Karnataka High Court
Tsg International Marketing Pvt Ltd vs United Breweries (Holdings) Limited on 6 March, 2013
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
CMP.NO.146/2010
BETWEEN
TSG INTERNATIONAL MARKETING PVT LTD
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
69/1-A NAJAFGARH ROAD, MOTI NAGAR
CROSSING NEW DELHI 110 015
REPRESENTED BY ITS AUTHORISED
REPRESENTATIVE MS.VARSHA IYENGAR ... PETITIONER
(BY SRI JAYNA KOTHARI, ADV.,)
AND
1. UNITED BREWERIES (HOLDINGS) LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
UB ANCHORAGE, V FLOOR NO.100/1
RICHMOND ROAD, BANGALORE 560 025
ALSO AT LEVEL12-16, UB TOWER
UB CITY 24, VITTAL MALLYA ROAD
BANGALORE-560001
2. PRESTIGE ESTATES PROJECTS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
THE FALCON HOUSE NO.1
MAIN GUARD CROSS ROAD
BANGALORE 560 025
2
3. CITY PROPERTIES MAINTENANCE COMPANY
BANGALORE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
BASEMENT UB CITY, NO.24
VITTAL MALLYA ROAD
BANGALORE 560 001
4. PRESTIGE AMUSEMENT PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
THE FALCON HOUSE NO.1
MAIN GUARD CROSS ROAD
BANGALORE 560 025 ... RESPONDENTS
(BY SMT. B.R. DHANALAXMI, ADV., FOR M/S. NANDI LAW
CHAMBERS FOR R.1, 2 & 4,
R3 IS SERVED)
THIS CMP FILED U/S.11(5)&(6) OF THE ARBITRATION
AND CONCILIATION ACT 1996, PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO APPOINT A SOLE ARBITRATOR
AND REFER ALL THE DISPUTES THAT HAVE ARISEN BETWEEN
THE PARTIES OUT OF THE FOUR SEPARATE AGREEMENTS TO
LEASE ALL DATED JANUARY 22, 2008, AS AMENDED BY
ADDENDUMS DATED APRIL 1, 2009 AND LETTERS DATED
SEPTEMBER 24, 2009 TO THE ARBITRAL TRIBUNAL FOR
ADJUDICATION,IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CMP COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner-Company is before this Court seeking that a sole arbitrator be appointed to adjudicate upon the 3 disputes between the parties relating to the lease agreement dated 22.1.2008 and Addendum dated 1.4.2009 so also the letter dated 24.9.2009.
2. The petitioner-Company contends that it had entered into an agreement of lease dated 22.1.08 on certain terms relating to the manner of enjoyment of the property by the petitioner. One of the terms to the said agreement was also with regard to the payment of maintenance charges and such other payments with regard to the common areas. Regarding the said indication in the agreement, certain disputes had arisen between the parties, since according to the petitioner, the amount as claimed by the respondents was not payable by them. Insofar as the disputes relating to the agreement, it is contended on behalf of the petitioner that the same would have to be resolved by way of arbitration since such dispute resolution is agreed upon between the parties in the agreement under clause 12.4. In that view, the 4 petitioners had invoked the arbitration clause and had suggested two names, either of whom could be appointed as the arbitrator. The respondents, in reply to the said notice though did not dispute the existence of the arbitration clause had contended that there is no dispute between the parties and therefore, had not acceded to the request of the petitioner seeking appointment of an arbitrator. In that circumstance, the petitioner is before this Court.
3. The respondents though served and represented, have not filed their statement of objection but the learned counsel has strenuously objected the prayer made in the petition.
4. Learned counsel appearing for the respondents would strenuously urge that the petition itself would not be maintainable inasmuch as the petitioner herein had in fact issued the cheques towards the amount which was payable and in that regard had also received back the security 5 deposit which had been deposited by it and therefore the agreement had brought to end. It is further contended by the leaned counsel, it is only with malafide intention after having issued the cheques, the petitioner herein had filed a petition under Section 9 of the Act and that too after having received the security deposit and when the respondents were entitled to encash the cheque. Learned counsel would further contend that in the objection statement filed to section 9 of the Act, the respondents have taken the contention with regard to the maintainability of the petition and the petitioner herein having no right whatsoever to dispute these aspects of the matter. It is further pointed out that the petitioner had taken the premises on lease and in that regard the dues were required to be paid and in that circumstance the petitioner paid the amounts through cheque and the same has been encashed and therefore, there is no dispute whatsoever which needs consideration by an arbitrator and hence the petition is liable to be dismissed. 6
5. Learned counsel for the respondents would further contend that the court below while rejecting the petition under Section 9 of the Act has made detailed reference to the fact that the security deposit had been received and thereafter since they have sought to restrain the encashment of the cheque issued by the petitioner such contention cannot be accepted and based on such findings the petition was rejected.
6. Having noticed the rival contentions and also having noticed the claim made by the petitioner with regard to the refund of the amount sought by them as according to them it was not liable to be paid and in that regard when they had sought for appointment of the arbitrator, in my opinion, the findings rendered in the proceedings under Section 9 of the Act wherein restraint against encashing the cheque was sought it can only be considered as a prima facie finding rendered by the Court. This is for the reason that the nature of consideration of a 7 proceeding under Section 9 of the Act is in the nature of considering an application for interim measure and therefore at that juncture, the Court would only go into prima facie finding as to whether a case has been made out for grant of interim orders.
7. The present petition filed under Section 11(5) & (6) of the Act is for the purpose of appointment of the arbitrator who would have to consider all aspects relating to the dispute. Even in the absence of interim order being granted and certain findings rendered for that purpose would not bind the arbitrator for the reason that the dispute has to be decided by the arbitrator. If this aspect of the matter is kept in view, the contention on behalf of the petitioner is that the cheques has been issued despite the petitioner not being liable for payment of the maintenance charges with regard to common areas and the same was with an understanding that the respondents would not encash the same. In that regard reference is 8 also made to the communication dated 23.8.10 wherein the petitioner has referred to this aspect of the matter to state that the cheques shall not be encashed. These are all the aspects of the matter which forms the dispute between the parties and the said dispute relates to the very same agreement and as such it cannot be said merely because the petitioners have received back the security amount, the arbitration clause provided under the agreement would not be available. This Court is satisfied that there are certain disputes between the parties and considering the fact that there is arbitration clause in the agreement entered into between the parties, it is not necessary for this Court to adjudicate upon the rival contentions of the parties but it is sufficient for this Court to hold that an arbitrator is required to resolve the dispute and such arbitrator would go into all aspects. 9
8. Therefore, for the said reasons, Mr.Justice R. Gururajan, former Judge of this Court residing at No.504, Srihari Krupa, 5th Floor, 15th Cross, Malleshwaram, Bangalore-3, is appointed to be the sole Arbitrator to decide upon the disputes between the parties. All contentions are left open to be urged before the learned Arbitrator. The petitioner herein shall now file the claim statement along with supporting documents with the learned Arbitrator, who shall enter upon reference, issue notice to the respondent, settle the terms of arbitration and proceed further in accordance with law.
In terms of the above, the petition is allowed. No costs.
Sd/-
JUDGE TL