JUDGMENT G S Patel, J. - Over a year has gone past since this Petition was fled. In that time these two Respondents, undoubtedly indebted to the Petitioner, have done three things One, they have repeatedly promised to pay. Two, they have then attempted to deny liability, only to admit it later. Three, they have made payment of an amount of only Rs. 50 lakhs just a few days ago. Including contractually stipulated interest, the Petitioner's claim is a little more than Rs. 23 crores The principal component itself (without reckoning the Rs. 50 lakh payment) is Rs. 14.88 crores. 2. I have noted these broad factors at the very beginning just to give a conspectus of where the matter stands. 3. The factual background is this The Petitioner ("Kotak Mahindra"), is a banking company The 1st Respondent, Williamson Magor, carries on a variety of businesses The 1st Respondent itself is a corporate promoter of other companies including one McNally Bharat Engineering Co Ltd ("McNally Bharat"). The 2nd Respondent ("Khaitan") is the chairman and one of the promoters of Williamson Magord The Respondents have various other associated corporate entities including Eveready Industries India Ltd, McLeod Russel India Limited and so on All these are part of the Khaitan Group. 4. In early 2018, Williamson Magor, Khaitan and McNally Bharat asked Kotak Mahindra to take up equity in McNally Bharatd After negotiations, the parties agreed that Kotak Mahindra bank would purchase 24 lakh shares of McNally Bharat at a price of Rs. 62/- per share, said to be the then prevailing share priced For reasons that do not matter, but do suggest themselves, and to ensure that a major financial institution such as Kotak Mahindra remained invested as a shareholder, the parties agreed: (1) Kotak Mahindra would remain invested for a period of 15 to 30 months from April 2018; (2) at any time after that period, Kotak Mahindra could call on Williamson Magor to buy, either itself or through a third party, the entirety of Kotak Mahindra's shareholding in McNally Bharat (a 'put option'); (3) the put option, if exercised, required Williamson Magor to take up Kotak Mahindra's equity in Bharat McNally at the initial acquisition price of Rs. 62/- per share plus an assured 16% Internal Rate of Return or IRR; and (4) if Williamson Magor could not or did not comply with this demand, Khaitan would discharge these obligations, that is to say, Khaitan would either buy Kotak Mahindra's shareholding himself at this price (Rs 62/- per share with an IRR of 16%) or would cause a third party to do sod These, Kotak Mahindra says, were the representations made to it and on the basis of which it made an investment of Rs. 14.88 crores in McNally Bharat Engineering It was allotted 24 lakh shares of the face value of Rs. 10/- per share at Rs 62 per share, ided with a premium of Rs. 52/- per shared This is documented. 5. To give effect to this agreement and the put option, Williamson Magor and Kotak Mahindra entered into an agreement dated 12th April 2018d It provided that within 15 to 30 months after the date of initial investment, Kotak Mahindra could call upon Williamson Magor to take up its equity either itself or through a third party at Rs. 62/- per share plus a 16% IRR A copy of this agreement is at Exhibit "B" to the Petition from page 22 The put option is described in clause (2) at pages 24 to 25 About this there is no dispute at all. 6. This agreement also contains a provision for arbitration in clause 111 The reference is to be a three-Member Tribunal and the arbitration is to be in Mumbai The clause is broadly worded.[1] 7. As I noted above, according to Kotak Mahindra there was an understanding that Williamson Magor's obligation under the put option would also be assured or guaranteed by Khaitan himself This meant that if Williamson Magor did not fulfil its contractual obligations upon Kotak Mahindra exercising the put option, Khaitan had agreed to fulfil those put option obligations himself As we shall see, this is important for an assessment of the tenability of one of the defences taken by Mr Kamat for the Respondents It is not in dispute that Khaitan then entered into and executed a Deed of Guarantee also of 12th April 2018d A copy is annexed at Exhibit "C" from page 32 onwards. 8. 