Bombay High Court
Goldmines Telefilms Pvt Ltd vs Etcetera Entertainment on 4 March, 2021
Author: G.S. Patel
Bench: G.S. Patel
37-CARBPL-7534-2020.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION (L) NO. 7534 OF 2020
Goldmines Teleflms Private Limited ...Petitioner
Versus
Etcetera Entertainment ...Respondent
Ms Gulnar Mistry, with Mr Aurup Dasgupta, Ms Sonam Ghiya & Ms Jinal Vani, i/b M/s Jhangiani, Narula & Associates, for the Petitioner.
Mr Rahul Kadam, for the Respondent.
CORAM: G.S. PATEL, J
DATED: 4th March 2021
PC:-
1. The previous order of 7th December 2020 reads thus:
"1. Heard through video conferencing. ARUN RAMCHANDRA SANKPAL
2. None for the Respondents though served.Digitally signed by ARUN RAMCHANDRA
SANKPAL 3. The Petition is for pre-arbitral relief under Section 9 Date: 2021.03.05 11:03:44 +0530 of the Arbitration and Conciliation Act 1996. It seeks an order on a negative covenant in a Deed of Transfer of ownership of a copyright. The agreement is dated 18th December 2018 and contains an arbitration clause 35 at page 52. This provides for a reference of disputes to an agreed sole arbitrator, and, failing that, to a three-member tribunal. The arbitration is to be in Mumbai.Page 1 of 8
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4. By the agreement of 18th December 2018, the Respondent assigned to the Petitioner all dubbing rights in Hindi and all North Indian languages of a Tamil flm called "Boxer". The consideration is stated in the agreement itself and between 19th December 2018 and 30th January 2019, the Petitioner paid Rs. 1 crore to the Respondent under this agreement.
5. There was a delay in release of the flm. Ultimately on 16th December 2019, the parties executed a Deed of Settlement by which the Respondent confrmed its liability to pay interest at the rate of 24% per annum on the amount of Rs. 1 crore. There is also a provision for additional interest if the flm was not released till 30th September 2020. In fact, the flm was not released by that date. The Petitioners on 13th November 2020 terminated the agreement and demanded a return of the entire amount with accrued interest. I am told that the shooting of this flm has been shelved but the agreement allows the Respondent to seek reliefs including an injunction in regard to another flm by the Respondent called "Maha". Clause 27 of the Deed gives the Petitioner the frst and paramount lien and charge on all rights of the flm "Maha" until the amounts due under this agreement are paid.
6. Clearly, there is a sufcient prima facie case and balance of convenience is with the Petitioner. Accordingly, until further orders, there will be an ad-interim order in terms of prayer clauses (a) and (b), which read thus:
"(a) That pending the commencement and hearing of the Arbitral proceedings between the Petitioner and the Respondent, this Hon'ble Court be pleased to restrain the Respondent, its servants, agents, assigns or any person or persons claiming through or under the Respondent, by an order and injunction of Page 2 of 8 4th March 2021 37-CARBPL-7534-2020.DOC this Hon'ble Court from releasing the flm titled "Maha" on any platform and/or medium whatsoever;
(b) That pending the commencement and hearing of the Arbitral proceedings between the Petitioner and the Respondent, this Hon'ble Court be pleased to restrain the Respondent, its servants, agents, assigns or any person or persons claiming through or under the Respondent from dealing with and/or exploiting and/or assigning and/or creating any third party rights in respect of any of the rights in the Tamil feature Film titled "Maha" in any manner or form whatsoever until the amounts due to the Petitioner as particularized in Particulars of Claim annexed at Exhibit "H" are paid over to the Petitioner."
7. I will consider other prayers at a later date. A copy of this order is to be served on the Respondents by soft copy and by courier.
8. Afdavit in Reply is to be fled and served on or before 8th January 2021. Afdavit in Rejoinder, if any, is to be fled and served on or before 18th January 2021.
