ORDER : This application under Sections 11(5) & (6) of the Arbitration and Conciliation Act, 1996 has been filed on 11.07.2014 by Om Prakash Sharma, who has been substituted by his legal representatives owing to his death on 27.12.2014 by (i) his wife Smt. Krishna Sharma, (ii) his son Sanjay Sharma, (iii) his daughter Mrs. Sanyukta Gautam and (iv) his another daughter Mrs. Sangeeta Sharma. 2. Applicant in the application prayed for appointment of an independent Arbitrator to adjudicate the dispute and differences between the applicants and non-applicants in respect of agreement dated 29.3.2007 executed between them. 3. Applicant is the sole Proprietor/Owner of Cinema Hall and his property is known as “Polovictory Cinema”. After thorough negotiation between parties, a License Deed with regard to part of the premises of the Polovictory Cinema was executed between applicant and respondent no. 2-M/s. Nirulas Corner House Pvt. Ltd. (hereinafter referred to as Nirulas/IInd Party-Respondent No.2 to this petition) on 29th March, 2007. As per aforesaid License Deed, Applicant agreed to permit IInd Party-Respondent No. 2 to run Restaurant, Bar, Pastry Shop, Snack Bar etc. on the ground floor portion admeasuring 2200 sq. feet of carpet area (super buildup area of 2750 sq. feet) as mentioned in License Deed. As per clause 2 of the aforesaid License Deed dated 29th March, 2007, the deed was effective for a period of 15 years from the date of starting of commercial operation with a right of renewal for further period of 15 years as per terms & conditions of the License Deed. There was a clause of lock-in period of 2 years during which License could not be terminated. Clause 38 provided that IInd Party-Respondent No.2 was having a right to terminate the License after lock-in period of 2 years by giving prior written notice of 3 months to applicant. As per clause 6 of the aforesaid License Deed, License fee was required to be paid to applicant with a minimum rate as mentioned in the License Deed. However, it was stipulated in the License Deed that the Licensee was liable to pay 9% of the net sales of items from Licensed premises, if the said amount exceed the License fee mentioned in the License Deed. However, it was stipulated in the License Deed that the Licensee was liable to pay 9% of the net sales of items from Licensed premises, if the said amount exceed the License fee mentioned in the License Deed. For the purpose of calculation of the actual Licensee fee payable as per License Deed, respondents were liable to produce/show the record of actual net sales, so that the payable License fee could be calculated. It is alleged that both the respondents have not produced the actual record of sales so as to conceal the same just to avoid payment of higher License fee payable as per the License Deed. Besides License fee, Licensee were bound to pay maintenance charges as per clause 33 and other charges mentioned in the deed. 4. Shri L.L. Gupta, learned counsel for the applicant has argued that according to clause 37 of the aforesaid Licensee deed, License could have been assigned by the Licensee and the IInd Party- Respondent No.2 assigned the same to respondent no.1 (Ist Party of this petition) viz. South Asian Hospitality Services Pvt. Ltd. vide assignment Deed dated 24th September, 2007 executed between respondents, which was acknowledged by applicant as well both of respondents on 17.10.2007. As per the terms of the aforesaid assignment agreement both the respondents were bound by the terms of License Deed dated 29.03.2007. The respondents were further aware of the fact that they had to complete the finishing work in time and in own manner. A Memorandum of Understanding (MoU) was executed at Jaipur on 11.03.2008 whereunder respondent-Ist Party agreed to bear the expenses on behalf of applicant making payment of interior cost, architect cost and generator cost etc. on the terms and condition mentioned therein. Respondent-Ist Party sent a chart in excel sheet by e-mail showing payment of Rs.19,41,539/- alleged to have been paid by respondents on behalf of applicant in terms of MoU dated 11.03.2008, but no details of payment and actual bill has been given to the applicant. Respondents are further aware of the fact that respondents were liable to pay Licensee fee and maintenance fee as per terms of the Licence Deed dated 29.03.2007, yet they have not paid a single penny till now even though commercial operation was started in May, 2008 itself and even amount of Rs. Respondents are further aware of the fact that respondents were liable to pay Licensee fee and maintenance fee as per terms of the Licence Deed dated 29.03.2007, yet they have not paid a single penny till now even though commercial operation was