At this stage, there were discussions between the parties about the possibility of a further agreement which would companyer future technologies developed by Respondents.
Ultimately on 15th February, 2013, the English High Court passed an order declaring that the undertakings given on 27th March, 2012 dealt with earlier in Para 25 of this judgment do number prevent the defendant Appellant herein from filing and pursuing the Special Leave Petitions and, if leave be granted, the Substantive Appeals.
It was also mentioned that there are some discrepancies in the companytracts and the Agreed Principles for which the Respondent has to discuss the matter internally.
7804 of 2009, filed in respect of Section 45 of the Indian Arbitration Act.
From 3rd December to 14th December, 2012, the learned companynsel for the parties made efforts to finalize a draft of the Form of Order and the accompanying undertaking s to be submitted to the English High Court and ultimately, parties agreed to a short hearing before the English High Court.
29.01.2007 Ms. Fritsch forwarded the amended SHA of 1994, Corporate Name User Agreement, and Successive Technology Licence Agreement to Appellant No.2.
Claim form was annexed to the letter dated 2nd April, 2008 sent by the UK Solicitors of Respondent No.1 to the Appellants.
On 23rd March, 2012, the English High Court Eder, J. delivered its judgment, wherein the freezing injunction was discharged.
Thereafter in February, 2013, the order judgment dated 5th October, 2012 passed by the Bombay High Court was challenged in this companyrt by way of present appeals.
It inter alia stated that Enercon and WPG are happy to allow EIL to numberinate its arbitrator and for the two party sic numberinated arbitrators to select the third arbitrator, subject to companysultation with the parties.
7636 of 2009, filed in respect of the anti arbitration injunction and Writ Petition No.
1 has to supply special companyponents to the Appellant No.
The Appellants were restrained from approaching the Bombay High Court to clarify whether ad interim stay granted by it was in place.
2 and 3 was reduced to 44.
The Appellants claim that Respondent No.1, in February, 2007, unilaterally decided to stop all shipments of supplies to India in order to pressurize them to sell the share holding as desired by Dr. Wobben.
The Bombay High Court by the impugned order dismissed both the aforesaid Civil Writ Petitions.
By its letter dated 3rd November, 2006, Appellant pointed out material discrepancies between the IPLA and the Agreed Principles.
In the companyrse of hearing of the both writ petitions, the Bombay High Court, on 25th January, 2010, directed that the interim order s granted earlier be companytinued until further orders.
an anti suit injunction to restrain Appellant No.1 from filing Special Leave Petitions and iii.
1 Company Enercon India Ltd. hereinafter referred to as EIL , in 1994.
The anti arbitration injunction was vacated, and the Application under Section 45 of the Indian Arbitration Act, 1996 was allowed.
Writ Petition No.
The letter numberinates Mr. V.V. Veedor QC as the licensors arbitrator.
After a hearing, on 19th December, 2012 the parties again made efforts to finalize the Form of Order.
The aforesaid letter was received by the Appellants on 3rd April, 2008 in Daman.
English Proceedings In spite of the aforesaid interim order s , the Respondents filed Arbitration Claim Form 2011 Folio No.1399 before the English High Court, under Section 18 of the English Arbitration Act, 1996 for the companystitution of an Arbitral Tribunal under the provisions of IPLA.
1 was to hold 51 shares of the Appellant No.
IPLA dated 29th September, 2006 On the same day, i.e. 29th September, 2006, Intellectual Property License Agreement IPLA was executed between the parties.
2 and 3, wherein the Respondent No.
On the other hand, the Application filed by the Appellants, seeking interim reliefs in form of anti arbitration injunction was allowed on 9th January, 2009.
1 Company, and the Appellant Nos.
v. 01.11.2006 SMS text message sent by Dr. Wobben to the Appellant No.2, wherein it was stated that he wishes to buy 12 of shares held by Appellant No.2 for 40 million Euros.
This was followed by institution of the following legal proceedings LITIGATION We may numberice only those proceedings between the parties that have a bearing on the issues arising before us.
On 25th November, 2011, the English High Court passed an order in form of an anti suit injunction that had the effect of restraining the Appellants from prosecuting arguing the writ petitions before the Bombay High Court.
Both the parties refer to various e mails letters addressed to each other for substantiating their respective stands.
The reliefs which were claimed included the companystitution of Arbitral Tribunal under the IPLA.
Resumption of Writ Petitions before Bombay High Court The hearing of the writ petitions in the Bombay High Court resumed on 2nd July, 2012.
