Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 12TH DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 AR NO. 49 OF 2023 PETITIONER:
M/S IASSIT ADVISORY PVT. LTD HAVING ITS REGD. OFFICE AT- 004, B M MYSTIC GREEN, 27TH MAIN, 2ND SECTOR, HSR LAYOUT, BANGALORE, KARNATAKA – 560102.
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE, RAJESH KUNDRA (DIRECTOR), Tel:+91-8041207172 EMAIL:rajeshkundra@iassistadvisory com BY ADVS.
HARIKRISHNAN M.S.
VANDEETA GUPTA MAYANK AGARWAL KSHITIJ SARIN RESPONDENTS:
1 M/S DRAGONSTONE REALITY PVT. LTD HAVING ITS REGD. OFFICE AT- 5A3, ARTECH CITY KALYANI, VAZHUTHACAUD, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM, KERALA THROUGH ITS DIRECTOR MR. AJAY PRASAD EMAIL- APRASAD@TIHOLDINGS.COM, PIN - 695010 2 TAURUS INDIA OFFICE HAVING ITS REGD. OFFICE AT- B-HUB, MAR IVANIOS, VIDYA NAGAR, NALANCHIRA, THIRUVANANTHAPURAM THROUGH ITS MANAGING DIRECTOR, PIN - 695015 BY ADVS.
R.SANTHOSH (VARKALA) MUKESH KUMAR G.(K/000133/2019) C.R.VIJAYAKUMARAN PILLAI(K/765/1992) THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AR NO. 49 OF 2023 2 O R D E R The petitioner, which is stated to be a Private Limited Company, has filed this Arbitration Request asserting that Annexure – 2 Agreement has been entered into by them with the respondent and that certain disputes have arisen between the parties, particularly with respect to the payments eligible to them under it.
2.
The petitioner says that even though Clause 8.2 of the Agreement makes it incumbent that the parties shall submit themselves to discussions and negotiations at the initial stage, even this was not acceded to by the respondents; and consequently, that they addressed Annexure – 2 to them, asking them to
AR NO. 49 OF 2023 3 either accede to their demands, or to agree to the appointment of an Arbitrator in terms of the afore said Clause. They assert that even though said notice has been received by the 1st respondent, they have refused to accede to honour their claim, or to agree to the appointment of an Arbitrator; thus constraining them to approach this Court through this Arbitration Request.
3.
In refutation, Sri.R.Santhosh – learned counsel for the 1st respondent, submitted that even though Annexure – 7 and 8 communications have been issued by the petitioner to the 1st respondent, it was addressed to its Director and not to its Associate Vice President, as was required under the contract; and that hence, it cannot be construed to be in conformity with the
AR NO. 49 OF 2023 4 requirements under Clause 8.2 of the Agreement.
His specific contention was that when the parties had not entered into discussions or negotiations, which is the precursor to the Arbitration exercise, an arbitration request of this nature is not maintainable. As an alternate submission, he submitted that if this Court is not inclined to accept his afore contentions, then a suitable and competent Arbitrator be appointed, to resolve the disputes, since the issues are in the realm of accounting and demand of money.
4.
I have examined the afore submissions on the touchstone of various materials on record, particularly the correspondence between the parties.
5.
It is without doubt that the petitioner
AR NO. 49 OF 2023 5 had addressed the 1st respondent through various correspondence which are available from Annexures – 7 and 8, to which a reply was also issued as discernible from Annexure 7(a). The argument that these correspondence ought to have been addressed to the Associate Vice President and not to the Director of the 1st respondent, cannot hold water because it is admitted that the former Authority is only a paid employee of the company, while the latter is its Director.
Obviously, when the Director received the notices and was not agreeable to involve himself in the disputes, then he should have said so to the petitioners and to have then instructed them to address the competent Authority to the 1st respondent. He did not do so, but on the contrary, as evident from Annexure – 7(a), he
AR NO. 49 OF 2023 6 acceded to the request for an attempt at negotiation and settlement, which never happened thereafter. The argument that the petitioner did not invoke the Pre-arbitral steps cannot, therefore, be found to be worthy or with merit.
6.
That apart, Clause 8.2 of the Agreement only says that “the parties shall agree to co- operate and conduct in good faith discussions and negotiations as may be necessary to amicable resolve any dispute”(sic). The pleadings on record, as also the submissions made by the rival parties, render it indubitable that such negotiations or discussions would be of no consequence now and that the matter will require to be resolved under the aegis of Arbitration.
7.
The afore being said, Clause 8.2 of the Agreement certainly enjoins the parties to
AR NO. 49 OF 2023 7 resolve all the disputes between them arising from its terms and with respect to their obligations
under
it,
solely
through arbitration. Since both sides agree to this without any reservation, I am certain that this Arbitration Request is deserving of being allowed.
8.
After I dictated this part of the judgment, the learned counsel for both sides prayed in unison that this Court may appoint a sole Arbitrator, rather than a panel, as has been stipulated the Agreement, since this will be more cost effective to both of them.
