Manish Pitale, J.

[1] By this petition, this Court is called upon to interpret a Term Sheet executed between the parties, in order to examine as to whether the findings rendered by the learned Arbitrator while refusing interim reliefs under Section 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Arbitration Act"), deserve to be interfered with, while exercising jurisdiction under Section 37(2)(b) of the Arbitration Act.

[2] The aspects that arise for consideration include the scope of jurisdiction exercised by this Court under Section 37(2)(b) of the Arbitration Act and the true purport and nature of the Term Sheet, based upon interpretation of its various clauses.

[3] The facts leading up to filing of the present petition are that the petitioner (original claimant), being a healthcare service provider, showed interest in the respondents selling their majority shareholding in respondent No. 2. The petitioner - Max Healthcare Private Limited is a healthcare service provider, while respondent No. 2 - Quality Care India Limited owns and operates Care Hospitals. Respondent No. 1 - Touch Healthcare Private Limited holds 96.94% of shareholding of respondent No. 2 and respondent No. 3 - Evercare Group Management Limited is the ultimate beneficial owner of respondent No. 2 through respondent No. 1.

[4] Upon the petitioner submitting its expression of interest and pursuant to exchange of communications between the parties, on 16.03.2023, a Term Sheet was executed between the petitioner and the respondents. The petitioner proposed to acquire 100% of the shareholding in respondent No. 2 and the petitioner also proposed to run and operate the units of respondent No. 2 till September, 2025. As per the Term Sheet, the parties were to eventually execute a Share Purchase Agreement (hereinafter referred to as "SPA"). The parties were to share the information in the backdrop of a due diligence exercise to be carried out by the petitioner with co-operation from the respondents.

[5] There were series of interactions between the parties in the light of execution of the Term Sheet and according to the petitioner, such interaction continued till 18.04.2023 when the petitioner sent a letter to the respondents forwarding the commercial offer for the SPA to be executed. According to the petitioner, as per clause 16 of the Term Sheet, the time period for execution of SPA by 12.04.2023, stood extended by the exchange of written communications between the parties and that since the Term Sheet was a binding offer, upon acceptance of the same by the petitioner, it was converted into a concluded contract. As opposed to this, the respondents took a position that the date of 12.04.2023 could have been extended only by a written agreement between the parties and in the absence thereof, the Term Sheet had fallen through and there was no question of a concluded contract between the parties. As a consequence, disputes arose between the parties and the petitioner filed a petition under Section 9 of the Arbitration Act before this Court. On 03.05.2023, in the aforesaid petition filed under Section 9 of the Arbitration Act, the parties agreed for appointment of a sole Arbitrator and conversion of the petition filed under Section 9 of the Arbitration Act, into an application under Section 17 thereof, to be placed before the learned Arbitrator.

[6] Accordingly, the petitioner pressed for grant of interim reliefs before the learned Arbitrator, including a direction restraining the respondent No. 1 from altering the status quo with respect to its shareholding in respondent No. 2, except in favour of the petitioner. The petitioner sought further directions for restraining the respondent No.1 from creating any third party rights concerning its shareholding in respondent No. 2, restraining the respondent No. 3 from altering the status quo of shareholding held by respondent No.1 in respondent No.2 and restraining the respondents from transferring or alienating the tangible or intangible assets of respondent No. 2, till completion of the proposed transaction under the Term Sheet.

[7] The parties addressed elaborate arguments before the learned Arbitrator in support of their respective stands and by the impugned order dated 19.07.2023, the learned Arbitrator rejected the application of the petitioner filed under Section 17 of the Arbitration Act. The learned Arbitrator, inter alia, held that the Term Sheet was merely an agreement to enter into an agreement and that the date of 12.04.2023 was sacrosanct for execution of the document contemplated under the Term Sheet. It was further held that in the absence of a written agreement between the parties, as contemplated under clause 16 of the Term Sheet, the date of 12.04.2023 was not extended. On this basis, the learned Arbitrator rendered specific findings against the petitioner, holding that no prima facie case was made, thereby rejecting the application filed under Section 17 of the Arbitration Act.

[8] The petitioner filed the present petition, wherein pleadings were completed and the learned counsel appearing for the parties were heard at length.

