Delhi District Court
1 M/S Delhi Press Patra vs . Media Research Users on 11 November, 2011
1 M/s Delhi Press Patra vs. Media Research Users
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT
JUDGE04 : SOUTH DISTRICT : SAKET COURT COMPLEX
NEW DELHI
Suit No. 453/10
IN THE MATTER OF :
M/S DELHI PRESS PATRA PRAKASHAN PTE. LTD.
.........PLAINTIFF
VERSUS
MEDIA RESEARCH USERS COUNCIL & ANR.
.......DEFENDANTS
ORDER :
1 This is an application under section 8 of the Arbitration and Conciliation Act moved by the defendant for referring the subject matter of suit for arbitration at Mumbai.
2 The applicant has filed a suit for decree of permanent injunction, mandatory injunction and damages against both the defendants. The plaintiff had instituted the suit to restrain the defendants from publishing the results of the magazine, newspaper and journal readership survey known as IRS Round I of 2009 stating that plaintiff has strong reasons to believe that the result of the said survey IRS Round 1 of 2009 would be inconsistent, erroneous, false and incorrect. The plaintiff is a public officer of magazine with a diversified portfolio of publication including the cover 'Grihshobha'. It is claimed that publication of incorrect result of said IRS Round I of 2 M/s Delhi Press Patra vs. Media Research Users 2009 survey shall affect the public perception of plaintiff magazine title ''Grihshobha (Hindi)'' resulting in loss to the plaintiff in unfair and unjust manner. The plaintiff has claimed that loss was caused to the plaintiff due to fall in readership and advertising rates which was a fall out of the public survey result of IRS Round I of 2008. Copy of the presentation of IRS Round 2 of 2008 adjudicating the survey results which the plaintiff has claimed extracting from the defendant website has been placed on record. The plaintiff has claimed that results and rankings of Round 2 of 2008 was published on or around 04.11.2008 title ''Grihshobha (Hindi)'' belonging to the plaintiff was not included in the survey results.
3 In the application moved, the defendant no. 1 has stated that the plaintiff has particularly challenged the methodology adopted by the defendant with regard to IRS 2008, more so the methodology and the readership figures qua the title ''Grihshobha (Hindi) published by the plaintiff. In the application moved, it is claimed that any person or entitled could have access to IRS 2008 reports published from time to time by purchasing the said IRS reports at a pre determined price. IRS reports are made available to the buyers in the form of a compact disc (CD) and a buyer and household IRS 2008, the plaintiff is bound by the IRS terms and conditions of purchase and use. Defendant no. 1 has also claimed that the clause pertaining to ''Legal Jurisdiction'' contained in IRS 2008 as a part of 2008 IRS terms is extremely relevant and same reads as under:
''LEGAL JURISDICTION'' 3 M/s Delhi Press Patra vs. Media Research Users All differences and disputes arising in connection with or relative to this Agreement between the parties including any dispute or differences in regard to the interpretation of any provision or term or the meaning thereof, whether during the currency/sustenance of this Agreement or after the determination thereof, shall be referred to the arbitration by one arbitrator to be jointly and mutually appointed by the parties and the said arbitration shall be governed by the Arbitration and Conciliation Act, 1996. The place of arbitration shall be Mumbai only''.
The case of the defendant no. 1 is that clause which pertains to legal jurisdiction constitutes an ''Arbitration Agreement'' within the meaning of section 7 of the Arbitration and Conciliation Act.
