Executive Ship Management Pvt LtdversusSmruti Sajan Kumbalaparambil

                                                                        arbap135-2026-J.doc


                      Shabnoor
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION

                                 ARBITRATION APPLICATION NO.135 OF 2026

                      Executive Ship Management Pvt Ltd.       … Applicant

                                       V/s.

                      Smruti Sajan Kumbalaparambil & Anr.      … Respondents
SHABNOOR
AYUB
PATHAN                Mr.K. P. Anil Kumar a/w Priyanka Kumar, for the
Digitally signed by   Applicant.
SHABNOOR
AYUB PATHAN
Date: 2026.09.17
11:36:35 +0530
                      Mr. Kunal Mehta A/W Mahesh Dube, Vyoma Joshi I/B
                      Crawford Bayley & Co., for Respondent.


                                       CORAM                : AMIT BORKAR, J.

                                       RESERVED ON          : SEPTEMBER 11, 2026.

                                       PRONOUNCED ON        : SEPTEMBER 17, 2026.
                      JUDGMENT:

                      1.    The present Application has been filed by the Applicant
                      seeking appointment of a Sole Arbitrator by this Court under
                      Section 11 of the Arbitration and Conciliation Act, 1996. The
                      Applicant relies upon the arbitration clause contained in the
                      Agreement-cum-Bond dated 11 November 2021.

                      2.    The facts and circumstances leading to the filing of the
                      present Application are as follows. The Applicant is a Shipping
                      Company. Respondent No. 1 was employed by the Applicant and
                      was bound by the Agreement-cum-Indemnity Bond dated 11
                      November 2021. Respondent No. 2 is the father of Respondent No.




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1 and stood as her guarantor under the said Agreement. On 11
November 2021, Respondent No. 1 joined the Applicant after
executing the Agreement-cum-Indemnity Bond. At the time of
joining, it was agreed that Respondent No. 1 would first undergo
an initial training period of 18 months with the Applicant. After
completing the training, Respondent No. 1 was required to
complete 36 months of sea service. This period was to be divided
into six separate contracts. The expenses for the said training and
sea service were to be borne by the Applicant. The Agreement
provided that if Respondent No. 1 committed a breach of any of its
terms, she would be liable to pay Rs.10 lakhs to the Applicant
Company as liquidated damages. The Agreement contained an
arbitration clause for resolution of disputes between the parties.
According to the Applicant, Respondent No. 2 stood as guarantor
for Respondent No. 1 under the Agreement. Therefore, according
to the Applicant, both Respondents became jointly liable for the
bond amount of Rs.10 lakhs in the event Respondent No. 1 failed
to complete the required 36 months of service after completion of
her training. After completing the initial training, Respondent No.
1 served on board MARLIN APATITE as "CDT" from 29 December
2021 to 12 June 2022. Thereafter, she served on FRONT GAULA as
"CDT" from 18 October 2022 to 28 May 2023 and subsequently on
GOLDEN AQUAMARINE as "CDT" from 18 November 2023 to 18
June 2024. Thereafter, Respondent No. 1 joined another company
without informing the Applicant. The Applicant claims that
Respondent No. 1 committed a breach of the Agreement. The
Applicant made repeated attempts to recover the bond amount




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from the Respondents. However, those attempts did not result in
payment.

3.   On 28 November 2025, the Applicant issued a notice to the
Respondents by post and email, calling upon them to pay Rs.10
lakhs on account of the alleged breach of the Agreement. The
Respondents did not respond to the said notice. Thereafter, on 18
December 2025, the Applicant, through its Advocate, issued legal
notices to the Respondents demanding payment of Rs.10 lakhs.
Those notices were returned. Thereafter, on 21 January 2026, the
Applicant issued a notice by courier and email invoking the
arbitration clause contained in the Agreement-cum-Bond. In the
said notice, the Applicant proposed appointment of a Sole
Arbitrator and called upon the Respondents to give their consent
or to suggest a nominee. The Respondents did not respond to the
said notice. Subsequently, on 4 March 2026, Respondent No. 1
sent a reply to the Applicant's demand notice. In the said reply,
Respondent No. 1 denied the existence of the Agreement and
refused to pay Rs.10 lakhs. At the same time, Respondent No. 1
admitted that she had been employed by the Applicant and had
undertaken sea service with the Applicant. On 4 March 2026, the
Applicant replied to Respondent No. 1. The Applicant reiterated its
case and again pointed out the alleged breach committed by
Respondent No. 1. The Applicant asserted that both Respondents
were jointly and severally liable to pay Rs.10,00,000/- under the
Agreement-cum-Bond dated 11 November 2021. According to the
Applicant, 30 days had thereafter passed without any agreement
between the parties regarding appointment of a Sole Arbitrator.



