Calcutta High Court
M.K. Media Pvt. Ltd vs Shilpa Shetty Kundra & Ors on 26 August, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2710 of 2015
With
CS No.36 of 2015
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
M.K. MEDIA PVT. LTD.
Versus
SHILPA SHETTY KUNDRA & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 26th August, 2015.
Appearance:
Mr. Ratnanko Banerjee Sr. Adv.
Mr. Sanjib Kumar Mal, Adv.
Mr. Atanu Roychaudhury, Adv.
Mr. Dibanath Dey, Adv.
. . .for the plaintiff.
Mr. Jishnu Chowdhury, Adv.
Mr. Soumabho Ghose, Adv.
Ms. Riti Basu, Adv.
Mr. S.K. Singhi, Adv.
Mr. A. Mondal, Adv.
. . .for the defendants.
The Court: This is an application by the defendants for referring the dispute to arbitration. In view of the existence of an arbitration Clause in the Share Subscription cum Shareholders' Agreement entered into between the plaintiff and the defendants dated 14th November, 2011 the disputes forming the subject matter of the suit is required to be referred to arbitration. However, no arbitration could take place in view of the fact that the suit was filed by the plaintiff and the plaintiff did not agree to the name of the Arbitrator furnished by 2 the defendants presumably on the ground that the suit is pending before this Court. The learned Counsel for the parties, however, have agreed before this Court that instead of having a panel of three Arbitrators only one Arbitrator can be appointed for adjudicating the dispute arising out of the Share Subscription cum Shareholders' Agreement.
Under such circumstances, Mr. S.N. Mookherji Senior Advocate is appointed as an Arbitrator by consent of the parties to adjudicate the dispute arising out of the Share Subscription cum Shareholders' Agreement dated 14th November, 2011. It is made clear that none of the parties shall question the jurisdiction of the Arbitrator under Section 16 of the Arbitration and Conciliation Act, 1996. There is, however, another agreement, which has referred to the Share Subscription cum Shareholders' Agreement dated 14th November, 2011. The said agreement was entered into between the plaintiff and the defendant nos.1 and 2. In the said agreement the defendants were given the right to appoint a sole arbitrator. The said defendants appear to have appointed a sole arbitrator and the sole arbitrator had entered reference. Mr. Ratnanko Banerjee, learned Senior Counsel appearing on behalf of the plaintiff, submits that the first and the second agreement are one and the same agreement and the subsequent arbitration clause in the second agreement stands superceded by the Share Subscription cum Shareholders' Agreement. The said agreement appears to have referred to the said Share Subscription cum Shareholders' Agreement. Mr. Jishnu Chowdhury, the learned Counsel appearing on behalf of the defendants, submits that this agreement is an independent agreement and the dispute arising out of the said agreement has to be decided on its own merits. There 3 appears to be an arbitration agreement in the letter dated 14th November, 2011 issued by the plaintiff and the Arbitrator has already entered reference in the said matter. Whether the two agreements are one and the same agreement or the second agreement should be treated as a supplementary agreement cannot be decided in this proceeding. In my view it would always be open for the plaintiff to raise such plea before the Arbitrator who is appointed by the defendants in terms of the agreement dated 14th November, 2011. Mr. Banerjee would make an attempt to pursuade this Court to hold that the two agreements are one and the same agreement and one reference could have avoided inconvenience and prejudice that the parties are likely to face if two arbitrations are pursued by placing reliance upon the Chloro Controls (I) P. Ltd. versus Severn Trent Water Purification Inc. & Ors. reported in 2013, (1) SCC 641. However, this issue need not be gone into at this stage. The plaintiff in my view is not remediless. This application being GA No.2717 of 2015 is, accordingly, disposed of by appointing Mr. S.N. Mookherji learned Senior Counsel as the sole Arbitrator. The Arbitrator shall decide his remuneration and the place of sitting.
In view of the aforesaid reference the suit being CS No.36 of 2015 stands dismissed.
However, there shall be no order as to costs.
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/