[9] Mr. Janak Dwarkadas, learned senior counsel appearing for the petitioner, attacked the findings in the impugned order on the ground that the learned Arbitrator had posed a wrong question, as a consequence of which, erroneous findings were rendered against the petitioner, resulting in dismissal of the application filed under Section 17 of the Arbitration Act. It was submitted that the petitioner had never claimed before the learned Arbitrator that the Term Sheet in itself was a concluded contract between the parties, but it was specifically contended that the Term Sheet was a binding offer by the respondents given to the petitioner, subject to acceptance by the petitioner. According to the learned senior counsel appearing for the petitioner, if and when the petitioner accepted the binding offer, the Term Sheet stood converted into a concluded contract between the parties in relation to the proposed SPA. On this basis, it was submitted that the entire discussion in the impugned order of the learned Arbitrator on the aspect of the Term Sheet being merely an agreement to agree and not being a concluded contract, amounts to a complete misreading of the submissions made on behalf of the petitioner.

[10] It was further submitted that the Term Sheet could not be said to be merely an agreement to agree, only because the parties were required to execute a formal document in future. In this context, the learned senior counsel relied upon judgments of the Supreme Court in the case of Kollipara Sriramulu vs T Ashwatha Narayana, 1968 AIR(SC) 1028 and Trimex International FZE Ltd. vs. Vedanta Aluminium, 2010 3 SCC 1 .

[11] The learned senior counsel further submitted that the findings rendered by the learned Arbitrator were in the teeth of the terms of the contract and that the guidance indicated in Section 28(3) of the Arbitration Act, which enjoins the arbitral tribunal in all cases to take into account the terms of the contract and trade usages applicable to the transaction, was completely ignored. It was submitted that in the present case, the petitioner as well as the respondents are entities in the business world and the exchange of communications between their representatives, including whatsapp messages have to be given due weightage while rendering findings on the question of prima facie case made out in favour of the petitioner.

[12] In this context, the learned senior counsel appearing for the petitioner referred to various clauses of the Term Sheet in detail and he particularly emphasized upon clause 16 of the Term Sheet. He submitted that the whatsapp communications exchanged between the parties from the time the Term Sheet was executed, up to 18.04.2023 ought to have been appreciated in the correct perspective by the learned Arbitrator. He submitted that the date 12.04.2023, could not have been treated as sacrosanct in nature, particularly when clause 16 (b) and (c) specifically provided for extension of time in writing. In that context, specific reference was made to e-mails and whatsapp messages exchanged between the petitioner and the respondents from 10.04.2023 onwards, to claim that the date of 12.04.2023 stood extended. It was submitted that although the learned Arbitrator did refer to certain whatsapp messages and e-mails but the most crucial messages exchanged on 12.04.2023 and immediately thereafter were ignored, leading to erroneous and perverse findings.

[13] It was further submitted that if the interpretation of the learned Arbitrator is to be accepted, it would amount to permitting the respondents to take benefit of their own wrong, for the reason that the respondents did not cooperate with the petitioner in carrying out the exercise of due diligence, due to which the date of 12.04.2023 could not be adhered to, for completion of due diligence and execution of the contemplated document. All the while, the respondents gave an impression to the petitioner that they were discussing and finalizing the commercial terms and in such a situation the respondents cannot be permitted to turn around and insist that after 12.04.2023, the Term Sheet had lapsed. It was emphasized that the malafide conduct of the respondents was further evident from the fact that one day prior to the aforesaid date i.e. 12.04.2023, the respondents entered into a transaction with a third party in respect of the same subject matter, thereby demonstrating the ill-intention of the respondents. Yet, the learned Arbitrator held in favour of the respondents.

[14] It was submitted that in the light of the material placed on record on behalf of the petitioner and the nature of contentions raised as regards interpretation of the Term Sheet, not only was a strong prima facie case made out in favour of the petitioner, but the balance of convenience was clearly in its favour, for the reason that in the absence of interim reliefs, the petitioner would certainly suffer grave and irreparable loss, being relegated in the arbitration proceeding only to the claim of damages. On this basis, it was submitted that the impugned order deserved to be interfered with.