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The Applicant approached this Court under Section 11 of the
Arbitration and Conciliation Act, 1996, seeking appointment of a
Sole Arbitrator. Hence, the present Application.

4.    The Learned Advocate for the Applicant submits that the
present Arbitration Application is legally maintainable. According
to the Applicant, it is a party to the Agreement-cum-Bond dated 11
November 2021 (“the Agreement”). In any event, the Applicant
submits that it is a “veritable party” to the said Agreement. In this
connection, the Agreement-cum-Bond annexed as Exhibit-A to the
present Application may be considered. The Agreement provides
that the word “Company” includes its directors, officers, authorised
representatives, assignees, and successors. According to the
Applicant, it comes within this definition because it was an
authorised representative under the Agreement. The Applicant
submits that its position is not limited to being an authorised
representative. It claims that it is a direct party to the Agreement.
The Agreement was signed by Late Mr. S. M. Iyer, who was at the
relevant time a Director and authorised signatory of the Applicant.
In this regard, reliance is placed on Pages 41 and 42 of the
Arbitration Application and Schedule A to the Agreement. Late Mr.
S. M. Iyer has signed the Agreement in his capacity as the
authorised signatory of the Applicant.

5.    The Applicant submits that Respondent No. 1 subsequently
recognised the Applicant's status and rights under the Agreement.
In particular, reliance is placed on the reply dated 4 March 2026
sent by Respondent No. 1 to the Applicant's legal notice, which is
annexed as Exhibit-G to the present Arbitration Application.



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Respondent No. 1 had signed the Agreement-cum-Bond. In her
reply, she addressed the communication to the present Applicant,
ESM Pvt. Ltd. According to the Applicant, this shows that
Respondent No. 1 recognised the Applicant's role and position in
the agreement. It is submitted that Respondent No. 2 did not send
any reply to the Applicant's notice invoking arbitration. According
to the Applicant, this is relevant because Respondent No. 2 did not
raise any objection at the stage when arbitration was invoked
regarding the Applicant's status or its rights under the Agreement.

6.   Respondent No. 2 has raised an objection in the present
Limited Affidavit-in-Reply that the Arbitration Application is not
maintainable because the Applicant is not a signatory to the
Agreement. The Applicant submits that this objection is incorrect.
As stated earlier, the Agreement bears the signature of Late Mr. S.
M. Iyer, who was at that time a Director and authorised signatory
of the Applicant. His signature appears on the Agreement. For the
limited purpose of showing and identifying the signature and
authority of Late Mr. S. M. Iyer, reliance is placed upon a copy of
the Board Resolution authorising him to sign documents in respect
of two earlier legal proceedings. Respondent No. 2 has contended
that since one of the entities mentioned in the Agreement-cum-
Bond is based in Singapore, the arbitration would amount to an
“international commercial arbitration” under Section 2(1)(f) of the
Arbitration and Conciliation Act, 1996. The Applicant submits that
this objection is based on an incorrect understanding of the
relationship between the parties.




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7.    The Applicant submits that, as stated earlier, it is a signatory
to the Agreement-cum-Bond and is an authorised representative
covered by the definition of “Company”. It is submitted that the
obligations under the Agreement were in fact performed between
the Applicant and the Respondents. The representations and
functions arising from the Agreement were carried out between
the Applicant and the Respondents.

8.    The Applicant submits that even if it is assumed, without
admitting, that it is not a formal signatory in its own capacity, it
would still be a “veritable party” to the arbitration agreement. This
is because of its participation in the agreement, its role in
performing the Agreement and the intention of the parties as
shown from the surrounding circumstances. The Applicant submits
that ESM Pte. Ltd. is not a party to the Agreement-cum-Bond.
None of its officers or representatives has signed the Agreement as
a party. Therefore, merely because an entity connected with the
Applicant is based in Singapore, the arbitration cannot be treated
as an international commercial arbitration. The Applicant submits
that this fact, by, cannot take away its substantive rights under the
Agreement.

9.    The question whether a non-signatory or a “veritable party”
can be treated as a party to an arbitration agreement has been
considered by the Supreme Court in several decisions. The basic
principle is that there must be consent for a person or entity to be
treated as a party to an arbitration agreement. Normally, a
signature is the clearest way of showing such consent. However,
according to the Applicant, the absence of a formal signature does



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not in every case mean that there was no consent to the arbitration
agreement.

10.   The Supreme Court in Chloro Controls India (P) Ltd. v.
Severn Trent Water Purification Inc., (2013) 1 SCC 641,
recognised that in appropriate cases a non-signatory entity may be
made a party to arbitration. This can be done where the overall
transaction, the relationship between the entities and the intention
of the parties show that the concerned entity was intended to be
bound by the arbitration agreement. The Applicant submits that
the principle of the “group of companies doctrine” is relevant.
According to the Applicant, it and ESM Pte. Ltd. are entities
belonging to the same group. The Applicant's participation in
performing the Agreement and the conduct of the Respondents
towards it show that the Applicant was treated as an integral part
of the agreement.

