- (1.) Both these applications/petitions Under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, "the Arbitration Act") have been filed by the Petitioner seeking appointment of an Arbitrator to go into the disputes and differences that have arisen between the Petitioner and the Respondents under the Share Purchase Agreement dated 11th July, 2011 (for short "SPA") and a Licence Royalty Agreement of even date (for short "LRA"). The aforesaid agreements which were executed by and between the Petitioner and the first Respondent i.e. MIV Therapeutics Inc., Canada (for short "MIV Canada"), a Canadian Company, was signed by the second Respondent who was the Chairman of the Board/President/CEO/CFO/Treasurer and Secretary of the first Respondent Company until he had resigned on 18th May, 2013. Under the SPA 99.96% shares in a Company called MIV Therapeutics India (for short "MIV India") was to be purchased by the Petitioner from the Respondents for a sum of US$ 3.17 million. Under the LRA the Petitioner was to be given the right to use "products" as defined in the LRA. Both the agreements contained identical Dispute Resolution clauses, which, inter alia, contemplated settlement of disputes arising out of and from the Agreements through a process of Arbitration. In view of the identity of the language of the relevant clauses providing for Arbitration in the two agreements it will be suffice to extract herein below Clause 9 of the SPA: "9. DISPUTE RESOLUTION 9.1 In the case of any dispute arising out of or in connection with this Agreement or its performance, including any question regarding its existence, validity or termination, either the Seller or the Purchaser (as the case may be) shall issue a notice to the other Party stating the nature of the dispute (the "Dispute Notice") and the Parties shall first attempt to reach an amicable settlement through mutual consultations and conciliations between their respective senior officers. If however, the Parties are unable to reach an amicable settlement within 30 (thirty) Business Days from the date of Dispute Notice; either of the Parties may make a reference to arbitration in accordance with the following Section 9.2 by giving a notice to the other in this regard. 9.2 Arbitration 9.2.1 All disputes, differences, controversies and questions, directly or indirectly, arising at any time under, out of, in connection with or in relation to this Agreement (or the subject matter of this Agreement) including, without limitation, all disputes, differences, controversies and questions relating to the validity, interpretation, construction, performance and enforcement of any provision of this Agreement, shall be finally, exclusively and conclusively settled by reference to binding arbitration under the Indian Arbitration and Conciliation Act, 1996 and to be administered by the arbitral tribunal by reference to three arbitrators, one arbitrator to be appointed by the Purchaser, one to be appointed by the Seller and the third to be appointed by the two appointed arbitrators (who shall serve as the presiding arbitrator) before commencement of the arbitration within 30 (thirty) days from the date of Dispute Notice Under Section 9.1, failing which the arbitrator(s) shall be, appointed in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996. 9.2.2 The Parties agree that: (a) They shall be bound by any arbitral award or order resulting from any arbitration conducted hereunder; (b) Any judgment on any arbitral award or order in any arbitration held pursuant to this Section 9 may be entered in any Court having jurisdiction in relation thereto or having jurisdiction over any of the Parties or any of their assets or an application may be made to such court for a judicial recognition of the award or an order of enforcement thereof, as the case may be; (c) All proceedings in any such arbitration shall be conducted in English; (d) The Arbitration award shall be final and binding on the Parties, and the Parties agree to be bound thereby and to act accordingly; (e) The venue of arbitration shall be Mumbai, India; (f) Nothing shall preclude either Party from seeking interim or permanent equitable or injunctive relief, or both, from any Court having jurisdiction to grant the same; (g) The arbitral tribunal shall award the successful Party their costs and expenses of the arbitration including the reasonable fees and disbursement of their legal counsel, whether solicitors, barristers and/or attorneys; and (h) The provisions contained in this Section shall survive the termination or expiration of this Agreement."
(2.) The Petitioner claims that the disputes between the parties have arisen in the following facts:
(3.) Under Clause 2.2 of the SPA the Petitioner was entitled to receive the Shares free from any encumbrances and receive full and clear ownership as the sole legal and beneficial owner of such Shares subject to payment of consideration.;