Mr. Rajiv Nayar, Sr. Adv. with Mr. Kirat Singh Nagra, Mr. Kartik Yadav, Mr v. ENGINEERING PROJECTS INDIA LTD

Judgment

1. Through this Appeal, the Defendant/Appellant herein assails the correctness of the Order passed on 25.07.2025 by the learned Single Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 1 of 62 Judge [hereinafter referred to as „Impugned Order‟], while injuncting continuation of arbitration proceeding in an anti-arbitration suit.

2. The grant of injunction is predicated predominantly on the ground that Mr. Andre Yeap [hereinafter referred to as „Mr. Yeap‟], a member of the Arbitral Tribunal [hereinafter referred to as „Tribunal‟], failed to make disclosure about his prior involvement in an arbitration proceeding involving the Defendant and Mr. Manbhupinder Singh Atwal [hereinafter referred to as „Mr. Atwal‟], who happens to be the MD, Chairman, and Promoter of the Defendant. This then led the learned Single Judge to prima facie conclude that if allowed to continue, it would result in the proceedings which are oppressive and vexatious to the Plaintiff/Respondent. With respect to the objections, to the said effect, as raised by the Plaintiff/Respondent herein, the said Arbitrator/member of Tribunal submitted the following explanation for his non-disclosure and continued non-disclosure by stating as follows: “…Had I made the disclosure, the possibility of the Respondent seeking to challenge my impartiality could not be discounted.”

3. The International Court of Arbitration of the International Chamber of Commerce [hereinafter referred to as „ICC Court‟] found that there was a non-disclosure on the part of Mr. Yeap, and held that such non-disclosure was ―regrettable‖, but permitted the continuance of the proceedings with the presence of Mr. Yeap, in respect of whom, the Plaintiff/Respondent had expressed serious reservations. Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 2 of 62

4. Herein, the parties shall be referred to by their status and rank in the suit, i.e., CS (OS) No. 243/2025. FACTUAL MATRIX

5. In order to comprehend the issues involved in the present case, relevant facts in brief are required to be noticed.

6. The Defendant is a military and security systems integrator company based in Oman, whereas the Plaintiff is a public sector enterprise under the Ministry of Heavy Industries and Public Enterprises (Department of Heavy Industry), Government of India, having its registered office at New Delhi. On 29.06.2015, the Ministry of Defence, Oman, entered into an agreement with the Plaintiff and appointed it as the main contractor for a supply and build project at the Oman-Yemen border. Thereafter, on 21.09.2015, the Plaintiff entered into a sub-contract agreement [hereinafter referred to as „the Agreement‟] with the Defendant for design, supply, installation, integration, and commissioning of Border Security System for the Engineer-3 Project Section 3 and 4 on the Oman-Yemen border.

7. It may be noted here that the Agreement includes an arbitration clause, i.e., Article 19, which stipulates that all disputes arising between the parties shall be resolved by way of arbitration before a duly constituted Tribunal. It further provides that the jurisdiction in respect of the Contract Agreement shall vest exclusively with the Courts at New Delhi, India, whereas the place of arbitration shall be determined through mutual agreement between the parties. The said Article also mandates that any reference to arbitration shall be Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 3 of 62 governed by, and conducted in accordance with, the Rules of Arbitration of the International Chamber of Commerce, 2021 [hereinafter referred to as „ICC Rules‟].

8. Thereafter, a dispute appears to have arisen inter se the parties, concerning delays in the performance of contractual obligations under the Agreement. Pursuant thereto, the Defendant invoked arbitration clause and on 12.04.2023, through its Counsel, filed a request for Arbitration under the ICC Rules and nominated Mr. Yeap as its co-arbitrator.

9. Pursuant to the same, the Secretariat of the International Chamber of Commerce [hereinafter referred to as „ICC‟] required Mr. Yeap to submit a signed Statement of Acceptance, Availability, Impartiality and Independence in terms of Article 11(2) of the ICC Rules. On 19.04.2023, Mr. Yeap submitted the signed statement of Acceptance, wherein it was stated that „he had nothing to disclose‟.