11.   The Applicant submits that Respondent No. 1 recognised the
Applicant as having rights and obligations under the Agreement.
This is shown by her acceptance of the assignment of vessels to the
Applicant. According to the Applicant, this subsequent conduct is
relevant for understanding the intention of the parties and the
Applicant's status under the Agreement. Therefore, the objection
that the Applicant cannot invoke arbitration only because it
allegedly did not sign the Agreement in a formal manner cannot be
accepted. The Applicant submits that the legal position has
subsequently been considered by the Supreme Court in Cox and
Kings Ltd. v. SAP India Pvt. Ltd., (2024) 4 SCC 1, read with ASF
Build-Tech Private Limited v. Shapoorji Pallonji and Company



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Private Limited, (2025) 9 SCC 76. According to the Applicant,
whether a non-signatory is legally a party to the arbitration
agreement depends upon the facts of each case. This may require
consideration of the intention of the parties, the Applicant's
participation in performing the Agreement, the documents and the
surrounding circumstances. The Applicant submits that this
question can be considered by the Arbitral Tribunal. Once the
Applicant is found to be a “veritable party” to the Agreement, it
would have the right to invoke the arbitration clause and maintain
the present Arbitration Application.

12.   The Applicant submits that this view is consistent with the
order passed by the Learned Single Judge in Arbitration
Application Nos. 117 and 118 of 2026. In those proceedings, it was
observed that if the Tribunal finds that the Applicant had
participated in performing the Agreement and was covered by the
definition of the term “Company”, the Applicant could be treated
as a “veritable party” to the Agreement. On this basis, the
Applicant submits that the objection raised by Respondent No. 2
regarding   the   maintainability      of   the   present   Arbitration
Application has no merit and should be rejected.

13.   The Learned Advocate for the Respondents submits at the
outset that the Subject Agreement was entered into between
Executive Ship Management Pte. Ltd. (“ESM Singapore”), which is
a Singapore-based entity, and the Respondents. According to the
Respondents, the Applicant, Executive Ship Management Private
Limited, is admittedly neither a signatory nor a party to the
Subject Agreement. This is clear from Page 42 of the Application,



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where the names and signatures of the parties to the Subject
Agreement are recorded.

14.   In this background, the Respondents submit that one of the
parties to the arbitration is ESM Singapore, which is a Singapore-
based entity. Therefore, according to the Respondents, the
arbitration would fall within the definition of “international
commercial arbitration” under Section 2(1)(f) of the Arbitration
and Conciliation Act, 1996 (“Arbitration Act”). The relevant
provision is reproduced below for reference:

      (i)    an individual who is a national of, or habitually
      resident in, any country other than India, or

      (ii)   a body corporate which is incorporated in any country
      other than India; or

      (iii) an association or a body of individuals whose central
      management and control is exercised in any country other
      than India; or

15.   According to the Respondents, it is an admitted position that
ESM Singapore is a body corporate incorporated in Singapore and
is a party to the Subject Agreement. Therefore, the Respondents
submit that the arbitration falls within the definition of
“international commercial arbitration” under Section 2(1)(f) of the
Arbitration Act. In view of the above submission, the Respondents
rely upon the relevant provisions of Section 11(6) and Section
11(12) of the Arbitration Act. The said provisions deal with the
Court which can be approached when the agreed procedure for
appointment of an arbitrator has not been followed.



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16.   Section 11(6) provides as follows:

      “Where, under an appointment procedure agreed upon by
      the parties—
      (a)   a party fails to act as required under that procedure; or
      (b) the parties, or the two appointed arbitrators, fail to
      reach an agreement expected of them under that procedure;
      or
      (c) a person, including an institution, fails to perform any
      function entrusted to him or it under that procedure, a party
      may request the Supreme Court or, as the case may be, the
      High Court or any person or institution designated by such
      Court to take the necessary measure, unless the agreement
      on the appointment procedure provides other means for
      securing the appointment.
      (a) Where the matters referred to in sub-sections (4), (5),
      (6), (7), (8) and sub-section (10) arise in an international
      commercial arbitration, the reference to the “Supreme Court
      or, as the case may be, the High Court” in those sub-sections
      shall be construed as a reference to the “Supreme Court”;
      and
      (b) Where the matters referred to in sub-sections (4), (5),
      (6), (7), (8) and sub-section (10) arise in any other
      arbitration, the reference to “the Supreme Court or, as the
      case may be, the High Court” in those sub-sections shall be
      construed as a reference to “the High Court” within whose
      local limits the principal Civil Court referred to in clause (e)
      of sub-section (1) of section 2 is situate, and where the High
      Court is the Court referred to in that clause, to that High
      Court.”
17.   On the basis of these provisions, the Respondents submit that
an application seeking appointment of an arbitrator in an
international commercial arbitration must be filed before the


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Supreme Court of India. According to them, such an application
cannot be entertained by this Court. They submit that this issue
concerns the basic jurisdiction of this Court to hear the present
Application. Therefore, according to the Respondents, the present
Application is liable to be dismissed on this ground.

