ORDER : J.B. Pardiwala, J. 1. The respondents No. 1, 2, 3, 5.1 and 5.2 although served with the notice issued by this court yet have chosen not to remain present before this court either in person or through an advocate and oppose this first appeal. The respondent No. 4 - Sonal A. Baid has appeared through her learned counsel Mr. Mitul Shelat. 2. This appeal under Section 13 of the Commercial Courts Act, Commercial Division and Commercial Appellate Division of High Court Act, 2015 read with Section 9 of the Arbitration and Conciliation Act, 1996 is at the instance of the applicant of a Commercial Civil Misc. Application No. 50 of 2018 (Ex. 23) instituted in the Commercial Court at City Civil Court, Ahmedabad and is directed against the order passed by the Judge, Commercial Court dated 22.10.2018 rejecting the application Ex. 23. 3. The case of the appellant as pleaded in the memo of the appeal is as under:- 3.1 The appellant states and submit that, the appellant is a Company incorporated under the provisions of the Companies Act, 1956 and carrying on the business of providing venture capital to technology oriented start ups. It is submitted that by the deed of trust dated 28.12.2004, Gujarat Biotechnology Venture Fund was constituted and the appellant was appointed as its trustee. 3.2 The appellant states and submits that the respondent No. 1 M/s. Aura Herbal Textiles Limited is a Company registered under the Companies Act, 1956 having its registered office at 69, Near Stovec Industries, NIDC, Post-Narol, Lambha, Ahmedabad (hereinafter referred to as "the Company" or "Aura" as the context may admit). 3.3 The appellant states and submits that, the Company was established on 11.4.1997. It is submitted that Aura came with the proposal of funding to GVFL Trustee Company Pvt. Ltd., (GVFL) and GVFL through its Gujarat Biotechnology Venture Fund and vide its sanction letter dated 8.11.2008, agreed to finance the project by providing financial assistance of Rs. 240/- lacs (2.4 Crore). Thus, GVFL had entered into venture Capital Assistance Agreement dated 4.12.2008 (hereinafter referred to as the "the said Agreement") with all the respondents, where the respondent No. 1, Aura Herbal Textile Ltd., (earlier known as Divine Overseas Pvt. Ltd.) was party of the First Part, and whereas the respondents No. 2 to 5, Mr. Arun M. Baid, Mr. Mohanlal D. Baid, Ms. Arun M. Baid, Mr. Mohanlal D. Baid, Ms. Sonal A. Baid and late Ms. Ratan Devi Baid (hereinafter cumulatively referred to as "the Promoters") were referred as the promoters and were party of the Second Part. The Company and the promoters shall hereinafter be cumulatively referred to as "the promoter group". 3.4 The appellant states and submits that, the appellant was induced by the promoters group, who made high and false claims in their proposals and further made promises, including the timely repayment at 25% IRR, which have been duly recorded as terms and conditions in the said agreement. The appellant further submits that, upon being so induced, the appellant entered into the said agreement and extended financial assistance of Rs. 2.4 Crore (hereinafter referred to as "the amount" or "the said financial assistance" as the context may admit). The appellant further submits that, the said financial assistance was made by way of subscribing to 1,82,000 7% optionally convertible debentures of Rs. 100 each at per aggregating to Rs. 182 lacs and 3,72,230 equity shares at a price of Rs. 15.54 per share of face value of Rs. 10 each aggregating to Rs. 58 lacs with the promise that the said financial assistance being repaid as per the terms of the said agreement. 3.5 The appellant states and submits that, the essence of the said agreement was that the said financial assistance was to be returned with agreed IRR of 25% by the promoter group. It is further submitted that, the said agreement provided different options for the exit of the appellant. It is further submitted that, providing the appellant the complete exit by repaying the said financial assistance alongwith the contracted IRR is the joint and several responsibility of the Company and the promoters. It is further submitted, despite several follow ups, the promoter group has only given assurance of payment and have failed to provide the exit as contemplated under the under the said agreement till date. 3.6 The appellant states and submits that, neither was any payment made nor any proposal for exit was submitted by or on behalf of the promoter group and accordingly, the appellant was constraint to send a legal demand notice dated 1.1.2018 through its advocate demanding the company as well as the promoters to provide the appellant the exit by paying within 15 days of the receipt of the notice, Rs. 16,02,50,392/- computed as on 30.11.2017, which includes Rs. 240/- lacs principal amount and Rs. 13,62,50,392/- as IRR calculated at the rate of 25% on the principal amount from the date of disbursement (hereinafter referred to as "the said notice"). 3.7 The appellant states and submits that, upon receipt of the said notice, instead of making the payment of the same, the Company, choose to give an evasive reply dated 24.1.2018 through their advocate and evoked arbitration and nominated Mr. Alok Kumar Das as their arbitrator. 3.8 The appellant states and submits that, in response to the said reply dated 24.1.2018, the appellant vide letters dated 30.1.2018 and 13.2.2018 requested to share the profile of Mr. Alok Kumar Das, to enable them to take further actions. It is submitted that in continuation of its dilatory technique, firstly by not paying the dues on time and thereafter evoking arbitration without there being any arbitral dispute, the respondent No. 1 further delayed by not sharing the profile of Mr. Alok Kumar Das. The appellant without waiting for the profile and without prejudice to its other rights and remedies both under the agreement and otherwise available in law and without prejudice to its contention that there is no arbitral dispute and the arbitration is wrongly evoked, nominated Mr. Deepak Kumar Ratilal Shah, a practicing High Court Advocate, as an arbitrator vide a letter dated 9.3.2018 written by the appellant's advocate. 