Karnataka High Court
M/S Zuri Hospitality Pvt. Ltd., vs M/S. Rmv Communication on 5 March, 2020
Author: B.Veerappa
Bench: B Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE B VEERAPPA
CIVIL MISCELLANEOUS PETITION NO.89 OF 2019
BETWEEN:
1. M/S. ZURI HOSPITALITY PRIVATE LIMITED
2. M/S. ZURI HOTELS AND RESORTS PRIVATE LIMITED
3. M/S. SILVER SPRINGS PLEASURE RESORT
PRIVATE LIMITED
PETITIONER NOS.1 TO 3 ARE A COMPANIES
INCORPORATED UNDER COMPANIES ACT
HAVING THEIR REGISTERED OFFICES AT
THE ZURI VARCA, GOA WHITE SANDS
RESTOR AND CASINO, VARCA BEACH
VARCA, SALCETE, GAO-403 721
PRESENTLY AT:
NO.244, HOODY VILLAGE, RAJAPALYA
ITPL ROAD, WHITEFIELD
BENGALURU-560 048
REPRESENTED BY THEIR AUTHORISED SIGNATORY
MR. SELVA PANDIAN.
...PETITIONERS
(BY SRI: MANJUNATH T., ADVOCATE FOR
SRI: J.RAVISUNDER, ADVOCATE)
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AND:
M/S. RMV COMMUNICATION
A PROPRIETARY CONCERN
HAVING ITS OFFICE AT
B 29/30, BHATIA BUILDING
LT-DILIP GUPTE ROAD
MAHIM WEST, MUMBAI-400 016
REPRESENTED BY ITS PROPRIETOR
MR. MAYUR LUTHRIA
...RESPONDENT
(RESPONDENT IS SERVED BUT UNREPRESENTED)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SECTION 11(4) OF THE ARBITRATION AND
CONCILIATION ACT, 1996 PRAYING TO APPOINT AN
ARBITRATOR IN TERMS OF CLAUSE-6.20 OF THE AGENCY
AGREEMENT DATED 02.06.2014 AT ANNEXURE-B TO
ADJUDICATE THE DISPUTE IN QUESTION BETWEEN THE
PARTIES IN THE INTEREST OF JUSTICE AND EQUITY.
*****
THIS CIVIL MISCELLANEOUS PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The present petition is filed by the petitioners under the provisions of Section 11(4) of the Arbitration and Conciliation Act, 1996 (for short 'the Act'), for appointment 3 of an Arbitrator for adjudicating the dispute in question in terms of Clause 6.20 of 'Zuri Insider Privilege Card Agreement' dated 02.06.2014 entered into between the parties.
2. It is the case of petitioners that, the respondent is running the business through its sole proprietary concern RMV communication (RMVC), represented by the petitioner that it had developed a marketing promotion programme where RMVC would market and sell membership cards to the customers. The said membership cards would entitle the purchaser to pre- defined benefits at the hotel of the petitioners. As consideration for the aforesaid, RMVC would be entitled to a percentage of the revenue generated from the sale of the said membership cards. Accordingly, both the petitioners and the respondent entered into the 'Zuri Insider Privilege Card Agreement' dated 02.06.2014 entering into various terms and conditions. In terms of Clause 5 of the agreement, the consideration with regard to the said 4 agreement, i.e., the payments received from the members of the marketing promotion programme of RMVC were agreed to be made directly to an escrow amount that was to be created by RMVC. It was agreed that after adjusting the payments for cancellation, charged backs etc., 40% of the same would be paid as consideration for the services of RMVC and the balance 60% was required to be paid to the petitioners immediately, which has not been paid in spite of repeated demands.
3. It is further case of the petitioners that, even though the petitioners performed their part of obligation as per the agreement, the respondent did not comply with the terms and conditions, which resulted in breach of the terms of agreement. Due to the breach of terms of agreement, owing to the non payment of outstanding dues, the petitioners issued termination notice on 14.06.2017. Later, the legal notice came to be issued on 01.08.2018 informing the respondent to pay the outstanding amount of 5 Rs.2,82,100/-. The respondent acknowledged the receipt of notice and replied by its e-mail refusing to pay any amount and set up a counter claim and thereby, a dispute arose between the parties. Hence, the petitioners issued arbitration notice dated 14.11.2018 to the respondent by RPAD. The respondent has acknowledged the receipt of arbitration notice, but did not come forward to suggest the name of the Arbitrator, nor paid the amount. Therefore, the petitioners are before this Court for the relief's sought for.
4. Notice issued to the respondent by this Court is served and unrepresented.
5. Heard the learned Counsel for the petitioners.
6. Sri.T.Manjunath, the learned Counsel for the petitioners re-iterating the averments made in the memorandum of Civil Miscellaneous Petition has contended that there is no dispute with regard to the 'Zuri Insider 6 Privilege Card Agreement' dated 02.06.2014 entered into between the parties and the existence of Arbitration Clause 6.20. According to the petitioners, the respondent is due to a sum of Rs.2,82,100/- in terms of the agreement entered into between the parties. In spite of repeated demands and on issuing of the arbitration notice, the respondent though acknowledged the arbitration notice has not paid the amount. Therefore, he sought to allow the petition.
7. Having heard the learned Counsel for the petitioners, it is undisputed fact that both the petitioners and the respondent entered into the 'Zuri Insider Privilege Card Agreement' dated 02.06.2014 duly signed by both the parties with their respective seal on each other as contemplated under Section 7 of the Act. It is also not in dispute that the agreement stated supra at Clause 6.20, reads as under:
"In the event of a dispute between the parties, these will be settled through 7 arbitration as per the Indian Arbitration Act, at Bengaluru."
8. It is also not disputed that the petitioners issued arbitration notice as contemplated under Section 11(5) of the Act. Even though the respondent acknowledged the receipt of notice issued through registered post, remained unrepresented.
9. In view of the above, the Civil Miscellaneous Petition is allowed. Sri.N.N.Dharwadakar, the former District Judge is appointed as a sole arbitrator for adjudicating the dispute in terms of Clause 6.20 of the 'Zuri Insider Privilege Card Agreement' dated 02.06.2014 entered into between the parties.
10. Office is directed to send the copy of this order to the respondent, the learned Arbitrator and the Arbitration Centre, forthwith.
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11. Office is also directed to return all the original documents, if any, to the learned Counsel for the petitioners, after following due procedure in accordance with law.
Sd/-
JUDGE *bgn/-