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TMI Blog2013 (6) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... as due performance and/or violation of the agreement by plaintiff or defendant and its consequential effect on the rights and liabilities of both the parties inter se. All these issues are questions of fact which can only be established by way of trial once both the parties have led their evidence. Present application is allowed and defendant is granted unconditional leave to defend the suit. - CS (OS) 2553/2012 - - - Dated:- 8-2-2013 - Manmohan,J. For the Petitioner : Mr. P. D. Gupta, Advocate with Mr. Kamal Gupta, Advocate. For the Respondents : Mr. Kirti Uppal, Senior Advocate with Ms. Abhilasha Nautiyal and Mr. Gurpreet Singh, Advocates. JUDGMENT I.A. 17807/2012 1. The present application has been filed by the defendant under Section 8 of Arbitration and Conciliation Act, 1996 read with Section 151 CPC. 2. Mr. Kirti Uppal, learned senior counsel for the defendant relied upon the arbitration clause contained in the Agreement dated 9th September, 2010 and submitted that the present suit ought to be referred to arbitration. 3. Mr. P.D. Gupta, learned counsel for the plaintiff, though did not deny the existence of the arbitration clause but submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Clause 5 of the Agreement, the defendant sent three warnings dated 11th January, 2011, 20th January, 2011 and 28th February, 2011 and pursuant to these warnings terminated the agreement with immediate effect. Mr. Uppal submitted that despite notice of termination and calling upon the plaintiff to stop using the brand name INDANA, the plaintiff still continued to use the mark, compelling the defendant to file a suit CS(OS) 1016/2011 against the plaintiff on account of infringement of trade mark, passing of, rendition of accounts, damages etc. In the said suit, Mr. Uppal stated that, this Court by order dated 29th February, 2011 restrained the plaintiff from using the trade mark INDANA. Subsequently, the injunction order was confirmed on 30th August, 2011. 8. Mr. Uppal stated that the plaintiff made no demand upon the defendant prior to filing the suit and that in any event the defendant was claiming damages to the tune of Rs. 1,00,00,000/- and the present demand was liable to be set off against the damages claimed. 9. Mr. Uppal lastly submitted that as the dispute in the present suit was directly and substantially the same as raised by the defendant in its earlier s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "7. In Smt. Kiranmoyee Dassi Anr. v. Dr. J. Chatterjee(1), Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 37 C.P.C. in the form of the following propositions (at p. 253): (a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marketed by them meet prescribed specifications under Agmark BIS as applicable also various provisions of PFA Act. It is further agreed that the first party shall be authorised to depute its personnel for ensuring quality adherence at the premises of the contract by first party. However it is agreed and understood by both the parties that the first party shall not be liable for any actions from any quarter in the event of any quality defects in the products even after they have under gone quality check by the quality control team of the first party. (emphasis supplied) 15. After going through the agreement, this Court is of the view that the sole emphasis of the plaintiff on the second part of the Clause 3 - "..... shall be refunded by the first party to second party at the time of determination of this agreement for any reason whatsoever", is misplaced. Every agreement has to be read as a whole and the meaning of a clause has to be gathered from a reading of the entire agreement. The first part of the same clause mentions that Rs. 50,00,000/- is deposited as security deposit..... for due performance of the agreement". At this stage all the court has to examine whether i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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