IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.273/2018 BETWEEN:
LYRUS LIFE SCIENCES PRIVATE LIMITED A COMPANY INCORPORATED UNDER COMPANIES ACT HAVING ITS OFFICE SITUATED AT NO.22, 7TH CROSS, JAIBHARATH NAGAR, BANGALORE-33, KARNATAKA (REPRESENTED BY ITS AUTHORISED SIGNATORY D.RAMESH) ...PETITIONER (BY SRI DINESH S. KADLAS, ADVOCATE) AND:
HOSTRIN HAVING ITS REGISTERED OFFICE AT S1, SONA HEIGHTS, RUKMINI ESTATES, JAYARAM NAGAR, QUTUBULLAPUR, HYDERABAD, TELANGANA-55 REPRESENTED BY ITS MANAGING DIRECTOR & C.E.O. MR.ANDREW PELAPUDI.
…RESPONDENT (BY SRI ASHWATHI NAIR, ADVOCATE (ABSENT)) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO ALLOW THE ABOVE PETITION AND APPOINT ARBITRATOR TO ADJUDICATE UPON THE DISPUTE BETWEEN THE PARTIES HEREIN UNDER DOSSIER/LICENCE ACQUISITION AGREEMENT DATED 20.03.2018 (ANNEXURE-B) AS PER ARBITRATION CLAUSE 15.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner filed the present Civil Miscellaneous Petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (‘the Act’ for short) for appointment of the sole Arbitrator to adjudicate the dispute, in terms of Clause 15.2 of the Dossier/Licence Acquisition Agreement dated 20.3.2018 entered into between the parties as per Annexure-B.
2. It is the case of the petitioner – company that it has been in the business of Research and Development of Pharmaceutical Formulations from the past three years and has carved a good niche in the pharmaceutical industry. The respondent has represented to the petitioner that they have been engaged in the business of Research and Development of Pharmaceutical Business and that they have readily complied Dossiers for (i) Doxazosin Extended release tablets 4 mg and 8 mg and (ii) Dexamethasone delayed release Tablets, and that the said Dossiers comply with currently valid EU Legislation, CTD and ICH-Guidelines and includes the Letters of access to the API’s either of DMF or ECOS. Subsequently, the petitioner and the respondent entered into a ‘Dossier/Licence Acquisition Agreement’ on 20.3.2018 to acquire the Product Dossiers.
3. It is further case of the petitioner that subsequently arose a dispute between the petitioner and the respondent that the Dossier shared by the respondent was not that of extended release tablet. Thus, the petitioner issued notice and sought for refund of the money, but the respondent replied for the same and refuted the allegations. Therefore, the petitioner was constrained to issue arbitral legal notice to the respondent on 6.7.2018 for appointment of the arbitrator by suggesting the name of the former Drug Controller. The same was not accepted by the respondent in the reply and denied the averments made in the legal notice. Hence, the present Civil Miscellaneous Petition is filed for the relief sought for.
4. When the matter came up before this Court on 7.11.2019, counsel for the respondent not present nor filed any objections. In order to give one more opportunity, the matter was adjourned by one week to file objections, if any. Again, when the matter came up before the Court on 14.11.2019, though the matter was called twice, none appeared for the respondent nor filed objections and therefore, as a last chance, adjourned the matter by one week. Today, though the matter called both in the pre- lunch and post-lunch sessions, there is no representation on behalf of the respondent. The respondent has not filed any objections till today.
5. I have heard the learned counsel for the petitioner.
6. Sri Dinesh S. Kadlas, learned counsel for the petitioner reiterating the averments urged in the Civil Miscellaneous Petition, has contended that there is no dispute between the parties with regard to the existence of Dossier/Licence Acquisition Agreement dated 20.3.2018 and there exists arbitration clause – 15.2 in the agreement. Since the dispute arose between the parties, the petitioner issued notice and sought for refund of the amount. But the same was replied denying the allegations made. Therefore, legal notice came to be issued on 6.7.2018 as contemplated under the provisions of Section 11(5) of the Act and the respondent gave untenable reply on 26.7.2018. Therefore, the petitioner sought to allow the Civil Miscellaneous Petition.
7. Inspite of sufficient opportunity given, though the respondent is represented by the learned counsel, not present before the Court when the case called nor filed statement of objections.
8. Having heard the learned counsel for the petitioner, it is an undisputed fact that the petitioner and the respondent entered into Dosssier/Licence Acquisition Agreement dated 20.3.2018. Both the parties have duly signed the said agreement with their respective office seals on each and every page of the agreement as contemplated under the provisions of Section 7 of the Act. Clause 15.2 of the agreement reads as under:
“15.2 Any dispute arising out of or in connection with this Agreement or any breach, termination or invalidity hereof shall be settled by arbitration in accordance with the rules of conciliation and arbitration under the International Chamber of Commerce (“ICC”).”
9. It is also not in dispute that the petitioner has complied the provisions of Section 11(5) of the Act by issuing legal notice to the respondent on 6.7.2018. Though untenable reply came to be issued on 26.7.2018, the respondent has not filed objections denying the averments made in the present Civil Miscellaneous Petition eventhough he is represented by the learned counsel. In view of the aforesaid admitted facts, this Court has confined to the examination of existence of the arbitration agreement and arbitration clause. In the circumstances, there is no impediment for this Court to appoint the sole Arbitrator to adjudicate the dispute between the parties.
10. For the reasons stated above, the present Civil Miscellaneous Petition is allowed. Sri Narendra Kumar Gunaki, Former District Judge is appointed as the arbitrator to adjudicate the dispute, in terms of Clause 15.2 of the Dossier/Licence Acquisition Agreement dated 20.3.2018 entered into between the parties as per Annexure-B.
11. The Registry is directed to send copy of this order to Sri Narendra Kumar Gunaki - Former District Judge, the respondent and the Arbitrator Centre forthwith.
12. Office is directed to return the original Dossier/Licence Acquisition Agreement (Annexure-B) to the petitioner after following the procedure as contemplated in accordance with law.
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JUDGE Gss/-