8. Ordinarily, I would not have had need to consider this document in any great detail This only becomes necessary in view of the arguments taken before me and in the Affidavit in Reply The recitals to the Guarantee document make it clear that Khaitan has executed the document as a promoter of Williamson Magor The first recital says sod Recitals B, C and D are important Recital B acknowledges the share subscription by Kotak Mahindra in McNally Bharat Recital C acknowledges the put option that allows Kotak Mahindra to require Williamson Magor either by itself or through a third party to purchase Kotak Mahindra's investment in McNally Bharat Then Recital D tells us that Khaitan as a promoter of Williamson Magor has agreed to secure "the said obligations of" Williamson Magor by providing "an unconditional and irrevocable personal guarantee in favour of" Kotak Mahindra Bank The rest of the guarantee follows the usual pattern, but clause (3) speaks of the liability of Khaitan being unaffected by a variety of factors that are listed in that clause Sub-clause (j) tells us that Khaitan's liability is unaffected by any dispute or disagreement in relation to any agreement between Williamson Magor and Kotak Mahindra Bank or any other person. 9. Then Clause 13 tells us that the guarantee is covered by Indian law and then says it is subject to the exclusive jurisdiction of competent Courts in Mumbai alone Mr Kamat would have it - and this is what his Affidavit in Reply says - that this clearly means that Khaitan has signed no arbitration agreement and no arbitration is possible against Khaitan The submission is that the guarantee is personal Khaitan may have been the chairperson of Williamson Magor But that is irrelevant He himself has not signed the principal or master agreement His guarantee is a separate contract and must be separately construed. 10. When confronted with the decision of the Supreme Court in Chloro Controls India Pvt. Ltd v Severn Trent Water Purification Inc & Ors, 2013 1 SCC 641 . and particularly paragraph 103 of that decision, Mr Kamat submits that Chloro Controls has been explained in later decisions to say that the intention to refer to arbitration must be shown This is the reason I have been at some pains to deal with the Deed of Guarantee and the terms of this agreement. 11. and particularly paragraph 103 of that decision, Mr Kamat submits that Chloro Controls has been explained in later decisions to say that the intention to refer to arbitration must be shown This is the reason I have been at some pains to deal with the Deed of Guarantee and the terms of this agreement. 11. The Affidavit in Reply (on behalf of both Respondents) contains a denial in paragraph 4(c) that Khaitan expressly or impliedly or otherwise "intended to be bound by the agreement dated 12th April 2018"d That statement is clearly untrue The guarantee in terms says that Khaitan is bound by the agreement But that is not even the question The question is whether Khaitan intended to be bound by the arbitration agreement, for it is well settled that an arbitration agreement is 'an agreement within an agreement There is a denial in this very paragraph that Khaitan had ever agreed or intended to be bound by the arbitration agreement This lack of intention will thus have to be gathered from other surrounding circumstances But what the argument first overlooks is the stipulation in the guarantee itself which we find in clause 152 Undoubtedly Khaitan has signed this guaranteed Undoubtedly it contains clause 152 Undoubtedly this clause says that the guarantee "together with the definitive agreement" constitutes and contains an entire agreement and understanding amongst the parties with respect to the subject matter and supersedes all previous communications etc This is not a question of 'incorporation by reference This is a matter that fall squarely within the Chloro Controls framework, of one document being part and parcel of what the Chloro Controls decision refers to as the umbrella or the master agreement. 12. Chloro Controls has never been over-ruled It has never been held not to be good law It was applied in Chatterjee Petrochem Co v Haldia Petrochemicals Ltd., (2014) 14 SCC 574 In Purple Medical Solutions (P) Ltd v MIV Therapeutics Inc, (2015) 15 SCC 622 , paragraph 14 the Supreme Court observed that the involvement of the 2nd respondent in that case brought it squarely within the frame of Chloro Controls. 13. Mr Kamat's submission presumably invokes the Supreme Court decision in Duro Felguera SA v Gangavaram Port Ltd., (2017) 9 SCC 729 : 2017 SCC OnLine SC 1233. 