JUDGMENT V. Kameswar Rao, J. - I.A.6877/2020 (filed by the petitioner for bringing on record additional documents) 1. This application has been filed by the petitioners with the following prayers: "The Applicants/Petitioners respectfully pray that this Hon''ble Court may be graciously pleased to: A. Allow the present application and take on record the e-mails annexed with the present application; B. Pass any other or further order as this Hon''ble Court may deem fit and proper in the facts and circumstances of the case." 2. In substance, vide this application, petitioners seek to bring on record certain e-mails exchanged between the parties herein, more particularly with respondent Nos. 5, 6 & 7 in respect of certain transactions. 3. The case of the petitioners in this application is primarily to meet the case of respondent Nos. 5, 6 & 7, that they have no role to play in the transaction with the petitioners as they neither made any correspondence nor negotiation with the petitioners nor played any active role. 4. Reply to this application has been filed by respondent Nos. 5, 6 & 7 and in their submissions, it is stated that the said application has been filed after inordinate delay without any explanation after having access to the pleadings / arguments and the stand of the respondents, in order to improve their case which is in gross violation of principles of natural justice. Vide the said application, the petitioners seek to put forth a new case. If the said application is allowed same would amount to amending the petition. That apart, it is stated that the documents which are sought to be brought on record are unrelated documents and cannot be brought in at this point of time. Further, it is not the case of the petitioners that these documents were not in their possession at the time of filing of the petition. It is also stated that the documents are irrelevant and in no manner demonstrate that the loan facility granted to the Williamson Magor Group is a single economic unit. Even the documents on which reliance is sought to be placed pertain to a period subsequent to the execution of the Facility Agreement and as such have no relation to the transaction in question. 5. Even the documents on which reliance is sought to be placed pertain to a period subsequent to the execution of the Facility Agreement and as such have no relation to the transaction in question. 5. Having perused the application / replies, and heard arguments on behalf of the parties, this Court is of the view, the present petition having been filed under Section 9 of the Arbitration and Conciliation Act, 1996 (''Act'', for short) and not a Civil Suit, where the rigours of filing the documents have to be strictly followed, there being no impediment in law and to consider all the relevant material for proper adjudication, it is necessary that such documents are looked into. 6. Even though the petitioner filed this application subsequent to filing of the three applications by the respondent Nos. 5, 6 & 7, sufficient opportunity having been given to the said respondents to meet the case of the petitioners on these documents by hearing the counsels on the objections on the application, which is in compliance of the principles of the natural justice, the plea of learned Sr. Counsels for the respondents 5, 6 and 7 that a new case is being set up is without any merit. The application is allowed and the documents are taken on record. The application is disposed of. I.A. 18200/2019 (filed by respondent no. 5 for vacation of order dated December 13, 2019) I.A. 18202/2019 (filed by respondent no. 6 for vacation of order dated December 13, 2019) I.A.762/2020 (filed by respondent no. 5 for vacation of order dated December 13, 2019) 1. With this common order I shall decide the three applications filed by respondent No.5, 6 and 7 seeking vacation of the ex-parte ad-interim order passed by this Court on December 13, 2019. 2. Before dealing with these applications, I find it necessary to narrate in brief the facts and chronology of events that led to the filing of the present applications by the applicants / respondent Nos. 5, 6 and 7. 3. 2. Before dealing with these applications, I find it necessary to narrate in brief the facts and chronology of events that led to the filing of the present applications by the applicants / respondent Nos. 5, 6 and 7. 3. The petitioner No.1 is registered with the Reserve Bank of India as a non-deposit taking, systemically important NonBanking Financial Company (''NBFC'') as defined in ''Systemically Important Non-Banking Financial (Non-Deposit Accepting or Holding) Companies Prudential Norms (Reserve Bank) Directions, 2015, issued by the Reserve Bank of India and involved in the business of providing loans and advances to companies, and in this case has advanced an aggregate sum of INR 100 crores to respondent No. 1 and an aggregate sum of INR 100 crores to respondent No. 2. 4. Petitioner No.2 is a company registered under the Companies Act, 1956 which is also registered as a debenture trustee with Securities Exchange Board of India and acts as a security trustee on behalf of the Petitioner No. 1. 5. It is a conceded position of all the parties herein that petitioners entered into a Facility Agreement dated September 27, 2017 (''Facility Agreement'', for short) with the respondent Nos. 1, 2, 3 and 4 whereby respondent Nos. 1 and 2 were granted credit facility of INR 100 Crores each. 6. The respondent No.1 is a company incorporated under the provisions of Companies Act, 1956 engaged in the business of manufacturing tea, jute, engineering and reprographic items. the Respondent No. 2, on the other hand, is an Investments Company, an NBFC registered with the Reserve Bank of India under the Reserve Bank of India Act, 1934, with respondent No. 3 and 4 being the Promoters/Directors of the respondents No. 1 and 2. 7. Pursuant to clause 5.1 of the Facility Agreement, the credit facilities were guaranteed by an irrevocable and unconditional personal guarantee entered by way of a Deed of Personal Guarantee dated September 26, 2017 (''Deed of Personal Guarantee'', for short), executed by respondent Nos. 3 & 4 in favour of petitioner No. 2, whereby it was undertaken to pay the outstanding amounts and discharge all liabilities of respondent Nos. 1 & 2 under the Facility Agreement. In addition, respondent Nos. 3 & 4 had provided indemnity to the petitioners against all loses and claims etc. 8. A Security Trust Facility Agreement was also executed between the petitioners and respondent Nos. 1 & 2 under the Facility Agreement. In addition, respondent Nos. 3 & 4 had provided indemnity to the petitioners against all loses and claims etc. 8. A Security Trust Facility Agreement was also executed between the petitioners and respondent Nos. 1 & 2 on September 27, 2017 (''Trust Facility Agreement'', for short). 9. Pursuant to clause 5.1 of the Facility Agreement, an Unattested Share Pledge Agreement dated September 27, 2017 (''Share Pledge Agreement'', for short) was entered into by and between the petitioners and the respondent Nos. 1, 2, 3, 4 and 5 along with respondent No. 8 whereby 4,16,66,666 compulsory convertible preference shares of respondent No.5 were pledged in favour of the Petitioner No.2. 10. It is stated by the petitioners/non-applicants in the petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (''Act'', for short) that the credit facility under the Facility Agreement was advanced to respondent No. 1 and 2 after due verification of the credit worthiness of the group companies, as a whole and the underlying companies like respondent Nos. 5 to 7, the applicants herein. Respondent No. 5 is engaged in the business of providing turnkey solutions in the areas of power, steel etc. and respondent Nos. 1 & 2 hold some percentage of equity shares in the share capital of respondent No. 5. Respondent No. 6 is in the business of manufacturing tea and respondent Nos. 1 & 2 hold equity shares in the share capital of respondent No. 6. Likewise, respondent Nos. 1 and 2 hold equity shares in the share capital of respondent No. 7. 11. Pursuant to clause 5.8 of the Facility Agreement, within a period of 18 (eighteen) months, from the date of disbursement i.e. September 30, 2017, the respondent Nos. 1 and 2 were required to issue a security by way of pledge over the equity shares of either respondent No.6 and/or respondent No.7 and/or create security by way of mortgage over properties acceptable by the petitioner No.1 so as to ensure that the collateral cover is atleast 1.5x of the loan outstanding amount. Similarly, as per clause 5.9 of the Facility Agreement, on or before the expiry of 24 (twentyfour) months from the date of disbursement i.e. September 30, 2017, the respondent Nos. 1 and 2 were required to ensure that the collateral cover is increased to 2.0X in respect of the loan outstanding amounts. Similarly, as per clause 5.9 of the Facility Agreement, on or before the expiry of 24 (twentyfour) months from the date of disbursement i.e. September 30, 2017, the respondent Nos. 1 and 2 were required to ensure that the collateral cover is increased to 2.0X in respect of the loan outstanding amounts. However, it is stated by the petitioners in the petition under Section 9 that the respondents have failed to fulfil the aforesaid obligations. 