10. Thereafter, vide letter dated 13.07.2023, the ICC Court fixed Singapore as the place of arbitration. The same is reproduced hereunder: “On 13 July 2023, the International Court of Arbitration of the International Chamber of Commerce (“Court”): - fixed Singapore as the place of the arbitration (Article 18(1)). - confirmed Andre Yeap as co-arbitrator upon Claimant‟s nomination (Article 13(1)). - confirmed Arjan Kumar Sikri as co-arbitrator upon Respondent‟s nomination (Article 13(1)). - fixed the advance on costs at US$ 515 000, subject to later readjustments (Article 37(2)).”

11. Thereon, from 19.04.2023 to 16.01.2025, the arbitration proceeding continued, and a First Partial Award dated 19.06.2024 was Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 4 of 62 issued, which burdened the Plaintiff with financial liability to the tune of Rs. 30 crores (approximately).

12. On 17.01.2025, while preparing for the evidential hearings in the ICC Arbitration, the Counsel for Plaintiff learned of a judgment passed by the High Court of Gujarat on 05.07.2024 in Neeraj Kumarpal Shah v. Manbhupinder Singh Atwal1, wherein, at the very outset, it was noticed that Mr. Yeap failed to disclose his prior professional engagement with the Defendant and his Counsel. On studying the aforesaid judgment, the Counsel became aware that in November 2018, the Defendant and Mr. Manbhupinder Singh Atwal nominated Mr. Andre Yeap, Senior Counsel from Singapore, as a co- arbitrator in the Tribunal in the aforesaid arbitration proceeding. Mr. Kirat Singh Nagra was communicating on behalf of the Defendant herein. In the aforesaid arbitration proceeding, the evidential hearings took place from 13.02.2018 to 18.02.2018, and the Arbitral Award

was passed on 16.04.2021 in favour of Mr. Atwal. However, the said Arbitral Award was set aside by the Gujarat High Court vide order dated 05.07.2024.

13. Consequently, the Plaintiff, on 19.01.2025, while alleging a lack of disclosure and thereby raising doubts over the independence, neutrality, and impartiality of Mr. Yeap, filed a Challenge Application before the ICC Court under Article 14(1) of the ICC Rules. On

20.01.2025, the Tribunal adjourned the evidential hearing fixed in January 2025 in view of the fact that the Challenge Application was filed. On the same day, the ICC Secretariat requested the Arbitrator 1 C/ARBI.P/23/2023 Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 5 of 62 and the Defendant to submit their comments on the Challenge Application.

14. Pursuant thereto, on 23.01.2025, Mr. Yeap, in response to the Challenge Application under Article 14(1) of the ICC Rules, provided his explanation in respect of the non-disclosure. He stated that although he became aware of the conflict in October 2024, he did not disclose it, stating, inter alia, that “had I made the disclosure, the possibility of the Respondent seeking to challenge my impartiality could not be discounted.”

15. Thereafter, on 28.02.2025, the ICC Secretariat informed that on

27.02.2025, the ICC Court: (a) decided that the challenge filed against Mr. Yeap is admissible; (b) rejected the challenge on merit; and (c) decided to communicate reasons for its decision subsequently, once it is finalized.

16. Pursuant to this, on 14.03.2025, the ICC communicated its reasons in support of its decision dated 27.02.2025 for rejecting the Challenge Application [hereinafter referred to as „ICC Reasons‟]. While the ICC Court acknowledged that the non-disclosure by Mr. Yeap was regrettable, it was of the view that the circumstances did not establish justifiable doubts with respect to Mr. Yeap‟s impartiality and independence.

17. In the interregnum, the Plaintiff objected to the continuance of the arbitration proceeding; however, the Tribunal, on 12.03.2025, communicated its intention to fix the evidential hearings in Singapore from 26.05.2025 to 31.05.2025, while granting liberty to the parties to Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 6 of 62 seek variation on seven days‟ notice, should there be a change in circumstances.