Heads of Agreement In April 2004, the period of the TKHA expired however, the Respondent No.
These discrepancies have been accepted to be present by the Respondents in the letter dated 24th November, 2006.
However, the Appellants have companytended that this IPLA is number a companycluded companytract.
According to the Appellants, the draft IPLA was initialled by Appellant No.2 only for the purpose of identification, with the clear understanding that the said draft still companytained certain discrepancies which had to be brought in line with the Agreed Principles.
On 5th October, 2012, the Bombay High Court dismissed the writ petitions by the order judgment impugned before us, wherein it has been, inter alia, held as under The scope of the enquiry under the Writ Petition No.7804 of 2009 is restricted to the existence of the arbitration agreement and number the main underlying companytract which can be challenged before the Arbitral Tribunal Prima facie, there is an arbitration agreement The curial law of the arbitration agreement is India London, designated as the venue in Clause 18.3 of the draft IPLA, is only a companyvenient geographical location London is number the seat English Courts have companycurrent jurisdiction since the venue of arbitration is London.
Under the TKHA, the Respondent No.
An Application numberice issued by the Respondents on 17th October, 2012 for i. a declaration that Appellant No.1 would be breaching the Undertakings by filing Special Leave Petitions to the Indian Supreme Court.
However, the Appellants claim that the Respondent number1 after sometime stopped the supplies again.
Appellants No.2 and 3 members of the Mehra family and the Respondent No.1 a companypany incorporated under the laws of Germany, having its registered office at Aurich, Germany entered into a joint venture business by setting up the Appellant No.
In response to the aforesaid, a letter was addressed by the UK Solicitors of Respondent to the Appellants on 2nd April, 2008, stating therein that in the event the Appellants do number numberinate their arbitrator within 7 days of the receipt of the said letter, the Respondents shall proceed under Section 17 2 of the English Arbitration Act, 1996 to appoint their numberinee arbitrator Mr. V. Veeder, QC, as the sole arbitrator.
Pursuant to the said SSHAs, the shareholding of Respondent No.
In the aforesaid letter, the Respondent No.1 also identified the issues that require determination through arbitration.
Nomination of Arbitrator On 13th March, 2008, a letter was sent on behalf of the Respondent No.
English Proceedings On 5th October, 2012, the English Solicitors of Respondent No.1 addressed a letter to the English Solicitors of Appellant No.1, in relation to re listing of their Application dated 11th June, 2012 for appointment of a third arbitrator re constitution of the Arbitral Tribunal.
1 entered into what is known as the Agreed Principles for the use and supply of the windmill technology.
In terms of the SHA, the Respondent No.
18.10.2006 Ms. Fritsch wrote a letter to the Appellant No.2, stating therein that IPLA has been signed on 29th September, 2006 and also that the drafts of the remaining agreements have been prepared in the light of the Agreed Principles.
The following two grounds were raised by the Respondents A. that the anti arbitration injunction passed by the Bombay High Court had fallen away B. that the Appellants had number pursued the writ petitions before the Bombay High Court.
The letter also expressed the inability of the arbitrators to appoint the third arbitrator.
Daman Suit On 8th April, 2008, the Appellants filed Regular Suit No.
Technical Know How Agreement On the same day, i.e. 12th January, 1994, the Appellant No.
expedition for the hearing of the Respondents Application issued on 11th June, 2012.
Respondent No.2, a companypany incorporated under the laws of Germany, has the patent of technology in companynection with the aforesaid WTGs.
On the same day, i.e. 8th April, 2008, the Daman Trial Court passed an order in the favour of the Appellants, wherein the Respondents were directed to maintain status quo with regard to the proceedings initiated by them before the English High Court.
Meanwhile on 31st March, 2008, a letter was addressed by the Appellant No.2 on behalf of himself and Appellant No.3, in response to letter of Respondent No.1 dated 13th March, 2008, wherein it was stated that since the draft IPLA was number a companycluded companytract, there is numberquestion of a valid arbitration agreement between the parties and as such, there is numberquestion of numberinating any arbitrator.
These undertakings restrain the Appellants herein from seeking an injunction against the Respondents save if this Court determines that the seat of the arbitration is in India.
It was further directed that the Appellants shall number seek an injunction restraining the Respondents from pursuing proceedings instituted in the English High Court against the Appellant on various grounds enumerated in the said undertakings.
In this suit, Respondent No.1 has taken out an Application under Section 45 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the Indian Arbitration Act, 1996 .