[15] In this context, the learned senior counsel appearing for the petitioner submitted that this Court exercising jurisdiction under Section 37(2)(b) of the Arbitration Act, can certainly interfere with the impugned order. It was submitted that while exercising the said jurisdiction, this Court exercises power of an Appellate Court, akin to power exercised in an Appeal from Order. Reliance was placed on judgment and order of this Court in the case Swan Energy Limited vs. Peninsula Land Limited [Commercial Arbitration Petition (Lodging) No. 40252 of 2022] , as also judgment of the Supreme Court in the case of Wander Ltd. vs. Antox India Pvt. Ltd.,1990 Supp SCC 727 . Reliance was also placed on judgment of the Delhi High Court in the case of Bakshi Speedways vs. Hindustan Petroleum Corporation, 2009 162 DLT 638 , to contend that the principles under 0rder 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC) were equally applicable while deciding appeals under Section 37 of the Arbitration Act. By placing reliance on judgment of the Delhi High Court in the case of Asian Hotels (North) Ltd. vs. Sital Dass Sons and Another, 2023 1 ArbLR 142 . It was submitted that this Court could exercise jurisdiction under Section 37 of the Arbitration Act, to protect the legitimate interest of the petitioner, including modifying the order of the learned Arbitrator. By placing reliance on the judgment of the Supreme Court in the case of Ssangyong Engineering and Construction Company Limited vs. National Highway Authority of India (NHAI), 2019 15 SCC 131 , it was claimed that the grounds of patent illegality, perversity and unreasonableness were available to the petitioner to assail the impugned order passed by the learned Arbitrator. Emphasis was also placed on judgment of this Court in the case of Amar Nagar (SRA) Sah. Gruhanirman Sanstha and others cs. Vikas Narayan Raikar and others,2014 AIR(Bom) 31 , to claim that this Court under Section 37 of the Arbitration Act, could even replace the findings of the learned Arbitrator.

[16] The learned senior counsel for the petitioner relied upon judgment of the Supreme Court in the case of Godhra Electricity Co. Ltd. and another vs. State of Gujarat and another, 1975 1 SCC 199 , to contend that this Court could appreciate the conduct of the parties to interpret the clauses of the said Term Sheet. It was further submitted that upon a proper reading of the Term Sheet, and appreciating the conduct of the parties, it would be evident that the interpretation placed by the learned Arbitrator on the same cannot be said to be even a plausible view and that therefore, interference in the impugned order is warranted. On this basis, it was submitted that the impugned order may be set aside and the reliefs claimed on behalf of the petitioner in its application under Section 17 of the Arbitration Act, may to be granted.

[17] On the other hand, Mr. Darius Khambata, learned senior counsel appearing for the respondents opened his arguments by emphasizing upon the limited jurisdiction available to this Court under Section 37 of the Arbitration Act, to interfere with an order passed by the learned Arbitrator under Section 17 thereof. He also placed reliance on the judgment of the Supreme Court in the case of Wander Ltd. vs. Antox India Pvt. Ltd. (supra), and judgment of this Court in the case of Swan Energy Limited vs. Peninsula Land Limited (supra), to support the aforesaid contention. He specifically referred to the judgment of the Supreme Court in the case of Delhi Airport Metro Express (P) Ltd. V. DMRC, 2022 1 SCC 131, wherein the Supreme Court referred to a disturbing tendency of Courts setting aside arbitral awards after dissecting and reassessing factual aspects of cases. He submitted that the petitioner in the present case was asking this Court to tread on the path, which the Supreme Court has indicated as a path not to be followed while exercising jurisdiction under Section 37 of the Arbitration Act. Reference was also made to a recent judgment of this Court in the case of Karanja Terminal & Logistics Pvt. Ltd. v. Sahara Dredging Ltd.,2023 SCCOnLineBom 594, wherein this Court quoted with approval the position of law laid down by the Delhi High Court in the case of Dinesh Gupta and Others vs. Anand Gupta and Others,2020 SCCOnLineDel 2099 , wherein it was laid down that interference with an order passed by the learned Arbitrator, while exercising jurisdiction under Section 37(2)(b) of the Arbitration Act, would be justified only if the findings rendered by the learned Arbitrator suffer form patent illegality or they can be said to be otherwise unconscionable in law or on facts. It was further laid down therein that it would be entirely inappropriate for the Court to find flaws in the order of the learned Arbitrator by vivisecting it microscopically.

