B.R. Gavai, J.
1. Admit. Heard finally by consent.
2. The appeal takes an exception to the order passed by the learned Single Judge dated 30th of January, 2013 thereby dismissing the petition filed by the present appellants, which was in turn filed challenging the order passed by the learned Civil Judge Junior Division, Nagpur dated 1st October, 2012 thereby allowing the application filed by the respondent no.1 under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter for short âthe Act) referring the dispute between the parties to the arbitration.
3. The facts, in brief, giving rise to the present appeal, are as under:-
The appellants so also the respondents 1 and 2, who was original plaintiffs and defendants 2 and 3 in the suit, are in the business of Cable Operation in different areas in the city of Nagpur. The appellants and respondents 2 and 3 are providing cable connections and rendering services to their respective customers. The appellants and respondents 2 and 3 are part of a group/consortium/joint venture called as âCity Cable Vision (hereinafter for short âCCV). The respondent no. 1/defendant no.1 is a company duly incorporated under the Companies Act, 1956, who is also engaged in the cable network business in various parts of the country including Gujarat, Rajasthan and Maharashtra. It is the case of the appellants that respondent no.1 desired to expand its business and enter into the entertainment market of the city of Nagpur and as such contacted the appellants and the respondents 2 and 3. It is the case of the appellants that the respondent no.1 had lured the appellants and the respondents 2 and 3 of giving them maximum profits, if they join hands with the respondent no.1. It is further their case that accordingly a memorandum of understanding (hereinafter for short âMOU) was entered into between the respondent no.1 on one hand and the appellants and the respondents 2 and 3 on the other hand under the group named as âCity Cable Vision on t3h0 August, 2008. As per the said MOU, entire infrastructure of the appellants and the respondents 2 and 3 was supposed to be used by the respondent no.1 and in lieu thereof, the respondent no.1 was to pay consideration as enumerated under Clause 3 of said MOU particularly, Clause 3.2 of the said MOU. It is the contention of the appellants that right from the time of entering into the said MOU the intentions of the respondent no.1 were not bona fide. It is the case of the appellants that the respondent no.1 not only had not paid the payments of the amount as agreed under the MOU, but had gone to the extent of breaking the respondents 2 and 3 from the group i.e. âCCV and making them to join hands with the respondent no.1. It is the case of the appellants that realizing that the respondent no.1 did not have any real and bona fide intentions to enter into transactions with the appellants and had the sole motive of taking over the business of the appellants, they issued a legal notice dated 12th August, 2009 to the respondent no.1. According to the appellants, as per the said notice they had withdrawn themselves from the said MOU. It is the case of the appellants that thereafter the respondent no.1 realizing the consequences thereof, rushed its representatives to Nagpur to hold discussions with the appellants, so also the respondent nos.2 and 3. It is further case of the appellants that the respondent no.1 thereafter with a view to lure the appellants again had executed the Minutes of Meeting dated 16/8/2009. It is their further case that the cheque, which was issued to the appellants, was also dishounoured which reflected the mala fide intentions of the respondent no.1. It is the further case that they received a reply on 13th October, 2009 sent by the respondent no.1 through one Shri Yatin Soni Advocate. It is the case of the appellants that in the said reply, the respondent no.1 had falsely put the entire blame on the appellants by falsely alleging that the appellants did not get the data of connections duly checked and hence there was no compliance of due diligence on the part of appellants. In this background, the appellants contend that said MOU has no legal sanctity and unenforceable in the eyes of law.
The appellants thereafter filed R.C.S. No.3565/2012 for declaration that the MOU dated 30th August, 2008 entered into between the plaintiffs and defendants was void, illegal and inn-operational and did not bind the plaintiffs in any manner since it was based on fraud and misrepresentation. The appellants had prayed for perpetual injunction restraining the defendants permanently from asserting and acting upon the said MOU and from interfering in the business of the plaintiffs and from causing any loss and damage to the business of plaintiffs. In the said suit, an application below Exh.30 came to be filed on behalf of the defendant no.1 under Section 8 of the said Act for directing the parties to refer the dispute to the arbitration in view of clause 11 of the said MOU. The learned Trial Judge vide order dated 1st October, 2012 allowed the said application. Being aggrieved thereby, the petition being Writ Petition No.139/2013 came to be filed by the present appellants. The learned Single Judge vide order dated 30th January, 2013 dismissed the said writ petition. Hence the present appeal.