12. It is the case of the petitioner in the main petition under Section 9 of the Act that as per clause 7.2.3 (c) of the Facility Agreement, the Guarantors and the Promoter Group were barred from selling, transferring or disposing off any shares of Respondents Nos. 5, 6 and 7 held by the Promoter Group without the prior consent of the petitioners. In this respect, it is averred that since the entry of parties into the Facility Agreement, the aggregating shareholding of the Promoter Group in (i) Respondent No.6 has reduced from 49.9% to 27% and in (ii) Respondent No 7 has reduced from 44% to 31.1% (of the entire share capital). It is also stated that as on September 30, 2019, the aggregate value of unencumbered shares of the respondent Nos. 6 and 7 is INR 16,00,00,000 as opposed to INR 750,00,00,000, which was the required value as per Clause 7.2.4 of the Facility Agreement. 13. Similarly, Clause 7.2.6 mandated that the Guarantor and Promoter Group shall not encumber any share held by Guarantor and Promoter Group in the Reference Entities. 14. Subsequently, respondent No. 1 executed an Unattested Deed of Hypothecation (''Deed of Hypothecation'', for short) in favour of petitioner No. 2 whereby respondent No. 1 hypothecated ''all of the present and future rights, title and interest and benefits of Respondent No. 1 in, to and under the Rupee denominated bank account in the name of the Respondent No. 1 bearing account number 019081400002674 with Yes Bank Ltd''. 15. The petitioner has, in the main petition pointed out the following defaults on behalf of the respondents: a. On March 31, 2019, the respondent Nos. 1 and 2 defaulted in creating the security and also failed to ensure that the collateral cover for the loan outstanding amounts is at least 1.5x of the loan outstanding amount pursuant to clauses 5.8 and 5.9 of the Facility Agreement. 1 and 2 defaulted in creating the security and also failed to ensure that the collateral cover for the loan outstanding amounts is at least 1.5x of the loan outstanding amount pursuant to clauses 5.8 and 5.9 of the Facility Agreement. b. On April 30, 2019, the respondent No.2 defaulted in making payments towards interest as stipulated under the Facility Agreement. c. Further, on May 31, 2019 and June 30, 2019, the respondent Nos. 1 and 2 defaulted in making payments in respect of interest as stipulated under the Facility Agreement and till date the abovementioned defaults have not been rectified. d. That, on September 30, 2019, the respondent Nos. 1 and 2 also failed to ensure that the collateral cover over the security created pursuant to clause 5.8 of the Facility Agreement, is increased to 2.0X of the loan outstanding amount as per the terms of the Facility Agreement. 16. With regard to the defaults, the petitioner has stated to have issued the following notices/demands: a. Notice of breach of covenants and remainder to create security on or before March 31, 2019 dated March 15, 2019 was issued by the Petitioner No.1 to the Respondents Nos. 1, 2, 3, 4 and 8. b. Notice of breach of covenants and failure to create security on or before March 31, 2019 dated April 25, 2019 was issued by the Petition No.1 to the Respondents Nos. 1, 2, 3, 4 and 8. c. Letter of Reservation of Rights dated October 17, 2019 was issued by the Petitioner No.1 to the respondent Nos. 1, 2, 3 and 4. d. On December 9, 2019, the Petitioner No. 1 issued an Acceleration Notice in favour of the Respondent No. 1 demanding payments aggregating up to INR 131,37,51,607. e. On December 9, 2019, the Petitioner No. 1 issued an Acceleration Notice in favour of the Respondent No. 2 demanding payments aggregating up to INR 131,94,83,013. f. On December 9, 2019, the Petitioner No. 2 has issued a Demand Notice in favour of the Respondents demanding payments aggregating up to INR 263,32,34,620. 17. It is alleged that the petitioner filed the main petition under Section 9 on the failure of the respondents to discharge the liability towards the petitioner under the various agreements, and a co-ordinate Bench of this Court granted an ex parte ad-interim stay vide order dated December 13, 2019. 17. It is alleged that the petitioner filed the main petition under Section 9 on the failure of the respondents to discharge the liability towards the petitioner under the various agreements, and a co-ordinate Bench of this Court granted an ex parte ad-interim stay vide order dated December 13, 2019. The relevant portion of the order reads as under: "..... 23. Accordingly respondent Nos. 1 to 8 are restrained from selling, transferring, alienating, disposing, assigning, dealing or encumbering or creating third party rights on their assets, till the next date of hearing. 24. Respondent Nos. 1, 2, 3 and 4 are further restrained from diluting their shareholding in any of the Respondent Companies, directly or indirectly, by way of sale or otherwise, as also respondent Nos. 5, 6, and 7 from carrying out any change in its capital structure, or any Corporate or debt restructuring, till the next date of hearing. 25. Respondent Nos. 1, 2, 3, 4 and 8 are restrained from alienating, creating third party rights and interest or creating any third-party encumbrance of whatsoever nature in 4,16,66,666 compulsory convertible preference shares of Respondent No.5, now converted into equity shares. Respondent Nos. 1, 2, 3 4 and 8 shall deposit the aforesaid equity shares in dematerialized form before this Court and the same will be retained by this Court. 26. It is directed that the Rupee denominated bank account in the name of respondent No. 1 bearing account number 019081400002674 with Yes Bank Ltd. be attached. 27. The respondent Nos. 1 to 7 will file an affidavit providing the details of their tangible or intangible assets held by them as on 31.03.2019 as well as on 30.09.2019, before the next date of hearing." 18. It is to vacate the ex parte ad interim stay granted by the impugned order that respondent Nos. 5, 6 and 7 have filed these applications respectively. 19. It is the case of the respondent No.6 and respondent No. 7 and as contended by Mr. Sandeep Sethi, learned Senior Counsel that respondent No. 6 and respondent No. 7 are not signatories to the Facility Agreement on which the present Petition is founded and similarly also not parties to the transaction or the arbitration agreement and the connected agreements being the Security Trustee Agreement, Personal Guarantee, Share Pledge Agreement and the Deed of Hypothecation, being collectively herein after referred as Other Agreements. It is submitted by him that the subject transaction is between the petitioner No. 1 and Respondent Nos 1 & 2 for a sum of INR 100 crores advanced to each respondent. The repayment of the same is guaranteed by respondent Nos.3 and 4 in their personal capacity. It is further stated by him that the various agreements are signed by the petitioners and respondent Nos. 1 to 4 only and that shares held by the individual guarantors in respondent Nos. 6 and 7 were pledged as security for repayment of the loan taken by respondent Nos. 1 & 2, which was why respondent Nos. 6 and 7 were mentioned as ''Reference Entities'', with no obligations cast over them. In support of his submission, Mr. Sethi has relied upon the Apex Court judgment in Indowind Energy v. Wescare (India), (2010) 5 SCC 306 , wherein it is held that common shareholding or common directors is not enough to bind the non-signatory company through the acts of the signatory. 20. It is submitted by Mr. Sethi that none of the foundational facts that are sine qua non for the invocation of the principle of group companies has been pleaded or even referred to in the petition. He stated that it is an undisputable position of law that the invocation of the group-companies doctrine requires a finding of unmistakable intent of non-signatory parties to be bound by the agreement. The question of such intention is clearly a question of fact which requires specific pleading. It is submitted by Mr. Sethi that in the present case, the documents placed on record show clearly that respondent No.6 and respondent No.7 were not parties to the agreements. There is no document or pleading alleging that respondent No.6 and respondent No.7 in any manner participated in the negotiations of the agreements or made any statement to be bound by such agreements. The contractual correspondence as well as the demand notices between the parties alleging default are also addressed only to respondent Nos. 1 to 4 and not to respondent No.6 or Respondent No.7. Therefore, ex-facie no such case has been pleaded by the Petitioners in the present case. Interim measures under Section 9 of the Act is an equitable and discretionary remedy, the petitioners'' conduct on this count disentitles it to any indulgence from this Court. 21. Further, it is submitted by Mr. Therefore, ex-facie no such case has been pleaded by the Petitioners in the present case. Interim measures under Section 9 of the Act is an equitable and discretionary remedy, the petitioners'' conduct on this count disentitles it to any indulgence from this Court. 