In the afore circumstance, this Arbitration Request is allowed in the following manner:
(a) I nominate Sri.Sri.K.Sasidharan Nair, Krishna, TC No.29/76 (85/46 New), M.K.K Nair
AR NO. 49 OF 2023 8 Road, Pettah.P.O, Thiruvananthapuram-695 024 as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to this case arising from Annexure -2 Agreement.
(b) The Registry is directed to communicate a copy of this order to the learned Arbitrator, within a period of two weeks from today and to obtain a Statement of Disclosure from him under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996.
(c) Once the Disclosure Statement is obtained from the learned Arbitrator, the Registry shall release the certified copy of this order, with a copy of the said statement appended to it, retaining the original of the same on the files of this case.
AR NO. 49 OF 2023 9 (d) The fees of the Arbitrator shall be governed by the Fourth schedule to the Arbitration and Conciliation Act, 1996.
(e) In order to enable the Arbitrator to commence the proceedings without delay, I direct the parties to mark appearance before him at 11 AM on 25.10.2023.
Sd/- DEVAN RAMACHANDRAN JUDGE SAS
AR NO. 49 OF 2023 10 APPENDIX OF AR 49/2023 PETITIONER’S ANNEXURES Annexure-1 TRUE COPY OF THE BOARD RESOLUTION OF THE PETITIONER COMPANY DATED 06.02.2023 Annexure-2 TRUE COPY OF THE CONSULTING AGREEMENT DATED 06.06.2018 Annexure-3 TRUE COPY OF EMAIL DATED 03.08.2019 Annexure-4 TRUE COPY OF EMAIL DATED 18.11.2020 BY THE PETITIONER Annexure-4a TRUE COPY OF EMAIL DATED 19.11.2020 BY THE RESPONDENT NO. 1 Annexure-5 TRUE COPY OF EMAIL DATED 23.09.2021 BY THE PETITIONER Annexure-5a TRUE COPY OF EMAIL DATED 23.09.2021 BY THE RESPONDENT NO. 1 Annexure-6 TRUE COPY OF EMAIL DATED 02.12.2021 BY THE PETITIONER Annexure-6a TRUE COPY OF EMAIL DATED 03.12.2021 BY THE RESPONDENT NO. 1 Annexure-6b TRUE COPY OF EMAIL DATED 03.12.2021 BY THE PETITIONER Annexure-7 TRUE COPY OF EMAIL DATED 10.10.2022 BY THE PETITIONER Annexure-7a TRUE COPY OF EMAIL DATED 10.11.2022 BY THE RESPONDENT NO. 1 Annexure-8 TRUE COPY OF LEGAL CUM DEMAND NOTICE DATED 03.01.2023 SENT THROUGH DTDC Annexure-8a TRUE COPY OF THE POSTAL RECEIPTS DATED 04.01.2023 Annexure-8b TRUE COPY OF THE SHIPMENT TRACKING HISTORY FOR THE LEGAL CUM DEMAND NOTICES SENT THROUGH DTDC BY THE PETITIONER TO THE RESPONDENTS Annexure-8c TRUE COPY OF THE EMAIL DATED 03.01.2023 SENT BY THE COUNSEL OF THE PETITIONER TO THE RESPONDENTS Annexure-9 TRUE COPY OF LEGAL NOTICE FOR INVOKING ARBITRATION DATED 20.01.2023 SENT THROUGH INDIA POST
AR NO. 49 OF 2023 11 Annexure-9a TRUE COPY OF THE POSTAL RECEIPTS DATED 21.01.2023 Annexure-9b TRUE COPY OF THE TRACK CONSIGNMENT REPORTS FOR THE LEGAL NOTICE FOR INVOKING ARBITRATION SENT THROUGH INDIA POST BY THE PETITIONER TO THE RESPONDENTS Annexure-9c TRUE COPY OF THE EMAIL DATED 20.01.2023 SENT BY THE COUNSEL OF THE PETITIONER TO THE RESPONDENTS Annexure-10 TRUE COPY OF LEGAL NOTICE FOR INVOKING ARBITRATION DATED 20.01.2023 SENT THROUGH DTDC Annexure-10a TRUE COPY OF THE POSTAL RECEIPTS DATED 28.02.2023 Annexure-10b TRUE COPY OF THE SHIPMENT TRACKING HISTORY FOR THE LEGAL NOTICES FOR INVOKING ARBITRATION SENT THROUGH INDIA POST BY THE PETITIONER TO THE RESPONDENTS Annexure-11 TRUE COPY OF THE REPLY DATED 19.02.2023 FROM RESPONDENT NO. 1 RESPONDENTS’ ANNEXURES Annexure R1 THE TRUE COPY OF THE RESOLUTION DATED 14.06.2018 OF THE 1ST RESPONDENT.
Annexure R2 THE TRUE COPY OF THE GST REGISTRATION CERTIFICATE NO. 32AAFCD4865QIZ5 DATED 08/11/2018 ISSUED BY THE GOVT. OF INDIA TO THE 1ST RESPONDENT.