties are a part of a composite transaction and the same should be a part of a singular proceeding. Further, on 7th November 2019, the Applicant sent a notice invoking Arbitration arraying Respondent No. 2 in the Arbitration Proceedings. There was no response from the Respondent, after which the Applicant preferred an Application under Section 11 of the Act seeking appointment of the Arbitrator in an International Commercial Arbitration.

Issues

I. Whether the arbitration clause given under GTC can be invoked against Respondent 2, who is a non-signatory to the arbitration agreement?

II. Whether judicial precedents have adequately interpreted the Group of Companies Doctrine under Section 8 of the Act?

Decision

The Court iterated the ratio given under the Dow Chemical Company v. Isover Saint Gobain and noted that under Section 7, the consent of the parties is integral to arbitration, and the same ought to be expressed in a written form. The intention of the parties can be construed from written communication such as letters, telexes, telegrams, and even electronic messages. It examined the ambit of the “Group of Companies” Doctrine vis-à-vis Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. The Court opined that the ratio in Chloro allowed joinders of non-signatories to the arbitration agreement and that such joinders found their genesis in the ‘policy consideration of efficiency’. It stated that without a legal basis, efficiency should not by itself be the sole ground to bind a party to the arbitration.

The Court laid out the Indian jurisprudential paradigm for the Group of Companies Doctrine starting with Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya, wherein the Apex Court held that under Section 8 of the Act, causes of action could not be bifurcated in an arbitration, and non-­parties to an arbitration agreement cannot be included in the same arbitration. Further, the Court distinguished between Section 45 and Section 8 of the Act as given in Chloro and iterated in the 246th Law Commission Report’s recommended amendment to Section 2(1)(h), which defines ‘party’, and Section 8 of the Act to modify the definition of ‘party’ to ‘a party to an arbitration agreement or any person claiming or through or under such party’ and the subsequent 2015 amendment to Section 8(1) of the Act to include ‘any person claiming through or under him’, The Court also looked at the cases of Cheran Properties Ltd. v. Kasturi And Sons Ltd., wherein the Court interpreted Section 35 of the Act to enforce an award against a non-signatory, who had not participated in the proceedings.

Subsequently, it looked at Mahanagar Telephone Nigam Ltd. v. Canara Bank, where it was observed that the Group of Companies Doctrine could be utilized to bind a third party to an arbitration if a tight corporate group structure constituting a single economic reality existed.

Thus, the Court challenged the correctness of the law laid down in Chloro and other subsequent cases, claiming that they have been decided without explaining the ambit of the phrase ‘claiming through or under’ as given under Section 8 of the Act. It observed that the doctrine engendered the joinder of non-signatories as “parties in their own right” instead of claiming through or under. Consequently, it held that the broad-based understanding of the doctrine in Chloro might be counterintuitive to the distinct legal identities of companies and party autonomy, highlighting the need to re-interpret the ingredients of the Group of Companies Doctrine.

Finally, it referred certain issues to a larger bench and deferred its judgment for the current factual matrix. The referred issues were:

1. Whether phrase ‘claiming through or under’ in Sections 8 and 11 could be interpreted to include the ‘Group of Companies’ Doctrine?
2. Whether the ‘Group of Companies’ Doctrine as expounded by Chloro and subsequent judgments are valid in law?

Conclusion

By referring the decision to a larger bench, the Court has invited scrutiny on the Group of Companies Doctrine through the lens of company law principles such as alter ego and piercing the corporate veil. It paves the way for courts to decide the ambit of implied consent of non-signatory parties and the threshold of such consent for them to be bound to the arbitration agreement. Further, it threatens to upend the Indian jurisprudence on the Group of Companies Doctrine and gives the courts the freedom to determine the threshold of implied consent that can qualify a non-signatory party as one bound by the arbitration agreement.