4 In reply to the application filed on behalf of the plaintiff, it is claimed that the plaintiff has come to the court not on the basis of there being an agreement with the defendant or on the basis of its membership by virtue of buying the CD but on the basis of detailed release by the defendants on their website, which is in public domain and knowledge. It is claimed that irrespective of a person having membership of defendant no. 1, data released by defendant no. 1 on its website can be accessed by any person or no terms of use are mentioned in the website. The plaintiff has also claimed that there is an element of fraud in the conduct of the defendants, who accepted and encashed the cheque for CD without disclosing any terms and 4 M/s Delhi Press Patra vs. Media Research Users conditions of use. CD was booked by the plaintiff on 19.05.2008 and a full payment of Rs. 4,24,721/ was made through cheque but it is claimed that plaintiff was never informed about any arbitration clause or agreement. It is also claimed that receipt in no manner indicates anywhere that defendant no. 1 had accepted the aforesaid amount of Rs. 4,24,721/ subject to any terms and conditions or any other agreement of any sort. The CD containing the IRS reports pertaining to IRS 2008 was received by the plaintiff only after encashment of the cheque. The plaintiff has claimed that it is only after the CD has been inserted in the computer and the software is made operational, then one comes to know about the contents of the CD. The plaintiff has claimed that there was no consent as regard the terms and conditions as per the CD received.
5 A separate application under order VII rule 11 CPC read with section 8 of the Arbitration and Conciliation Act was filed on behalf of the defendant no. 2 which was on the line of the application moved by defendant no. 1 and said application of defendant no. 2 was also replied by the plaintiff.
6 Arguments were heard on behalf of the plaintiff as well as on behalf of defendant no. 1 and 2. I hold as under: As regards the arbitration agreement between the parties, the plaintiff has taken the stand that suit has been filed on the basis of information and data available on the website of the defendants which was in public domain after results were announced by the defendant no. 1 on 04.11.2008. In the arguments, plaintiff has taken 5 M/s Delhi Press Patra vs. Media Research Users the stand that even if it is taken that suit has been based on the datas available in the CD's supplied by defendant no. 1 to the plaintiff as a part of the data has also been used by the plaintiff in the legal notice issued to the defendants no. 1, which is dated 02.03.2009 containing certain references to the clauses contained in 2008 IRS terms, then there was no valid agreement for arbitration between plaintiff and the defendants. For the first time, the plaintiff had reacted to the figures of IRS survey results being route 2 of 2008 was on 05.11.2008 through an email and it is claimed on behalf of the plaintiff that results and ranking of route 2 of 2008 was published. The date of publication of result of route 2 IRS 2008 on or around 2008 is not contested on behalf of the defendants, who has also not disputed the fact that results were displayed on the website of the defendants. There were no terms and conditions for accessing the data and figures of IRS survey form the website of the defendants. The plaintiff had received the CD sometime in May, 2008 and it might have been privy to the data and figures, which were made available on the website of the defendants, after result was published in November, 2008 but no action was initiated by the plaintiff till publication of the results. The plaintiff is sending passing of a decree of permanent injunction restraining the defendants through publishing the readership, figures in respect of magazine in the IRS 2009 route 1 survey, which was expected to be done on or around 10.05.2009. The issue as regard the publication of IRS 2009 route 1 was disposed off vide order dated 08.05.2009. The only issue is as regard the plaint for damages/compensation on account of loss market value and damage to the image, goodwill etc. of the title ''Grihshobha (Hindi)'' due to the publication of the said 6 M/s Delhi Press Patra vs. Media Research Users IRS survey. On behalf of the plaintiff, reliance was placed on a case decided by Hon'ble Supreme Court titled as M/s Rickmers Verwaltung Gimb H Vs. Indian Oil Corpn. Ltd, AIR 1999 Supreme Court 504 wherein it was held that:
''To arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them and same should emerge from the correspondence clearly and only then it can be said that agreement had come into existence between them through correspondence''.
7 The plaintiff has also relied upon another case decided by Hon'ble Supreme Court titled as The Special Secretary to Government of Rajasthan, (Finance), Jaipur and others vs. Vedakantara Venkataramana Seshaiyer and others reported as AIR 1984 Andhra Pradesh 5 wherein it was held that :
''conditions printed on reverse of Lottery ticket in small print not brought to the notice of purchasing - purchaser is not bound by them. It was further held by the Hon'ble Supreme Court that unless the terms of the contract are arrived at after due negotiation, they cannot be held binding merely because a ticket is later issued containing the said terms''.