18. Meanwhile, on 13.11.2024, the Plaintiff partially challenged the First Partial Award before the Singapore High Court [hereinafter referred to as „SGHC‟] by filing OA 1185/2024. Thereafter, on

31.01.2025, the Plaintiff approached the SGHC seeking leave to amend OA 1185/2024 to introduce a new ground alleging bias on the part of Mr. Yeap as an additional basis for setting aside the Partial Award. Pursuant thereto, on 03.02.2025, the SGHC granted the Plaintiff permission to file an application seeking the proposed amendment, and accordingly, the Plaintiff filed the relevant application in OA 1185/2024 on 05.02.2025. The abovementioned application was rejected by the SGHC on 27.03.2025. Thereafter, on

10.04.2025, the Grounds of Decision were rendered by the SGHC vide judgment titled as DLS v. DLT2.

19. Parallelly, on or around 11.03.2025, the Defendant filed a petition under Sections 44, 46, 47, and 49 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as „A&C Act‟], seeking the enforcement and execution of the First Partial Award.

20. Pursuant thereto, on 27.03.2025, the Plaintiff preferred an application before the SGHC under Article 13(3) of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration [hereinafter referred to as „Model Law‟], read with Section 3(1) of the 2 [2025] SGHC 61 Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 7 of 62 International Arbitration Act of Singapore, 1994 [hereinafter referred to as „SG Arbitration Act‟], seeking termination of Mr. Yeap‟s mandate to continue as a co-arbitrator on the Tribunal.

21. Further, on 28.03.2025, the Plaintiff once again approached the SGHC by way of an application under Sections 3 and 8 of the SG Arbitration Act, read with Articles 6, 12, 13, and 15 of the Model Law, thereby seeking an order for the mandate of Mr. Yeap to be terminated.

22. Meanwhile, on 02.04.2025, during the pendency of the Article 13(3) Challenge Application, the Defendant filed an application before the ICC Court seeking recovery of purported wasted cost for the cancelled evidential hearings in January 2025, which was acknowledged by the Tribunal on 03.04.2025 while granting 14 days period for the Plaintiff to respond, and the Defendant was granted opportunity to file reply within seven days thereafter.

23. Furthermore, on 07.04.2025, the Plaintiff objected to the Tribunal‟s direction and requested a deferment of further proceedings in the ICC Arbitration, including the Wasted Costs Application, on account of expanding the Article 13(3) challenge, which was rejected by the Tribunal on 08.04.2025. Thereafter, on 15.04.2025, the Plaintiff filed a suit bearing CS (OS) No. 243/2025, seeking declaration and injunctive relief, which was listed before this Court on 17.04.2025, wherein the learned Single Judge directed the Registry to verify the suit and record and submit a note confirming whether the filing was Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 8 of 62 completed in all respects, while directing that the suit be listed on

21.04.2025.

24. On the next date of hearing, i.e., 21.04.2025, the Defendant entered appearance and objected to the maintainability of the suit. Learned Single Judge left the question of maintainability to be decided on the next date, but issued notice in the application seeking interim reliefs with liberty to the Defendant to file a reply. However, the Tribunal, on 25.04.2025, despite being informed of the pendency of the suit, informed the parties of its decision to proceed with the evidential hearings scheduled for the week commencing on

26.05.2025.

25. On 06.05.2025, the Defendant, apart from objecting to the maintainability of the suit, also objected to the maintainability of a simultaneous proceeding before the learned Single Judge of this Court and the SGHC. Consequently, a statement was made by the Plaintiff that it would consider withdrawing the Article 13(3) Challenge Application filed before the SGHC, which resulted in the adjournment of the hearing to 19.05.2025. On 13.05.2025, the Plaintiff‟s Counsel issued a letter to the Defendant‟s Counsel seeking the Defendant‟s consent to file a joint application before the SGHC for withdrawal of the Article 13(3) Challenge Application, however, there was no response received from the Defendant.

26. Subsequently,

16.05.2025, the Plaintiff a Discontinuance Application before the SGHC, and on 19.05.2025, the learned Single Judge was informed the Discontinuance Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 9 of 62 Application for the withdrawal of Article 13(3) challenge had been filed before the SGHC, and summons were directed to be issued, but no order had been passed on this Discontinuance Application. Consequently, the learned Single Judge adjourned the hearing to

26.05.2025.