started in May, 2008 itself and even amount of Rs. 19,41,539/-, which was allegedly paid by respondent-Ist party as per information provided to applicant too stand adjusted long back. No notice of termination of License period was ever given to applicant in terms of the clauses of the License Deed. Applicant was not even provided actual record of sales data from the premises so as to calculate actual License fee and exceeding the minimum license fee in spite of various notices. However, a ntoice was received by original applicant’s son Sanjay Sharma from the court at Delhi wherein respondents claimed amount from applicant as per terms of license deed. Even after adjustment of the amount alleged to have been paid by respondent-Ist party in terms of MoU dated 11.03.2008 and interest thereon, respondents are still bound to pay amount of license fee and maintenance charges amounting to Rs.6,93,383/- for the period upto June, 2012. It is argued that this amount is liable to be increased in view of clause- 6 of license deed, whereunder the amount of licensee fee mentioned in clause 6 is liable to be increased if amount of 9% of net sales exceeds the amount of license fee mentioned in the license deed. Since respondents have not provided actual data of sales with audited and verified records, actual license fee payable as per terms of license deed could not be calculated. 5. Learned counsel for the applicant argued that clause 43 of the licence deed provided for referring the dispute to the Arbitrator with a venue at Jaipur. Since respondents have not provided actual data of sales with audited and verified records, actual license fee payable as per terms of license deed could not be calculated. 5. Learned counsel for the applicant argued that clause 43 of the licence deed provided for referring the dispute to the Arbitrator with a venue at Jaipur. Applicant served a legal notice dated 07.09.2013 through his advocate calling upon respondents to pay the aforesaid amount of Rs.6,93,383/- and interest thereon after adjusting the amount of Rs.19,41,539/-, allegedly paid by respondent-Ist party and interest thereon and further called upon respondents also to produce all record pertaining to sales of license period so as to calculate the actual figure, in case the 9% amount of sale proceeds exceed the specified license fee in the license deed dated 29.03.2007 and also to produce the bill, vouchers and details of the payment of Rs.19,41,539/- alleged to have been paid by respondent-Ist party. If respondents don’t give the discharge receipt of the amount of Rs.19,41,539/- alleged to have been paid by respondents in terms of MoU dated 11.03.2008, which has been adjusted by applicant from the license fee, respondents are bound to pay full amount of license fee since commercial commencement till June, 2012. The statement of account prepared by applicant giving adjustment of Rs. 19,41,539/- and interest thereon and the outstanding amount of license fee and other charges payable as per terms of the license deed was also enclosed alongwith notice. Applicant through aforesaid notice not only called upon to pay the aforesaid amount of Rs. 6,93,383/- immediately as per statement of account enclosed with the aforesaid notice but also called upon them to give consent for appointment of Shri J.P. Sharma, Retired District Judge Jaipur as the sole arbitrator so as to refer the matter for resolving the dispute in terms of clause 43 of the license deed dated 29.03.2007. However respondent has neither paid the aforesaid amount nor even given consent for referring the matter to arbitration as per provisions of clause 43 of the license deed dated 29.03.2007. Hence this application. 6. Shri S.R. Joshi, learned counsel for the non-applicants opposed the application and raised the objection with regard to maintainability of the application. It is alleged that there was novation of contract through MoU dated 11.03.2008, which was executed between the applicant and non-applicant no.1. Hence this application. 6. Shri S.R. Joshi, learned counsel for the non-applicants opposed the application and raised the objection with regard to maintainability of the application. It is alleged that there was novation of contract through MoU dated 11.03.2008, which was executed between the applicant and non-applicant no.1. This MoU did not contain any arbitration clause. Even if the arbitration clause 43 of the licence agreement dated 29.03.2007 between the applicant and the non-applicant no.2 did not exclude the jurisdiction of courts at Jaipur, clause 44 of the licence deed dated 29.03.2007 would now be attractive as it expressly substituted the earlier clause 43 by conferring the jurisdiction only on the courts at Delhi under the MoU i.e. the