[18] On this basis, the learned senior counsel appearing for the respondents submitted that a perusal of the impugned order passed by the learned Arbitrator would show that all the relevant aspects of the matter, including the clauses of the Term Sheet, were taken into consideration and a view was adopted, which was certainly a plausible view in the facts and circumstances of the case, thereby indicating that jurisdiction under Section 37 (2)(b) of the Arbitration Act, cannot be exercised by this Court to interfere with the impugned order.

[19] The learned senior counsel appearing for the respondents further submitted that the tenor of submissions made on behalf of the petitioner, indicates that the ground of patent illegality was being raised to assail the impugned order. In that context, it was submitted that the aforesaid ground is not available to the petitioner, for the reason that the present arbitration proceeding is an international commercial arbitration. Reliance was placed on Section 34(2-A) of the Arbitration Act, to support the aforesaid contention. On this basis, it was submitted that the scope for interference in the impugned order, was further reduced in the present case.

[20] Upon referring to the clauses of the Term Sheet, it was submitted that the same could not be said to be a binding offer or an agreement, of which specific performance could be sought. The learned senior counsel for the respondents referred to the clauses of the Term Sheet and submitted that further negotiations were contemplated therein and that the commercial terms were yet to be finalized before a concluded agreement or contract could come into being.

[21] It was submitted that in the present case, for the Term Sheet to be converted into a binding document, the petitioner was required to take necessary steps and indicate such an intention on or before 12.04.2023. In that sense, the aforesaid date was sacrosanct. Referring to clause 16 of the Term Sheet, it was submitted that the extension of the said date had to be in writing. It was submitted that in the present case, there was no agreement in writing or a document executed to that effect showing that the date was extended in terms of clause 16(b) and (c) of the Term Sheet. It was emphasized that merely because certain whatsapp messages were exchanged, the same could not be the basis for claiming extension in terms of clause 16(b) and (c) of the Term Sheet. In any case, it was submitted that none of the whatsapp exchanges between the parties demonstrated any intention on the part of the respondents to extend the date beyond 12.04.2023. In this regard, reliance was placed on the judgment of the Supreme Court in the case of Joshi Technologies International Inc. vs. Union of India and others, 2015 7 SCC 728 and also, judgment of the Supreme Court of United Kingdom in the case of Rock Advertising Limited vs. MWB Business Exchange Centres Limited, 2018 UKSC 24 .

[22] It was further submitted that the petitioner itself, in the email sent on 12.04.2023, claimed that there was an "automatic extension" of the said date. This was clearly in the teeth of clause 16 of the Term Sheet, thereby indicating the conduct of the petitioner. It was further submitted that the learned arbitrator took into consideration the entire material, including emails and whatsapp messages exchanged between the parties, to reach a considered conclusion that there was no extension of the date beyond 12.04.2023 and the Term Sheet had consequently lapsed. Such a finding was clearly a plausible finding, which cannot be interfered with by this Court exercising jurisdiction under Section 37(2)(b) of the Arbitration Act.

[23] In this backdrop, it was submitted that the exchange of communications after 12.04.2023, could be of no consequence and that in any case, the communication sent on behalf of the petitioner on 18.04.2023, was nothing but an offer on the part of the petitioner. It could not be a basis for claiming any relief by treating the Term Sheet as a binding offer.

[24] It was further submitted that there was variance in the relief sought in the petition filed under Section 9 of the Arbitration Act, which stood converted into an application under Section 17 thereof before the arbitrator, as compared to the relief sought in the present petition. It was emphasized that the petitioner deliberately deleted the words "under the relevant documentation which the petitioner will supply to the respondents". According to the respondents, the said words were deleted to overcome the finding of the learned arbitrator that prima facie, the petitioner had failed to prove that a conclusive contract had come into existence between the parties.

[25] It was further submitted that there were differences between the clauses of the Term Sheet and the commercial offer, thereby indicating that the commercial offer of the petitioner, did not amount to acceptance of the Term Sheet. The differences were sought to be elaborated on the part of the respondents. The learned senior counsel for the respondents also sought to distinguish the judgements upon which the petitioner had placed reliance, indicating that the judgment of the Delhi High Court in the case of Asian Hotels (North) Limited vs. Sital Dass Sons and another (supra) was contrary to the law laid down by the Supreme Court in the case of Wander Ltd. vs. Antox India Pvt. Ltd. (supra). It was further submitted that the petitioner was not justified in relying upon judgment of the Supreme Court in the case of Godhra Electricity Co. Ltd. and another vs. State of Gujarat and another (supra), for the reason that in the present case, there was no ambiguity in the clauses of the Term Sheet, particularly clause 16 thereof, for this Court to go into the conduct of the parties, while interpreting the clauses of the Term Sheet.