13. Mr Kamat's submission presumably invokes the Supreme Court decision in Duro Felguera SA v Gangavaram Port Ltd., (2017) 9 SCC 729 : 2017 SCC OnLine SC 1233. There, it was found - as a matter of fact - that each of the multiple packages and guarantees in question had a distinct arbitration clause; Paragraph 42. hence, the Chloro Controls principle would not operated More apposite to the present case is the Supreme Court decision in Cheran Properties Ltd v Kasturi & Sons Ltd & Ors., (2018) 16 SCC 413 : 2018 SCC OnLine SC 431. This considered both Chloro Controls and Duro Felguera Cheran Properties indeed distinguished the decision in Duro Felguera and applied Chloro Controls Paragraphs 23 and 34 of Cheran Properties summarises the finding thus: Also see paragraph 20. 23. As the law has evolved, it has recognised that modern business transactions are often effectuate through multiple layers and agreements. There may be transactions within a group of companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non-signatory entities within the same group. In holding a non-signatory bound by an arbitration agreement, the court approaches the matter by attributing to the transactions a meaning consistent with the business sense which was intended to be ascribed to them. Therefore, factors such as the relationship of a non-signatory to a party which is a signatory to the agreement, the commonality of subject matter and the composite nature of the transaction weigh in the balance. The group of companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non-signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements, an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory. 34. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements, an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory. 34. The appellant questions the application of the Chloro Controls [Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., 2013 1 SCC 641 : (2013) 1 SCC (Civ) 689] doctrine Dr Singhvi urged that in Chloro Controls, there was a joint venture agreement; the mother or parent agreement contained an arbitration clause and though the ancillary agreements did not contain an arbitration agreement, they could not have been performed in the absence of the mother agreement. The submission proceeds on a constricted interpretation of the Chloro Controls dictum. The principle which underlies Chloro Controls is that an arbitration agreement which is entered into by a company within a group of companies may bind nonsignatory affiliates, if the circumstances are such as to demonstrate the mutual intention of the parties to bind both signatories and non-signatories In applying the doctrine, the law seeks to enforce the common intention of the parties, where circumstances indicate that both signatories and nonsignatories were intended to be boundd In Duro [Duro Felguera v. Gangavaram Port Ltd, (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764], the case was held to stand on a different footing since all the five different packages as well as the corporate guarantee did not depend on the terms and conditions of the original package nor on the memorandum of understanding executed between the parties. The judgment in Duro does not detract from the principle which was enunciated in Chloro Coitrols. (Emphasis added) 14. The judgment in Duro does not detract from the principle which was enunciated in Chloro Coitrols. (Emphasis added) 14. Applying this ratio, we must ascertain the understanding between the parties Kotak Mahindra was asked to invest in Bharat McNally It did sod It was asked to remain invested and not exit before 15 to 30 months To ensure that it stayed, as it were, "locked in" for that period, Williamson Magor said that it would buy out Kotak Mahindra's investment in Bharat McNally at the purchase price plus 16% IRR if asked to do so after that period This was further backed by Khaitan's guarantee to do exactly the same thing Now it seems to me entirely inconceivable to even argue that Williamson Magor, of which Khaitan is the chairperson, would be bound by an arbitration agreement, but that Khaitan himself, qua guarantor for exactly the same promise, and also as the chairperson of Williamson Magor, would not be bound by the arbitration agreement; but would, instead, require that a civil suit be fled against him for precisely the same transaction and in respect of the same financial obligations The argument is, frankly, entirely untenable and unstatabled I would go a step further Where there is a controlling agreement and also a separate guarantee of the performance of agreed obligations, it is simply not enough to say (1) that there is no arbitration agreement; or (2) that it is for the person invoking the guarantee to demonstrate the intention