Supreme Court - Daily Orders
Akari Enterprises Llc Having Its Office ... vs Genesis Luxury Fashion Private ... on 16 August, 2016
Bench: Chief Justice, A.M. Khanwilkar
1
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.2 OF 2016
AKARI ENTERPRISES LLC
HAVING ITS OFFICE AT 1732,
AVIATION BOULEVARD, SUITE 207, ...PETITIONER(S)
REDONDO BEACH, CALIFORNIA,
UNITED STATES CA 90278
THROUGH ANDREAS KURZ
VERSUS
GENESIS LUXURY FASHION PRIVATE LIMITED,
3A-1, RAO TULA RAM MARG,
NEW DELHI-110022 ...RESPONDENT(S)
THROUGH ITS MANAGING DIRECTOR
O R D E R
This petition has been filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator to adjudicate upon certain disputes that have arisen between the parties. The respondent has appeared to contest this petition, inter alia, on the ground that there are no live disputes between the parties as on date to call for a reference. Ms. Vibha Makhija, learned senior counsel appearing for the respondent has in that regard drawn our attention to the averments made in the reply filed to this petition, the terms of the agreement executed between the parties as also the Signature Not Verified Digitally signed by decision of this Court in Arasmeta Captive Power Company ASHOK RAJ SINGH Date: 2016.08.31 17:09:13 IST Reason: Limited & Anr. vs. Lafarage India Private Limited [(2013) 15 SCC 414]. It is contended by Ms.Makhija that the terms 2 of the agreement execution whereof is not disputed would justify a reference only in case the disputes sought to be raised fall within the four corners of the arbitration clause. It is also submitted that since the parties had agreed to certain additional terms as indicated in email dated 02.05.2012, the question of making a reference to an Arbitrator beyond the period of three months stipulated in the said email did not arise.
On behalf of the petitioner it was on the other hand contended that the existence of the agreement and the arbitration clause for settlement of disputes that may arise between the parties not being in dispute the reference prayed for cannot be declined on the ground that no live disputes exist between the parties. It was further contended that the email relied upon by the respondent acknowledges that the respondent was in conversation with the G-Star pursuant to the introduction of the said company by the petitioner herein in terms of the arbitration agreement. The fact that the respondent company eventually established a business relationship with the G-Star on the basis of the introduction provided by the petitioner is according to the learned counsel not disputed. It is contended that since a business relationship did eventually fructify between the respondent and the G-Star based on the introduction provided by the petitioner, the petitioner was 3 legitimately entitled to payment of what is described as “success fee” in terms of the arbitration agreement and inasmuch as the respondent has declined to pay the said amount, the dispute was live and required to be adjudicated upon by an Arbitrator.
We have given our anxious consideration to the submissions made at the Bar. It is not in dispute that the parties have entered into an agreement dated 04.08.2011. It is also not in dispute that the said agreement contains an arbitration clause which is in the following words:
“Effect of Termination. In case of termination of this Agreement by Company, consultant continues to be entitled to receive success fee and any other amounts due under section “Consideration” for the Brands which were agreed to by the Company and the Consultant before termination and accordingly Success Fee shall be paid on signing of Agreement with such agreed Brands.
*** *** ***
Dispute Settlement Mecahnish. That in case any
dispute or difference between the Company and the Consultant in respect of this agreement the same shall be referred for arbitration to be conducted by sole arbitrator who shall be appointed by the Court at Delhi in accordance with the Arbitration and Conciliation Act, 1996. The seat of the arbitral proceedings shall be New Delhi.” 4 That disputes have arisen between the parties in relation to the agreement within the meaning of the above-mentioned clause is evident from the pleadings and facts of the present case. As to the true meaning and purpose of the agreement executed between the parties we do not propose to make any observation lest the same causes any prejudice to either party. We are at the same time satisfied that a live dispute does exist between the parties that requires adjudication. The method for such adjudication is provided for in the arbitration clause.
We accordingly allow this petition and appoint Hon'ble Ms.Justice Rekha Sharma, former Judge of the High Court of Delhi as sole Arbitrator to adjudicate upon the claim/counter claim if any made by the parties. The Arbitrator shall be free to claim such fee as may be determined by her. The parties are directed to appear before the Arbitrator in the month of September, 2016 for further directions.
No costs.
....................CJI.
[T.S.THAKUR] ......................J. [A.M. KHANWILKAR] NEW DELHI, AUGUST 16, 2016.5
ITEM NO.32 COURT NO.1 SECTION XVIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Arbitration (Civil) No.2/2016
AKARI ENTERPRISES LLC HAVING ITS OFFICE AT 1732, AVIATION BOULEVARD, SUITE 207, REDONDO BEACH, CALIFORNIA, UNITED STATES CA 90278 THROUGH ANDREAS KURZ Petitioner(s) VERSUS GENESIS LUXURY FASHION PRIVATE LIMITED, 3A-1, RAO TULA RAM MARG NEW DELHI-110022 THROUGH ITS MANAGING DIRECTOR Respondent(s) (with office report) Date : 16/08/2016 This petition was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR For Petitioner(s) Mrs. Karnika Seth, Adv. Mrs. Indra Sawhney, Adv.
For Respondent(s) Ms. Vibha Makhija, Sr. Adv. Mr. Anubhav Kumar, Adv. M/s Manoj Swarup & Co.
UPON hearing the counsel the Court made the following O R D E R This petition is allowed and disposed off in terms of the signed order.
(Ashok Raj Singh) (Veena Khera)
Court Master Court Master
(Signed Order is placed in the file)