21. Further, it is submitted by Mr. Sethi that the petitioner being a large player in the financial sector across over 20 countries, it is clear that it exercises reasonable prudence when entering into the Facility Agreement after ample negotiations and the same is self-contained, which in clear terms lays down the intent of the parities. It has been recorded in Clause 13.3 of the Facility Agreement as well. 22. It is submitted by Mr. Sethi that Clause 5.1 records specifically that the Borrowers, Guarantors and the Obligors shall secure the said loan and as per the Facility Agreement, Borrowers are respondent Nos. 1 & 2, while guarantors are respondent Nos. 3 & 4 and obligors defined as Borrowers and the Security Providers which include the borrowers or any other person creating security in favour of the petitioners. Clause 5.10 fastens the liability on the ''Promoter Group'' to replenish the security cover in case of any deficiency in terms of the Facility Agreement. Respondent Nos. 6 & 7, as per the Facility Agreement are neither borrowers nor guarantors, which is clearly indicative of the fact that no obligation was intended to cast upon them despite being aware of their existence, rather they are enlisted only as reference entities and Clauses 5.8 and 5.12 unambiguously state that it is the equity shares in respondent Nos.6 and 7 owned by respondent Nos.1 and 2 that are to serve as security. In other words, it is his submission that the company and its shareholders are entirely distinct and independent in the eyes of law and the provision of the shares of a company as security by a shareholder for a loan availed by such shareholder cannot possibly bind the said company in any manner whatsoever to such loan. 23. Mr. Sethi also submitted that the reliance placed by the petitioners on Clause 7.2.3 (a) which mandates the Borrowers, Guarantors and the Promoter Group not to issue fresh shares in any of the Reference Entities is misplaced for the reason that there is no obligation on respondent Nos.6 and 7 as they are neither Borrowers, Guarantors nor Promoter Group. 23. Mr. Sethi also submitted that the reliance placed by the petitioners on Clause 7.2.3 (a) which mandates the Borrowers, Guarantors and the Promoter Group not to issue fresh shares in any of the Reference Entities is misplaced for the reason that there is no obligation on respondent Nos.6 and 7 as they are neither Borrowers, Guarantors nor Promoter Group. The said obligations are cast upon the respondents No. 1-4 to protect the value of the security provided i.e. their shareholding in respondent Nos. 6 and 7. He further submitted that the intent of Clause 7.4.1 which requires respondent Nos.1 and 2 to ensure compliance with certain benchmarks of the financial health of respondent Nos. 6 and 7 is only limited to securing the value of the security i.e. the shares in respondent No.6 and respondent No.7. These terms do not in any manner oblige respondent No. 6 and respondent No.7 to do or refrain from doing any act. This is confirmed by the fact that Clause 5.8 requires provision of additional security in case of any deficiency only by R-1 to R-4. Accordingly, there was no obligation or charge cast on R-6 and R-7. 24. It is averred by Mr. Sethi, respondent Nos. 3 & 4 have signed the Facility Agreement in their personal capacity, as guarantors and the stand of petitioner that respondent No.6 & 7 are liable as per the doctrine of ostensible authority and estoppel is also misplaced. 25. Further, it is stated by Mr. Sethi that the fraud has not been pleaded by the petitioners'' for lifting of corporate veil. The petitioners'' claim that proceeds of the loan received by respondent No.6 qualifies it as a case fraud has not been pleaded in the petition and that in the absence of any pleading the Court should be duty bound to disregard such a plea. In this regard, he has relied upon a Division Bench judgment of this Court in Division Bench of this Court in Elof Hansson v. Shree Acids & Chemicals,2012 SCCOnLineDel 572. Without prejudice, it is stated by Mr. Sethi that the aforesaid contention, Clause 2.3 of the Facility Agreement clearly spelt out the purpose of the loan i.e. the discharge of R-6 ''s debts. It is therefore clear that the parties intended R-6 to be the recipient of the proceeds of the loan as per the clear understanding between the parties. 26. Sethi that the aforesaid contention, Clause 2.3 of the Facility Agreement clearly spelt out the purpose of the loan i.e. the discharge of R-6 ''s debts. It is therefore clear that the parties intended R-6 to be the recipient of the proceeds of the loan as per the clear understanding between the parties. 26. Moreover, Mr. Sethi stated that no case for invocation of the Group Companies Doctrine has been made out as claimed by the petitioners and that the reliance placed by the petitioners'' on Mahanagar Telephone Nigam v. Canara Bank,2019 SCCOnLineSC 995, Chloro Controls India v. Severn Trent Water Purification, (2013) 1 SCC 641 and Cheran Properties v. Kasturi and Sons, (2018) 16 SCC 413 is misplaced, as the said judgments are distinguishable in the facts of the present case. 27. It is also vehemently stated by Mr. Sethi that no case had been made out by the petitioners to secure restraint against third parties under Section 9 of the Act. In support of his submission that restraint can''t be imposed against a non-signatory/third party, Mr. Sethi has relied on the following judgments: 1. Kanta Vashist vs. Ashwani Khurana,2008 CDJDHC 2265; 2. Ajay Makhija v. Dollarmine Exports,2009 SCCOnLineDel 2486; 3. Mukesh Hans v. Uma Bhasin,2010 SCCOnLineDel 2776; 4. Mcleod Russel India Limited v. IL and FS Financial Services Limited, APO 143 of 2019. 28. Mr. Sudhir Makkar, learned Sr. Counsel also appearing for respondent No. 7 has adopted the arguments advanced by Mr. Sethi. 29. Mr. Jayant Mehta, learned Counsel appearing for the respondent No. 5 has made identical submissions as made by Mr. Sethi insofar the maintainability of the petition qua respondent No.5, owing to no subsisting valid agreement between petitioners and respondent No.5 and respondent No.5 being a non-signatory to the Facility Agreement. 30. Additionally, Mr. Mehta has drawn the attention of this Court to the negative covenants viz. Clause 5.1, Clause 6.1, Clause 6.1.6, Clause 7.1.3, Clause 7.1.7, Clause 7.2, Clause 7.3, Clause 7.4, Clause 9.6 envisaged under the Facility Agreement to contend that no liability/obligation has been cast upon respondent No.5 as per the Facility Agreement. It is submitted by Mr. 30. Additionally, Mr. Mehta has drawn the attention of this Court to the negative covenants viz. Clause 5.1, Clause 6.1, Clause 6.1.6, Clause 7.1.3, Clause 7.1.7, Clause 7.2, Clause 7.3, Clause 7.4, Clause 9.6 envisaged under the Facility Agreement to contend that no liability/obligation has been cast upon respondent No.5 as per the Facility Agreement. It is submitted by Mr. Mehta that only interface of the Respondent No. 5 with the subject transaction was that by way of the Unattested Pledge Agreement dated 27.09.2017 ("Pledge Agreement"), 4,16,66,666 number of Compulsorily Convertible Preference Shares ("CCPS") of the respondent No. 5 held by the respondent Nos. 1, 2 and 8 were provided as security to the Petitioner No. 1 for the sums advanced to the Respondent Nos. 1 and 2 under the Facility Agreement. Subsequently, the said CCPS were converted into equity shares, which is recorded in the Supplemental and Amendment Agreement dated 10.07.2019. It is also stated that the Pledge Agreement and Amendment Agreement were the only documents executed by the Respondent No. 5, in its capacity as the ''Target'', i.e., the entity whose shares were being provided as security by shareholders without any exposure to liability or guarantee. 31. It is also submitted by Mr. Mehta that endeavor of commercial courts should not be to look into implied terms of contract. In other words, it is his submission that if the purpose of the transaction was not to lend to the borrowers, nothing prevented the parties to obligate the respondent No. 5 and that in the present case, petitioners have consciously not done so. In support of his contention, Mr. Mehta has relied upon Nabha Power Ltd. v. Punjab State Power Corporation, (2018) 11 SCC 508 and BALCO v. Kaiser Aluminium Technical Services, (2016) 4 SCC 126 . 32. It is also submitted by Mr. In support of his contention, Mr. Mehta has relied upon Nabha Power Ltd. v. Punjab State Power Corporation, (2018) 11 SCC 508 and BALCO v. Kaiser Aluminium Technical Services, (2016) 4 SCC 126 . 32. It is also submitted by Mr. Mehta that the ''group Company'' doctrine is inapplicable in the present case as no such specific averment has been raised in the petition, except to the vague extent of purported reliance by the Petitioners on the financial strength of the "Williamson Magor Group", while advancing such loan facility to the Borrowers on the basis of security which included the shares held by the Borrowers/ Guarantors, inter-alia, in Respondent No. 5 and also that said argument is manifestly contrary to the Facility Agreement, which admittedly does not obligate the Respondent No. 5 in any manner towards the alleged outstanding dues. In other words, it is his submission that (a) A written contract is to be read by its plain terms and so read, there is no contractual or legal obligation on the Respondent No. 5; (b) The Facility Agreement is a very detailed, formal and entire agreement. Its terms are clear and unambiguous. The Petitioners cannot read in to it terms that it does not contain. To do so would allow the Petitioners to rewrite the agreement, a right it does not and cannot legally possess; (c) There is no scope for any rights or obligations existing beyond and over the specific terms of the Facility Agreement. Mr. Mehta has placed reliance on Mahanagar Telephone Nigam v. Canara Bank,2019 SCCOnLineSC 995, wherein the principle enunciated was that non-signatory group companies are bound by the arbitration agreement only when there is a clear and unmistakable intention to that effect, contrary to the facts of the present case. He also distinguished the judgments in Chloro Controls (supra) and Cheran Propertities (supra) by stating that the said judgments were concerned with a web of agreements wherein different group entities were parties as against the present case which concerns only one agreement. 