[26] The learned senior counsel appearing for the respondents also brought to the notice of this Court that in the statement of claim filed before the learned arbitrator, after the impugned order was passed, the petitioner had also sought damages in the alternative to grant of specific performance. On this basis, it was submitted that the urgency sought to be projected on behalf of the petitioner, was not justified and hence, the present petition deserved to be dismissed.

[27] Having heard the learned counsel for the rival parties, this Court finds that two main issues arise for consideration in this petition. The first and foremost is the scope of jurisdiction of this Court while considering the present petition filed under Section 37(2) (b) of the Arbitration Act. It needs to be examined as to whether the petitioner in the present case, on application of the law regarding the scope of the aforesaid jurisdiction, has made out sufficient grounds to interfere with the impugned order passed by the learned Arbitrator. The second aspect of the matter pertains to the interpretation of the Term Sheet executed between the parties, with specific reference to the nature of the document and whether the time period specified in clause 16 of the Term Sheet could be said to have been extended in the facts and circumstances brought to the notice of the learned Arbitrator and this Court.

[28] Both sides have referred to judgments in the context of jurisdiction of this Court while considering a petition filed under Section 37(2)(b) of the Arbitration Act. Before referring to the said judgments, it would be appropriate to refer to the provision itself. Section 37 of the Arbitration Act, pertains to appealable orders and it provides for filing of an appeal before the Court, inter alia, to challenge an order granting or refusing interim measure under Section 17 of the Arbitration Act. In the very same provision under Section 37 (1)(c) of the Arbitration Act, an appeal can be filed against an order setting aside or refusing to set aside an arbitral award under Section 34 of the Arbitration Act. In this context, one of the aspects for consideration can be that the limitations applicable to exercise of jurisdiction under Section 34 of the Arbitration Act, while considering an application for setting aside an arbitral award also apply to an appeal filed under Section 37 of the Arbitration Act, to challenge an order passed under Section 34 thereof. But, an appeal or petition filed under Section 37(2) (b) of the Arbitration Act, is in a situation where the arbitral proceedings are still pending before the Arbitral Tribunal and the Court is required to consider as to whether the interim measure granted or refused by the Arbitral Tribunal needs any interference.

[29] Considering the said peculiar jurisdiction to be exercised by the Court under Section 37(2)(b) of the Arbitration Act, in a recent order passed on 06.02.2023 in Commercial Arbitration Petition (Lodging) No. 40252 of 2022 (Swan Energy Limited vs. Peninsula Land Limited), this Court held that while exercising jurisdiction under Section 37(2)(b) of the Arbitration Act, the Court ought to apply the principles applicable to an Appeal from Order under Order 43 of the CPC. In that context, the principles laid down by the Supreme Court in the case of Wander Ltd. vs. Antox India Pvt. Ltd. (supra), become relevant. It is also relevant that while applying such principles, this Court in the case of Jitubhai Barot vs. Goregaon Nav Nirman CHSL,2020 SCCOnLineBom 7631 observed that, the Court cannot conduct a merit based review, while considering the challenge under Section 37(2)(b) of the Arbitration Act and the Court can also not substitute its own view for that of the Arbitrator, as long as all relevant material is taken into consideration by the learned Arbitrator. In fact, the fashion of demanding the Court to constantly interfere with and micro manage proceedings pending before the Arbitral Tribunal was deprecated.

[30] In the case of Karanja Terminal & Logistics Pvt. Ltd. v. Sahara Dredging Ltd. (supra), this Court reiterated the said position of law and quoted with approval observations made by the Delhi High Court in the case of Dinesh Gupta and Others vs. Anand Gupta and Others (supra). In the said judgment, the Delhi High Court held that the Court ought not to microscopically examine and vivisect the order of the Arbitrator passed under Section 17 of the Arbitration Act, to find flaws, so long as the order of the Arbitrator is based on proper application of mind, after taking into consideration all the relevant material.

