Delhi District Court
M/S Tyagi Enterprises vs Paytm E-Commerce Pvt. Ltd on 31 May, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI
ADDL. DISTRICT JUDGE-02: SOUTH-WEST DISTRICT:
DWARKA COURTS:NEW DELHI
CNR No. DLSW01012771/2018
CS No. 626/2018
M/s Tyagi Enterprises
(Through its Proprietor)
Sh Pawan Kumar Tyagi
Having its office at:-
Plot No.45, A-3, Block
Gali No.5, Dharma Pura Extn.
Najafgarh, New Delhi - 110043 ... Plaintiff
Versus
1. Paytm E-Commerce Pvt. Ltd.
136, 1st Floor, Devika Tower
Nehru Place, New Delhi - 110019
2. Mr. Vijay Shekhar Sharma (Director)
R/o S-491(2nd Floor) Block-S
Greater Kailash -2, Delhi - 110048
Also at:
B-121, Sec.5, Noida (UP) 201301
3. Mr Amit Sinha (Director)
B-37, Sec.41, Noida, UP -201301
CS DJ ADJ No. 626/2018
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4. Ms Renu Satti
Managing Director & Chief Executive Officer
Paytm E-Commerce Pvt Ltd
136, 1st Floor, Devika Tower
Nehru Place, New Delhi - 110019
5. Mr Abhishek
Present Category Head
(Moto & Lenovo Brand)
Paytm E-Commerce Pvt Ltd
136, 1st Floor, Devika Tower
Nehru Place, New Delhi - 110019 ... Defendants
ORDER
31.05.2019
1. This order shall dispose of an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter "the Act") moved by the defendant seeking rejection of the suit.
2. The plaintiff namely, M/s Tyagi Enterprises - Through its Proprietor, Sh. Pawan Kumar Tyagi (hereinafter "plaintiff") has preferred a suit for recovery of ₹10,11,639.56/- (Rupees Ten lakhs eleven thousand six hundred and thirty nine and fifty six paise only) along with pendente lite and future interest @24% p.a. against the defendants, namely, Paytm E-Commerce Pvt. Ltd. (defendant No. 1), Vijay Shekhar Sharma (defendant No. 2), Amit Sinha (defendant No.
3), Renu Satti (defendant No. 4), Abhishek (defendant No. 5).
CS DJ ADJ No. 626/2018 Page No. 2/83. The facts of the case in a nutshell are that the plaintiff is a sole proprietorship concern, whole proprietor is Pawan Kumar Tyagi. The defendant No. 1 is a private limited company, the defendant Nos. 2, 3 & 4 are the directors of the defendant No. 1, and the defendant No. 5 is the Category Head (Moto & Lenovo Brand) of the defendant No. 1. The plaintiff was approached by the defendant No. 1 through the defendant No. 5 to sell his electronic products on the platform of the defendant No. 1 and the defendants will provide hassle free payment to the plaintiff within 7 days from the delivery of the product and it was assured to the plaintiff that there would be no delay beyond 7 days in the payment. The plaintiff has instituted the present suit against the defendants not only with regard to illegal, unlawful withholding of an amount of ₹2,12,189.56 (Rupees Two lakhs twelve thousand one hundred and eighty nine and fifty six paise only) as the plaintiff sold 14(fourteen) pre-activated mobile phones but also for compensation, damages and interest. The plaintiff has sought an amount of ₹10,11,639.56/- (Rupees Ten lakhs eleven thousand six hundred and thirty nine and fifty six paise only) along with interest and the break-up of the aforesaid amount is as under:
(a) Amount due for the period ₹2,12,189.56
21.04.2018 - 26.04.2018
(b) Interest @18%p.a. for the period ₹9,450.00
01.05.2018 - 31.07.2018
(c) Amount claim towards compensation ₹2,50,000.00
(d) Amount claim towards damages ₹5,40,000.00
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Total ₹10,11,639.56
4. A notice dated 28.05.2018 was issued at the behest of the plaintiff to the defendants and the same was replied by the defendants through a reply dated 02.06.2018. Hence, the present suit was instituted by the plaintiff on 04.07.2018.
5. Subsequent to the issuance of summons for settlement of issues by the Ld. Predecessor of this court on 05.07.2018, the service of summons was duly effected upon the defendants on 15.01.2019. The defendant filed appearance on 16.01.2019 and also moved an application under Section 8 of the Act seeking rejection of the plaint on the ground that the dispute between the parties ought to be decided, as per the arbitration agreement, as there is an arbitration agreement in existence. It is further observed that no written statement had been filed by the defendant.