33. It is further submitted by Mr. Mehta that a conjoint reading of relevant decisions of the Supreme Court highlighted earlier, validates the position that the overarching principle under Indowind (supra) continues to be applicable subject only to limited well defined exceptions. Notably, the facts in Indowind (supra) are pari materia to the present case. 33. It is further submitted by Mr. Mehta that a conjoint reading of relevant decisions of the Supreme Court highlighted earlier, validates the position that the overarching principle under Indowind (supra) continues to be applicable subject only to limited well defined exceptions. Notably, the facts in Indowind (supra) are pari materia to the present case. The Court in Indowind (supra) held that common shareholding or directors is not enough to bind the non-signatory company through the acts of the signatory company. 34. Mr. Mehta also submitted that the respondent Nos. 3 and 4 signed the Facility Agreement only in their capacity as personal guarantors of the loan and that the piercing of the corporate veil is impermissible in the present proceedings qua respondent No.5 in the absence of its ingredients having been established, more so in the absence of any specific pleading to that effect. Reliance has been placed by him on the judgments of this High Court in Ajay Makhija v. Dollarmine Exports Pvt. Ltd.,2009 SCCOnlineDel 2486; Balmer Lawrie & Co. Ltd. v. Saraswathi Chemicals Proprietors Saraswathi Leather Chemicals(P) Ltd., (2017) 239 DLT 217 ; Gatx India v. Arshiya Rail, 2014 SCCOnlineDel Elof Hanson v. Shree Acid & Chemicals,2012 SCCOnLineDel 572 as well as an Apex Court judgment in Bacha F. Guzder v. CIT, (1955) 1 SCR 876 . 35. On the other hand it is the case of the plaintiff and as contented by Mr. Neeraj Kishan Kaul and Mr. Akhil Sibal, learned Senior Counsels appearing for the plaintiff that all the respondents are a part of same group of companies namely Williamson Magor Group and that Respondent No. 1 and 2 are pure holding investments companies and a major group shareholding company in the Williamson Magor Group, which exists merely to raise funds on behalf of its group companies, including respondent No .5, 6 and 7, as is evident from their own website. Respondent No.1 &2 have no assets except shareholding in Respondent No. 5-7. 36. It is submitted by the Counsels that the Facility Agreement was extended to Williamson Magor Group as a whole after due verification of the credit worthiness of the group company, as a whole and the underlying companies like respondent Nos. 5 to 7. The Respondent Nos. 1 - 4 as part of being the Promoter /Promoter Group and directors of respondent Nos. 5 to 7. The Respondent Nos. 1 - 4 as part of being the Promoter /Promoter Group and directors of respondent Nos. 5 to 7 represented to the petitioners that additional security in the form of shares of respondent Nos. 6 and 7 would be provided to secure the obligations owed to the Petitioners. Further, it is on the basis of the fact that the facility was advanced taking into consideration the creditworthiness of the group as a whole, that the financial covenants in Clause 7.4 of the Facility Agreement applied to Respondent Nos. 6 and 7. In this regard reliance has been placed on the Table which is reproduced as under: 37. In addition to relying upon the table reproduced above, the submissions of Mr. Kaul and Mr. Sibal are as follows: 1. The primary purpose of the Facility Agreement as per Clause 2.3 and the Chartered Accountant Certificate is to finance respondent No. 6. Respondent Nos.1 & 2 exist merely for the purpose of raising funds for its group companies. 2. Respondent No. 3 and 4 are the Managing Director and Director in respondent No.6 respectively and viceversa in respondent No. 7. Moreover, respondent Nos. 1-4 being the promoter group of respondent No. 5-7, are in a position to exercise control over the policies of the management. Shareholding pattern of the respondent No. 5 shows that respondent No. 4,1,2,6 & 8 are part of its ''Promoter Group''. Shareholding pattern of the respondent No. 7 shows that respondent No. 3,4,1,2,6 & 8 are part of its ''Promoter Group''. Further, shareholding pattern of the respondent No. 2 shows that respondent No. 4,6 & 1 are part of its ''Promoter Group''. Shareholding pattern of the respondent No. 6 shows that respondent No. 3, 4, 1,2 ,8 & 7 are part of its ''Promoter Group''. 3. As per Clause 7.1.1 (b) obligation is cast on respondent No. 1-4 to ensure that the respondent No. 5-7 does not become private companies. Therefore, respondent No 1-4 have power to direct management or policies of respondent No. 5-7 through ownership of voting rights, power to appoint directors or similar governing body through contractual or other arrangements and hence respondent No, 5-7 are part of the ''promoter group'' being an entity controlled by Guarantors, respondent No. 3 & 4. 4. Therefore, respondent No 1-4 have power to direct management or policies of respondent No. 5-7 through ownership of voting rights, power to appoint directors or similar governing body through contractual or other arrangements and hence respondent No, 5-7 are part of the ''promoter group'' being an entity controlled by Guarantors, respondent No. 3 & 4. 4. Respondent No. 5-7 cannot be absolved from their liability merely by reason of not being issued notices of default or acceleration notices, as Clause 11.10(a) of the Facility Agreement categorically states that failure to exercise, or any delay in exercising, on the part of any Lender and/or Security Trustee, any right or remedy under the Financing Documents shall not operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. Further, the said Clause also provides that the rights and remedies provided in the Facility Agreement are cumulative and not exclusive of any rights and remedies provided by Applicable Law. On the acceleration notices and default notice it is also stated that the said notices are without prejudice to the rights and remedies available to the Lender/ Security Trustee under the Financing Documents and/or applicable law, all of which rights and remedies are specifically reserved and the Borrower's, Guarantor's and Obligor's continuing obligations under the Financing Documents. 5. Share Pledge Agreement was entered into by and between the petitioners and the respondent Nos. 1, 2, 3, 4 and 5 along with respondent No. 8, as per Clause 5.1 of the Facility Agreement, whereby 4,16,66,666 compulsory convertible preference shares of respondent No. 5 were pledged in favour of the petitioner No. 2. And as per Clause 5.3 thereof the Share Pledge Agreement respondent No. 5 provides various undertaking on its part. 6. Placing reliance on Clause 1.1.1 (aaa), (bbb), (ccc), (mmm), (ooo), (sss), (xxx) and Clause 1.1.1 (ee), it is stated that deinitions of 'Promoter', 'Promoter Group', 'Obligors', Guarantors' and 'Reference Entity', it is stated that a combined reading of these Clauses along with the various communications exchanged between petitioners and respondents clearly reveals that the loan was extended to the Williamson Magor Group as a whole and they all constitute one single economic entity and further the mutual intention of the parties to bind nonsignatories, respondent No. 5-7. 38. 38. It is further submitted by the Counsels that the foundation to invoke 'Group Companies Doctrine' has been laid down in the pleadings, as the petitioners have very categorically revealed in the petition that although respondent No. 1-4 are signatory parties to the Facility Agreement, the facility was extended to the Williamson Magor Group as a whole on the basis of the credit worthiness of respondent No. 5-7. 39. It is vehemently contended by the Counsels that the orders under Section 9 of the Act can be passed against nonsignatories on the following basis such as a) where there is an intention to bind the non-signatories, which can be inferred from agreement itself and/or the manner in which the agreement is implemented/performed by the parties i.e. conduct of parties; b) Group of Companies Doctrine, and; c) attempt to use a corporate fa ade to deprive the creditors of their money. Reliance has been placed on the following judgments in support of this plea: 1. Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc. & Ors., (2013) 1 SCC 641 ; 2. Cheran Properties Ltd. v. Kasturi Sons Ltd. & Ors., (2018) 16 SCC 413 ; 3. Mahanagar Telephone Nigam Ltd. v. Canara Bank & Ors.,2019 SCCOnlineSC 995; 4. Sterling and Wilson International FZE and Ors. V. Sunshakti Solar Power Projects Private Limited AND Ors.,MANU/DE/1303/2020; 5. VLS Finance Ltd. v. BMS IT Institute Private Limited & Ors., (2015) 220 DLT 113 ; 6. Goyal MG Gases Pvt. Ltd. v. Air Liquide Deutschland GmBH and Ors.,MANU/DE/0098/2005; 7. Dorling Kindersley (India) Pvt. Ltd. v. Sanguine Technical Publishers & Ors., (2013) 2 ArbLR 52 (Del) ; 8. Gatx India Pvt. Ltd. v. Arshiya Rail Infrastructure Ltd., (2015) 216 DLT 20 ; 40. Counsels have also submitted that even the website of respondent No.1 states that the group of entities and individuals include respondent Nos. 6 & 7. It is also stated that respondent Nos. 1 & 2 have acted as agents of respondent Nos. 5 to 7 in procuring the loans from petitioner No. 1 and have used the loan proceeds as part of their general business operations of funding group companies by transferring monies to respondent No. 6. 41. It is also submitted by the Counsels refuting the stand taken by the applicants/respondent Nos. 5 to 7 in procuring the loans from petitioner No. 1 and have used the loan proceeds as part of their general business operations of funding group companies by transferring monies to respondent No. 6. 