to be bound If the Chloro Controls principle is applied, as explained in Cheran Properties, the task is a two-step process First, one must assess whether the guarantee is enfolded within the umbrella, master or controlling agreement If it is, and the guarantor seeks to escape the arbitration agreement within the master agreement, the second step is for the guarantor to show that he is not bound and did not intend to be bound As in Duro Felguera, he may do this by saying the guarantee was part of a distinct packaged Or he may show aliunde that the intention was explicitly or by necessary implication to show that guarantor was not bound by the arbitration agreement Chloro Controls is not to receive a restricted interpretation or understanding: Cheran Properties, supra Where there is a commonality of subject matter and the understanding is shown to be a composite one, it will not do to merely say 'there was no intention The true essence of the business or commercial agreement must be ascertained to bind a non-signatory, including, as Cheran Properties says: an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory. 15. Can I meaningfully make the kind of distinction Mr Kamat invites me to do? What is the basis of this distinction, other than saying that Mr Jagtiani must show the intention? There is nothing at all As opposed to this, there is precisely the commonality of subject-matter that Cheran Properties and Chloro Controls contemplate, between Williamson Magor's obligation and the and the exactly corresponding assumption by Khaitan of the very obligation Khaitan's obligation is simply a fail-safe or a fall-back position, to do exactly what Williamson Magor had agreed to do; not a jot more, and not a whit less The submission by Mr Kamat must be repelled Khaitan is bound by the arbitration agreement. 16. To return to the factual narrative, the option period admittedly began on 4th September 2019d On 9th September 2019, Kotak Mahindra exercised its put option and issued a notice to Williamson Magor; which did not fulfil its obligations The correspondence from December 2019 has been put in a compilation by Mr Jagtiani I am taking that compilation on record and marking it 'J1' for identification with today's dated The compilation also includes copies of earlier orders. The first of these was of 22nd January 2020d On 31st December 2019, (compilation page 5) Williamson Magor wrote to Kotak Mahindra and said that it was in the final stages of tying up with foreign investors. Funds were soon expected Williamson Magor requested time until 31st March 2020. 17. Nothing happened. 18. On 27th July 2020, Kotak Mahindra's Senior Executive Vice President wrote to Khaitan and asked for an update because nothing had been received by 31st March 2020d Khaitan replied on 3rd August 2020, saying there was a delay Now came the usual inevitable Covid-19, pandemic and lockdown excused Khaitan said he was discussing with some lenders and would need more timed Factually, this puts paid to any argument that Mr Kamat raises of Khaitan distancing himself from Williamson Magor's obligations. 19. This went on till as late as December 2020d There was no payment, no purchase and no fulfilment of the put option obligations by either Williamson Magor or Khaitan. 20. Notably - that is from the date of the put option exercise notice of 9th September 2019 until December 2020 - Khaitan never denied his co-terminus liability under the put option, or claimed that any dispute with him was not arbitrable. 21. 20. Notably - that is from the date of the put option exercise notice of 9th September 2019 until December 2020 - Khaitan never denied his co-terminus liability under the put option, or claimed that any dispute with him was not arbitrable. 21. This is important because on 17th November 2020, Kotak Mahindra in fact invoked arbitration. 22. On 18th December 2020, almost a full year after my first order of 22nd January 2020, I noted a statement made on behalf of the Respondents that they would pay an amount of Rs. 50 lakhs by 31st March 2021d Again, there was no denial of liability Again, there was no claim that Khaitan was not bound by the arbitration agreement. 23. A legal notice followed from Kotak Mahindra's attorneys on 13th January 2021 (compilation pages 9 to 11). 24. There is an astonishing reply from Williamson Magor's Advocates on 21st January 2021 at pages 12 and 13, in paragraph 4 of which, for the first time, there is a denial of the put option obligation But this is at odds with what is stated in paragraph 3, because this refers to my order of 18th December 2020 (compilations pages 3 to 4), when I noted the Respondents' promise to make partial payment. 