18.   The Respondents submit that the Applicant's claim that it is a
“veritable party” to the Subject Agreement does not change the
nature of the arbitration. According to them, the arbitration would
still be an international commercial arbitration. In this regard, the
Respondents submit that even if, without admitting, the Applicant
is assumed to be a “veritable party” to the Subject Agreement, that
would not change the nature of the arbitration. It would continue
to be an “international commercial arbitration” because ESM
Singapore would admittedly remain one of the parties to the
Agreement.

19.   According to the Respondents, even if the Applicant is
correct in saying that it is a “veritable party” to the Subject
Agreement, this would not change the fact that ESM Singapore is
the principal party seeking relief against the Respondents. The
Respondents submit that ESM Singapore would be a necessary and
proper party to the arbitration. According to them, there cannot be
any arbitral proceedings without ESM Singapore being made a
party. The fact that ESM Singapore has authorised the Applicant to
conduct the proceedings on its behalf would not change this
position.




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20.   The Respondents submit that this position is clear from the
Applicant's own Notice dated 28 November 2025, annexed as
Exhibit B at Page 46 of the Application. The relevant portion of the
notice reads as follows:

      “On behalf of M/s. Executive Ship Management Pte. Ltd.
      (hereinafter referred to as the “Principal”), I hereby serve
      you the following Legal Notice—
      Further, on failure to pay the stipulated amount, within the
      time frame, Principal shall be constrained to initiate
      appropriate legal action for recovery of dues,…..”
21.   According to the Respondents, the above wording makes the
position clear. It is the Applicant's own case in the notice that ESM
Singapore is the party claiming the money from the Respondents.
The Applicant is only acting as an authorised representative of
ESM Singapore for pursuing that claim.

22.   Therefore, the Respondents submit that the Applicant cannot
now dispute that ESM Singapore is a necessary and proper party to
the arbitration. Once ESM Singapore is treated as a party to the
arbitration, the arbitration would necessarily be an “international
commercial arbitration”, since ESM Singapore is incorporated
outside India. Consequently, according to the Respondents, any
application under Section 11 of the Arbitration Act would fall
within the jurisdiction of the Supreme Court of India and not this
Court.

REASONS AND FINDINGS:

23.   I have considered the objections raised by the Respondents,
the legal provisions relied upon by both sides and the judgment in



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Arbitration Application Nos.117 and 118 of 2026 placed before
this Court. There is no dispute that the Agreement contains an
arbitration clause. Clause 10 provides for arbitration. Therefore,
the real dispute is not about the existence of an arbitration
agreement. The main question is as to who are the parties to that
arbitration agreement. After deciding this question, it is necessary
to decide whether this Court has jurisdiction under Section 11 of
the Arbitration and Conciliation Act, 1996 to entertain the present
Application.

24.   To decide this question, the Agreement has to be looked at
first. On the last page of the Agreement, Executive Ship
Management Pte. Ltd., Singapore is shown as “PARTY OF THE
FIRST PART”. Respondent No.1 is shown as “PARTY OF THE
SECOND PART” and Respondent No.2 is shown as “PARTY OF THE
THIRD PART”. The signature page shows the signature against
Executive Ship Management Pte. Ltd., Singapore. Therefore, as the
Agreement is written, the first contracting party is Executive Ship
Management Pte. Ltd., Singapore. For convenience, it will
hereafter be referred to as ESM Singapore. This position cannot be
ignored only because the present Application has been filed by
Executive Ship Management Pvt. Ltd. The Applicant is not shown
in the Agreement as “PARTY OF THE FIRST PART”. The Agreement
names Executive Ship Management Pte. Ltd., Singapore as the first
party. The same difference between the two companies was
noticed in the earlier order passed in Arbitration Application
Nos.117 and 118 of 2026. In paragraph 5 of that order, it was
recorded   that   the   Agreements-cum-Indemnity      Bonds       were



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executed by the Respondents with Executive Ship Management
Pte. Ltd., whereas the Applications were filed by Executive Ship
Management Pvt. Ltd.

25.   The Applicant relies upon the definition of the word
“Company” given in the Agreement. The said definition reads as
follows:

      “The “Company” which expression shall, unless it be
      repugnant to the meaning or context thereof mean and
      include its Directors, officers, authorized representatives and
      assigns and successors the details whereof are given at the
      end of this agreement, of the first part.”
26.   This definition gives a wider meaning to the word
“Company”.     It   includes   the    directors,   officers,   authorised
representatives, assigns, and successors of the first party. On this
basis, the Applicant submits that, as it is an authorised
representative of ESM Singapore, it can act for the “Company”
under the Agreement. This definition was noticed in paragraph 5
of the earlier order.