6. Sh. Gaurav, Ld. counsel for the defendant submitted that a marketplace agreement dated 07.09.2016 was executed between the plaintiff and the defendant No. 1 in which an arbitration agreement is nestled. Ld. counsel further submitted that the present dispute is wholly covered within the ambit of the said arbitration agreement and thus the dispute ought to be decided by arbitration.
7. Sh. Naveen Tyagi, Ld. counsel for the plaintiff strenuously opposed the submissions advanced by the Ld. counsel for the defendant. Ld. counsel submitted that the present application is CS DJ ADJ No. 626/2018 Page No. 4/8 nothing but a ploy to delay the present legal proceedings and the dispute amongst the parties is liable to be decided by the civil court and the same is beyond the ambit of the arbitration agreement.
8. On perusal of the plaint and the documents filed along with the plaint, this court observes that the plaintiff has placed on record a copy of marketplace agreement dated 07.09.2016 entered between the plaintiff and the defendant No. 1.
9. Clause 12, sub-clause 1 of the marketplace agreement dated 07.09.2016 reads as under:
"12. GENERAL TERMS
1. DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION: If any dispute arises between the Parties hereto during the subsistence of this Agreement or thereafter, in connection with, or arising out of, this Agreement, the dispute shall be referred to arbitration under the Arbitration and Conciliation Act, 1996 (Indian) to be adjudicated by a sole arbitrator to be appointed by Paytm. Arbitration shall be held at New Delhi, India. The proceedings of arbitration shall be in the English language. The arbitrator's award shall be final and binding on the Parties. The Agreement shall be governed by and construed in accordance with the laws of India. The courts of New Delhi, India, shall have exclusive jurisdiction in connection with this Agreement."
10. Section 8 of the Act, reads as under:
"8. Power to refer parties to arbitration where there is an arbitration agreement.-- (1) A CS DJ ADJ No. 626/2018 Page No. 5/8 judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:
Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made."CS DJ ADJ No. 626/2018 Page No. 6/8
11. The position in law is well settled that once there is an arbitration agreement in place and the same being a valid arbitration agreement, the courts must give deference to arbitration. Section 5 of the Act, prohibits judicial intervention. Section 8 of the Act contains a mandate that where an action is brought before a judicial authority in the matter which is the subject of an arbitration agreement, the parties shall be referred by court to arbitration, if a party to or a person claiming through a party to the arbitration agreement applies not later than the date of submitting the first statement on the substance of the dispute. The only exception is where the court finds prima facie that there is no valid arbitration agreement.
12. The mandate of Section 8 of the Act has been reiterated by the Apex Court in Sundaram Finance Limited and Ors v. T.Thankam (2015) 14 SCC 444) that once an application in due compliance with Section 8 of the Act is filed, the approach of the civil Court should be not to see whether the Court has jurisdiction. It should be to see whether its jurisdiction has been ousted.
13. I, have considered the complete record and the submissions advanced by the Ld. Counsel for parties. The arbitration agreement is enshrined in Clause 12 sub-clause 1 of the marketplace agreement dated 07.09.2016.
14. In view of the above observations and discussions, I am of the opinion the application moved by the defendant No. 1 under Section 8 of the Act is to be allowed. Accordingly, the parties are referred for CS DJ ADJ No. 626/2018 Page No. 7/8 arbitration in accordance with Section 8(1) of the Act and applicable law.
15. Since the dispute is being referred for arbitration in terms of Sec 8 of the Act read Section 89 of the Code of Civil Procedure, 1908, the plaintiff is entitled for refund of court fees as per Section 16 of the Court Fees Act, 1870. I also place reliance upon the judgment passed by the Division Bench of the Hon'ble High Court of Delhi in Nutan Batra v. Buniyaad Associates - (2018) 255 DLT 696 (DB), wherein the applicability of Section 16 of the Court Fees Act, 1870 was upheld and the plaintiff was held entitled to refund of entire court fee paid. Be ordered, accordingly.
16. I would like to add a word of caution, that the observations in the preceding paragraphs are prima facie view for disposal of the defendant's application and the same shall not tantamount to be the view on the merits of the case.
17. Parties to bear their own costs. File be consigned to record room only after due compliance and necessary action, as per Rules.
Pronounced in the open Court (Hargurvarinder Singh Jaggi)
on 31.05.2019 Addl. District Judge-02
South West District
Dwarka Courts Complex
New Delhi
Digitally signed by
HARGURVARINDER
HARGURVARINDER SINGH JAGGI
SINGH JAGGI
Date: 2019.05.31
16:32:47 +0530
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