[31] Thus, the position of law that emerges from the aforementioned judgments, indicates that so long as the learned Arbitrator has considered the relevant material and a plausible view has been adopted in the facts and circumstances of the case, this Court would be loathe to interfere with the order passed by the learned Arbitrator. This Court would not interfere with the order of the learned Arbitrator passed under Section 17 of the Arbitration Act, merely because another view is possible in the matter. The discretion exercised by the learned Arbitrator, based upon a plausible view and upon taking into consideration all relevant material, cannot be lightly interfered with by this Court exercising jurisdiction under Section 37(2)(b) of the Arbitration Act. Hence, the party approaching the Court has to make out a very strong case to indicate that the view adopted by the Arbitrator cannot be said to be even a plausible view in the facts and circumstances of the case. This Court intends to consider the impugned order passed by the learned Arbitrator in this backdrop and based upon the material available on record, in the light of the rival submissions made on behalf of the parties.

[32] A frontal attack was launched on behalf of the petitioner on the findings rendered by the learned Arbitrator, inter alia, indicating that the learned Arbitrator passed an unnecessarily detailed order rendering emphatic findings against the petitioner, virtually leaving no scope for the petitioner to ventilate its grievances in the main arbitration proceedings. This Court is of the opinion that if a party invites the Arbitrator to discuss and render findings on a plethora of issues and indulges in detailed arguments at the interim stage itself, the Arbitrator cannot be blamed for passing a lengthy judgment and order, encompassing or touching upon various issues that go to the root of the matter. In fact, the learned Arbitrator was called upon to deal with the detailed contentions raised on behalf of the parties to examine as to whether interim measures sought by the petitioner could to be granted or not. Hence, it cannot be said that the learned Arbitrator should not have gone into the issues raised on behalf of the petitioner in such detail.

[33] It was vehemently submitted on behalf of the petitioner that the learned Arbitrator asked the wrong question, leading to erroneous answers and findings against the petitioner. According to the petitioner, the learned Arbitrator ought not to have addressed the question as to whether the Term Sheet was a concluded contract or not, but the learned Arbitrator ought to have examined whether the Term Sheet was a binding offer given by the respondents to the petitioner. On this basis, it is contended that the elaborate discussion in the impugned order and the finding that the Term Sheet was merely an agreement to enter into an agreement, were totally uncalled for, demonstrating perversity in the findings rendered on the said aspect of the matter in the impugned order. It was emphatically submitted that even the petitioner agreed that the Term Sheet was not a concluded contract.

[34] This Court has examined the said contention raised on behalf of the petitioner, in the light of the material on record and the rival submissions made on behalf of the parties. A perusal of the Term Sheet shows that it contains various clauses indicating as to the manner in which the parties had agreed to proceed in the matter, which would ultimately lead to execution of the SPA. Considering the stand taken even by the petitioner, it cannot be said that the finding rendered by the learned Arbitrator that the Term Sheet was only an agreement to enter into an agreement, was not a plausible view in the matter. This Court is called upon to examine as to whether the Term Sheet could be said to be a binding offer as claimed by the petitioner. According to the respondents, the Term Sheet was merely a non binding document and the clauses indicated that further negotiations were contemplated between the parties.

[35] The learned Arbitrator examined the Term Sheet in great detail, referring to almost each clause, to render findings against the petitioner. This Court is required to examine as to whether the view adopted by the learned Arbitrator was a plausible view, in the light of the clauses of the Term Sheet executed between the parties.

[36] A perusal of the clauses of the Term Sheet indicates that the parties were required to take various steps and upon due diligence, the petitioner was to accept the commercial terms set out in the Term Sheet by 12.04.2023, if the petitioner was desirous of signing the SPA. The insistence of the petitioner that the Term Sheet was a binding offer has to be seen from this perspective. The tenor of submissions made before the learned Arbitrator and the admitted position that the date of 12.04.2023 came and went by, shows that the petitioner itself was in negotiations and the intention to sign the binding SPA at the same commercial terms as set out in the Term Sheet, was not expressed by the petitioner till the specified date of 12.04.2023. Not extension was sought in writing.