27.   The Applicant has relied upon the Board Resolution dated 9
January 2014. According to the Applicant, this Resolution
authorised Executive Ship Management Private Ltd. to enter into
contracts and agreements relating to hiring and onboard training.
It authorised the Applicant to deal with the legal rights and
liabilities of Executive Ship Management Pte. Ltd., Singapore. The
Resolution authorised the Applicant to represent ESM Singapore
before Courts and Tribunals in India, including arbitration
authorities. The relevant portion of the Resolution reads:




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        “It is hereby resolved that M/s. Executive Ship Management
        Private Ltd., shall
        (a) Enter into contracts and agreements in respect of
        hiring of suitable candidates and Onboard Training for those
        successful in interviews/tests. M/s. Executive Ship
        Management Private Ltd., is authorized to discharge legal
        liabilities and rights of Executive Ship Management Pte. Ltd.
        Singapore, including filing of proceedings in appropriate
        courts of law in India both criminal and civil;
        (b) M/s. Executive Ship Management Private Ltd., is
        hereby authorized to engage Advocates in India, and to sign
        Vakalatnamas, affirm compliance, applications and Writ
        Petitions, Affidavits, replies, Rejoinders in Indian courts and
        to take all necessary steps including recording witnesses, and
        do all acts, deeds things, matters and to represent in the
        court of law in India on behalf of M/s. Executive Ship
        Management Pte Ltd., Singapore. This authority includes
        representing M/s. Executive Ship Management Pte Ltd.,
        Singapore. In proceedings before the courts and Tribunals in
        India on behalf of M/s. Executive Ship Management Pte Ltd.
        Singapore, including before the Arbitration authorities and
        those under the Revenue authorities.”
28.     The Board Resolution shows that the Applicant was
authorised to act for ESM Singapore. The same Board Resolution
was considered in paragraph 6 of the earlier judgment. However,
there    is   a   difference   between   acting   as   an    authorised
representative of a contracting party and becoming a separate
contracting party. Merely because one company has authority to
represent another company, it does not mean that the parties to
the Agreement automatically change. The Board Resolution says
that the Applicant is to act “on behalf of” ESM Singapore. It does
not say that the Applicant will replace ESM Singapore in contracts


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entered into by ESM Singapore. The Resolution repeatedly treats
ESM Singapore as the principal and the Applicant as the person
authorised to act for it. Therefore, I am unable to accept the
Applicant's submission that the Board Resolution makes the
Applicant a signatory or a contracting party under the present
Agreement.

29.   The signature page of the Agreement supports this
conclusion. ESM Singapore is shown as the first party and the
signature is of its authorised signatory. The Applicant is not
separately shown there as a contracting party. Therefore, the
Agreement shows that the Respondents entered into the
Agreement with ESM Singapore. The Applicant cannot establish
that it executed the Agreement in its own capacity merely because
an authorised signatory of ESM Singapore signed the document.

30.   The Applicant has taken an alternative stand. It submits that
even if it is not a formal signatory to the Agreement, it can still be
treated as a “veritable party” to the arbitration agreement. In
support of this submission, the Applicant relies upon its
participation in the performance of the Agreement, the definition
of “Company” which includes authorised representatives and the
fact that the Respondents dealt with the Applicant in relation to
the obligations. This submission cannot be said to be without any
basis. The earlier judgment records in paragraph 8 that the
Applicant had stated that it participated in the performance of the
Agreement and that the Respondents had corresponded with it
regarding the obligations. At the same time, merely acting as a
representative of one of the contracting parties does not by make



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the Applicant a “veritable party”. The Agreement has to be read as
a whole. It has to be considered whether the non-signatory had
given consent to the arbitration agreement in the manner
recognised by law. In the present Agreement, the parties are
identified. ESM Singapore is the first party. The Trainee and the
Guarantor are the other parties. The word “Company” is then
defined in the Agreement. This definition may permit an
authorised representative of the Company to perform certain acts
under the Agreement. However, from this alone, it cannot be held
that such representative becomes a party to the arbitration
agreement.

31.   This distinction is seen from the other clauses of the
Agreement. Clause 7 deals with the guarantee given by the
Guarantor. It states that the guarantee is given “to the Company on
behalf of the Trainee”. It makes the Guarantor jointly and severally
liable for the obligations of the Trainee. Clause 8 similarly provides
that the Trainee and the Guarantor shall indemnify “the Company”
against the losses and expenses suffered by the Company.
Therefore, the rights arising from the alleged breach are the rights
of the “Company” under the Agreement. The agreement is between
the first party, namely ESM Singapore, and the other parties to the
Agreement.

