Bombay High Court
Freebie Solutions Private Limited vs Intelligent Payment Solution Private ... on 20 January, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-OS:669
This Order is modified/corrected by Speaking to Minutes Order dated 20/02/2023
(7)ARBAP-170-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.170 OF 2022
Feebie Solutions Pvt Ltd. ] .. Applicant
vs.
Intelligent Payment Solution Pvt. Ltd. & Ors.] .. Respondents
Ms.Mehak Kalra a/w Lalit Besoya and Siddhi Bhosale for the Applicant
Mr.Vikrant Shetty for the Respondents.
CORAM : BHARATI DANGRE, J
DATE : 20th JANUARY, 2023.
P.C.
1] The Prepaid (Gift) Card Agreement was entered between the
Applicant, a Company incorporated under the Companies Act, referred
to as "the Client" and the Respondent- another Company also
incorporated under the Companies Act, referred to as "iPay" on
18.10.2020.
The recitals of the Agreement record that iPay is engaged in
issuance and operation of Semi Closed Prepaid Payment Instruments
and in providing Technology and Sales and Distribution support to the
Banks for issuance of Reloadable/Non Reloadable prepaid cards
variants such as Reward, Meal, Petro and Gift Cards. The Client is
engaged in the business of reselling of prepaid/gift cards to the
corporate/employees/clients at large.
The client has approached iPay to issue prepaid cards-gift cards
1/5
::: Uploaded on - 25/01/2023 ::: Downloaded on - 30/05/2023 16:25:14 :::
This Order is modified/corrected by Speaking to Minutes Order dated 20/02/2023
(7)ARBAP-170-2022.doc
to the employees/clients/Associates of the Client for the purpose of
reselling through the aforesaid prepaid cards-gift cards, to which iPay
has agreed subject to the Client adhering specific terms and conditions.
2] The Agreement entered between the parties on 18.10.2020
categorically set out the rights and obligations of the respective parties
alongwith Confidentiality and Indemnity clause. It also provide for
intellectual property rights clause.
Apart from this, Clause 11 refer to Dispute Resolution, in case
any disputes, differences or claims arise between the parties.
3] With this background, the Applicant invoked arbitration vide
communication dated 15.07.2021, where they sought appointment of
Sole Arbitrator, when it was alleged that there was failure of discharge
of responsibility on behalf of Respondent. The names of the proposed
Arbitrator were also forwarded.
The said notice was responded to by the Respondents on
25.07.2021, where on merits there is specific denial with a counter
claim being raised of manipulation and malafide intention of cheating.
There was, however, no objection noted about the name of the
Arbitrator and in turn, the Respondent also forwarded name of two
Advocates, one to be chosen as Sole Arbitrator.
4] Since there is no objection raised to the invocation of arbitration
clause, and the discord appears only to be on the name of the
Arbitrator to be nominated, the Applicant has approached this Court.
5] The arbitration clause not being disputed and even invocation is
responded to by the Respondents, I deem this case fit one to exercise
2/5
::: Uploaded on - 25/01/2023 ::: Downloaded on - 30/05/2023 16:25:14 :::
This Order is modified/corrected by Speaking to Minutes Order dated 20/02/2023
(7)ARBAP-170-2022.doc
powers under Sub-Section (6) of Section 11 of the Arbitration and
Conciliation Act.
The learned counsel for the Respondent has raised a preliminary
objection about maintainability of the application against Respondent
Nos.2 and 3 as they are Directors of Respondent No.1 and he would
submit that they would not be liable for the defaults of Respondent
No.1.
The aforesaid objection is responded to by the learned counsel
for the Applicant by stating that Respondent No.2 - Director is a
signatory to the Agreement.
In any case, about liability of Respondent Nos.2 and 3, the
Respondents are permitted to agitate the same before the learned
Arbitrator and by keeping this contention open, I pass the following
order :
ORDER
.
TERMS OF APPOINTMENT
(a) Appointment of Arbitrator :
Advocate Naushad Kohli, is hereby appointed as a Sole Arbitrator to decide the disputes and differences between the parties under the documents referred to above.
(b) Communication to Arbitrator of this order :-
(i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the applicant/petitioner within one week from the date this order is uploaded.
(c) Disclosure : The learned Arbitrator, within a period of 15 days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 3/5 ::: Uploaded on - 25/01/2023 ::: Downloaded on - 30/05/2023 16:25:14 ::: This Order is modified/corrected by Speaking to Minutes Order dated 20/02/2023 (7)ARBAP-170-2022.doc 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application, with a copy to be forwarded to both the parties.
(d) Appearance before the Arbitrator : The parties shall appear before the Sole Arbitrator within a period of two weeks from today and the learned Arbitrator shall fix up a first date of hearing in the week commencing from 06/02/2023. The Arbitral Tribunal shall give all further directions with reference to the arbitration and also as to how it is to proceed.
(e) Contact and communication information of the parties : Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator. This information shall include a valid and functional E-mail address as well as mobile numbers of the parties, participating in the process as well as of the Advocates.
(f) Section 16 application : The respondent is at liberty to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act. All contentions are left open.
(g) Fees : The Arbitrator shall be entitled for the fees as per the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018 and the arbitral costs and fees of the Arbitrator shall be borne by the parties in equal portion and shall be subject to the final Award that may be passed by the Tribunal.
(h) Venue and seat of Arbitration : Parties agree that the venue and seat of the arbitration will be in Mumbai.
(i) Procedure : These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration.
4/5 ::: Uploaded on - 25/01/2023 ::: Downloaded on - 30/05/2023 16:25:14 :::This Order is modified/corrected by Speaking to Minutes Order dated 20/02/2023 (7)ARBAP-170-2022.doc
(j) All the rights and contentions of the parties are kept open.
Arbitration Application is disposed off in the aforesaid terms.
[BHARATI DANGRE, J] 5/5 ::: Uploaded on - 25/01/2023 ::: Downloaded on - 30/05/2023 16:25:14 :::