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2023 DIGILAW 1461 (BOM)

K Sera Sera Box Office Pvt. Ltd v. City Services

2023-07-07

BHARATI DANGRE

body2023
JUDGMENT : Bharati Dangre, J. Arbitration application under section 11 and petition filed under section 9 of the Arbitration and Conciliation Act, 1996, seek distinct reliefs. Dealing with the application seeking appointment of the Arbitrator, in the wake of the Arbitration clause, contained in three distinct agreements executed on the very same day i.e. 18/12/2021, in form of a Franchise Agreement, Content Agreement and Franchisee Food Business and Safety Agreement, all the three comprising of a clause for resolving the disputes arising between the parties. The said agreements being identically worded unequivocal, make it imperative for the parties to refer their disputes to arbitration and contemplate the outcome of the disputes in form of award, to be binding on both the parties. The arbitration proceedings are contemplated to be conducted in the city of Mumbai and governed by the Arbitration and Conciliation Act, 1996. 2. The Franchisee Agreement and other agreements came to be executed as the respondent desired to acquire the franchisee of 'Chhotu Maharaj cine cafe' and the three agreements set out the terms and conditions subject, to which the franchisee would be awarded. 3. Certain disputes arose between the parties, which resulted in filing of the police complaint by the applicant and also filed the proceedings under section 9 seeking certain interim measures. Correspondence was also exchanged between the parties on the matter of dispute, as the applicant claim that respondent has been showcasing the content provided by the competitors of the agreement at the cine cafe while utilizing its infrastructure. At one point of time, the applicant received a legal notice from the respondent, indicating to take back material and refund the amount paid by the respondent. 4. In the wake of the dispute, the applicant invoked arbitration on 25/4/2023, and even indicated that the disputes can be resolved amicably and this was responded on 30/4/2023 by the respondents, where there is no denial to the existence of the Arbitration agreement, or that the disputes have arisen. However, the name suggested as an arbitrator was not accepted and another name for the proposed Arbitrator was suggested. Ultimately, no consensus could be arrived between the parties on the name of the Arbitrator and this has constrained the applicant to approach this Court. 5. However, the name suggested as an arbitrator was not accepted and another name for the proposed Arbitrator was suggested. Ultimately, no consensus could be arrived between the parties on the name of the Arbitrator and this has constrained the applicant to approach this Court. 5. The respondents have placed on record an affidavit affirmed on 5/7/2023, and on it's careful reading, an attempt is made by the respondent to create a conundrum about the actual agreement executed between the parties, which was ultimately notarized. The dispute raised is about an agreement dated 28/12/2021 forwarded to the other side, but what was notarized in Mumbai, was an agreement dated 18/12/2021 when the respondent no.2 and 3 were not present in Mumbai. In any case, since there is no dispute about the existence of an arbitration agreement, and the learned counsel for the respondent while making the submissions do not make a specific statement that no agreement was ever executed between the parties, and which is sought to be invoked for the purpose of appointing a Sole Arbitrator, with the statement coming from the counsel for the applicant that once an Arbitrator is appointed, the petition under section 9 shall be permitted to be converted into an application under section 17 and the interim relief can be prayed, I deem it appropriate to exercise it's power under sub-section (6) of Section 11 and appoint an arbitrator, particularly when the arbitration clause exist in the three distinct agreements executed between the parties, which make it imperative to refer the disputes to the sole Arbitrator. In the wake of the aforesaid circumstances, I deem it appropriate to pass the following order. Terms Of Appointment (a) Appointment of Arbitrator : Mr.Gautam Ankhad, an Advocate of this Court, is hereby appointed as a Sole Arbitrator to decide the disputes and differences between the parties under the document referred to above. (b)Communication to Arbitrator of this order :- (i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the applicant/ petitioner within one week from the date this order is uploaded. (b)Communication to Arbitrator of this order :- (i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the applicant/ petitioner within one week from the date this order is uploaded. (c) Disclosure : The learned Arbitrator, within a period of 15 days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application, with a copy to be forwarded to both the parties. (d) Appearance before the Arbitrator :The parties shall appear before the Sole Arbitrator within a period of two weeks from today and the learned Arbitrator shall fix up a first date of hearing in the week commencing from 17/07/2023. The Arbitral Tribunal shall give all further directions with reference to the arbitration and also as to how it is to proceed. (e) Contact and communication information of the parties : Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator. This information shall include a valid and functional E-mail address as well as mobile numbers of the parties, participating in the process as well as of the Advocates. (f) Section 16 application : The respondents are at liberty to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act. All contentions are left open. (g) Fees : The sole Arbitrator shall be entitled to the fees prescribed under the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018 and the arbitral costs and fees of the Arbitrator shall be borne by the parties in equal portion and shall be subject to the final Award that may be passed by the Tribunal. (h) Venue and seat of Arbitration : Parties agree that the venue and seat of the arbitration will be in Mumbai. (i) Procedure : These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration. 6. All contentions of both the sides are left open, to be raised by the respective parties before the Arbitral Tribunal, in accordance with law. 7. (i) Procedure : These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration. 6. All contentions of both the sides are left open, to be raised by the respective parties before the Arbitral Tribunal, in accordance with law. 7. Petition under section 9 is permitted to be treated as an application under section 17 before the Arbitrator and the learned Arbitrator shall expeditiously take up the application for hearing by affording an opportunity to the other side and pass such interim measures as are necessary in the interest of justice. Commercial Arbitration Petition (L) No.2467/2023 and Arbitration Application (L) No.1345/2023 stands disposed off.