25. The most recent communication from the Respondents is of 3rd March 2021 confirming payment of the amount of Rs. 50 lakhs and then saying only that the Respondents have discussed the matter with Kotak's representative in late-February 2021d There is no longer even a promise for an offer to pay any further amount. 26. Thus, the half-hearted denial of all liability on 21st January 2021 is useless The argument that Khaitan was not bound by the arbitration agreement is very much a latter-day epiphany, but contradicted by conduct and correspondence. 27. Mr Kamat's instructions are clear There is nothing further that either of the Respondents can pay, at least not within a reasonable timed The only submission is that the Respondents should be aformed some indefinitely prolonged period Why this should be is a puzzled How this is a legal or contractual entitlement is riddled How this is not in breach of contractual obligations is an enigma. 28. 28. But all of it is unacceptable These are commercial transactions before commercial Courts We cannot be told that contractual obligations count for nothing, or that we must condone and give judicial protection to defaults The Respondents have failed to fully honour their contractual obligations They received benefits under the Agreement in question They promised, assured and guaranteed a repayment - and that was after a fairly extended period of 15 to 30 months, during all of which Kotak Mahindra's money lay locked up with McNally Bharatd Regrettably, I find that in matter after matter, respondent after respondent and borrower after borrower tries to get me to re-write the terms of the commercial contract Mr Kamat does so even now when he says that there is this exorbitant and extortionate IRR of 16%d That is of complete and utter irrelevance For it is a rate of return that both Williamson Magor and Khaitan signed of on Nobody coerced them into it They must be held to the terms of the bargain they struck. 29. Mr Kamat is also in error when he says that at least Rs 50 lakhs was paid, thereby suggesting that this paltry payment should count for something It counts for very little It was simply an adherence to an undertaking to the Court It was very far short of the contractual obligation And no borrower is doing anyone a favour by repaying only a small part of the debt, and only after great delay. 30. I do not see any reason now why an order should not be made against the Respondents securing at least the principal that is due to Kotak Mahindra Bankd Mr Kamat argues that the amount of Rs. 50 lakhs should be reckoned But if it is to be reckoned then the deposit will be of the entire amount due of Rs. 23 crores and odd Otherwise, Rs. 50 lakhs will be taken into reckoning while considering the claim of Kotak Mahindra for the additional amount under the IRR in arbitration. 31. 50 lakhs should be reckoned But if it is to be reckoned then the deposit will be of the entire amount due of Rs. 23 crores and odd Otherwise, Rs. 50 lakhs will be taken into reckoning while considering the claim of Kotak Mahindra for the additional amount under the IRR in arbitration. 31. Lest it be argued either here or in any other forum that no case has been made out under Order 38 Rule 5 of the Code of Civil Procedure, 1908 ("CPC"), which seems to me more or less the habitual and automatic chanting of every respondent in a Section 9 Petition, this needs to be stated: that is not the law The recent decision of the Division Bench of this Court (RD Dhanuka and VG Bhisht JJ) in Essar House Private Limited v Arcellor Mittal Nippon Steel India Ltd,2021 SCCOnLineBom 149. makes it clear that there is no requirement that for such relief an iron-clad case under Order 38 Rule 5 of the Code of Civil Procedure, 1908 ("CPC") must be made out (or, if not argued, that the Court must hunt for it)d The Division Bench reafrmed the principle that has long been settled, and restated repeatedly, but which seem to be reagitated in the wrong way again and again The Division Bench said in the clearest terms that the principles of the CPC, including especially Order 38 Rule 5, are guides to a Section 9 Court and the order it makes under that Section They are not fetters upon the Section 9 Court's discretion On my reading of the Division Bench order, the position in law is that in such a case an order of deposit not only can be made, but ought to be made In Valentine Maritime Ltd v Kreuz Subsea