4. Shri Khapre, the learned counsel for the appellants, submits that the learned trial Judge as well the learned Single Judge have erred in holding that the dispute between the parties was referable to arbitration. The learned counsel further submits that the dispute to the arbitration under Clause 11 of the said MOU is referable only if there is a dispute between Gujrat Tele Links Private Limited on one hand and members of the âCCV group on the other hand. It is further submitted that in the present case, the dispute is now between the appellants on the one hand and the respondent 1 and respondents 2 and 3, who are also original members of the "CCV" group, on the other hand. It is, therefore, submitted that Clause 11 of the said MOU would not govern the present nature of dispute. The learned counsel further submits that in any case since it is the contention of the plaintiffs that the intentions of the respondent no.1 from the very inception were mala fide, fraudulent and as such the said dispute cannot be referred to the arbitration and has to be decided by the competent civil court alone. The learned counsel further submits that in any case in view of the subsequent settlement, which has been reduced in writing vide Minutes of Meeting dated 16th August, 2009, the earlier MOU stands substituted and now in fact there is no clause to refer the dispute to the arbitration and as such the dispute could not have been referred to arbitration. The learned counsel relies on the judgment of the Apex Court in case of M/s. New Horizons Limited and another V/s. Union of India and others reported in 1995 AIR SCW 275, in case of Booz Allen and Hamilton Inc. V/s. SBI Home Finance Ltd. and others reported in (2011) 5 SCC 532, in case of N. Radhakrishnan V/s. M/s. Maestro Engineers and Ors. reported in 2009 (0) BCI 587, in case of India Household and Healthcare Ltd. V/s. LG Household and Healthcare Ltd. reported in AIR 2007 SC 1376.
5. As against this, Shri Dangre, the learned counsel for the respondent no.1, submits that "CCV" group may be a partnership firm though unregistered or may be a joint venture but it is not an independent and legal entity or a juristic person. The learned counsel, therefore, submits that the appellants are not separate or distinct from "CCV" and since there is an MOU between the respondent no.1 and "CCV", the appellants are bound by clauses of said MOU and as such dispute has rightly been referred to the arbitration. The learned counsel, in this respect, relies on the judgment in case of DulichandLaxminarayan V/s. Commissioner of Income Tax, Nagpur reported in 1956 SCR 154, N. Khadervali Saheb (dead) by Lrs. and another V/s. N. Gudu Sahib (dead) and others reported in (2003) 3 SCC 229 in support of his submissions. He also relies on the judgment in the case of Booz Allen and Hamilton Inc. V/s. SBI Home Finance Ltd. and others (supra), which is also relied on by the appellants. The learned counsel further submits that all the four essential conditions for referring the dispute to the arbitration were available in the present case and as such the learned trial Judge has rightly passed the order. The learned counsel, in this respect, relies on the judgment of the Apex Court in case of P. Anand Gajpathi Raju and others V/s. P.V.G. Raju (dead) and others reported in (2000) 4 SCC 539 and Hindustan Petroleum Corporation Limited V/s. Pinkcity Midway Petroleums reported in (2003) 6 SCC 503.
6. The learned counsel further submits that for referring the dispute to the arbitration what is required is that all the parties to a suit must be parties to the agreement and not viz-a-viz. The learned counsel, therefore, submits that since all the parties in the suit are parties to the arbitration agreement, the reference as directed by the learned trial Judge, cannot be faulted with. The learned counsel further submits that all the questions, which are raised by the appellants, can be gone into by the learned Arbitrator under Section 16 of the said Act. The learned counsel, therefore, submits that the letters patent appeal deserves to be dismissed.
7. Shri Jagtap, who appear for respondents 2 and 3, also submits that the suit itself was not maintainable and therefore, no interference could be necessary in the impugned order.