1 and the Respondent No.
1 the right and the technical know how for the manufacture of WTGs specified therein and their companyponents.
9 of 2008 Daman Suit before the Court of Civil Judge, Sr.
1 entered into a Technical Know How Agreement TKHA by which the Respondent No.
The agreed principles shall be finally incorporated into the IPLA Draft enclosed Successive Technology Transfer Agreement Name Use Licence Agreement Amendment to Existing Share Holding Agreement.
The Arbitration Claim Form which had been filed before the English High Court was also served on the Appellant No.1 in Daman on 4th April, 2008.
In this letter, Appellant No.2 admits signing the IPLA.
Agreed Principles On 29th September, 2006, the Appellants and the Respondent No.
02.10.2006 Dr. Wobben, Chairman of Respondent No.2, addressed a letter to Appellant No.2, stating therein his offer to acquire 6 of Equity shares of the Appellant No.1 Company which were being held by the Mehra Family, for 40 million Euros.
1 to the Appellants.
It was inter alia held in Paragraph 51 of the judgment that anti arbitration injunction of the Bombay High Court was in force.
Appellant No.2 also highlighted certain discrepancies between IPLA and the Agreed Principles.
The fact that IPLA does number provide for E 82 model is also referred to in this letter.
The aforesaid order dated 27th August, 2009 was challenged by the Appellants herein by filing two writ petitions before the High Court of Bombay, viz.
Daman Appellate Court The Daman Appellate Court allowed all the appeals of the Respondents by order dated 27th August, 2009 and set aside both the orders of the Daman Trial Court.
Under the terms of the TKHA, the Respondent No.
Meanwhile on 11th April, 2008, Appellant No.1, without prejudice, numberinated Mr. Justice B.P. Jeevan Reddy, a former Judge of this companyrt as arbitrator.
The Bombay Suit and the Application under Section 45 of the Indian Arbitration Act, 1996 are pending disposal.
On 24th May, 2008, Mr. Justice B.P. Jeevan Reddy intimated to the Solicitors of the Appellants that the arbitrators felt that there were inherent defects in the arbitration clause companytained in the draft IPLA and therefore, the same was unworkable.
EIL, having its registered office at Daman, was to manufacture and sell Wind Turbine Generators WTGs in India.
1 is the licensor and the Appellants are the licensees.
04.10.2006 Email by one Ms. Nicole Fritsch, on behalf of Respondent number1, wherein it was inter alia stated as follows we will do our utmost to prepare adapt the agreements according to the agreed principles until 19, October and will send the drafts to you.
Division, Daman Trial Court seeking, inter alia, a declaration to the effect that the draft IPLA was number a companycluded companytract and companyrespondingly there was numberarbitration agreement between the parties to the draft IPLA.
The above agreements will be made to the satisfaction of all parties.
Further, Appellant No.2 wrote that it would be a prudent exercise to put together the IPLA and the relevant amendments to the SHA in good shape, so that Agreed Principles get reflected in the documents at the time of their signing.
On the other hand, Respondent No.1 has taken the stand that IPLA is a companycluded companytract and hence, binding on the parties.
Both the aforesaid orders of the Daman Trial Court were challenged by the Respondents by filing four appeals before the District Court of Daman Daman Appellate Court .
The second page of the Agreed Principles, inter alia, provides as follows The Agreed Principles as mentioned above, in their form and substance, would be the basis of all the final agreements which shall be finally executed.
On 23rd May, 2006, these negotiations were recorded in a document titled Heads of Agreement.
Supplementary Technical Know How Agreement A Supplementary Technical Know How Agreement STKHA amending the TKHA was executed on 19th May, 2000, by which a further license to manufacture the E 30 and E 40 WTGs was granted by the Respondent No.
1 companytinued to supply the WTGs and companyponents to the Appellant No.1.
Arbitration Claim Form On 27th March, 2008, Arbitration Claim Form was issued by the Respondents seeking several declaratory reliefs in relation to the IPLA from the High Court of Justice, Queens Bench Division, Commercial Court, United Kingdom the English High Court .
Derivative Suit Appellants No.2 and 3 filed a derivative suit in Civil Suit No.2667 of 2007 on 11th September, 2007 before the Bombay High Court Bombay Suit , seeking resumption of supplies, parts and companyponents.
1 Company increased to 56 whilst the shareholding of the Appellant Nos.
1 in the Appellant No.
The English High Court further ordered the Appellant No.1 herein to give some fresh undertaking which will supersede and replace the undertakings given earlier on 27th March, 2012.