32.   Clause 10, which contains the arbitration agreement, is
important. It provides as follows:

      “10. In the event of any disputes or differences arising out
      of or in respect of any breach of any terms and conditions of
      this agreement, the same shall be referred to arbitration as



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      per the provisions of the Arbitration and Conciliation Act,
      1996. The reference shall be made to a sole arbitrator to be
      appointed jointly by the Company, the Trainee & the
      Guarantor. In the event, the parties are unable to so appoint
      a sole arbitrator, the sole arbitrator shall be appointed as per
      the provisions of the Arbitration and Conciliation Act, 1996.
      The venue of arbitration shall be at Mumbai. Any
      proceedings to be initiated in any court of law in pursuance
      of this arbitration shall be instituted and held in the court at
      Mumbai only.”
33.   The words “the Company, the Trainee & the Guarantor”
appearing in Clause 10 have to be read together with the
definition of “Company” in the Agreement. Therefore, the
definition cannot be ignored. The question is whether this
definition makes the Applicant a party to the arbitration agreement
or whether the Applicant continues to be only an authorised
representative of the Company. On the material available before
this Court, I find that the Applicant's authority to represent ESM
Singapore is established. However, the material does not establish
that the Applicant replaced ESM Singapore as the contracting
party or that it acquired a status under the Agreement.

34.   I have considered the Applicant's reliance upon its
subsequent dealings with Respondent No.1. These dealings may
show that the Applicant was actively involved in carrying out the
arrangement. They may show that the Respondents understood
that the Applicant was acting for ESM Singapore. However, such
subsequent conduct by cannot change the identity of one legal
entity into another. At the most, this conduct may be relevant
while considering whether the Applicant can in law be treated as a



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non-signatory party to the arbitration agreement. It cannot lead to
a finding that the Applicant was a formal signatory to the
Agreement.

35.   The earlier judgment placed before the Court is relevant in
this regard. In paragraph 10, while considering an Agreement of
the same nature and the same issue concerning Executive Ship
Management Pvt. Ltd. and Executive Ship Management Pte. Ltd.,
the learned Judge observed:

      “In my view, considering the unique circumstances of the
      present case, it would be appropriate to leave open the issue
      as to whether Applicant can be treated as a veritable party to
      the arbitration agreement with the Respondents. The issue
      can be decided by the Arbitral Tribunal. As of now, there
      appears to be clear arbitration agreement between the
      Executive Ship Management Pte Ltd. and the Respondents.
      Whether Applicant is covered by definition of term
      ‘Company’ used in the said agreement is something which
      the Arbitral Tribunal can decide. The Arbitral Tribunal can
      decide whether the Applicant has participated in
      performance of the agreement and on that count whether it
      can be treated as veritable party to the arbitration
      agreement.”
36.   The above judgment concerned different Agreements and the
issue regarding the Applicant's status was kept open. Therefore, I
do not treat that judgment as finally deciding the issue before this
Court. However, its reasoning is relevant because the agreement in
the present case is materially similar. The earlier judgment makes a
distinction between there being an arbitration agreement between
ESM Singapore and the Respondents and the separate question
whether the Applicant can be treated as a party to that arbitration



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agreement. I find this distinction to be correct.

37.   I find that the Respondents' submission that there is no
arbitration agreement at all is too broad. There is an arbitration
agreement in the present Agreement. Clause 10 provides that
disputes arising from the Agreement are to be referred to
arbitration. The Agreement has been executed by ESM Singapore,
the Trainee and the Guarantor, and Clause 10 forms part of that
Agreement. The earlier judgment recorded in paragraph 3 that the
concerned Agreements contained an arbitration agreement.
Therefore, the submission that there is no arbitration agreement
whatsoever cannot be accepted. The actual objection of the
Respondents is narrower. Their case is that the Applicant is not the
contracting party and cannot claim to be the foreign contracting
entity named in the Agreement. On this limited issue, the
Respondents' submission has force. The Agreement names ESM
Singapore as the first party. The signature page does not separately
name the Applicant as a party. The Board Resolution shows that
the Applicant was authorised to represent ESM Singapore. When
these documents are read together, they do not establish that the
Applicant became a contracting party under the Agreement.

38.   I now come to the objection concerning “international
commercial arbitration”. Section 2(1)(f), as relied upon by the
parties, uses the words “where at least one of the parties is” and
includes a case where the party is “a body corporate which is
incorporated in any country other than India”. Section 2(1)(h)
defines “party” as “a party to an arbitration agreement”. Therefore,
while deciding whether an arbitration is an international



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commercial arbitration, the Court first has to identify the parties to
the arbitration agreement. It is not enough to look at every person
or entity which may have participated in the transaction. In the
present case, the entity shown as the first party in the Agreement
is Executive Ship Management Pte. Ltd., Singapore. The last page
of the Agreement describes it as “PARTY OF THE FIRST PART” and
gives its address in Singapore. Therefore, the Agreement provides
clear evidence that one of the parties to the Agreement is a body
corporate incorporated outside India.