3.9 The appellant states and submits that, upon the receipt of the letter dated 9.3.2018, instead of repaying and moving ahead with the arbitration evoked by it, the Company through its advocate sent a letter dated 26.4.2018 making baseless allegations on a different matter and finally shared the contact details of Mr. Alok Kumar Das. 3.10 The appellant states and submits that, the appellant tried to telephonically contact the directors of the Company, who are the promoters as well as for further course of action, however, they have not received any response. The appellant further submits that the appellant thereafter through its advocate addressed a letter dated 21.6.2018 to both the arbitrators request them to expedite the appointment of the third arbitrator as per the clause of the said agreement. 3.11 The appellant states and submits that, the respondent No. 1 to 5 have not made any payment under the said agreement. The appellant further submits that the appellant thereafter through its advocate addressed a letter dated 21.6.2018 to both the arbitrators request them to expedite the appointment of the third arbitrator as per the clause of the said agreement. 3.11 The appellant states and submits that, the respondent No. 1 to 5 have not made any payment under the said agreement. Accordingly the amount payable by the respondents, jointly and severally, under the said agreement computed till 30.6.2018 is Rs. 18,24,25,926/- which includes Rs. 2,40,00,000/- principal amount and Rs. 15,84,25,926/- as IRR calculated at the rate of 25% on the principal amount from the date of the disbursement (hereinafter referred to as "the said debt"). 3.12 The appellant states and submits that, the appellant has come to know that the respondents has come to know that the respondents have been arranging their affairs of the business and assets in a manner to benefit individually and further dispose all their movable and immovable assets, to a great prejudice to the appellant's rights and interest under the said agreement. The appellant strongly apprehends that the respondents are likely to remove its movable and immovable assets beyond the reach of this Court. 3.13 The appellant states and submits that, therefore, the appellant herein has preferred an application u/s. 9 of the Arbitration and Conciliation Act, 1996 before the learned Commercial Court being Commercial Civil Misc. Application No. 50 of 2018. 3.14 The appellant states and submits that, the respondent No. 1 to 4 herein have filed their reply vide Ex. 20 on affidavit. 3.15 The appellant states and submits that, however, the learned Judge Commercial Court, Ahmedabad was pleased to reject the application of the appellant vide order and judgment dated 22.10.2018. 4. Thus, it appears from the materials on record that the appellant Company has to recover a substantial amount from the respondent No. 1 Company. The other respondents are the promoters of the respondent No. 1 Company. Mr. Shelat, the learned counsel appearing for the respondent No. 4 submits that so far as his client is concerned, she has nothing to do with the respondent No. 1 Company and the other promoters as she is an estranged wife of the respondent No. 2. This fact has been disputed by the learned counsel appearing for the appellant. Mr. Shelat, the learned counsel appearing for the respondent No. 4 submits that so far as his client is concerned, she has nothing to do with the respondent No. 1 Company and the other promoters as she is an estranged wife of the respondent No. 2. This fact has been disputed by the learned counsel appearing for the appellant. According to him it could be a part of the strategy of the respondent No. 4 to get out of the litigation. Be that as it may, we are not going into the issue whether there are any relations between the respondent No. 4 and the respondent No. 2 as husband and wife or not. If ultimately the respondent No. 4 has incurred any personal liability under any agreement duly signed by her, the law will take its own course. 5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that the order passed by the Judge, Commercial Court, Ahmedabad is not sustainable in law. We are not convinced with the line of reasonings assigned by the court below. However, without commenting any further on the legality and validity of the impugned order, we should do try to find a way out by which the interest of the appellant can be protected. 6. It is pointed out by Mr. Nitin Mehta, the learned counsel appearing for the appellant that two arbitrators have already been appointed; one at the instance of the appellant and another at the instance of the respondents. The two arbitrators are now expected to appoint a third arbitrator as per clause (29) of the agreement between the parties dated 4.12.2008. Once the third arbitrator is appointed a full-fledged arbitral tribunal would be said to have been constituted. Once the arbitral tribunal of three arbitrators is constituted, the arbitration proceedings thereafter can be undertaken. 7. We dispose of this first appeal with the direction to the two arbitrators who are already appointed to appoint a third arbitrator within a period of four weeks from today, without fail. Once the third arbitrator is appointed, it shall be open thereafter to the appellant to pray for all the necessary reliefs before the arbitral tribunal as prayed for by the appellant in application Ex. Once the third arbitrator is appointed, it shall be open thereafter to the appellant to pray for all the necessary reliefs before the arbitral tribunal as prayed for by the appellant in application Ex. 23 filed before the Commercial Court or any other relief ancillary to the same as can be under Section 17 of the Arbitration Act, 1996. 8. With the above, this first appeal is disposed of. Direct service is permitted. 9. As the main appeal is disposed, the Civil Application is also disposed of.