Bombay High Court
Bhabani Blunt Hairdressing Pvt.Ltd vs Meraki Fashion And Beauty Services Llp on 4 December, 2019
Equivalent citations: AIRONLINE 2019 BOM 2978
Author: G. S. Patel
Bench: G.S. Patel
910-CARBPL1445-19.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL ARBITRATION
COMM ARBITRATION PETITION (L) NO. 1445 OF 2019
Bhabani Blunt Hairdressing Pvt Ltd ...Petitioner
Versus
Meraki Fashion and Beauty Services LLP ...Respondent
Mr Ajit Anekar, with Ms Urvi Vaidya, i/b Auris Legal, for the
Petitioner.
Mr Ajay Panicker, with Mr Amit Kakri, i/b Ajay Law Associates, for
the Respondent.
CORAM: G.S. PATEL, J.
DATED: 4th December 2019 PC:-
1. On 21st November 2019, I dismissed a Section 9 petition fled by the present respondent, Meraki Fashion and Beauty Services LLP ("Meraki Fashion"). The prayer there was for a restraint against the respondents, Bhabani Blunt Hairdressing Private Limited ("BBlunt") from terminating a franchise agreement of 16th May 2019 relating to certain hairdressing and beauty care products and services that were the subject matter of the franchise that BBlunt gave Meraki Fashion. Mr Panicker appeared at that time for Meraki Fashion, the franchisee. I am told that he has carried that order in appeal in Appeal (L) No. 561 of 2019, which is pending Page 1 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC admission. Apparently there are some fling defects that are yet to be rectifed.
2. This petition, also under Section 9, is a counter petition by BBlunt against Meraki Fashion and it seeks a restraint against under the very same franchise agreement dated 16th May 2019 against Meraki Fashion from using BBlunt's intellectual property rights, proprietary systems procedures and knowhow. The three prayers in the present petition read thus:
"(a) that this Hon'ble Court be pleased to restrain the Respondent from using the trademark "BBLUNT", "BBLUNT mini", "BBLUNT Stylebar" or any other trademark registered for carrying out the salon business by the petitioner or any other name with the prefi or sufi "BBLUNT" and remove the board, signboard afied outside, inside or in the vicinity of the salon, so as to avoid any confusion among the clients or otherwise deception/passing of/infringement regarding the association of the Respondent franchise with the petitioner or the above referred trademark;
(b) That this Hon'ble Court be pleased to restrain the Respondent from using in any way whatsoever any and all of the licensed rights and any other trade names, logos, devices, insignia, procedures or methods which are or may be associated with the Trade Marks or the Business System of the petitioner;
(c) That this Hon'ble Court be pleased to direct the Respondent to immediately return to the Petitioner the Systems and Procedure Manual and all copies of the Systems & Procedure Manuals in its possession and/or under its control and such items or materials under its Page 2 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC control or in its possession bearing any of the Trade Marks or otherwise dispose of or destroy as the Petitioner shall direct all signs, advertising materials, stationary, invoices, forms, specifcations, designs, records, data, samples, models, programs, drawings pertaining to or concerning the Salon or the Business System or bearing any of the trade marks and thereupon provide a certifcate duly signed by its authorized ofcer evidencing the compliance of the aforesaid provisions;"
3. After some discussions this morning, parties have agreed to refer all their disputes under the franchise agreement to arbitration. Mr Panicker, having taken instructions from his clients, states that until the disposal of Section 17 application, Meraki Fashion is agreeable to an order in terms of prayer clauses (a) and (b). The statement is noted and accepted.
4. Mr Panicker requests that as short a time as possible be fied for the disposal of the Section 17 application by the learned Sole Arbitrator. As an invariable rule, I never fi these time frames; at best, I make a request. Mr Panicker says that is sufcient. He also states that in arbitration Meraki Fashion will be the claimant. Mr Anekar for BBlunt agrees, but seeks liberty and reserves the right to fle a counter claim. That goes without saying.
5. For completeness I note the relevant arbitration clause 23:
"23. GOVERNING LAW AND DISPUTE RESOLUTION Page 3 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC 23.1 This Agreement shall be governed and interpreted in accordance with the laws of India and the Courts in Mumbai shall have eiclusive jurisdiction.
23.2 If any disputes, controversies or diferences arise between the parties, regarding the construction or interpretation of any of the terms and conditions herein contained or touching these presents or determination of any liability or breach thereof ("Dispute"), the parties shall try and resolve the same amicably by mediating, by issuing a notice for the same. The other Party shall respond to the said notice within thirty (30) days for enforcing this Agreement and/or any modifcation thereof, failing which the parties will avail of legal rights and remedy.
23.3 If the parties fail to resolve such Dispute as per Clause 24.2 then, either Party may provide notice to the other Party of its intention to commence arbitration under the Arbitration and Conciliation Act, 1996 under the sole arbitration of an arbitrator mutually agreed by the Parties. All such Disputes shall then be fnally settled by arbitration in accordance with the provision of Clause 24.4.
23.4 The Arbitration proceedings shall be conducted in the English Language and the venue of the arbitration shall be in Mumbai only.
23.5 The Courts situated in Mumbai will have eiclusive jurisdiction in respect of all proceedings including those arising out of the present Agreement.