8 As per the admitted facts, no terms and conditions were 7 M/s Delhi Press Patra vs. Media Research Users disclosed to the plaintiff when the amount for purchasing the CD of IRS survey was paid by the plaintiff on 19.05.2008 and terms and conditions were to appear only the disc is operated in a computer. The plaintiff has also not put to the notice that CD has been given to the plaintiff by the defendants subject to terms and conditions containing an arbitration agreement as there was no reference to such terms and conditions on the CD or in the packages in which CD contained. Apart from that, issue of cause on the part of the defendant has also been raised by the plaintiff in the proceedings filed and in this regard on behalf of the plaintiff, reliance has been placed on a case decided by Hon'ble Supreme Court titled as India Household and Healthcare Ltd. vs. LG Household and Healthcare Ltd. reported as AIR 2007 Supreme Court 1376 wherein it was held that:
''Courts would construe agreement in such a manner so as to uphold arbitration agreement but question of fraud, if raised would be considered differently''.
9 On behalf of the plaintiff, reliance was placed in another case decided by the Hon'ble Supreme Court titled as Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya And Another in (2003) 5 Supreme Court Cases 531, wherein it was held by the Hon'ble Supreme Court that :
''In cases where a suit is commenced in respect of a matter which falls partly within the arbitration agreement and partly outside and which involves parties some of whom are parties to the arbitration agreement while some are not so, S.8 of the Arbitration
8 M/s Delhi Press Patra vs. Media Research Users and Conciliation Act was held to be not attracted''.
10 The plaintiff is claiming that suit for damages to the tune of Rs. 10,00,000/ filed by the plaintiff is outside the alleged arbitration agreement, even if it is held that there was an arbitration agreement between the parties for the reason that data available in the CD supplied to the plaintiff by defendant no. 1 has been made use of and referred to in the suit filed. It is also claimed that there was no arbitration agreement between the plaintiff and defendant no. 2 as money was paid by the plaintiff to defendant no. 1 by whom CD containing the result and datas of the survey conducted were supplied.
11 Accordingly, it is held that application u/s 8 of the Arbitration and Conciliation Act filed by defendant no. 1 as well as defendant no. 2 are declined for the reason that suit of the plaintiff is not based on the datas available in the CD supplied to the plaintiff alone but the data was available on the website of the defendants and could be accessed by person/party who was not having a membership of defendant no. 1. Secondly, there was no valid arbitration agreement between the parties as there was no meeting of mind between the plaintiff and defendant no. 1 as regards the terms and conditions particularly the conditions as regards the arbitration as no such terms and conditions were brought to the notice of the plaintiff at the time when the payment was accepted on 19.05.2010 and there was no notice as regards any terms and conditions printed or written on the CD are in the package containing the CD and plaintiff could not have 9 M/s Delhi Press Patra vs. Media Research Users come to know about the terms and conditions including the arbitration unless the CD was made to run on a computer. Thirdly, defendant no. 2 was not party to the agreement which was between plaintiff and defendant no. 1. Lastly, the claim of the plaintiff on account of alleged damages/compensation would be beyond the scope of arbitration clause being relied upon on behalf of the defendants. As such, application under section 8 of the Arbitration and Conciliation Act moved both by defendant no. 1 as well as defendant no. 2 are dismissed.
Announced in the open Court (J.P.S. MALIK)
on 11.11.2011 ADJ04 : SOUTH DISTRICT
All pages signed NEW DELHI : 11.11.2011
10 M/s Delhi Press Patra vs. Media Research Users
Suit no. 453/10
11.11.2011
Present: Counsel for the plaintiff.
Vide separate order of even date, application under section 8 of the Arbitration and Conciliation Act moved both by defendant no. 1 as well as defendant no. 2 are dismissed.
Matter is adjourned to 08.12.2011 for further proceedings.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 11.11.2011