39.   Once this position is accepted, the submission of the
Respondents regarding the nature of the arbitration has substantial
merit. The arbitration concerns disputes arising from a commercial
Agreement. One of the parties to the arbitration agreement is ESM
Singapore, which is a foreign body corporate. Therefore, the
arbitration   comes   within    the   definition   of   “international
commercial arbitration” under Section 2(1)(f). The fact that the
present Application has been filed in the name of the Indian
company does not remove ESM Singapore from the Agreement. It
does not change the identity of the party which executed the
Agreement. The Applicant's answer is that it is the party or, at
least, a “veritable party” to the arbitration agreement. Even if this
submission is considered for the purpose of argument, it does not
remove ESM Singapore from the arbitration agreement. The
Agreement continues to be an Agreement in which ESM Singapore
is a party along with the Respondents. Even if the Applicant is
found to have some additional status, that cannot remove the
foreign party which is shown in the Agreement. Therefore, even on



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the Applicant's wider case, ESM Singapore remains a party to the
arbitration agreement.

40.   This conclusion is supported by the Applicant's own Board
Resolution. The Resolution does not state that the Applicant
replaces ESM Singapore. Instead, it authorises the Applicant to act
“on behalf of” ESM Singapore and to represent ESM Singapore
before Courts, Tribunals, and arbitration authorities. The language
of the Resolution supports the position that the Applicant was
acting as a representative. It does not show that the Applicant
became the principal contracting party in place of ESM Singapore.

41.   There is one more relevant point in Clause 10. The clause
does not state that disputes are to be referred only between the
Applicant and the Respondents. It provides for appointment of the
arbitrator by “the Company, the Trainee & the Guarantor”. When
this clause is read with the identity of the first party and the Board
Resolution, the “Company” is, on the material presently available,
ESM Singapore acting through its authorised representative
wherever required. Therefore, the presence of an authorised
representative does not remove the principal from the arbitration
agreement.

42.   I reject the submission that the Applicant's status as an
authorised representative changes the arbitration from an
international commercial arbitration into a domestic arbitration. It
does not have that effect. The important fact is that ESM
Singapore is a party to the arbitration agreement. The Applicant
may have authority to act on its behalf. That is a different question




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from deciding the nature of the arbitration.

43.   I have considered the Applicant's reliance upon the
judgments in Cox and Kings Limited v. SAP India Private Limited &
Ors., ASF Build-Tech Private Limited v. Shapoorji Pallonji and
Company Private Limited, and Hindustan Petroleum Corporation
Ltd. v. BCL Secure Premises Pvt. Ltd. The earlier order placed
before the Court considered these judgments in relation to the
question whether a non-signatory can be treated as a “veritable
party” and whether that question can be considered by the Court
under Section 11 or by the Arbitral Tribunal under Section 16. In
paragraph 9, the learned Judge considered these decisions and
recorded that a reference Court under Section 11 can consider
whether a non-signatory is a veritable party, while the Arbitral
Tribunal has power under Section 16 to consider that issue. For
deciding the present Application, I do not find it necessary to give
a final finding that the Applicant can never be treated as a
“veritable party”. The material before this Court is sufficient to
decide the more basic question of jurisdiction. There is a clear
arbitration   agreement   involving   ESM      Singapore   and      the
Respondents. The Applicant's position as a representative does not
remove ESM Singapore from that agreement. Therefore, for
deciding the proper forum under Section 11, the arbitration has to
be treated as an international commercial arbitration.

44.   The Respondents have relied upon Section 11(12) and
submitted that, where the arbitration is an international
commercial arbitration, the reference to the Supreme Court or the
High Court in Section 11 has to be understood as a reference to



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the Supreme Court. I find this submission to be correct. Therefore,
this Court cannot assume jurisdiction to appoint an arbitrator
merely because the Agreement fixes Mumbai as the venue of
arbitration or provides that court proceedings are to be instituted
in Mumbai. The reference to Mumbai in Clause 10 has to be
understood in its proper meaning. Clause 10 states that “The
venue of arbitration shall be at Mumbai” and states that court
proceedings “shall be instituted and held in the court at Mumbai
only.” These words may fix the agreed venue of the arbitration.
They may be relevant in proceedings where the parties are
otherwise free to choose the Court. However, the parties cannot by
agreement give jurisdiction to a Court in a manner which is
contrary to the Arbitration Act. The parties may agree that Mumbai
will be the venue of arbitration. They cannot, merely by making
such an agreement, confer jurisdiction under Section 11 upon a
Court which does not have such jurisdiction under the statute.
Therefore, the Applicant's submission that the reference to
Mumbai in the Agreement gives jurisdiction to this Court cannot
be accepted to that extent. The provision and the statutory
provisions have to be read together. The Agreement may
determine the agreed venue of the arbitration. The statute
determines which Court has the power to appoint the arbitrator
under Section 11.

