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TMI Blog2016 (4) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the impugned order, the same is liable to be set aside. - Civil Appeal Nos. 4359-4360 of 2016 [ arising out of SLP (C) Nos. 3134-3135 of 2015] - - - Dated:- 22-4-2016 - Fakkir Mohamed Ibrahim Kalifulla And S. A. Bobde, JJ. JUDGMENT Fakkir Mohamed Ibrahim Kalifulla, J. Leave granted. 1. These appeals are directed against the order dated 29.9.2014 in Execution Application No.643 of 2013 in Award dated 23.12.2011 with Chamber Summons No.832 of 2014. 2. To briefly note the facts, there was a Licence Agreement between the appellant and the respondent dated 22.2.1993 which provided for settlement of disputes by way of arbitration in accordance with the Rules of the Dutch Arbitration Institute. The said agreement was sought to be terminated by a notice by the respondent on 12.3.2007. The termination was to take effect from 23.02.2008. The dispute went before the Arbitral Tribunal. On 11.6.2008, the appellant filed an application for registration of Patent Nos.10-0865115 and 100909490 in the United States as well as in India. In the arbitral proceedings, a Partial Final Award (for short, PFA) came to be passed by the Arbitral Trinunal on 23.12.2011. We are presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aft of the deed of transfer was enclosed, which was dated 4.4.2012. In the opening part of the said Deed, the reference to PFA, which was mentioned in the earlier draft transfer deed, was omitted. In other respects, the draft remained the same which contained a clause under the caption 'Consideration' to the effect, Pursuant to the above, the Parties agree that the consideration for the sale and transfer of the patent and the patent rights shall be US$ 1 (United States Dollar One), receipt of which is hereby acknowledged . 6. That apart, in clause 5.5 of the re-draft it was mentioned that arbitration of the dispute arising out of or in connection with the deed should be initially settled under the Rules of Singapore International Arbitration Centre by a Sole Arbitrator appointed in accordance with the said Rules and the proceedings should be in English and the seat of arbitration should be Singapore. Insofar as the said clause was concerned, the same was different than the one which was contained in the earlier draft, as per which the arbitration was to be carried out with the Rules and provisions by Netherlands Arbitration Institute and the venue of the arbitration as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, by another communication dated 15.3.2013, the respondent's lawyers sent a fresh e-mail to the appellant's lawyers informing that fresh steps are required to be taken to arrive at a final settlement of disputes. The said e-mail was also replied on behalf of the appellant on 20.3.2013 wherein the respondent was reminded as to the confirmation of the steps taken based on the transfer deed executed by them. For the first time, on 8.6.2013, by way of e-mail at the instance of the respondent's lawyers it was intimated that respondent was not willing to accept the transfer of Indian Patents based on the language used in the draft deed as signed by the appellant. The said e-mail was also duly replied on behalf of the appellant on 15.6.2013 pointing out that the deed was executed as per the draft forwarded to the respondent by their lawyers and consequently the appellant was not in any way liable for either any delay or for the terms contained in the transfer deed. 9. It was in the above-stated background the present application came to be filed by the respondent on 8.7.2013 before the High Court of Bombay for the enforcement of paragraph 7 of the PFA dated 23.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest of the respondent after the PFA dated 23.12.2011 was 19.1.2012, that along with the said communication the draft deed of transfer to be executed by the appellant was forwarded to it, that after detailed discussions between January and March, 2012, the re-draft was forwarded by the respondent on 3.4.2012 wherein the reference to PFA in the opening paragraph of the earlier draft was omitted and that the paragraphs relating to consideration was specified apart from the change about the venue and the applicable Rules of the Arbitral Tribunal was noted as Singapore instead of Netherlands and the governing law applicable was also changed from Netherlands to India. Learned counsel was also not able to controvert any of the other subsequent correspondence exchanged between the appellant and the respondent between 11.4.2012 and 15.6.2013. 14. Having regard to the said development which had taken place after the PFA dated 23.12.2011 which discloses that the appellant did not commit any default in complying with the direction of the said Award and, therefore, the present direction of the learned Judge in the impugned order was wholly unwarranted. If the respondent failed to act based ..... X X X X Extracts X X X X X X X X Extracts X X X X
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