8. The perusal of the order passed by the learned trial Judge would reveal that the learned trial Judge has basically passed the order on the basis of the law laid down in case of P. Anand Gajpathi Raju and others V/s. P.V.G. Raju (dead) and others (supra). The learned Judge relying on the aforesaid judgment of the Apex Court, has held that once the Court comes to the satisfaction that the four essential conditions as could be found under Section 8 of the said Act are satisfied, it is obligatory for the Court to refer the parties to arbitration in terms of the arbitration agreement. The said judgment is prior to the judgment of the Constitution Bench of the Apex Court in case of SBP and Co. V/s. Patel Engineering Limited and another reported in (2005) 8 SCC 618. In case of S.B.P. Company, the Apex Court was considering the correctness of the view taken by the Constitution Bench of the Apex Court in case of KonkanRailway Corporation Limited V/s. Rani Construction (P) Limited reported in (2000) 8 SCC 159. The contention which is now sought to be raised by Shri Dangre that all questions, which are raised herein, can also be raised before the learned Arbitrator was also raised before the Apex Court. The Apex Court considering the said submissions, observed thus:-
â19.....When the defendant to an action before a judicial authority raises the plea that there is an arbitration agreement and the subject-matter of the claim is covered by the agreement and the plaintiff or the person who has approached the judicial authority for relief, disputes the same, the judicial authority, in the absence of any restriction in the Act, has necessarily to decide whether, in fact, there is in existence a valid arbitration agreement and whether the dispute that is sought to be raised before it, is covered by the arbitration clause. It is difficult to contemplate that the judicial authority has also to act mechanically or has merely to see the original arbitration agreement produced before it, and mechanically refer the parties to an arbitration.â
9. It can, thus, clearly be seen that the Constitution Bench consisting of seven Hon'ble Judges the Apex Court in unequivocal terms held that when there is an arbitration agreement and the subject-matter of the claim is covered by the agreement, the plaintiff or the person who has approached the judicial authority for relief, disputes the same, the judicial authority, in the absence of any restriction in the Act, has necessarily to decide whether, in fact, there is in existence a valid arbitration agreement and whether the dispute is covered by the agreement clause. The Apex Court has clearly held that judicial authority cannot act mechanically or only on the basis of original agreement, produced before it, refer the parties to an arbitration. The Apex court in case of Booz Allen and Hamilton Inc. V/s. SBI Home Finance Ltd. and others (supra) after considering the law laid down by the Constitution Bench of the Apex Court in case of SBP and Co. V/s. Patel Engineering Limited and another (supra) has observed thus:-
â34. The term âarbitrability has different meanings in different contexts. The three facets of arbitrability, relating to the jurisdiction of the Arbitral Tribunal, are as under:
(i) whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the Arbitral Tribunal) or whether they would exclusively fall within the domain of public fora (courts).
(ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the âexcepted matters excluded from the purview of the arbitration agreement.
(iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the Arbitral Tribunal, or whether they do not arise out of the statement of claim and the counterclaim filed before the Arbitral Tribunal. A dispute, even if it is capable of being decided by arbitration and falling within the scope of arbitration agreement, will not be âarbitrable if it is not enumerated in the joint list of disputes referred to arbitration, or in the absence of such joint list of disputes, does not form part of the disputes raised in the pleadings before the Arbitral Tribunal.â
The Apex Court, therefore, held that the term âarbitrability has different meanings in different contexts. The Apex Court has further held it will have to be considered whether the dispute, having regard to its nature, could be resolved by a private forum chosen by parties or whether it will exclusively fall within the domain of the Court and it will also have to be considered whether the disputes is covered by the arbitration agreement that is whether the dispute is enumerated or described in the agreement as matter to be decided by the arbitration or whether the dispute falls under the âexcepted matters excluded from the purview of the arbitration agreement. It will also have to be considered as to whether the parties have referred the dispute to arbitration that is whether dispute will fall under the scope of the submission to the Arbitration Tribunal.
10. It will also be appropriate to refer to the judgment of the Apex Court in case of N. Radhakrishnan V/s. M/s. Maestro Engineers and Ors. (supra). In the said case, the appellant had entered into a partnership with the respondents on 7th of April, 2003 to constitute the partnership firm for the purpose of carrying business of Engineering Works under the name and style âMaestro Engineers. Out of differences, which arose between the parties, the appellant sent a notice to the respondents claiming that initially an investment of a sum of Rs.2,70,000/- each was made by the appellant and the respondent no.3 and had also alleged that malpractice had taken place in the firm which were supported by the respondents. There were also allegations of collusion amongst the respondents for driving out the clients of the appellant and forging the accounts of the firm against the respondents. The reply was sent by the respondents wherein they admitted the factum of the partnership but denied the claim of the appellant that he had invested a sum of Rs.2,70,000/-. Again there was exchange of notices between the parties wherein the allegations were made against each others. Thereafter the respondents filed suit before District Munsif of Coimbatore. An application under Section 8 of the Arbitration Act was filed by the appellant before the Court, the same was rejected. Against that, the civil revision application was filed before the Madras High Court. The Madras High Court dismissed the revision and affirmed the order passed by the District Munsif. Against the judgment of the Madras High Court the special leave petition was filed. It will be relevant to refer to following observations of the said judgment.