9. List the matter for further orders on 29th January 2021."
2. As far as I can tell, there is no tenable defence disclosed even in the Afdavit in Reply. There is only a statement that the Respondent was unable to perform its obligations under the Deed of Settlement of 16th December 2019 due to the lockdown. Indeed, today the assertion is that the flm is nearing completion and should be released in May 2021. But this only means that the amount due to Page 3 of 8 4th March 2021 37-CARBPL-7534-2020.DOC the Petitioner under the Agreement of 18th December 2018 and the Deed of Settlement of 16th December 2019 must be paid before the release of the flm. I see no reason to vary the order of 7th December 2020 in the least, merely on the promise that once the flm is released, some payment will be made. That is clearly not in compliance or discharge of the contractual obligations.
3. Consequently, apart from continuing the previous order there will have to be an order of disclosure in terms of prayer clause (c) and then an injunction in terms of prayer clause (d). It is however clarifed that the injunction in prayer clause (d) will not restrain the Respondent from transacting with its assets in the ordinary and usual course of its business. This order will continue pending arbitration and will be subject to variation, modifcation or being set aside by the learned Arbitrator on the application of the Respondents after hearing both sides.
4. Clause 35 of the Agreement dated 18th December 2018 provides for a reference to a Mumbai-based arbitration. The reference is to be to a sole arbitrator if agreed by both sides and if not to a three-member tribunal.
5. Both sides leaves the choice of Arbitrator to the Court. I nominate Ms Pooja Kshirsagar, learned Advocate of this Court to be the Sole Arbitrator to decide the disputes and diferences between the parties under the Deed of Transfer of Ownership of Copyrights dated 18th December 2018 read with the Deed of Settlement dated 16th December 2019.
Page 4 of 84th March 2021 37-CARBPL-7534-2020.DOC TERMS OF APPOINTMENT
(a) Appointment of Arbitrator: Ms Pooja Kshirsagar, learned Advocate of this Court, is hereby nominated to act as a Sole Arbitrator to decide the disputes and diferences between the parties under Deed of Transfer of Ownership of Copyrights dated 18th December 2018 read with the Deed of Settlement dated 16th December 2019.
(b) Communication to Arbitrator of this order:
(i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the Petitioner within one week from the date this order is uploaded.
(ii) The Advocates for the Petitioner will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses:
Arbitrator Ms Pooja Kshirsagar,
Advocate.
Address C/o Dr Birendra Saraf
302, Oval House
Of Nagindas Master Road
Fort
Mumbai 400 001.
Mobile 9619057766
Email [email protected]
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(c) Disclosure: The learned Sole Arbitrator is requested to
forward, in hard copy or soft copy (or both), the necessary statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to Advocates for the parties as soon as possible. The Advocates for the Petitioners will arrange to fle the original statement in the Registry. If the statement is forwarded in soft copy, a print out of the covering email is also to be fled in the registry.
(d) Appearance before the Arbitrator: Parties will appear before the learned Sole Arbitrator on such date and at such place as the learned Sole Arbitrator nominates to obtain appropriate directions in regard to fxing a schedule for completing pleadings, etc.
(e) Contact/communication information of the parties:
Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator. The information is to include functional email addresses and mobile numbers.
(f ) Section 16 application: The respondent is at liberty to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act. All contentions are left open.
(g) Interim Application/s:
(i) Liberty to the parties to make an interim
application or interim applications including Page 6 of 8 4th March 2021 37-CARBPL-7534-2020.DOC (but not limited to) interim applications under Section 17 of the Arbitration & Conciliation Act, 1996 before the learned Sole Arbitrator. Any such application will be decided in such manner and within such time as the learned Sole Arbitrator deems ft.
(ii) The learned Sole Arbitrator is requested to dispose of all interim applications at the earliest.
(h) Fees: The arbitral tribunal's fees shall be governed by the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018.
(i) Sharing of costs and fees: Parties agree that all arbitral costs and the fees of the arbitrator will be borne by the two sides in equal shares in the frst instance.
(j) Consent to an extension if thought necessary. Parties immediately consent to a further extension of up to six months to complete the arbitration should the learned Sole Arbitrator fnd it necessary.
(k) Venue and seat of arbitration: Parties agree that the venue and seat of the arbitration will be in Mumbai.
(l) Procedure: These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration.Page 7 of 8
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6. The Petition is disposed of in these terms. Costs of the Petition may be recovered as costs in arbitration.
7. This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 8 of 8 4th March 2021