9911796707
TMI Blog2009 (1) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 granting licence to defendant No. 1 to use its trademarks/copyright in respect of 'Ministry of Sound', 'The Ministry', 'Ministry', 'MOS' and logo of the plaintiff and to run a night club by the name of 'The Pyramid'. 3. Agreement dated 7th December, 2006 incorporates Clause 29 under the heading Governing law, Jurisdiction and Dispute Resolution. The said Clause reads as under : 29. Governing Law, Jurisdiction and Dispute Resolution. 29.1 This Agreement is governed in all respects in accordance with English law and shall be construed and take effect as an agreement made in England. 29.2 The Licensee shall conduct its business under this Agreement in a lawful manner and will faithfully comply with all applicable laws or regulations for the conduct of its business. 29.3 The parties agree that, in the event of any dispute arising out of or in connection with this Agreement which the parties are unable to resolve in the normal course, the parties agree that the matter shall be referred to the Licensor Representative and Licensee Representative. The Licensor Representative and Licensee Representative shall meet to attempt resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely because a wrong provision of the Act is mentioned in the cause title. Pleadings as made satisfy requirements of Section 45 of the Act. I am not therefore inclined to dismiss the application for quoting a wrong Section/provision in the cause title. I may note here that Section 45 of the Act, does not require filing of an application and mere request by a party is sufficient (See, observations of this Court in Bharati Televentures Private Ltd v. DSS Enterprises Private Ltd and Ors. reported in 123(2005)DLT532 ). 6. The objection (a) of the plaintiff is based on the decision of the Supreme Court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Anr. reported in [2003]3SCR558 . The said decision relates to Section 8 of the Act and it was held that a subject matter of a suit cannot be bifurcated. One part of the suit cannot be referred to arbitration and the remaining part or part subject matter of the cause continues before a Civil Court. Section 8 of the Act requires that the entire subject matter of suit should be the subject matter of the arbitration agreement. It is only when the entire subject matter of the suit is covered and is subject matter of the arbitration agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in collaboration with Defendants Nos. 4 and 5 9. Learned Counsel for the defendant No. 1 during the course of hearing on the application has stated that defendant Nos. 1 and 2 have no intention of entering into any agreement with defendant Nos. 4 and 5 and the said statement was taken on record. The statement is binding on defendant Nos. 1 and 2. 10. With regard to defendant No. 3, orders have been passed in I.A. No. 5596/2008. Learned Counsel for defendant No. 3 on 8th September, 2008 had stated that his client was not aware of inter se disputes between the plaintiff and defendant Nos. 1 and 2 and that the said defendant will not sponsor any event in which the trademark/mark/logo of the plaintiff is a subject matter without verification and acknowledgment from the plaintiff. Learned Counsel for the plaintiff thereupon had taken time to get instructions, on whether on the basis of the said statement the suit can be disposed of. On 23rd October, 2008, learned Counsel for the plaintiff had stated on instructions that the statement made by defendant No. 3 was acceptable and the suit can be disposed of on the basis of the said statement. Accordingly, I.A. No. 5596/2008 was disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 29.5 stipulates that inspite of Clauses 29.3 and 29.4 for resolution of disputes within 30 business days, a party can seek injunctive relief in case of breach or threat to breach of obligation of confidentiality or infringement of intellectual property rights. Sub-clause (b) of Clause 29.5 is not applicable and is not relevant. The object and purpose behind Clause 29.5(a) is not to bar or prevent a party from seeking injunctive relief of the nature specified, even when 30 business days period for resolving disputes has not lapsed. The jurisdiction of the Court to grant injunctive relief is not barred for disputes or a cause is pending settlement under clauses 29.3 and 29.4 and 30 business days period has not expired. 13. Clause 29.6 is the arbitration clause and is widely worded. It stipulates that 'any dispute arising out of or in connection with the agreement' will be submitted to arbitration of a sole arbitrator of London International Court of Arbitration. The said Clause begins with the word 'subject to foregoing'. The case of the plaintiff is that the aforesaid clause is subject to Clause 29.5 and therefore suit for injunction for breach or threatened bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s period has expired. These words also predicate that the arbitration clause can be invoked and instituted even when a party has sought injunctive relief in a court to prevent breach or threatened breach of obligation of confidentiality or infringement of intellectual property rights. In other words, arbitration agreement continues to subsist and can be invoked even when an injunctive relief is applied and prayed for by a party under Clause 29.5 (a). 15. Section 9 of the Act permits and allows a party to an arbitration clause to obtain interim injunction even before arbitration proceedings have commenced but a party intends to commence or invoke the arbitration clause. Under Section 9 of the Act, the Courts have the power to grant injunctive relief even before arbitration has commenced. 16. Clause 29.1 states that the Agreement would be governed in all respects by English Law and shall be considered and taken effect as an agreement made in England. Section 44 of the English Arbitration Act, 1996 stipulates that unless otherwise agreed, a party can approach courts for the purpose of and in relation to arbitration proceedings in matters stipulated in Sub-section (2). Sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned the arbitration clause by invoking jurisdiction of a civil court. In such cases where a party has decided to give go bye and novated the arbitration clause, they cannot later on be permitted to turn around and invoke the arbitration clause when civil proceedings are initiated by the other side. However, the facts of the present case and the suit filed by the defendant No. 1 and 2 being CS(OS). No. 1223/2008 may be noticed. 18. The present Suit was filed on 5th February, 2008 and by Order dated 18th February, 2008, notice was issued to the defendant. An ex parte injunction order was also passed on the same date. The present application for reference to arbitration was filed on or about 4th March, 2008. Subsequent thereto, defendant No. 1 filed their written statement on 24th April, 2008. Written statement also makes specific reference to Clause 29.6 of the Agreement and the fact that the defendant Nos. 1 and 2 have filed the present application. 19. Long after filing of the present application, defendant Nos. 1 and 2 also filed a civil suit against the plaintiff on 3rd July, 2008. The said Suit was with the following prayers : i) a decree of permanent injunction restra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later than submitting 'first statement' should be distinguished from the expression 'written statement' as used in Section 34 of the Arbitration Act, 1940. If an application under Section 8(1) is filed before actually filing the first statement, the said application is maintainable and the same cannot be dismissed on the ground that the party has waived his right to invoke the arbitration clause or has acquiesced himself to jurisdiction of the Court. The Supreme Court has observed : 36. The expression 'first statement on the substance of the dispute' contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression 'written statement'. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, the defendant Nos. 1 and 2 had invoked the arbitration clause by filing the present application. and have been pressing the present application. Subsequent to filing of the present application, defendant Nos. 1 and 2 did file a civil suit but the said suit has been withdrawn. If the defendant Nos. 1 and 2 had filed a civil suit and thereafter subsequently filed the present application under Section 8/45 of the Act, the situation would have been different. Filing of the civil suit in the present case will not amount to abandonment or waiver of the right to invoke arbitration. 24. Accordingly, the present application under Section 45 of the Act is allowed and the parties are referred to arbitration. 25. This Court by Order dated 18th February, 2008 has granted interim injunction. The said interim injunction order still continues. The Order will continue further for a period of 60 days to enable the plaintiff to take appropriate steps by either initiating legal proceedings under Section 9 of the Act or before the arbitrators. Similarly, defendant Nos. 1 and 2 will be entitled to contest those proceedings on merits. It is clarified that this Court while adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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