Pte Ltd & Anr,2021 SCCOnLineBom 75, (paragraphs 88, 95 to 97 and 101). the Division Bench of this Court reiterated this position regarding Order 38 Rule 5 and also held that in appropriate case, where the defence is prima facie untenable, the Petitioner has a chance of success, and the defence is moonshine, an order of deposit to secure the claim can and indeed should be made under Section 9 This was also the view of another Division Bench of this Court in Jagdish Ahuja & Anr v Cupino Ltd.,2020 SCCOnLineBom 849 (paragraphs 6 and 7). All three decisions referenced and explained the previous Division Bench decision in Nimbus Communications Ltd v Board of Control for Cricket in India, (2013) 1 MhLJ 39 . and the Supreme Court decision in Adhunik Steels Ltd v Orissa Manganese & Minerals (P) Ltd., (2007) 7 SCC 125 . I followed the Division Bench decisions (referencing this law) in Parle Agro Pvt Ltd v Shree Aqua Purifer Pvt Ltd, Arbitration Petition (L) No 1821 of 2021, order dated 12th February 2021. and IIFL Finance Ltd v Shrenik Dhirajmal Siroyad, Commercial Arbitration Petition (L) No 8385 of 2020, order dated 18th February 2021. 32. Williamson Magor has no defence at all Khaitan's defence is untenable and, in view of the settled law on the subject, is unstatable and probably the most complete moonshine There is a contract with a clear and unequivocal obligation cast on the Respondents The Petitioner has an excellent chance of success Accordingly, the Respondents are required to deposit with the Prothonotary and Senior Master an amount of Rs. 14.88 crores by 31st March 2021d I have rounded of the amount of deposit. 33. Upon deposit being made, that amount is to be invested according to the usual practices of that office until further orders of the Court or the Arbitral Tribunal as the case may bed Liberty to Kotak Mahindra to apply to the Arbitral Tribunal for a withdrawal of that amount Any such application will be decided on its own merits All contentions in that regard are kept open. 34. It is open to the Respondents in the alternative to furnish a bank guarantee for the entire amount of, also optionally, a bank guarantee for a part of the amount and a cash deposit for the rest If exercised, that bank guarantee is to be kept alive pending the final Award in the arbitration and until the expiry of the statutory period under Section 34 thereafter It is also open to Kotak Mahindra to apply to the Arbitral Tribunal for encashment of the bank guarantee and disbursal of the amount Any such application will be decided on its own merits. 35. I am not inclined to grant the much wider reliefs that are sought in terms of prayer clauses (b)(ii) and (c)(ii) but will leave it open to Kotak Mahindra to make that application before the Arbitral Tribunal. 36. 35. I am not inclined to grant the much wider reliefs that are sought in terms of prayer clauses (b)(ii) and (c)(ii) but will leave it open to Kotak Mahindra to make that application before the Arbitral Tribunal. 36. There will, however, be an injunction restraining the 1st and 2nd Respondents from transferring any of their immovable properties or assets otherwise than in the ordinary and usual course of business There will also be an order of disclosure against both Respondents in terms of prayer clause (d)d The Affidavit of Disclosure is to be fled and served on or before 31st March 2021 in this Court as also before the Arbitral Tribunal. 37. Liberty to Kotak Mahindra to seek the actual costs of this Petition in arbitration Since Kotak Mahindra has already invoked arbitration, liberty to it file the a Section 11 application, if necessary. 38. Of course, these are all prima facie views for the purposes of this order under Section 9. It is open to the Arbitral Tribunal which may be appointed hereafter to decide whether or not it wishes to consider any of these observations as part of its own consideration I do not suggest that the Arbitral Tribunal is bound by these observations I also do not suggest that it cannot rely upon them The Arbitral Tribunal will have the entirety of its decision-making latitude. 39. This order will be digitally signed by the Private Secretary of this Court All concerned will act on production of a digitally signed copy of this order. 1 Prima facie, there appears to be some incongruity in the first portion of the clause, which refers to any dispute or claim involving the parties or any two or more of them d This makes no sense since the agreement has only two parties to begin with But this is inconsequential to the present discussion