41. It is also submitted by the Counsels refuting the stand taken by the applicants/respondent Nos. 5-7, they don't form part of the Williamson Magor Group, that the Court must lift the corporate veil of the respondents in order to ascertain whether respondents actually form part of the Williamson Magor Group and that after availing the loan of Rs. 200 crores by representing themselves as part of group companies attempt is now made to use a corporate fa ade to fraudulently deprive the petitioners of their money. In support of this, the Counsels have placed their anchorage on the following judgments: 1. Life Insurance Corporation Ltd. v. Escorts ltd. and Ors., (1986) 1 SCC 264 ; 2. State of U.P. and Ors. v. Renusagar Power Co. and Ors., (1988) 4 SCC 59 ; 3. Arcelomittal India (P) Ltd. v. Satish Kumar Gupta., (2019) 2 SCC 1 ; 4. Vodafone International Holdings BV. Union of India and Anr., (2012) 6 SCC 613 ; 5. DDA v. Skipper Construction Company (P) Ltd. & Anr., (1996) 4 SCC 622 . 42. Having heard the Ld. counsels appearing for the parties, at the outset I shall broadly encapsulate their submissions. Mr. Sethi, Mr. Makkar Learned Senior Counsels and Mr. Jayant Mehta, learned counsel appearing for respondent Nos. 6, 7 & 5 respectively ('Counsels for respondents' for short) have submitted as follows: 1. Respondent 5, 6 and 7 are not signatories to the Facility Agreement, Personal Guarantee, Share Pledge Agreement and the Deed of Hypothecation. No disclosure to that extent has been made in the petition. 2. Being non-signatories, respondent No.5, 6 and 7 are not parties to the transaction or arbitration agreements therein and Section 9 does not lie against them. (Reference: on Indowind (Supra); Ameet Lalchand Shah (supra); Kanta Vashist (supra), Ajay Makhija, Mukesh Hans (supra), Mcleod Russel India Ltd. (supra) ). 3. Moreover, the invocation of group companies' doctrine requires a finding of unmistakeable intent of nonsignatory parties to be bound by agreement. 4. Respondent Nos. 5, 6 and 7 are intentionally kept from being enveloped within the definition of being a 'Borrower', 'Guarantor', 'Obligor', or 'Promoter Group'. 5. 3. Moreover, the invocation of group companies' doctrine requires a finding of unmistakeable intent of nonsignatory parties to be bound by agreement. 4. Respondent Nos. 5, 6 and 7 are intentionally kept from being enveloped within the definition of being a 'Borrower', 'Guarantor', 'Obligor', or 'Promoter Group'. 5. The Facility Agreement is a self-contained agreement as per Clause 13.3 and as per Clause 4.1 the obligation to repay loan is that of respondent Nos. 1 and 2 (Borrowers) and also respondent No. 3 and 4 (Guarantors). 6. Clause 5.1 casts specific obligation on 'Borrower', 'Guarantor', 'Obligor' to secure the loan and Clause 5.10 requires 'Promoter-Group' to replenish security in case of deficiency. 7. 'Promoter Group' does not include respondent Nos. 5, 6 & & 7 under the Facility Agreement and are not controlled entities of Guarantors. 8. 'Reference Entities' are being specifically defined and introduced only to state that the equity shares in respondent No. 6 & 7 are owned by the Borrowers, which serves as the security to the transaction under the Facility Agreement. (Reference to Clause 5.8 and 5.12). The company and its shareholders are independent and distinct entities in the eye of law. 9. Clause 7.2.3 (a) requires 'Borrower', 'Guarantor', or 'Promoter Group' not to issue fresh shares in any 'Reference Entity' and no obligation is cast upon respondent No. 6 and 7. The obligation is of respondent Nos. 1-4 to protect the value of the security provided i.e. their shareholding in respondent Nos. 6 and 7. 10. Clause 7.4.1 requires respondent No. 1 & 2 to ensure compliance of certain benchmarks of the financial health of the respondent No.5, 6 & 7. These terms do not in any manner oblige respondent Nos.5, 6 & 7 to do or refrain doing any act. A conjoint reading with Clause 5.8 makes it clear that the obligation for providing additional security in case of deficiency is on respondent Nos. 1-4. 11. Notices of breach are all addressed to respondent Nos. 1-4. 12. Respondent Nos. 3 & 4 have signed the Facility Agreement in their personal capacity as Guarantors as defined under Schedule 1 and there being no instance wherein respondent Nos. 3 and 4 have purported to act on behalf of respondent Nos. 5, 6 & 7, the doctrine of ostensible authority and estoppel is misplaced. 13. 1-4. 12. Respondent Nos. 3 & 4 have signed the Facility Agreement in their personal capacity as Guarantors as defined under Schedule 1 and there being no instance wherein respondent Nos. 3 and 4 have purported to act on behalf of respondent Nos. 5, 6 & 7, the doctrine of ostensible authority and estoppel is misplaced. 13. No case of Fraud has been pleaded by the petitioner, for lifting of the corporate veil. Reliance is placed on Eloff Hansson (supra), to contend that in the absence of such pleading, Court is bound to disregard the same. 14. The plea of fraud being committed as the proceeds where received by respondent No. 6 is any way misplaced as Clause 2.3 of the Facility Agreement lays the purpose of the loan to discharge respondent No. 6. 15. No prima facie case is made out, as to restrain a third party under Section 9. Reliance placed by petitioner on Dorling Kindersley (supra) is misplaced as no derivative rights/title exists with the third party. 16. Reliance placed by petitioner on Mahanagar Telephone Nigam (supra), in support of the contention that Section 9 lie against a non-signatory to an arbitration agreement is misplaced, as no intention to bind the nonsignatories is made out as per the Facility Agreement. Similarly, the judgments, Chloro Controls India (supra), Mayavati Trading (supra), Gareware Wall Ropes (supra) and Cheran Properties (supra) are distinguishable in the facts of this case. 43. On the other hand, the submissions made by Mr. Neeraj Kishan Kaul and Mr. Akhil Sibal are as follows. 1. All respondents are part of the Williamson Magor Group. Respondent No. 1 and 2 are pure holding and investment companies and a major shareholding company in the Williamson Magor Group. In this regard, reliance was placed upon Clauses 1.1.1(aaa), (bbb), (ccc), (mmm), (ooo), (sss), (xxx) and 1.1.1(eee). 2. Respondent Nos. 1 & 2 exists merely to raise funds on behalf of its group companies including respondent Nos. 5-7. 3. Clause 2.3 of the Facility Agreement records its primary purpose as to finance respondent No.6. 4. Credit facility granted after taking into consideration the credit worthiness of Williamson Magor Group as a whole and clause 7.4 of the Facility Agreement is applicable to respondent Nos. 6 and 7. 5. Shareholding pattern of respondent Nos. 5-7. 3. Clause 2.3 of the Facility Agreement records its primary purpose as to finance respondent No.6. 4. Credit facility granted after taking into consideration the credit worthiness of Williamson Magor Group as a whole and clause 7.4 of the Facility Agreement is applicable to respondent Nos. 6 and 7. 5. Shareholding pattern of respondent Nos. 5, 6 & 7 indicate that they form part of the 'Promoter Group' as defined under the Facility Agreement, being entities controlled by the Guarantors. 6. As per Clause 5.1(e), a letter is to be issued by respondent No. 6 to the Lenders and Clause 5.11 grants both the Borrower and/or Promoter Group the option of providing cash collateral in lieu of Top-up Shares. 7. Clause 7.1.1 (b), obligation is cast on respondent No. 1-4 to ensure, respondent No. 5-7 does not become private entities. 8. The shareholding of Reference Entity as on disbursement date was provided in Schedule 6.1.2(d) of the Facility Agreement, which has changed as on date. 9. As per Clause 6.1.5(a), books of accounts to be prepared using GAAP on a consistent basis of Reference Entity, borrowers, obligors in accordance with applicable law is indicative of the fact that the Facility Agreement was granted on the strength respondent Nos. 5 to 7. 10. As relied upon Clause 1.1.1 (bbb) read with Clause 6 to contend that "material adverse effect" envisages change in the financial condition, carrying out business, assets or prospects of Reference Entity as expressly represented and warranted in Clause 6. 11. Shareholding pattern of respondent Nos. 5 to 7 clearly indicates that respondent Nos. 1 to 4 form part of its Promoter Group. 12. Group Companies Doctrine can be invoked as in the petition it has been categorically stated that although respondent Nos. 1 to 4 are signatories, the facility was extended to the Williamson Magor Group as a whole. 13. Orders Under Section 9 of the Act can be passed against non-signatories (i) where there is an intention to bind non-signatories which can be inferred from agreement itself and / or the manner in which the agreement is performed by parties,(ii) Group of Companies Doctrine and (iii) attempt to use corporate fa ade to deprive creditors of their money (Ref: Chloro Controls India Pvt. Ltd. (supra); Cheran Properties Ltd. (supra); Mahanagar Telephone Nigam Ltd. (supra); Sterling and Wilson International FZE and Ors. (supra); VLS Finance Ltd. (supra); Goyal MG Gases Pvt. Ltd. (supra); Dorling Kindersley (India) Pvt. Ltd. (supra); Gatx India Pvt. Ltd. (supra). 44. Having broadly noted the submissions, the preliminary issue that falls for consideration under these applications is the maintainability of the petition in so far as respondent No. 5, 6 and 7 are concerned, being non-signatories to the Facility Agreement and to that extent the applicability of ex-parte order passed by this Court on December 13, 2019. 