[37] Viewed from this angle and in the light of the ultimate reliefs sought by the petitioner in the arbitral proceedings, it cannot be said that the findings rendered by the learned Arbitrator that the Term Sheet was prima facie an agreement to enter into an agreement, was not even a plausible view. This Court finds that the learned Arbitrator took into consideration all the relevant material, including the clauses of the Term Sheet in detail, while rendering findings on the said aspect of the matter, which cannot be termed as wholly implausible. Therefore, on the said aspect of the matter, no ground is made out on behalf of the petitioner for holding that the finding rendered by the learned Arbitrator could be said to be perverse or illegal, to warrant exercise jurisdiction under Section 37 (2)(b) of the Arbitration Act.

[38] Even if it is to be assumed for the sake of arguments that the ground of patent illegality is available to the petitioner, although the respondents have specifically invoked Section 34(2-A) of the Arbitration Act, the petitioner has not been able to demonstrate sufficient grounds for interfering with the impugned order. Applying the principles laid down by the Supreme Court in the case of Wander Ltd. vs. Antox India Pvt. Ltd. (supra), as also the position of law recognized by this Court in Swan Energy Limited vs. Peninsula Land Limited (supra), and Karanja Terminal & Logistics Pvt. Ltd. v. Sahara Dredging Ltd. (supra), the discretion exercised by the learned Arbitrator cannot be interfered with. It would have been a different matter, had the learned Arbitrator either ignored the relevant clauses of the Term Sheet or rendered findings in the teeth of the clauses of the Term Sheet. None of the aforesaid situations arise in the present case and hence, the contentions raised on behalf of the petitioner in that regard are rejected.

[39] The other aspect of the matter emphasized on behalf of the petitioner concerns clause 16 of the Term Sheet, which pertains to the term and termination of the Term Sheet. In order to examine as to whether the findings rendered by the learned Arbitrator on the said aspect of the matter can be said to be perverse or implausible, it would be necessary to refer to the said clause. Clause 16 reads as follows :

"16. Term and Termination : This Term Sheet shall terminate without liability to either party on the earlier occurrence of :

a) the execution of Transaction Documents;

(b) 12th April 2023 ("Term"), unless extended in writing; or

(c) as otherwise agreed by the Parties in writing."

[40] A careful analysis of the above quoted clause, shows that the Term Sheet was to terminate without liability to either party "on the earlier occurrence of", the execution of the transaction documents or on 12.04.2023, unless the date was extended in writing or as would be otherwise agreed by the parties in writing. A proper analysis of the said clause would show that the date 12.04.2023, can prima facie be said to be sacrosanct, as regards the term of the document i.e. the Term Sheet. The occurrence of the said date terminated the Term Sheet, unless the transaction documents were executed prior to that date. The said date could have been extended only in writing by the parties. Clause 20 of the Term Sheet also indicates that alterations, additions or modifications of the Term Sheet would be valid and binding only if the same were made in writing and signed by all the parties. Even if it is to be held that the amendment contemplated and the procedure prescribed in clause 20 of the Term Sheet was not to apply to clause 16, the mechanism provided in clause 16 of the Term Sheet is self-operating. In other words, extension of the term beyond 12.04.2023 could only be made in writing, upon an agreement between the parties for such extension.

[41] In this context, the learned Arbitrator analyzed in great detail the e-mails and whatsapp messages exchanged between the parties. Upon an analysis of such material, the learned Arbitrator found that the date 12.04.2023 occurred and yet the transaction document was admittedly not executed. The learned Arbitrator also found that there was no extension in writing and that therefore, by operation of clause 16 (b) of the Term Sheet, the same stood terminated. This was a prima facie view reached by the learned Arbitrator after taking into consideration the words used in clause 16, in conjunction with the material brought to the notice of learned Arbitrator.

[42] It was alleged on behalf of the petitioner that the learned Arbitrator erroneously placed emphasis on e-mails and whatsapp messages exchanged between the parties, leading up to the date of 12.04.2023, as also thereafter, but the exchange of such communications on the crucial date 12.04.2023, was ignored. It was also alleged that at one place the learned Arbitrator quoted whatsaap messages in a truncated manner, leading to perverse findings.