writing in which the terms of contract are embodied. It is argued that the said MoU was executed between the applicant and non-applicant no.2 subsequent to the licence deed dated 29.3.2007 and the assignment agreement dated 24.9.2007 entered into between respondent no.1 and respondent no.2, was duly ratified by the applicant by letter dated 17.10.2007. As per clause 21 of the licence deed, the licensor was to bear one-time expenses @ Rs.1400 per sq. ft. admeasuring 2200 sq. ft. carpet area for the restaurant at Cinema Hall towards work for complete interiors according to the standards and specifications prescribed by the licensee or its franchisee. Learned counsel for the non-applicants in support of his arguments has relied on the judgments of the Supreme Court in Young Achievers vs. IMS Learning Resources (P) Ltd., (2013) 10 SCC 535 , Khardah Company Ltd. vs. Raymon & Co. (India) Pvt. Ltd., AIR 1962 SC 1810 and the Union of India vs. Kishorilal Gupta & Bros., AIR 1959 SC 1362 . 7. I have given my anxious consideration to the rival submissions and perused the material on record. 8. In the present case, though the licence deed, which was originally executed between the applicant and the respondent no.2, in clause 43 provides for the remedy of arbitration for getting the dispute settled through the arbitration in accordance with provisions of Arbitration and Conciliation Act, 1996, but that very deed also in clause 37 allowed the licensee to assign its business in the demised premises to its Franchisees/ third parties through management contracts/similar arrangements, Affiliates or Associates, with the prior written intimation to the Licensor. The assignment agreement dated 24.9.2007 inter se between respondent no.1 and 2, thus apparently has its fruits in clause 37 of the licence deed between the applicant and the respondent no.2. Even this assignment agreement in clause 11 provides that any dispute, difference or claim arising out of or in connection with or incidental to this agreement shall be first attempted to be settled by mutual discussion, failing which the parties shall refer the same to arbitration. But clause 12 has stated that this agreement shall be subject to the jurisdiction of the Courts of Delhi. It is thereafter that respondent no.2 informed the applicant vide letter dated 17.10.2007 with reference to the licence deed dated 29.3.2007 that they have assigned their tenancy to one of their franchisee M/s. South Asian Hospitality Services Pvt. Ltd., to run their business under their trade/brand name. 9. In so far as the disputes between the applicant and both the respondents are concerned, the respondent no.1, being assignee of respondent no.2, having stepped in the shoes of former, would not acquire an independent status. Even if it has been mentioned in clause 12 of the assignment agreement dated 24.9.2007 that this agreement shall be subject to the jurisdiction of the Court of Delhi, that condition would not bind the applicant and would be binding inter se between respondent no.1 and 2 and would be attracted only if there arise a dispute between them in terms of clause 11 of the assignee agreement. In the facts of the case, therefore, the assignee agreement does not amount to novation of agreement, as has been argued by learned counsel for the respondents with reference to clause 37 of the lease deed. The respondent no.2 by exercising that authority has assigned the premises let out by the applicant to the respondent no.1. However, in view of stipulation made in clause 11 and 12 of the assignee agreement, the jurisdiction of the Courts at Jaipur would not stand ousted as that clause in licence deed originally executed between the applicant and non-applicant would continue to hold the field, in respect of arbitration clause, if any of the parties decides to terminate the same. The cited judgments of the Supreme Court by learned counsel for the non-applicant are distinguishable on facts and therefore cannot be applied to the present case. 10. The cited judgments of the Supreme Court by learned counsel for the non-applicant are distinguishable on facts and therefore cannot be applied to the present case. 10. In view of above discussion, the present application succeeds and is accordingly allowed. Shri P.K. Bhatia, Retd. Officer of R.H.J.S., R/o B-20-A, Shiv Marg, Banipark, Jaipur-302016 (Mobile No.9414780380) is hereby appointed as an independent Arbitrator to resolve the disputes between the parties. Payment of costs of arbitration proceedings and the arbitration fees shall be made as per the Fourth Schedule of the Arbitration and Conciliation (Amendment) Act, 2015 read with Manual of Procedure for Alternative Dispute Resolution, 2009, of this Court, as amended from time to time.