â6. The appellant had cited a catena of judicial pronouncements to contend that when there is an express provision to that effect, the civil courts are bound to refer the matter to an Arbitrator in case of any disputes arising between the parties. The appellant had raised various issues relating to misappropriation of funds and malpractices on the part of the respondents and the allegations to that effect have been made in the notice sent to the respondents and subsequently in its written statement filed before the civil court. The learned counsel for the respondents on the other hand argued that when a case involves substantial questions relating to facts where detailed material evidence (both documentary and oral) needed to be produced by either parties, and serious allegations pertaining to fraud and malpractices were raised, then the matter must be tried in court and the Arbitrator could not be competent to deal with such matters which involved an elaborate production of evidence to establish the claims relating to fraud and criminal misappropriation.
7. In our opinion, the contention of the respondents relating to the jurisdiction of the Arbitrator to decide a dispute pertaining to a matter of this proportion should be upheld, in view of the facts and circumstances of the case. The High Court in its impugned judgment has rightly held that since the case relates to allegations of fraud and serious malpractices on the part of the respondents, such a situation can only be settled in court through furtherance of detailed evidence by either parties and such a situation can not be properly gone into by the Arbitrator.
8. Reliance was placed by the learned counsel for the appellant on a decision of this Court in the case of Hindustan Petroleum Corpn. Ltd. vs. Pinkcity Midway Petroleums [2003 (6) SCC 503], wherein this Court in Para 14 observed:
âIf in an agreement between the parties before the civil court, there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator. In the instant case the existence of an arbitral clause in the Agreement is accepted by both the parties as also by the courts below. Therefore, in view of the mandatory language of section 8 of the Act, the courts below ought to have referred the dispute to arbitration.â
9. The learned counsel for the appellant relying on the above-mentioned observations of this Court in the aforesaid judgment submitted that the High Court was wrong in ignoring the ratio of the case and should have accordingly allowed the petition of the appellant for setting aside the order of the trial court.
10. The learned counsel appearing on behalf of the respondents on the other hand contended that the appellant had made serious allegations against the respondent alleging that they had manipulated the accounts and defrauded the appellant by cheating the appellant of his dues, thereby warning the respondents with serious criminal action against them for the alleged commission of criminal offences. In this connection, reliance was placed in a decision of this Court in the case of Abdul Kadir Shamsuddin Bubere vs. Madhav Prabhakar Oak and Another, [AIR 1962 SC 406] in which this court under para 17 held as under:
âThere is no doubt that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open court, that would be a sufficient cause for the court not to order an arbitration agreement to be filed and not to make the reference.....â
11. In our view and relying on the aforesaid observations of this Court in the aforesaid decision and going by the ratio of the above mentioned case, the facts of the present case does not warrant the matter to be tried and decided by the Arbitrator, rather for the furtherance of justice, it should be tried in a court of law which would be more competent and have the means to decide such a complicated matter involving various questions and issues raised in the present dispute. This view has been further enunciated and affirmed by this Court in the decision of Haryana Telecom Ltd. vs. Sterlite Industries (India) Ltd.[AIR 1999 SC 2354], wherein this court under para 4 observed:
âSub-section (1) of section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the Arbitrator is only that dispute or matter which the Arbitrator is competent or empowered to decide.â
12. The learned counsel for the respondent further elaborated his contention citing the decision of the High Court of Judicature at Madras in the case of Oomor Sait HG Vs. Asiam Sait, 2001(3) CTC 269, wherein it was held:
âPower of civil court to refuse to stay of suit in view of arbitration clause on existence of certain grounds available under 1940 Act continues to be available under 1996 Act as well and the civil court is not prevented from proceeding with the suit despite an arbitration clause if dispute involves serious questions of law or complicated questions of fact adjudication of which would depend upon detailed oral and documentary evidence.
....Civil Court can refuse to refer matter to arbitration if complicated question of fact or law is involved or where allegation of fraud is made.
