Karnataka High Court
M/S Hello Verify India Private Limited vs M/S Happiest Minds Technologies ... on 21 June, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
CIVIL MISCELLANEOUS PETITION NO.237 OF 2020
BETWEEN:
M/S HELLO VERIFY INDIA PRIVATE LIMITED
A PRIVATE COMPANY INCORPORATED UNDER THE
COMPANIES ACT 2013,
HAVING REGISTERED OFFICE PRESENTLY AT F-166
MALCHA MARG, NEW DELHI-110021.
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR KAUSHAL TYAGI
AGED ABOUT 48 YEARS
EMAIL-kausal.tyagi2helloverify.com
phone no-7838594865
...PETITIONER
(BY SMT. B. SHLOKA, ADVOCATE FOR
SRI. P.B. AJITH, ADVOCATE)
AND:
M/S HAPPIEST MINDS TECHNOLOGIES PRIVATE LIMITED
A PRIVATE COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956
HAVING REGISTERED OFFICE PRESENTLY AT #54/1-4
HOSUR MAIN ROAD,MADIVALA
BANGALORE-560 068
REPRESENTED BY ITS CHIEF FINANCIAL OFFICER
MR VENKATRAMAN N
EMAIL- [email protected]
PHONE No. NOT KNOWN
...RESPONDENT
(BY SMT. M. NIYATHI, ADVOCATE)
THIS C.M.P. IS FILED UNDER SECTION 11(6) OF THE
ARBITRATION AND CONCILIATION ACT 1996, PRAYING THAT
THIS HON'BLE COURT, IN TERMS OF CLAUSE 13.5 OF HTE
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SOFTWARE LICENSE AGREEMENT DATED: 12.06.2018 MARKED
AS ANNEXURE-C HEREIN, BE PLEASED TO APPOINT ANY
RETIRED JUDGE OF THIS HON'BLE COURT AS THE SOLE
ARBITRATOR TO ADJUDICATE THE DSIPUTE ARISING OUT OF
THE SOFTWARE LICENSE AGREEMENT, IN RESPECT OF THE
CLAIMS RAISED BY THE PETITIONER AND RESPONDENTS
BEFORE THE ARBITRATION CENTRE, BENGALURU TO SERVE
THE INTEREST OF JUSTICE AND EQUITY.
THIS C.M.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The present petition under Section 11 of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner-M/s. Hello Verify India Private Limited against the respondent-M/s. Happiest Minds Technologies Private Limited seeking appointment of an Arbitrator in pursuance of Clause-13.5 of the Software Licence Agreement vide Annexure-C dated 12.06.2018.
2. Clause-13.5 of the said Agreement, which is an Arbitration clause reads as under:-
"13.5 Dispute Resolution: The Parties shall communicate in good faith to attempt to resolves all misunderstandings or disputes between them. However, in the event the Parties are unable to resolve a matter between them, it shall be resolved by a binding arbitration, which shall be held in accordance with Arbitration and Conciliation Act, 3 1996 (as amended from time to time)("Act"). Any controversy or claim arising out of or relating to this Agreement shall be finally determined by a sole Arbitrator mutually appointed by the Parties. In the event the Parties are unable to agree upon the sole arbitrator, the arbitrator shall be appointed in India. Subject to the above, the competent courts in Bengaluru shall have exclusive jurisdiction to settle any disputes arising out of this Agreement.
3. It is submitted that requisite notice of request for reference to arbitration and Corrigendum to the said notice were given by the petitioner to the respondent vide Annexures-F and G dated 23.01.2020 and 07.02.2020, respectively. Pursuant to the said notice, respondent has submitted replies vide Annexures-H and J dated 31.01.2020 and 28.02.2020. The respondent also chose to contest the matter and is represented by it's counsel. Subsequently, the parties have somehow failed to mutually agree for the appointment of the Sole Arbitrator in the present case. Hence, the petitioner is before this Court by way of this petition to appoint the Sole Arbitrator to resolve their disputes.
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4. Learned counsel for the respondent submits that in view of the pre-arbitration dispute resolution mechanism provided in the Agreement by way of mediation, the present petition is premature and is liable to be dismissed.
5. Per contra, learned counsel for petitioner submits that petitioner has no objection to refer the dispute to mediation for amicable settlement before the same is referred to arbitration and the petition may be disposed of accordingly.
6. In view of the aforesaid facts and circumstances coupled with the submissions made by the learned counsel from both sides, since the Arbitration clause exists in the aforesaid Agreement entered into between the parties and an arbitrable dispute also exists and by directing the parties to attempt to resolve the dispute by way of mediation, this Court is of the opinion that the present petition deserves to be allowed under Section 11 of the Act by directing the matter to be referred to mediation by appointing an independent Mediator who will try to amicably resolve the dispute and in the event of failure of mediation, the dispute is to be referred to Arbitration.
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7. In the result, I pass the following:
ORDER
i) Petition is hereby allowed.
ii) In the first instance, the dispute between the petitioner and respondent is referred to mediation by appointing the following Mediator to resolve the dispute between the parties.
Sri.N.Prashanth Chandra, Advocate, No.1432/2, 'SLR Arcade', I Floor, Krishna Devaraya Road, Opp. to KASSIA Building, Vijayanagar, Bengaluru-40 Mobile No: 98807 37800
iii) The learned Mediator is directed to mediate and resolve the dispute between the parties within a period of two months from the date of the first session/sitting of mediation.
iv) The fees payable to the learned Mediator is tentatively fixed at Rs.50,000/- (Rupees Fifty Thousand only) to be shared equally by both petitioner and respondent.
v) In the event the dispute between the parties does not get resolved by mediation as stated supra, the matter shall stand referred to the Arbitration and Conciliation 6 Centre, Khanija Bhavan, Bengaluru to take up the matter for arbitration.
vi) Learned Mediator is directed to submit a status report to this Court.
vii) In the event of failure of mediation, the learned Mediator shall also forthwith send a copy of the report to this Court as well as to the Arbitration and Conciliation Centre, Khanija Bhavan, Bengaluru to take further steps in the matter for arbitration.
viii) Upon receipt of a failure report by the learned Mediator, the arbitration centre is directed to proceed with arbitration by constituting an arbitral Tribunal comprising of sole Arbitrator as hereunder:
Dr. Justice N. Kumar, 'GRUHA' Apartment No.101, Skyline Golden Ray Apartment, K.P.Poornachandra Tejasvi Road, Kempegowda Nagar, Gavipuram, Bengaluru - 560 019.
ix) All claims and contentions of any of the parties including jurisdiction, limitation, etc., are left/kept open to be decided by the Arbitral Tribunal.7
x) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.
xi) Registry is directed to communicate this order to the learned Mediator, learned Sole Arbitrator at the aforementioned address as well as to the Arbitration and Conciliation Centre, Bengaluru, forthwith.
Sd/-
JUDGE Bmc/-
CT:VR