Anand Automobiles v. Honda Motorcycle And Scooter Pvt. Ltd.
2024-02-21
RAMESH SINHA
body2024
DigiLaw.ai
ORDER : (Ramesh Sinha, CJ.) This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of Sole Arbitrator. 2. Mr. Kailash Prasad Tyagi, learned counsel for the applicant submits that the applicant is the sub-dealer of respondent No. 3. Since a dispute arose between the parties, the respondents were served with a notice by the applicant through their letter dated 20.05.2023 for appointment of arbitrator to adjudicate and resolve the disputes arisen for claims raised pertaining to dues of commission amount etc. payable in respect of the three contemporaneous agreements about the sale of Honda Motorcycles and Scooters at different levels. 3. Mr. Tyagi further submits that the three contemporaneous agreements were entered into between the applicant and the respondent being (i) sub-dealership agreement dated 05.02.2015 between Vishal Automobiles, Korba and M/s Anand Automobiles, Kathghora. (ii) sub-dealership agreement dated 10.08.2017 between Vishal Automobiles, Korba and M/s Anand Automobiles, Kathghora, and; (iii) Associate Dealer Agreement dated 21.05.2022 between Vishal Automobiles, and M/s Anand Automobiles. The respondents failed to appoint any arbitrator as prayed for by the applicant in their notice dated 20.05.2023 nor sent any reply to the notice for appointment of Arbitrator till date. There is a valid Arbitration clause 16 in the agreement dated 05.02.2015. As the respondents under an appointment procedure agreed upon by both the parties have failed to act as required under that procedure, section 11(6)(a) of Arbitration and Conciliation Act 1996 will come into application. He relies on a decision of the Supreme Court in Ameet Lalchand Shah & Others v. Rishabh Enterprise & Another (Civil Appeal No. 4690 of 2018) decided on 03.05.2018. 4. On the other hand, Mr. Singh, learned counsel for the respondents submits that the notice dated 20.05.2023 issued by the applicant was duly replied to by the respondents stating therein that the agreement dated 05.02.2015 was replaced by the agreement dated 10.08.2017 and thereafter, the said agreement dated 10.08.2017 has further been replaced by the agreement dated 21.05.2022 which has further been terminated on 21.11.2022 w.e.f 20.12.2022 and as such, the claims raised by the applicant are false and baseless.
He further submits that clause 21 of the agreement dated 21.05.2022 provides that there are no promises, terms, conditions or obligations, oral or written, express or implied, other than those contained in the agreement and the said agreement shall supersede all previous agreements, if any, executed between the parties over the subject matter of that agreement. Further, the said agreement cannot be amended, changed or altered except by a written instrument signed by both the parties. 5. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 6. The applicant has prayed for appointment of arbitrator to resolve the dispute that has arisen between the parties. From the pleadings of both the parties, it is evident that three agreements were entered into between them and the last one being dated 21.05.2022. Clause 21 of the said agreement reads as under: "This Agreement embodies the entire understanding of the Parties in respect of the matters contained or referred to in it and there are no promises, terms, conditions or obligations, oral or written, express or implied, other than those contained in this Agreement. This Agreement shall supersede all previous agreements, if any, executed between the Parties over the subject matter of this agreement. This Agreement cannot be amended, changed or altered except by a written instrument signed by both the Parties." 7. From the above, it is clear that all the agreements entered into between the parties have been superseded by the present one and the same does not contain any arbitration clause. In absence of any arbitration clause in the agreement, this arbitration request is not maintainable. The decision cited i.e. Ameet Lalchand Shah & Others (supra) is not applicable to the facts of the present case as in the instant case, there is a specific clause which states that all the earlier agreements stand superseded by the present one and the present agreement does not contain any arbitration clause. The said agreement has been signed by both the parties with an open eyes and only after understanding its contents and now at this stage, the applicant cannot take a plea that since the earlier agreements contained arbitration clause therefore, the dispute should be referred to the Arbitrator. 8. In view of the discussion, this arbitration request is dismissed.