....Allegations regarding clandestine operation of business under some other name, issue of bogus bills, manipulation of accounts, carrying on similar business without consent of other partner are serious allegations of fraud, misrepresentations etc., and therefore application for reference to Arbitrator is liable to be rejected.â
13. We are in consonance with the above-referred decision made by the High Court in the concerned matter. In the present dispute faced by us, the appellant had made serious allegations against the respondents alleging him to commit malpractices in the account books and manipulate the finances of the partnership firm, which, in our opinion, cannot be properly dealt with by the Arbitrator. As such, the High Court was justified in dismissing the petition of the appellant to refer the matter to an Arbitrator. In this connection, it is relevant to refer the observation made by the High Court in its impugned judgment :
âThe above decision squarely applies to the facts of the present case. In the present case as well there is allegation of running rival firm, interference with the smooth administration of the firm. As already stated since the suit has been filed for declaration to declare that the revision petitioner is not a partner with effect from 18.11.2005, and for consequential injunction restraining the petitioner from disturbing the smooth functioning of the first respondent firm, the issue relates to the causes which compelled the respondents to expel the revision petitioner from the partnership firm and the necessity to reconstitute the firm by entering into a fresh partnership deed. Therefore such issues involve detailed evidence which could be done only by a civil court......â (Emphasis Supplied)
It will be seen that the Apex court has held that when the case relates to allegations of fraud and serious malpractice on the part of respondents, such a situation can only be settled by the Courts by offering oral as well documentary evidence to be produced by either parties and such a situation cannot be properly gone into by the Arbitrator. The Apex Court in this case has also considered the judgment of the Apex court in case of Hindustan Petroleum Corporation Limited V/s. Pinkcity Midway Petroleums (supra), which is also pressed into service by the respondents herein. The Apex Court in the said judgment, has relied on its earlier judgment in case of Haryana Telecom Limited V/.s Sterlite Industries (India) Ltd. reported in AIR 1999 SC 2354 wherein it is held that Section 8 of the Act postulates that what can be referred to the Arbitrator is only that dispute or matter which the Arbitrator is competent or empowered to decide. The Apex Court upheld the view of the Madras High Court wherein it has been held that the civil Court would not be prevented from proceeding with the suit which has an arbitration clause if dispute involves serious questions of law or complicated questions of fact adjudication of which would depend upon detailed oral and documentary evidence. The Apex court has further upheld the view of the Madras High Court that Civil Court can refuse to refer the matter to arbitration if complicated questions of fact or law is involved or where allegation of fraud is made.
11. It will also be relevant to refer to the judgment of the Apex Court in case of India Household and Healthcare Ltd. V/s. LG Household and Healthcare Ltd. (supra) wherein their Lordships observed thus:
â10. It is also no doubt true that where existence of an arbitration agreement can be found, apart from the existence of the original agreement, the Courts would construe the agreement in such a manner so as to uphold the arbitration agreement. However, when a question of fraud is raised, the same has to be considered differently. Fraud, as is well known, vitiates all solemn acts. A contract would mean a valid contract, an arbitration agreement would mean an agreement which is enforceable in law.â (Emphasis Supplied)
12. In this background, we will have to examine as to what is the claim of the plaintiffs in the plaint and the averments in the plaint will have to be read in harmony with each other. It will be relevant to refer the observations of the Apex Court in case of SopanSukhdeo Sable V/s. Assistant Charity Commissioner reported in 2004 (3) S.C.C.137.
â15. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.â
13. No doubt that the plaint refers to the said MOU, alleged to be executed between the respondent no.1 on one hand the appellants and the respondents 2 and 3 on the other hand. However, the claim in the plaint is not based upon only the breach of terms and conditions in the MOU. It will be relevant to refer the averments in the plaint.
â14.....The defendant no.1 had not only committed flagrant breach of the terms of MOU, but had gone to the extent of prevailing over upon the defendant nos.2 and 3 to break from the CCV group and join hands with the defendant no.1 in achieving the evil design of the defendant no.1. The defendant nos.2 and 3 herein were eventually purchased by the defendant no.1 in due course by getting many writings effected by them in accordance with the evil conspiracy hatched by the defendant no.1. This was done with a view to cause wrongful loss to the plaintiffs and wrongful gain to the defendant no.1.