45. It is trite law that even though the scope of an arbitration agreement is entered into by a Company within a group of corporate entities, as per 'Group of Companies Doctrine', the same can in certain circumstances bind non-signatory affiliates as well. This doctrine was propounded through the case of Dow Chemical v. Isover-Saint-Gobain,1984 RevArb 137 and first invoked by the Supreme Court in Chloro Controls (supra). A combined reading of the judgments of the Apex Court and this Court, as relied upon by the Mr. Kaul and Mr. Sibal, in Chloro Controls (supra), Cheran Properties Limited (supra), Mahanagar Telephone Nigam Ltd. (supra), Sterling and Wilson International Fze and Ors. (supra), VLS Finance Ltd. (supra), Gatx India Pvt. Ltd. (supra), Goyal MG Gases Pvt. Ltd. (supra) and Dorling Kindersley (supra) reveals the following position: 1. Section 9 cannot be confined only to the parties to the arbitration agreement. 2. 'Group Companies Doctrine', is an exception whereby arbitration agreement binds a non-party or a non-signatory as well; 3. The arbitration agreement entered into by one of the companies in the group and the non-signatory affiliate, or sister, or parent concern is held to be bound by the arbitration agreement, if the facts and circumstances of the case indicate a mutual intention of all parties to bind both the signatories and non-signatory affiliates in the group, or; 4. This Doctrine gets attracted when a non-signatory entity on the Group, was engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract, or; 5. In cases where there is a tight group structure with strong organizational and financial links, so as to constitute a single economic unit, or a single economic reality, especially when funds of one company is used to financially support or re-structure other members of the group, or; 6. In cases where there is a tight group structure with strong organizational and financial links, so as to constitute a single economic unit, or a single economic reality, especially when funds of one company is used to financially support or re-structure other members of the group, or; 6. Doctrine can be invoked to bind non-signatory affiliate of a parent company or inclusion of a third party to arbitration, where there is a direct relationship between the party which is a signatory to the arbitration agreement or there is direct commonality of the subject matter 7. Even if all parties to the lis were not signatory to all the agreements, but none of the Companies was a stranger to these transactions; parties intended, executed and implemented a composite transaction. 46. Having noted the position of law, I shall now refer to the terms of the Facility Agreement. The position that emerges from the Facility Agreement is as follows: 1. Respondent Nos.1 and 2 (Borrowers as defined under Part-E of Schedule - I to the agreement) have availed credit facility to the tune of Rs.100 Crores each from the petitioner No.1. 2. Respondent Nos. 3 and 4 are guarantors to the Facility Agreement as per Part-A of Schedule - I. 3. Clause 2.3 of the Facility Agreement records that the facility was availed for repayment of existing loans / advances extended by respondent No.6 to borrowers or infusion of proceeds into respondent No.6 solely for the purpose of reduction of debt. 4. Clause 1.1.1 (p) defines 'Control'. It also includes the power to direct the management or policies of a person, whether through the ownership of voting rights, power to appoint Directors or similar governing body of such person or through contractual or other arrangement. 5. Clause 1.1.1 (bbb) defined 'Material Adverse Effect' to include an event, circumstance, occurrence or condition which, in the sole opinion of the lenders, has caused, as of any date of determination, or could be expected to cause, a material and adverse effect on: (i) the financial condition, carrying of business, operations, assets or prospects of any of the Borrowers, the Guarantors and/or the Obligors and/or the Reference Entity; 6. Clause 1.1.1(ooo) defines 'promoter group' and includes any other controlled entity of the guarantors. 7. Clause 1.1.1 (aaa) defines security to mean the security interest created on various assets and properties as noted in Clause 5. 8. Clause 1.1.1(ooo) defines 'promoter group' and includes any other controlled entity of the guarantors. 7. Clause 1.1.1 (aaa) defines security to mean the security interest created on various assets and properties as noted in Clause 5. 8. The Facility Agreement also defines security document in Clause 1.1.1 (xxx) to include all documents executed pursuant to Clause 5 which deals with 'Security'. 9. 'Security Provider' shall mean (i) the Pledgors; and (ii) any other person creating Security under the Security Documents. 10. Clause 1.1.1 (ccc) defines 'Obligors' as Borrowers, 'Security Provider' and Guarantors. 11. In pursuance of Clause 5.1(a) a first ranking and exclusive pledge on pledged shares created pursuant to pledge agreement for securing loan, outstanding amount and any monies payable in respect of the facility. 12. A. Clause 5.1.(e) includes A letter of comfort to be issued by MRIL in a form acceptable to lenders to secure the loans and all outstanding amounts. 13. Even though the obligation to ensure adequate collateral cover ('New Security'), by way of pledge over equity shares of respondent No.6 and/or respondent No.7 and/or mortgage over properties at the end of 18 and 24 months (1.5x and 2.0 x respectively), was on the borrowers as per Clauses 5.8 and 5.9; Clause 5.10 envisaged that the Borrower and / or Promoter Group shall provide incremental shares as pledged "top-up shares'' on the breach co-lateral cover as per Clause 5.8 and 5.9. 14. An option to even provide cash collateral in lieu of "Top-up Shares" was also provided to the Borrower and Promoter Group as per Clause 5.11. The cash collateral provided was to be adjusted against the loan outstanding amount. 15. Respondents 5 to 7 are named as 'Reference Entities' under Clause 1.1.1 (sss). 16. Clause 6 of the Facility Agreement dealt with Representation and warranties which the borrower and guarantors jointly and severally made to the lenders as on date of the Agreement to be continued till the date of final settlement. 16.1 As per Clause 6.1.2 (d) an express representation and warranty was made that As on date of the execution of this agreement and the first disbursement date, the shareholding of Reference Entity, borrowers and the obligors is as provided in Schedule - 6.1.2 (d) and the same shall be maintained till the date of final settlement. 16.1 As per Clause 6.1.2 (d) an express representation and warranty was made that As on date of the execution of this agreement and the first disbursement date, the shareholding of Reference Entity, borrowers and the obligors is as provided in Schedule - 6.1.2 (d) and the same shall be maintained till the date of final settlement. 16.2 Clause 6.1.2 (e) stipulated the Reference Entity, Promoter Group, borrowers and / or the obligors or any of their Directors shall not appear on the RBI list of defaulters and ECGC's caution list. 16.3 Clause 6.1.4 expressly stated no legal proceedings pending or threatened, or any written notices received by the Reference Entity, the borrowers, the guarantors and / or the obligors. 16.4 As per Clause 6.1.5(a), books of accounts to be prepared using GAAP on a consistent basis of Reference Entity, borrowers, obligors in accordance with applicable law. 16.5 Clause 6.1.8(a) also envisaged that the Reference Entity, borrowers, the guarantors and / or obligors are not insolvent or unable to pay their debts. 17. Clause 7.1.1 (b), obligation is cast on respondent No. 1-4 to ensure, respondent No. 5-7 does not become private entities. 18. Clause 7.2.3 (a) mandates that the Borrowers, Guarantors and the Promoter Group shall not issue any fresh equity or preference share or any other instruments convertible into equity or preference shares by the Reference Entity. 19. Clause 7.2.3 (b) also mandates the Borrowers, Guarantors and the Promoter Group not to sell, transfer or dispose off or allow any of the entities listed in Schedule 6.1.2(d) (entities includes respondent No.5-7) of the Facility Agreement to sell, transfer or dispose off shareholding in Borrowers except as permitted under the Facility. 20. Obligation is cast on the Borrowers, Guarantors and the Promoter Group to not sell, transfer or dispose off shares any of the Reference Entities held by Promoter Group without prior consent of the Lenders. 21. Guarantors and Promoter Group to hold shares aggregating to a value of 7,50,00,00,000 of respondent Nos. 6 and 7 as per Clause 7.2.4. 22. As per Clause 7.3.4 obligation was cast upon the Borrowers to deliver unaudited and audited financial statements in respect of the Reference Entity, Borrowers, the Guarantors and the Obligors for each financial quarter to the Lenders within 15 (fifteen) calendar and 45 (forty-five) calendar days of the end of each financial year respectively. 23. 22. As per Clause 7.3.4 obligation was cast upon the Borrowers to deliver unaudited and audited financial statements in respect of the Reference Entity, Borrowers, the Guarantors and the Obligors for each financial quarter to the Lenders within 15 (fifteen) calendar and 45 (forty-five) calendar days of the end of each financial year respectively. 