45.   I do not accept the Applicant's submission that the earlier
Bombay High Court judgment in Arbitration Application Nos.117
and 118 of 2026 requires this Court to treat the Applicant as a
party and appoint an arbitrator in the present proceedings. The



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earlier order did appoint a sole arbitrator. However, paragraph 12
of that order states:

         “All contentions including the issue as to whether the
         Applicant can be treated as party to arbitration agreement as
         well as arbitrability of dispute are left open to be decided by
         the Arbitral Tribunal.”
46.      Therefore, the earlier order cannot be understood as giving a
final finding that the Indian representative company became a
contracting party for all purposes. At the most, the earlier order
shows that arbitration was allowed to proceed while the question
of the Applicant's status was kept open. In the present case, this
Court has to decide the jurisdictional objection on the basis of the
material placed before it.

47.      I have considered the possibility that the Applicant may have
performed substantial functions under the Agreement. The
Agreement shows that training, education, deployment on vessels
and      subsequent     service     obligations     formed   part    of    the
arrangement. Clause 6 records the Trainee's agreement to
complete the training and thereafter join and work on vessels for
the required period. Therefore, the Applicant may have had an
active     role    in   implementing        the   arrangement.      However,
performance of functions by an authorised representative cannot,
by and without material, change the identity of the contracting
party recorded in the Agreement.

48.      In my considered view, the distinction which has to be made
is clear. The Applicant may have authority to represent ESM
Singapore.        The   Applicant    may     have    participated    in    the



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performance of the Agreement. The Applicant may, depending
upon the evidence and applicable law, seek to establish before the
Arbitral Tribunal that it is a “veritable party”. But ESM Singapore
continues to be a party to the arbitration agreement. This is what
the Agreement shows. Therefore, the arbitration remains an
international commercial arbitration for the purposes of Section
2(1)(f) and Section 11.

49.   The Respondents' submission that the Applicant's possible
status as a “veritable party” does not change the international
character of the arbitration is accepted. Even if the Applicant is
ultimately held to be a party to the arbitration agreement, ESM
Singapore remains a party to it. The statutory requirement is
satisfied because at least one of the parties to the arbitration
agreement is a body corporate incorporated outside India. This
finding affects the jurisdiction of this Court. The present
Application has been filed under Section 11 for appointment of a
sole arbitrator. Since the arbitration is an international commercial
arbitration, the competent forum under Section 11 is the Supreme
Court of India and not this Court. Therefore, the issue is not
merely a technical defect. It concerns the jurisdiction of this Court
to entertain the present Application.

50.   I accordingly hold, on the merits of the jurisdictional
objection, that the present Arbitration Application under Section
11 is not maintainable before this Court. Since the arbitration is an
international commercial arbitration, the appropriate forum for
seeking appointment of the arbitrator is the Supreme Court under
the statutory scheme. The present Application has to be rejected



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for want of jurisdiction.

51.   In view of the above finding, it is not necessary for this Court
to finally decide whether the Applicant is a “veritable party” to the
arbitration agreement. That issue does not change the conclusion
regarding jurisdiction because ESM Singapore continues to be the
foreign contracting party shown in the Agreement. Any rights of
the Applicant, if available, to act for or represent ESM Singapore
can be considered in appropriate proceedings before the
competent forum.

52.   The objection of the Respondents regarding the territorial
and subject-matter jurisdiction of this Court is upheld. Their
submission that there is no arbitration agreement at all is rejected.
Their submission that the arbitration is not an international
commercial arbitration is rejected. However, their objection that
the present Application under Section 11 is not maintainable
before this Court is accepted.

53.   In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:

      (i)    The Arbitration Application filed by the Applicant
      under Section 11 of the Arbitration and Conciliation Act,
      1996 is dismissed for want of jurisdiction;

      (ii)   It is held that the arbitration agreement contained in
      Clause 10 of the Agreement-cum-Indemnity Bond dated 11
      November 2021 constitutes an international commercial
      arbitration within the meaning of Section 2(1)(f) of the
      Arbitration and Conciliation Act, 1996;



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(iii) The Applicant shall be at liberty to approach the
competent forum in accordance with law for appointment of
an arbitrator;

(iv) All contentions of the parties on the merits of the
underlying dispute are kept open;

(v)   The question whether the Applicant can be treated as a
“veritable party” to the arbitration agreement is kept open to
be decided by the competent forum in accordance with law;

(vi) There shall be no order as to costs.


                                      (AMIT BORKAR, J.)




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