Bombay High Court
Viacom18 Media Pvt. Ltd vs Cinetek Telefilms Pvt. Ltd on 11 November, 2019
Author: G. S. Patel
Bench: G.S. Patel
27-CARAPL435-19.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITATION APPLICATION (L) NO. 435 OF 2019
Viacom18 Media Pvt Ltd ...Applicant
Versus
Cinetek Teleflmm Pvt Ltd ...Rempondent
Mr Ashish Kamat, with Kunal Mehta & Nitesh Agarwal, i/b Naik
Naik & Co., for the Applicant.
Mr Nirman Sharma, with Mr Rahul Jain, i/b Alpha Chambers, for
the Respondent.
CORAM: G.S. PATEL, J.
DATED: 11th November 2019
PC:-
1. There are two agreementm in quemtion. The principal
agreement im dated 30th October 2012. There im an amendment
agreement dated 9th February 2015. The principal agreement ham a
dimpute remolution claume no. 23 reproduced at page 53, which readm
thum:
"23. DISPUTE RESOLUTION
Any dimputem or diferencem ariming out or pertaining to thim
Agreement mhall frmt be remolved by the partiem through
negotiationm, failing which much dimputem/diferencem mhall
be mubject to arbitration of the mole arbitrator to be mutually
Page 1 of 6
11th November 2019
::: Uploaded on - 13/11/2019 ::: Downloaded on - 13/11/2019 21:02:50 :::
27-CARAPL435-19.DOC
appointed by the Partiem, failing which the arbitrator mhall be
appointed by the chief jumtice of the Bombay High Court.
Such arbitration proceedingm mhall be conducted at
Mumbai, accordance with the provimionm of the Arbitration
and Conciliation Act, 1996. The award pammed by the
Arbitrator/m in purmuance of much arbitration proceedingm
mhall be fnal and binding upon both partiem hereto. Subject
to arbitration, the Courtm at Mumbai will have jurimdiction
to deal with applicationm for interim reliefm, appointment of
arbitrator and enforcement of award."
2. The factm, briefy noted, are theme. The rempondent wam
producing a cinema flm in Hindi titled "Santa Banta". The
agreement of 30th October 2012 related to the grant to the
petitioner of the exploitation rightm, 60% of the intellectual property
rightm and 60% derivative rightm. The petitioner paid the rempondent
an amount of Rm. 9.60 crorem between November 2012 and July
2013.
3. The flm itmelf ran into mome trouble from diferent quarterm.
Thim delayed itm completion. I am not concerned with theme detailm.
It im, however, not in dimpute that the flming wam to be on location in
Fiji. The Government of that country had a rebate mcheme am an
incentive. It wam to avail of thim rebate that the partiem entered into
the amendment agreement dated 9th February 2015. Thim wam
accompanied by an emcrow agreement and an emcrow amendment
agreement. The entire purpome of the amendment wam to enable the
rempondent to apply to the Fiji government for a rebate in
accordance with itm policy, and then to pamm on to the petitioner a
portion of the rebate mo obtained. The dimpute im in regard to the
Page 2 of 6
11th November 2019
::: Uploaded on - 13/11/2019 ::: Downloaded on - 13/11/2019 21:02:50 :::
27-CARAPL435-19.DOC
mharing of thim rebate that the rempondent ham allegedly obtained but
a portion of which it im maid not to have pammed on to the petitioner.
4. Mr Sharma for the rempondent mubmitm that having regard to
the provimion of claume 9 of the amendment agreement, the
arbitration claume ham been agreed to be entirely foregone or by-
pammed. Prima facie, it im difcult to accept thim mubmimmion, inter alia
becaume the amendment agreement makem a mpecifc reference to the
30th October 2012 principal agreement. Claume 11 of the
amendment agreement almo maym that the principal agreement
remainm unchanged, in full force and efect, and binding on the
partiem. I need, however, expremm no fnal opinion on thim, becaume
Mr Kamat mubmitm that the legal efect of reading the two
agreementm im a matter that can be left for arbitral determination
under Section 16 of the Arbitration and Conciliation Act, 1996. I
accept that mubmimmion and keep open the rival contentionm.
5. The partiem leave the name of the arbitrator to the Court.
6. Hence the following:
ORDER
(a) Appointment of Arbitrator: By conment, Mr JP Avamia, learned Advocate of thim Court, im hereby nominated to act am a Sole Arbitrator.
(b) Communication to Arbitrator of this order:
Page 3 of 611th November 2019 ::: Uploaded on - 13/11/2019 ::: Downloaded on - 13/11/2019 21:02:50 ::: 27-CARAPL435-19.DOC
(i) A copy of thim order will be communicated to him by the Advocatem for the Applicant within one week from today of the order being uploaded.
(ii) In addition, the Regimtry will forward an ordinary copy of thim order to the learned Sole Arbitrator within one week of the order being uploaded at the following pomtal and email addremmem:
Arbitrator Mr JP Avasia, Advocate Address 44A, Prompect Chamberm Annexe 6 Pitha Street Mumbai 400 001 Mobile +91 98200 95447 Email [email protected]
(c) Disclosure: The learned Sole Arbitrator im requemted to forward him mtatement of dimclomure under Section 11(8) read with Section 12(1) of the Arbitration Act to the Prothonotary and Senior Mamter of thim Court, referencing thim arbitration application, am moon am pommible, and in any came mufciently in advance of him entering upon the reference to him arbitration. That mtatement will be retained on the fle of thim application.
Copiem will be given to both midem.
(d) Appearance before the Arbitrator: Partiem will appear before the learned Sole Arbitrator on much date and at much place am he nominatem to obtain appropriate Page 4 of 6 11th November 2019 ::: Uploaded on - 13/11/2019 ::: Downloaded on - 13/11/2019 21:02:50 ::: 27-CARAPL435-19.DOC directionm in regard to fxing a mchedule for completing pleadingm, etc.
(e) Contact/communication information of the parties:
Contact and communication particularm are to be provided by both midem to the learned Sole Arbitrator within one week of thim order being uploaded. The information im to include a valid and functional email id.
(f ) Interim Application/s: Liberty to the partiem to make an interim application or interim applicationm under Section 17 of the Arbitration & Conciliation Act, 1996 before the learned Sole Arbitrator. Any much application will be decided in much manner and within much time am the learned Sole Arbitrator deemm ft.
(g) Fees: The arbitral tribunal'm feem mhall be governed by the Bombay High Court (Feem Payable to Arbitratorm) Rulem, 2018.
(h) Sharing of costs and fees: Partiem agree that all arbitral comtm and the feem of the arbitrator will be borne by the two midem in equal mharem.
(i) Consent to an extension if thought necessary: Partiem immediately conment to a further extenmion of up to mix monthm to complete the arbitration mhould the learned Sole Arbitrator fnd it necemmary.Page 5 of 6
11th November 2019 ::: Uploaded on - 13/11/2019 ::: Downloaded on - 13/11/2019 21:02:50 ::: 27-CARAPL435-19.DOC
(j) Venue and seat of arbitration: Partiem agree that the venue and meat of the arbitration will be in Mumbai.
(k) Contentions kept open. Rival contentionm are kept open and will be unafected by any obmervationm in thim order.
7. The Arbitration Application im dimpomed of in theme termm. There will be no order am to comtm.
8. The Section 9 petition im kept pending and will be limted on 10th December 2019 becaume the claim in that im almo directed againmt the third partiem.
(G. S. PATEL, J) Page 6 of 6 11th November 2019 ::: Uploaded on - 13/11/2019 ::: Downloaded on - 13/11/2019 21:02:50 :::