23. Schedule 1.1.1(z) which deals with events of defaults such as cross-default (Clause 3 thereto), winding up nationalization, receiver (Clause 4thereto), other default (Clause 6 thereto), all envisage these events applicable to Reference Entities as well. 24. In particular Clause 6(a) of Schedule 1.1.1(z) contemplates an event of default, as failure by the entities listed in Schedule 6.1.2(d) (Shareholding Pattern) hereof to maintain and retain management control over the Reference Entity, the Borrowers, the Guarantors and/or the Obligors and/or failure to maintain their respective shareholding in the Borrowers, the Guarantors and the Obligors." 22. Clause 7.4 of the Facility Agreement is upon respondent Nos.1and 2 to maintain Gross Primary Debt to LTM EBITDA Ratio in respect of respondent Nos.6 and 7 at certain levels at given points of time. 47. A perusal of the documents which are placed on record reveals the following: 1. An email exchanged from an official (Manager of the respondent No. 1) under the official mail-id of respondent No. 6 to the petitioner's representative (e-mail dated June 28, 2018 annexed at page No. 18 to I.A. 6877/2020) with regard to the quarterly compliance to be followed as per the Facility Agreement, depicts the files on behalf of respondent No. 7 being attached by the Manager of respondent No. 1. 2. An email sent by an official of the petitioner to respondent No. 3 & 4 (e-mail dated January 24, 2019 annexed at page No. 33 to I.A. 6877/2020), whereby it is indicated that the loan under Facility Agreement was given in favour of 'your promoter hold cos. in Sep'17 with PG's and in good faith'. The email further reads as, 'It has been brought to my notice that this is facility has multiple covenant breaches (primarily on account of excess leverage in McLeod Russel & Eveready and non-maintenance of min. unencumbered shareholding of Rs.750 crores) which were informed to us only on post facto basis which is completely unacceptable. The email further reads as, 'It has been brought to my notice that this is facility has multiple covenant breaches (primarily on account of excess leverage in McLeod Russel & Eveready and non-maintenance of min. unencumbered shareholding of Rs.750 crores) which were informed to us only on post facto basis which is completely unacceptable. Further, I understand that the aforesaid credit facility needs to be secured by 1.5x cover (Principal + Accreted Interest) in the form of pledge of shares of Eveready & McLeod Russel not later than 31st March'19 and thereafter at 2.0x level by 30th Sep'19. Please give us a plan to rectify the aforesaid breaches at the earliest and ensure to provide us the security within the agreed time line'. 3. The respondent Nos. 3 & 4 has in fact replied to the aforesaid mail vide email on the same day (annexed at page No. 33 to I.A. 6877/2020), acknowledging the mail and has not disputed them being not part of the promoter/promoter group of the holding companies. Moreover, in pursuance of rectifying the breaches and other statutory requirements, the official of petitioner No. 1 communicated to the respondent No. 3 & 4that '..We've since then discussed your requirement for incremental funding at the holdco. level to take care of certain short-term maturities at the operating co. level and we are unable to progress at this juncture. Incrementally, we have an RBI inspection coming up, and we would need to comply with the security creation requirement in the existing facility first, and would appreciate if you could prioritize creating the requisite security (1.5x cover in the form of pledge over Eveready & McLeod Russel shares) against our facility of Rs.200 crores + accreted interest latest by 31st March'19. Request if you could accordingly organize to create security within the aforesaid timeline.' 4. An e-mail dated January 07, 2019, exchanged between an official of the petitioner No. 1 to an official of respondent No. 6, whereby in a table reproduced therein, respondent No. 3 & 4 are named as the Promoters of respondent No. 7 and the Promoter Group therein is defined as Promoter & his immediate family members & any entity owned and controlled by such individuals which constitutes Promoter Group. 48. 'Security provider' as envisaged under Clause 1.1.1(bbb) means to include any person who creates 'Security' under the 'Security Documents' and therefore, respondent Nos. 48. 'Security provider' as envisaged under Clause 1.1.1(bbb) means to include any person who creates 'Security' under the 'Security Documents' and therefore, respondent Nos. 5 and 7 are 'Security Providers' which also qualifies them as 'Obligors' as per Clause 1.1.1 (ccc). Thus, respondent Nos. 5 and 7 in addition to being 'Reference Entities' are also 'Security Providers' as well as 'Obligors' as per the Facility Agreement. 49. The shareholding pattern as laid down in Schedule 6.1.2(d) of the Facility Agreement clearly depicts that respondent Nos. 1, 2, 4 and 6 form the Promoter Group of respondent No.5; respondent Nos. 1,2,3,4 and 6 form part of the Promoter Group of respondent No.7; respondent Nos. 1,2,3,4 and 7 form part of Promoter Group of respondent No. 6 and; respondent Nos. 1, 3 and 6 form part of Promoter Group of respondent No. 2, 5 to 7. 50. The Borrowers and Guarantors, being respondent Nos.1- 4, had expressly jointly and severally warranted and represented under Clause 6.1.2(d) to the petitioner No.1 and Security Trustee that the shareholding of the Reference Entity, Borrowers and Obligors as provided in Schedule 6.1.2(d) as on date of disbursement shall remain the same all throughout till the date of final settlement. 51. In fact, Schedule 1.1.1(z) which contemplates various Events of Default, under Clause 6(a) reads as under: "(a) Failure by the entities listed in Schedule 6.1.2(d) (Shareholding Pattern) hereof to maintain and retain management control over the Reference Entity, the Borrowers, the Guarantors and/or the Obligors and/or failure to maintain their respective shareholding in the Borrowers, the Guarantors and the Obligors." 52. The entities listed in Schedule 6.1.2(d) are Babcock Borsig Limited/respondent No. 8, respondent Nos.1 and 2, as well as respondent Nos.5 to 7. A conjoint reading of Clause 6.1.2(d), Clause 6 (a) to Schedule 1.1.1.(z) prima facie indicates that the Borrowers and Guarantors exercised management control over the Reference Entities and that the obligation was jointly and severally on respondent Nos. 1-4, accordingly, to maintain the shareholding of the Reference Entities intact. Clause 7.1.1(b) viewed from this prism, which casts an obligation on respondent Nos.1 to 4 to ensure the respondent Nos.5 to 7 does not become private entities, makes it clear that Reference Entities function at the behest of respondent Nos.1 to 4 herein accordingly. 53. 1-4, accordingly, to maintain the shareholding of the Reference Entities intact. Clause 7.1.1(b) viewed from this prism, which casts an obligation on respondent Nos.1 to 4 to ensure the respondent Nos.5 to 7 does not become private entities, makes it clear that Reference Entities function at the behest of respondent Nos.1 to 4 herein accordingly. 53. Similarly, as per Clause 7.3.4 obligation is cast upon the Borrowers to deliver unaudited and audited financial statements in respect of the Reference Entity, Borrowers, the Guarantors and the Obligors for each financial quarter to the Lenders within 15 (fifteen) calendar and 45 (forty-five) calendar days of the end of each financial year respectively. An obligation as per Clause 7.4 of the Facility Agreement is upon respondent Nos.1and 2 to maintain Gross Primary Debt to LTM EBITDA Ratio in respect of respondent Nos.6 and 7 at certain levels at given points of time. 54. Moreover, it is also pertinent to note that the Facility Agreement categorically records at Clause 2.3 (a) (i) that the Borrowers shall apply the amounts borrowed towards repayment of existing loans/advances extended by respondent No. 6/MRIL to the Borrowers or infusion of proceeds into respondent No.6/MRIL solely for the purpose of reduction of debt. 55. The communications as reproduced above at paragraph 47 along with a reading of Clause 2.3 of the Facility Agreement, which states one of the reasons for availing the Facility as 'Repayment of the existing loans/ advances extended by MRIL to the Borrowers or infusion of proceeds into MRIL solely for the purpose of reduction of debt', is clearly indicative of the fact that respondent No. 1 and 2 along with the group-companies functioned as a single economic entity. 56. The above-discussed Clauses of the Facility Agreement and communication between various respondents, viewed from the touchstone of settled-law, the position that clearly emerges is, respondent Nos. 1, 2 and 5-8 form part of a tight group structure with strong organizational and financial links, with respondent No. 3 and 4 being part of the Promoter Group of the various respondents, and in fact functions as a single economic entity. The organizational structure with various respondents herein being part of promoter group inter-se the respondents, none of the companies are stranger to the Facility Agreement. The organizational structure with various respondents herein being part of promoter group inter-se the respondents, none of the companies are stranger to the Facility Agreement. That apart, the communications bring to light the various negotiations being initiated by non-signatories, as well as the mutual intention to bind the non-signatories to the Facility Agreement. Therefore, I am of the opinion that the matter is an apt case for invoking the 'Group Companies Doctrine' and bind the respondent Nos. 5, 6 and 7/applicants herein who are nonsignatories to the Facility Agreement. 