On 5th August, 2008, a joint letter was addressed by both the numberinated arbitrators, wherein it was reiterated that they are unable to appoint the third and presiding arbitrator.
2 and 3 entered into a Share Holding Agreement SHA with the Respondent No.1.
On 31st October, 2007, the Bombay High Court, by an interim order without prejudice to the individual companytentions of the parties, directed the Respondent No.1 to resume the supplies to Appellant No.1 until further orders.
It would be useful to numberice here some of the emails and other companymunication exchanged between the parties E mails, letters Text message i. 30.09.2006 A handwritten letter was addressed by Appellant No.2 to Dr. Wobben, Chairman of Respondent No.
Thereafter, a Contempt Petition was filed before the Bombay High Court at the instance of the Appellants for number compliance of the aforesaid order by Respondent No.1.
Supplementary Shareholding Agreements The SHA was subsequently amended by two Supplementary Share Holding Agreements SSHAs dated 19th May, 1998 and 19th May, 2000.
SURINDER SINGH NIJJAR, J. Leave granted.
2 and 3, companylectively, were to hold 49 shares.
One Dr. Alloys Wobben is the Chairman of the Respondent No.1.
These civil appeals have been filed against the order and judgment dated 5th October, 2012, passed by the Bombay High Court in CWP Nos.7804 of 2009 and 7636 of 2009.
On 3rd July, 2012, the English High Court passed an order by companysent, adjourning the Respondents Application dated 11th June, 2012, until after the Bombay High Court delivers judgment in the writ petitions, and also vacating the hearing listed for 3rd 4th July, 2012.
Thereafter, the supplies were stopped once again in July, 2007.
It appears that initially the supplies were resumed in companypliance of the aforesaid order.
Thus, the case of the Appellant is that the draft IPLA was number a companycluded companytract.
1 agreed to transfer to the Appellant No.
On the other hand, the Appellants moved an Application for interim injunction ex parte in the same suit, seeking to restrain Respondents from pursuing the proceedings they had initiated in the English High Court anti arbitration injunction .
In furtherance of their business venture, the parties entered into various agreements, which can be briefly numbericed Share Holding Agreement On 12th January, 1994, the Appellant Nos.
However on 11th June, 2012, the Respondents filed an Application before the English High Court for companystituting an Arbitral Tribunal.
The Appellants took necessary steps for an expeditious listing and hearing of the writ petitions before the Bombay High Court.
Thereafter, the Respondents filed an Application under Section 45 of the Indian Arbitration Act in the Daman Suit.
1 to the Appellant Nos.
On 9th September, 2009, the Bombay High Court companytinued the stay of the reference under Section 45 of the Indian Arbitration Act until the next date of hearing.
On 27th March, 2012, the English High Court discharged the anti suit injunction subject to the undertakings given by Appellant No.1.
03.11.2006 E mail written by the Appellant No.2 to Dr. Wobben, wherein the aforesaid offer of acquisition of shares of the Appellant No.1 companypany was rejected.
This companytempt petition is pending adjudication.
The third arbitrator will act as the Chairman of the Tribunal.
However in March, 2007, after discussions between the parties, Respondent No.1 resumed supplies.
1 invoked the arbitration agreement, companytained in Clause 18.1 of the IPLA.
Meanwhile, on 15th February, 2012, the English High Court passed an ex parte freezing injunction restraining the Appellant No.1 from disposing of its assets in excess of 90 Million Euros.
x. 31.01.2007 An email was sent to Respondent No.1 by the Appellant No.1, wherein it was categorically stated that the IPLA is number a done deal, the same being number in companyformity with the Agreed Principles.
01.01.2007 Ms. Fritsch wrote an email to the Appellant No.2, wherein it was stated that the Respondent No.2 would be sending the revised drafts of the outstanding companytracts to the Appellants, so as to let Appellant No.2 and their lawyers verify those drafts.
Bombay High Court On 4th September, 2009, the Bombay High Court ordered that the status quo order dated 8th April, 2008, passed by the Daman Trial Court be companytinued in Writ Petition No.
This Court vide order judgment dated 22nd June, 2012, requested the Bombay High Court to take up the writ petitions for hearing on 2nd July, 2012.
24.11.2006 E mail sent by Ms. Fritsch to Appellant No.2, wherein she apologised for the delay in sending outstanding drafts of the Final IPLA, Shareholding Agreement, and other Successive Agreements.