23.6 In case Franchisee fles a frivolous litigation against the Franchisor or invokes Arbitration proceedings unnecessary and the matter is adjudicated in favor of the Franchisor, the Franchisee shall be liable to pay all cost borne by the Franchisor in defending that litigation/arbitration proceeding. The cost shall include but Page 4 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC not be limited to the fees of lawyers, court costs, travelling and stay eipenses etc. 23.7 In case during the subsistence, eipiry or sooner determination of the Agreement, any legal proceedings are initiated by either party, then in such event the Franchisee shall cease to use the trademark of the Franchisor and accordingly remove all signboards or representation of BBlunt brand in any manner whatsoever, irrespective of pendency of such arbitration or litigation proceedings before any arbitrator, court, adjudicating authority."
6. There is also request from Mr Panicker to fi a downscaled schedule of fees. I do not think I can do that. I will simply leave it to open to the parties to make a request to the learned Sole Arbitrator and to arrive at an appropriate agreement before him. I do so on the basis that the fee scale prescribed by the Bombay High Court (Fee Payable to Arbitrators) Rules 2018 only set out the cap or upper limit. It is always open to the parties to arrive at an understanding before the learned Sole Arbitrator, and subject to his concurrence, for a reduced scale. The arbitrator may or may not be agreeable to the suggestion, and I do not for a minute suggest that the arbitrator is bound to accept the arbitration assignment if he is unwilling. The agreement before the learned Sole Arbitrator for lower fees must, therefore, mean a scale to which the arbitrator is agreeable. I can only request the learned Sole Arbitrator to consider the parties' representation in that regard.
7. Consequently, the disputes and diferences between the parties arising from the franchise agreement dated 16th May 2019 Page 5 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC are referred to the sole arbitration of Mr JP Avasia, advocate of this High Court.
(a) Appointment of Arbitrator: Mr JP Avasia, Advocate, is hereby nominated to act as a Sole Arbitrator to decide the disputes and diferences between the parties.
(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 within one week from today of the order being uploaded.
(ii) In addition, within one week of this order being uploaded, the Registry will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses:
Arbitrator Mr JP Avasia, Advocate.
Address 44 A, Prospect Chambers
Anneie, 6 Pitha Street, Fort,
Mumbai 400 001.
Mobile 9820095447
Email [email protected]
(c) Disclosure: The learned Sole Arbitrator is requested to
forward his statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to the Page 6 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC Prothonotary and Senior Master of this Court, referencing this arbitration application, as soon as possible, and in any case sufciently in advance of his entering upon the reference to his arbitration. That statement will be retained by the Prothonotary & Senior Master on the fle of this application. Copies will be given to both sides.
(d) Appearance before the Arbitrator: Parties will appear before the learned Sole Arbitrator on such date and at such place as he nominates to obtain appropriate directions in regard to fiing a schedule for completing pleadings, etc.
(e) Contact/communication information of the parties:
Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator within one week of this order being uploaded. The information is to include a valid and functional email address.
(f ) Interim Application/s:
(i) Meraki Fashion will be at liberty to fle an
application for interim reliefs. This
application will be decided uninfuenced by any observations in my order of 21st November 2019 bearing in mind that my order was made on a petition under Section
9. This is not to be construed as a recall of my order of 21st November 2019.Page 7 of 9
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(ii) The present Petition under Section 9 of the Arbitration Act by BBlunt will be treated, heard, and disposed of as an application under Section 17 of the Act to the eitent of prayer clause (c).
(iii) In Meraki Fashions' earlier Section 9 petition (L) No. 1378 of 2019 which I disposed of 21st November 2019 B Blunt has fled a reply.
Liberty to Meraki Fashions to fle a rejoinder within such time as the learned sole arbitrator may direct. In the present petition under Section 9 fled by B Blunt, replies and rejoinders will be fled within such time as the learned sole arbitrator may direct.
(iv) The learned sole arbitrator is requested to dispose of the Section 17 applications at the earliest, and, if possible, within three weeks of the pleadings being completed.
(v) I am however making it clear that even if Meraki Fashion seeks to have a quick disposal of its Section 17 application it will nonetheless be bound to fle a statement of claim and there is no possibility of a Section 17 application being fled or disposed of without an underlying statement of claim.
(g) Interim Order under Section 9: Mr Panicker's statement in terms of prayer clauses (a) and (b) set out Page 8 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 ::: 910-CARBPL1445-19.DOC above will continue until the disposal of the Section 17 applications.
(h) Fees: The arbitral tribunal's fees shall be governed by the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018. Liberty to the parties to request the learned Sole Arbitrator to accept a lower or reduced scale of fees and to arrive at an agreement before him to that efect.
(i) Sharing of costs and fees: Parties agree that all arbitral costs and the fees of the arbitrator will be borne by the two sides in equal shares in the frst instance.
(j) Consent to an extension if thought necessary. Parties immediately consent to a further eitension of up to sii months to complete the arbitration should the learned Sole Arbitrator fnd it necessary.
(k) Venue and seat of arbitration: Parties agree that the venue and seat of the arbitration will be in Mumbai.
8. Mr Panicker states that with this the appeal that his clients fled is also rendered infructuous and he has instructions that his clients agree and undertake to have that appeal withdrawn. So noted.
9. The present petition is disposed of in these terms. No costs.
(G. S. PATEL, J) Page 9 of 9 4th December 2019 ::: Uploaded on - 05/12/2019 ::: Downloaded on - 06/12/2019 00:33:41 :::