57. In so far as the pleas taken by the Counsels for respondents by relying upon the various Clauses of the Facility Agreement are concerned, those cannot be read in isolation overlooking other Clauses, referred above. They had relied on the judgment of the Supreme Court in Indowind (supra), wherein while considering an appeal arising out of an application filed under Section 11 of the Act, the Court held that against the anvil of Section 7, in the absence of an arbitration agreement between the parties, no claim against any party or no dispute thereon can be the subject-matter of reference to an Arbitrator. Similarly, Reliance was also placed on judgments restricting the applicability of Section 9 to non-signatories and third parties viz. 1. Kanta Vashist (supra) 2. Ajay Makhija (supra) 3. Mukesh Hans (supra) and 4. Mcleod Russel India Limited (supra). Suffice it to state that owing to the invocation of 'Group Company Doctrine', these judgments including Indowind (supra) find no applicability in the facts of this case. 58. It is an undisputed fact that the respondent Nos.5 to 7 are referred to in the Facility Agreement as 'Reference Entity' as per Clause 1.1.1(sss). As per Clause 4.1 the obligation to repay is cast upon the Borrowers. However, what needs to be considered at this stage is whether prima facie any obligation / liability accrues upon respondent Nos. 5 to 7 being the 'Reference Entities' to the Facility Agreement. 59. Clause 5 of the Facility Agreement lays down the various security arrangement / documents to secure the various obligations and undertakings of the Borrowers, Guarantors and Obligors. It is an admitted position of the parties that it is pursuant to Clause 5.1 (a) that the Share Pledge Agreement was entered into by and between respondent Nos. 59. Clause 5 of the Facility Agreement lays down the various security arrangement / documents to secure the various obligations and undertakings of the Borrowers, Guarantors and Obligors. It is an admitted position of the parties that it is pursuant to Clause 5.1 (a) that the Share Pledge Agreement was entered into by and between respondent Nos. 1, 2, 8, and Security Trustee whereby 4,16,66,666 compulsory convertible preference shares in the share capital of respondent No. 5 (Target) were pledged. Similarly, as per Clause 5.1(e), a letter of comfort is to be issued by MRIL / respondent No.6 in a form acceptable to the Lenders / petitioners. Clause 1.1.1 (xxx)(viii) of the Facility Agreement brings within the ambit of 'Security Documents', any Security Document to be executed pursuant to provisions of Clause 5 of the Agreement. A conjoint reading Clause 5.1(a), Clause 5.1(e) and Clause 1.1.1 (xxx)(viii) prima facie mandates respondent Nos. 5 and 6 to create Security Document (Share Pledge Agreement and letter of comfort respectively) for securing the credit facility under the Facility Agreement. 60. Having said that the provisions of the Facility Agreement as noted above and the e-mail on behalf of the petitioner No.1 as referred to in Para 47(2) & (3) above also indicates that respondent Nos. 3 and 4 as guarantors exercised control over the respondent Nos. 6 & 7. Interestingly, in response to the email referred to in Para 47 (2), respondent No. 3 / Aditya Khaitan in his e-mail, with a copy to respondent No. 4, stated as under: "Thank you for your mail and I have noted the concerns you have put out. Our intention has been to ensure that the entire amount is repaid and we have already put some actions in play which your team is fully aware of. I would like to come across to meet you and explain the plan and request if you could give me a time early next week. Kind regards." 61. A reading of the e-mail does indicate that respondent Nos. 3 & 4 had not denied their control over the entities being respondent Nos. 6 & 7. They being the guarantors to the Facility Agreement, Clause 1.1.1 (ooo) which defines the Promoter Group to include 'any other controlled entities of the guarantor', shall trigger. Kind regards." 61. A reading of the e-mail does indicate that respondent Nos. 3 & 4 had not denied their control over the entities being respondent Nos. 6 & 7. They being the guarantors to the Facility Agreement, Clause 1.1.1 (ooo) which defines the Promoter Group to include 'any other controlled entities of the guarantor', shall trigger. Schedule 6.1.2 (d) to the Facility Agreement clearly reveals that respondent Nos.1, 2, 4 & 7, form part of Promoter Group of respondent No.5; respondent Nos. 1, 2, 3, 4 and 6 form part of Promoter Group of respondent No. 7; and respondent Nos. 1, 2, 3, 4 and 7 form part of Promoter Group of respondent No. 6. Moreover, respondent Nos. 3 and 4 are the Managing Director and Director in respondent No. 6 and vice-versa in respondent No. 7. The Facility Agreement clearly stipulates the obligation of the Promoter Group under Clauses 5.10 and 5.11 to include that they shall provide 'Top-up shares' upon breach of collateral cover in terms of Clauses 5.8 and 5.9. Even clause 5.11 obligates the Promoter Group to provide cash collateral in view of 'Top-up shares'. That apart Clauses 7.2.4 and 7.2.6 of the Facility Agreement also obligates the following: - "7.2.4 The Guarantors and the Promoter Group shall at all times hold shares aggregating to a value of INR 750,00,00,000 of Eveready & Mcleod Russell free and clear from Encumbrance. 7.2.6 The Guarantors and the Promoter Group shall not Encumber any shares held by the Guarantors and the Promoter Group in the Reference Entities save and except as disclosed by the Promoter Group as on the date of this Agreement or as provided under this Agreement or as required to be Encumbered as "topup" shares in accordance with the provisions of existing security creation arrangements." 62. Similarly, obligations have been listed on the Promoter Group under Clause 7.2.3. 63. The plea of the Counsels for the respondents was that respondent Nos. 5, 6 & 7 are not controlled entities of the guarantors. This plea is belied by their own e-mails on behalf of the guarantors, i.e., respondent Nos. 3 & 4, which have been referred above. It is also necessary to state, reading of the Facility Agreement prima facie reveals that every Reference Entity is part of Promoter Group but every entity which forms part of the Promoter Group is not a Reference Entity. 3 & 4, which have been referred above. It is also necessary to state, reading of the Facility Agreement prima facie reveals that every Reference Entity is part of Promoter Group but every entity which forms part of the Promoter Group is not a Reference Entity. It appears, for this primary reason, a mention to a Reference Entity has not been expressly made in the definition of Promoter Group under Clause 1.1.1 (ooo), but the stipulation thereunder that 'any controlled entity of the guarantors' would be construed as a part of the Promoter Group, surely suggest that Reference Entities being 5, 6 & 7 must be construed to mean Promoter Group. Thus, the plea of Counsels for respondents that no obligation has been cast upon respondent Nos. 5, 6 & 7 is therefore prima facie unsustainable in view of my conclusion above. I am conscious that a provision imposing any liability / obligation has to be strictly construed but this being a Section 9 Petition, the final adjudication in that regard has to be by the arbitral tribunal. 64. The Judgments referred by the Counsels for the respondents viz. Elof Hansson (supra); Ajay Makhija (supra); Balmer Lawrie & Co. (supra); Bacha F. Guzder (supra), in support of their plea that lifting of corporate veil has to be specifically pleaded and proved would have no relevance in view of my conclusion above, which is based on the interpretation of the Facility Agreement and on facts. 65. In so far as the judgment of the Calcutta High Court in the case of Mcleod Russel (supra), relied upon by Mr. Sethi and Mr. Makkar, is concerned, the same arises from an appeal filed against an order passed in application under Order XXXIX Rule 1 & 2 therein, unlike the case in hand, which is a petition under Section 9 of the Act. The doctrine of 'Group of Companies', was first invoked by the Supreme Court in Chloro Controls (supra) to bind non-signatory companies to an arbitration clause under an application filed under Section 11. The said Doctrine has been made applicable by me in the facts of the case, especially on a reading of the terms of the Facility Agreement along with various communications exchanged between the parties. 66. The said Doctrine has been made applicable by me in the facts of the case, especially on a reading of the terms of the Facility Agreement along with various communications exchanged between the parties. 66. That apart, in the said judgment, the terms of the Facility Agreement were not considered by the Court in the manner, I have done in this case to come to a conclusion on the prima facie liabilities of respondent Nos. 5 to 7 herein. So, it follows the judgment is clearly distinguishable. 67. At this stage, I may state that in the interim order dated December 13, 2019 this Court has restrained the respondents including 5, 6 & 7 in the following manner: 1. carrying out any change in its capital structure or, 2. any corporate or debt restructuring and; 3. restraint from selling, transferring, alienating, disposing, assigning, dealing or encumbering or creating third party rights on their assets. 68. These three directions according to me are justified in view of the obligations which have been cast upon respondent Nos. 5, 6 & 7 in the Facility Agreement and the same cannot be interfered with. The applications are dismissed.