27. Shortly after the hearing on 19.05.2025, at 12:59 PM, the Defendant executed an agreement with Maxwell Chambers (the designated venue for the evidential hearing). On the same day, at 01:30 PM IST, the Plaintiff‟s Counsel issued an email to the Tribunal informing that the evidential hearing was set to commence on the same day as the suit was next listed, i.e., 26.05.2025, and submitted that it would be impractical for the Plaintiff to participate in the evidential hearing. Thereafter, at 01:35 PM IST, the Defendant‟s Counsel issued an email to the Tribunal stating that the learned Single Judge has not granted relief to the Plaintiff despite the Plaintiff pressing for an injunction. Again at 01:57 PM IST, in a subsequent email, the Defendant‟s Counsel proposed a schedule for the evidential hearings with the Tribunal. Pursuant thereto, at 08:49 PM IST, the Tribunal responded while observing that the Defendant has not addressed the Plaintiff‟s application, and thereafter invited both parties to respond to a proposal for conducting the hearings remotely. At 10:46 PM IST, the Defendant‟s Counsel issued another e-mail, insisting on proceeding with the evidential hearing.

28. Subsequently, on 20.05.2025, the Tribunal decided that the evidential hearing would proceed in Singapore as planned, thereafter, Plaintiff issued a letter to the Registrar, Supreme Court, Singapore, to Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 10 of 62 advance the hearing on the Discontinuance Application. Pursuant thereto, the Registrar issued the summons and fixed the hearing on the said application on 23.05.2025.

29. On 21.05.2025, the Defendant‟s Counsel issued an e-mail calling upon the Plaintiff to pay fees for the venue of the evidential hearing, i.e., Maxwell Chambers. Thereafter, on 21.05.2025, at 04:21 PM (IST), the Plaintiff formally objected to the Tribunal‟s decision to proceed with the evidential hearing, which was responded to by the Tribunal, in which the response of the Defendant was sought within 24 hours. On the same day, the Defendant filed a motion for an injunction before the SGHC in the Challenge Application to prevent the Plaintiff from proceeding with the suit.

30. Further, on 22.05.2025, the Defendant‟s Counsel issued an email to apprise the Plaintiff of its intention to mention the motion for injunction before the Duty Registrar for the said motion to be listed before the SGHC on 23.05.2025. On the same day at 10:22 AM (IST), the Defendant issued an email to the Tribunal and insisted on proceeding with the evidential hearings. At 03:39 PM (IST), the Tribunal apprised the parties, stating that the evidential hearings will commence on 26.05.2025.

31. On the same day, at 10:30 PM (IST), the Plaintiff‟s Counsel mentioned the matter before the Judge-in-Charge (Original Side) of the SGHC for listing of an urgent application to restrain the Defendant from proceeding with the motion for injunction pending hearing in the suit, which was allowed. However, at 02:42 PM, the Defendant Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 11 of 62 withdrew the motion for injunction petition as it was inappropriately filed in the pending Article 13(3) Challenge Application, and the Defendant‟s Counsel informed that a fresh motion for injunction [hereinafter referred to as „OA 519‟] before the SGHC has been filed by them.

32. Further, on 23.05.2025, at 09:47 AM, the Plaintiff‟s Counsel was informed that OA 519 was fixed for hearing before the SGHC on

23.05.2025 at 02:30 PM (SGT), and on the same day, the SGHC granted an injunction to the following effect: “(i) granted the injunction prayed for by the Appellant, restraining the Respondent from continuing the suit and initiating or continuing civil proceedings against the Appellant in other jurisdictions. (ii) did not pass any order in the Discontinuance Application and indicated that it would hear the same at a later date.”

33. Pursuant thereto, on the same day at 03:53 PM (IST), Defendants‟ Counsel informed the Tribunal about the developments in the SGHC, and also issued a letter stating that Defendant opposes the Discontinuance Application. At 09:56 PM (IST), Defendant‟s Counsel once again issued an email to the Tribunal enclosing copies of OA 519, summons, and supporting affidavit. Further, the Tribunal sought an explanation concerning the venue and transcription arrangements made for the evidential hearing, which was confirmed by the Defendant on 23.05.2025

34. Thereafter, on 24.05.2025, the Tribunal issued an email to the parties, stating that it awaits developments, while suggesting that the Defendants make all their witnesses and experts available for the evidential hearing on 26.05.2025. Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 12 of 62

35. On the other hand, vide Order dated 07.07.2025, the SGHC rejected the Article 13(3) application & on 24.07.2025, gave its Grounds of Decision in support of the decision dated 07.07.2025.