[43] In order to examine the said contentions raised on behalf of the Petitioner, this Court perused the whatsapp messages, as well as the e-mails exchanged between the parties. Even the specific whatsapp messages exchanged between the parties on 12.04.2023, indicate that the petitioner was still negotiating and that the petitioner had not expressed any intention of signing the binding SPA on the same commercial terms as set out in the Term Sheet in the context of clause 15 of the Term Sheet. Even if this Court is to consider the submissions made on behalf of the petitioner that the respondents were also negotiating, the fact of the matter is that there is nothing to indicate that the parties agreed in writing to extend the date beyond 12.04.2023. Even if the whatsapp messages exchanged between the parties on 12.04.2023 are to be taken into consideration, there is nothing to indicate that the petitioner sought extension of the date beyond 12.04.2023, to which the respondents agreed by way of a response. In this context, e-mail sent by the petitioner on 12.04.2023 to the respondents becomes crucial. In the said e-mail, the petitioner claimed that there was an "automatic extension of the date." This was clearly in the teeth of clause 16 (b) and (c) of the Term Sheet, further indicating that there was indeed no extension of the said date in writing between the parties. This aspect was indeed appreciated by the learned Arbitrator in the impugned order and therefore, it cannot be said that the view adopted by the learned Arbitrator in this context was not even a plausible view.

[44] The emphasis placed on behalf of the petitioner on messages and e-mails exchanged after 12.04.2023, cannot takes its case any further for establishing a prima facie case for grant of interim measures. In any case, even in the period beyond 12.04.2023 and upto 18.04.2023, the petitioner itself was seeking further time to place documents before the respondents, thereby indicating that it had not expressed its intention of signing the binding SPA as contemplated in the Term Sheet.

[45] In this context, the contention raised on behalf of the respondents about the variance in the prayers made in the petition filed under Section 9 of the Arbitration Act and in the present petition filed under Section 37 thereof, assumes significance. In the petition filed under Section 9 of the Arbitration Act, the petitioner had used the words "under the relevant documentation which the petitioner will supply to the respondents." These words indicate that even at the stage of filing and pressing the petition filed under Section 9 of the Arbitration Act, the petitioner contemplated supplying relevant documentation to the respondents. The aforesaid words are conspicuously absent in the prayer made in the present petition. There is substance in the said contention raised on behalf of the respondents that this was only to get over the findings rendered by the learned Arbitrator.

[46] This Court is of the opinion that the petitioner is not justified in emphasizing on the conduct of the parties when the clauses of the Term Sheet are crystal clear. The principles laid down by the Supreme Court in the case of Godhra Electricity Co. Ltd. and another vs. State of Gujarat and another (supra), are applicable only in a situation where the terms of a contract or document appear to be ambiguous. In the present case, the clauses of the Term Sheet, particularly clause 16 thereof, are crystal clear and there is no scope for going into the conduct of the parties, to interpret the clauses of the Term Sheet.

[47] There is also no substance in the contention raised on behalf of the petitioner that the respondents delayed the process of due diligence and falsely indicated that they were negotiating with the petitioner while the time period specified up to 12.04.2023 expired. The emphasis sought to be placed on the respondents entering into negotiations with a third party, even before 12.04.2023, is not relevant, for the reason that the petitioner is required to make out a strong prima facie case on its own strength and on the basis of its own actions in the backdrop of the clauses of the Term Sheet.

[48] The respondents are justified in relying upon judgment of the Supreme Court of India in the case of Joshi Technologies International Inc. vs. Union of India and others (supra) and the judgment of the Supreme Court of United Kingdom in the case of Rock Advertising Limited vs. MWB Business Exchange Centres Limited (supra), while contending that the extension of the date beyond 12.04.2023 ought to have been in writing between the parties.

[49] Having analyzed the material on record, particularly the clauses of the Term Sheet and the manner in which the learned Arbitrator proceeded to hold against the petitioner, the judgments relied upon by the petitioner cannot take its case any further. There is also no substance in the contention raised on behalf of the petitioner as regards balance of convenience and irreparable loss that it would suffer, for the reason that once the petitioner is found to have failed in making out a prima facie case in its favour, the aspects of balance of convenience and irreparable loss pale into insignificance. This aspect has also been appreciated by the learned Arbitrator in the impugned order passed against the petitioner.

[50] Thus, applying the law pertaining to the scope of jurisdiction while considering the present petition filed under Section 37(2)(b) of the Arbitration Act, akin to considering an Appeal from Order, this Court does not find any ground for interference with the impugned order and hence, the present petition deserves to be dismissed.

[51] Accordingly, the petition is dismissed