16. It is submitted that the defendant no.1, taking advantage of the situation tried to project to its competitor that it had taken over the business of the CCV Group including that of the plaintiffs and the defendant nos.2 and 3 and that the entire business of the plaintiffs and the defendant nos.2 and 3 stands transferred in favour of the defendant no.1, although there was no actual transfer of the business. This has resulted in causing great inconvenience to the plaintiffs and had almost resulted in severing their relationship with their present head-end M/s UCN. M/s UCN had threatened the plaintiffs of disconnection which would have resulted in total loss of business of all the plaintiffs. With great difficulties the plaintiffs were able to persuade M/s UCN, not to severe the business dealings with them. It is submitted that this action of the defendant no.1 in making false propaganda had resulted in causing immense loss to the business and the repute of the plaintiffs inasmuch as the defendant no.1 could not have done so, particularly when the defendant no.1 had failed to adhere to the terms of the MOU. The plaintiffs realized that the defendant no.1 had no real and bonafide intention to enter into any transaction with the plaintiffs, but the sole motive was to take over the entire business of the plaintiffs without making any payments to them. Perhaps this was the reason, the defendant no.1 did not complied with any of the term of the MOU and had kept the plaintiffs on false assurances.
17. The defendant no.1 continued with its nefarious design and its hidden evil agenda of taking over the entire business of the plaintiffs and disturbing their relations with the head-end UCN. In furtherance to its nefarious design, the defendant no.1 started influencing the individual members of the "CCV" by alluring to break from the group and to join the defendant no.1. The defendant no.1 had been able to prevail over upon the defendant nos.2 and 3 to join hand with it by giving them high hopes of larger profit and perhaps the defendant nos.2 and 3 became the victims of the allurement of the defendant no.1. So far as the plaintiffs are concerned the defendant no.1 could not succeed in breaking them down from the group. The defendant no.1 adopted ways and means to disturb the functioning of the plaintiffs and to obstruct in their cable network business. This conduct of the defendant no.1 also establishes that it had no intention to enter into any business dealings with the plaintiff, but its sole object of entering into MOU was to trap the plaintiffs and take over their business, which perhaps the defendant no.1 could not succeed.
21. The fact that the defendant no.1 had no bonafide intention in drawing he minutes of the Meeting dated 16.8.2009, became clear upon receipt of the reply dated 13/10/09, sent by the defendant through Shri Yatin Soni, Advocate. In their reply, the defendant no.1 tried to put the entire blame on the plaintiffs by falsely alleging that the plaintiffs did not get the data of connections duly checked and hence there was no compliance of due diligence on the part of plaintiffs. In this notice it was alleged by the defendant no.1 that two of the cable operators i.e. defendant nos.2 and 3, working under the banner of C.C.V., had called upon the defendant no.1 not to make further payment as there were alleged internal disputes within the working partners of C.C.V. The copy of the notice dt.13/10/09 is filed as Document No.5. It is submitted that the contents of the said reply were far from truth. There was infact no misunderstanding or disputes amongst the individuals of the working group CCV. However, it seems that the defendant no.1, in furtherance to its nefarious design had tried to create a rift amongst the members of the CCV, on the lines of Divide and Rule Policy.
22. Upon receipt of the said reply the plaintiffs called for an urgent meeting of all the members of the CCV on 21/10/09 to clarify the allegations made by the defendant no.1 that two of the cable operators had allegedly requested the defendant no.1 to not to make the further payment. The defendant nos.2 and 3 clarified that in their own hand writing that they have never made any such statement to defendant no.1 and they were read to swear an affidavit to that effect.
23. Subsequently it was learnt by the plaintiffs that the defendant nos.2 and 3 were influenced upon by the defendant no.1 to severe from the CCV group and to join hands with the defendant no.1. It was learnt by the plaintiffs that the defendant nos.2 and 3 were won over by the defendant no.1, by making some paltry amounts and they had joined the defendant company without the knowledge of the plaintiffs and their area of connections (consumers) was taken over by the defendant no.1 and there by deceived the plaintiffs. The defendant no.1 succeeded in its design of creating right and taking control of the business of the individual members by adopting Divide and Rule Policy. The defendant no.1 continues to have an evil eye over the business of the plaintiffs and is adopting ways and means to obstruct the plaintiffs in the smooth functioning of their respective business.
24. As would be seen from what is demonstrated hereinabove, the defendant no.1 had prevailed upon the plaintiffs to bring into existence the said MOU dated 30.8.2008, through an element of fraud, false promises, false assurances inasmuch as the defendant no.1 had no real intention to enter into any business transaction with the plaintiffs, but its sole object was to take control of the business of the plaintiffs. The M.O.U. Signed on 30/8/2009 was based on fraud and misrepresentation on t