36. Further, on 26.05.2025, the learned Single Judge started hearing the matter and continued on a day-to-day basis. During the hearing, the Tribunal issued an email to the parties informing them that the evidential hearing had taken place and was now closed, and that they should serve written closing submissions on 31.07.2025. Further, on

16.07.2025, the learned Single Judge recorded that the Defendant pointed out certain other factual aspects that had transpired after the last date of hearing when the judgment was reserved.

37. Upon appreciation of pleadings, vide Order dated 25.07.2025, the injunction was granted by the learned Single Judge for the following reasons: i. The judicial authority of the Civil Courts under Section 9 of the Code of Civil Procedure [hereinafter referred to as „CPC‟] and its inherent powers under Section 151 of the CPC remain preserved to safeguard against the misuse of the arbitral process, unless expressly barred by the statute, which is not the case herein. ii. In instances where the Tribunal acts contrary to the fundamental tenets of judicial procedure or the governing statute, the Civil Courts shall retain jurisdiction. iii. The concept of anti-arbitration injunction is not alien to other prominent jurisdictions. However, the power is to be exercised sparingly. Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 13 of 62 iv. Arbitration proceedings could be injuncted, wherein attending circumstances would render the continuation of the arbitration proceeding oppressive or unconscionable. v. The test under Article 11 of the ICC Rules is a pre-emptive and precautionary one. The arbitrator cannot withhold disclosure on the ground that, in his or her view, the fact or association is benign or too remote to influence impartiality. vi. The conduct of the Defendant therein, when examined holistically, demonstrates a clear pattern of abuse of process intended not to resolve disputes in good faith, but rather to subject plaintiff therein procedural hardship jurisdictional entanglement. vii. The three essential ingredients of the remedy contemplated in Order XXXIX, Rules 1 & 2 of the CPC, i.e., existence of a prima facie case, the balance of convenience in favor of the Applicant, and the likelihood of irreparable injury that cannot be compensated in monetary terms if the interim relief is denied, are satisfied in the present case. CONTENTIONS OF THE PARTIES:

38. Heard learned Senior Counsel for the parties at length and, with their able assistance, perused the paper book. Learned Senior Counsel have also filed their written submissions, which are on record.

39. Learned Senior Counsel representing the Defendant/Appellant has submitted as follows: Signature Not Verified Signed By:JAI NARAYAN Signing Date:12.12.2025 17:31:42 FAO(OS) 88/2025 Page 14 of 62 i. Learned Single Judge has ignored that the seat of arbitration was fixed to be Singapore by the ICC Court and the General Division of the SGHC is the supervisory court. Thus, Indian Courts do not have jurisdiction, and the Impugned Order is per incuriam in light of settled judicial precedents in relation to foreign seated arbitration and principles for the grant of an anti- arbitration injunction. ii. In support of his submission, the learned Senior Counsel the Defendant relies upon Bharat Aluminium representing Company vs. Kaiser Aluminium Technical Services Inc. & Ors.3 („BALCO‟); Mankastu Impex Pvt. Ltd. vs. Air Visual Ltd.4; BGS SGS Soma, JV vs. NHPC Ltd.5; and Hindustan Construction Company vs. NHPC Ltd.6 iii. The Indian Courts have no jurisdiction to issue an injunction qua the Tribunal at the interim stage. iv. The Impugned Order, passed by the learned Single Judge of this High Court is in the teeth of an anti-suit injunction order passed by the SGHC, after the Plaintiff failed to obtain a favourable order from the SGHC. v. The dispute emanates from the agreement executed on

21.05.2025, which was to be performed entirely in Oman. The Defendant is a company registered in Oman, and Singapore is the seat of the ICC Arbitration. Hence, Singapore is lex fori. Moreover,