Madras High Court
M/S.Medall Scans And Labs Kumbakonam ... vs Mr.A.Mohamed Iliyas on 7 June, 2022
Author: M.Sundar
Bench: M.Sundar
Arb.O.P(Com.Div) No.203 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2022
CORAM
THE HON'BLE Mr.JUSTICE M.SUNDAR
Arb.O.P(Com.Div) No.203 of 2022
M/s.Medall Scans and Labs Kumbakonam Private Limited,
Represented by its Legal Executive,
Mr.S.Ashwin,
No.67, Mount Road, TNPL Building,
2nd Floor, Guindy,
Chennai-600 032.
... Applicant
Vs.
Mr.A.Mohamed Iliyas
... Respondent
Original Petition filed under Section 11(5) of the Arbitration and
Conciliation Act, 1996 to appoint a Arbitrator to decide the disputes and
differences between the petitioner and Respondent in terms of Franchise
Agreement dated 15.09.2020.
For Petitioner : Mr.K.Arun Pradeesh
of M/s.AAV Partners
For Respondent : Mr.N.Santhosh Nagarajan
****
1/6
https://www.mhc.tn.gov.in/judis
Arb.O.P(Com.Div) No.203 of 2022
ORDER
Captioned matter was listed before this Court on 26.04.2022 and in that listing, this Court made the following proceedings/order:
'Captioned 'Arbitration Original Petition' [hereinafter 'Arb OP' for the sake of convenience and clarity] has been presented in this Court on 11.04.2022 under Section 11 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)' [hereinafter referred to as 'A and C Act' for the sake of convenience, clarity and brevity] with a prayer for appointment of an Arbitrator.
2. Ms.Anbarasi Rajendran, learned counsel of M/s.AAV Partners (Law Firm) on behalf of sole petitioner submits that the captioned Arb OP is predicated on a 'Franchise Agreement dated 15.09.2020' [hereinafter 'primary contract' for the sake of convenience and clarity] between sole petitioner and lone respondent and more particularly clause 14 thereat captioned 'GOVERNING LAW' which reads as follows:
'14. GOVERNING LAW The Franchise shall be governed by India Law. Any dispute arising out of or in connection with this Letter of Commitment shall be resolved by way of arbitration by a sole arbitrator appointed by the Franchisor in accordance with the Arbitration and Conciliation Act, 1996. The venue of the arbitration shall be Chennai. The arbitration shall be conducted in English.' 2/6 https://www.mhc.tn.gov.in/judis Arb.O.P(Com.Div) No.203 of 2022
3. Learned counsel submits that while primary contract was operated, arbitrable disputes touching upon revenue shares erupted as according to the petitioner the audit revealed that the monies collected from various customers have not been made over to the petitioner. To be noted, this is a thumbnail sketch of arbitrable disputes that are said to have arisen between sole petitioner and lone respondent qua primary contract.
4. Learned counsel submits that the aforementioned clause 14 in primary contract serves as an Arbitration Agreement between the parties i.e., 'Arbitration Agreement' within the meaning of Section 2(1)(b) read with Section 7 of A and C Act, the same was triggered by the petitioner vide a notice dated 15.02.2022 which was duly served on the lone respondent on 17.02.2022, a Section 11 petition was presented on 07.03.2022 before 30 days elapsed (Arb. O.P.(Com.Div.) No.149 of 2022) therefore, the same was withdrawn on 30.03.2022 but all the rights of the petitioner were preserved for filing a similar petition with same prayer. It is in this backdrop that the captioned Arb OP has now been presented in this Court on 11.04.2022 is learned counsel's say. Learned counsel submits that there is no response from the respondent to the trigger notice i.e., notice invoking arbitration clause dated 15.02.2022 and it had necessitated the presentation of the captioned Arb OP.
5. Prima facie case for issue of notice made out.
6. This Court is conscious of sub-section (13) of Section 11 of A and C Act which mandates disposal of Section 11 petition as 3/6 https://www.mhc.tn.gov.in/judis Arb.O.P(Com.Div) No.203 of 2022 expeditiously as possible. However, owing to the ensuing summer vacation, notice to lone respondent returnable by 07.06.2022. Private notice permitted.
7. List on 07.06.2022.'
2. Aforementioned proceedings/order shall be read as an integral part and parcel of the instant order. It is also made clear that the abbreviations, short forms and short references used in the aforementioned earlier proceedings dated 26.04.2022 shall continue to be used in the instant order for the sake of convenience and clarity.
3. Post 26.04.2022 proceedings/order, lone respondent has been duly served and Mr.N.Santhosh Nagarajan with address for service at 77 Law Chambers, High Court Buildings, Chennai-600 104, who is before this Court submits that he has vakalatnama from the lone respondent and he will file the same latest by close of working hours tomorrow.
4. Be that as it may, there is no disputation or disagreement about the existence of arbitration agreement i.e., Clause 14 of the primary contract. To be noted, primary contract is Franchise Agreement dated 15.09.2020.
5. The scope of a legal drill under Section 11 of A and C Act is confined to examining the existence of an arbitration agreement. In the case 4/6 https://www.mhc.tn.gov.in/judis Arb.O.P(Com.Div) No.203 of 2022 on hand as there is no disputation or disagreement about the existence of arbitration agreement, this Court proceeds to appoint a sole Arbitrator making it clear that no opinion or view has been expressed on the merits of the matter by this Court. All questions are left open for the learned Arbitrator to adjudicate and decide.
6. Ms.V.Kamala Kumar, Advocate with address for service at No.301, 1st Floor, 'Baratha Enclave', Thambu Chetty Street, Chennai-600 001 (Mobile No.98433 34414) is appointed as sole Arbitrator. Learned Arbitrator is requested to enter upon reference, adjudicate the arbitrable disputes between the petitioner and respondent qua aforementioned primary contract, render an award by holding sittings at 'Madras High Court Arbitration and Conciliation Centre under the aegis of this Court' (MHCAC) in accordance with Madras High Court Arbitration Proceedings Rules 2017, fee of the learned Arbitrator shall be in accordance with the Madras High Court Arbitration Centre (MHCAC) (Administrative Cost and Arbitrator's Fees) Rules 2017.
Captioned Arb.OP disposed of in aforesaid manner. There shall be no order as to costs.
07.06.2022 kmi 5/6 https://www.mhc.tn.gov.in/judis Arb.O.P(Com.Div) No.203 of 2022 M.SUNDAR.J., kmi Note: The Registry is directed to communicate this order forthwith To
1. Ms.V.Kamala Kumar, No.301, 1st Floor, 'Baratha Enclave', Thambu Chetty Street, Chennai-600 001.
Mobile No.98433 34414.
2. The Director, Tamil Nadu Mediation and Conciliation Centre
-cum- Ex-Officio Member, Madras High Court Arbitration Centre, Chennai - 104.
Arb.O.P(Com.Div) No.203 of 2022 07.06.2022 6/6 https://www.mhc.tn.gov.in/judis