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TMI Blog2018 (7) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... g that who are the party to the MOU and the company petition. We have verified from the chart that some of the Company Appeal (AT) No.319, 320 and 321 of 2017 respondents are not party to the MOU but they are party in appeal. It shows that all the members are not signatory to the MOU. We find that neither all Members of the companies are party to the said MOU, nor the Companies were party to the MOU, nor the Companies adopted the MOUs. Even if it is assumed that the arbitration clause survives even after cancellation, as all respondents are not party to the MOU, therefore, the Arbitral Tribunal has no jurisdiction to pass an award in favour of a third party who is not party to the arbitration agreement. Further the appellants has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 3rd October, 2017 has held as under: Company Appeal (AT) No.319, 320 and 321 of 2017 18. In the present case, it is on record that the parties to the MOU dated 20.07.2011 are (should be and) the parties in the main petitions are different. The cause of action shown in the main petitions are different from the cause of action of the MOU dated 20.08.2011. Further the applicant has not filed either the original MOU dated 20.07.2011 or a duly certified copy as per Section 8(2) of the Arbitration Act, whereas it is stated that he is withholding the MOU for purpose of prosecuting the matters before this Tribunal. Evidently not filing of the original MOU or its certified copy is fatal to the case of applicants. Further, the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oups and in order to resolve the same a MOU dated 20.07.2011 was entered into between the Company Appeal (AT) No.319, 320 and 321 of 2017 parties and Clause 19 of the MOU provides for resolution of disputes by Arbitration. It is stated that pursuant to signing of the MOU, some differences arose between the above said two groups and the Ganesan Group filed Company Petition under Section 397, 398 and 402 of the Companies Act, 1956 alleging oppression and mismanagement in the affairs of the Company. The appellant sought dismissal of the company petition on the ground that the dispute is subject matter of an arbitration clause contained in MOU signed between the parties and the arbitrators were already seized of the dispute. After hearing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... celled vide letter dated 10.11.2011 and the same has not been challenged by the appellant. It is next stated that the appellants have failed to even produce the original Arbitration Agreement. It is next stated that the appeals are liable to be dismissed and the Tribunal may be directed to dispose off the company petitions in a time bound manner as per Section 422 of the Companies Act, 2013. 5. We have heard the learned counsel for the parties and perused the appeal, reply and rejoinder and all other record. 6. Learned counsel appearing on behalf of the appellants argued that the both the parties had entered into a MOU on 20th July, 2011 at Salem to resolve their differences. It is further argued that there is Clause 19 in the said MO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the alleged arbitration agreement is a necessary party, Section 8 of the Act will not apply. The counsel further argued that as all the respondents are not parties and companies are also not a party to the alleged arbitration agreement, appeals must fail. Further the appellants have failed to even produce the original arbitration agreement. 8. The main plea of the appellant in these appeals is that there is MOU dated 20.7.2011 between the parties and the clause 19 of the MOU clearly provides that the dispute can be referred to arbitration whereas the respondents argued that the so called MOU has already been cancelled vide letter dated 10.11.2011 and as on date it is not in existence. The appellants have not challenged the said cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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