IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION NO.41/2016 BETWEEN:
M/s Pearson India Education Services Private Limited (formerly known as Tutor Vista Global Pvt. Ltd.,) A Company incorporated under the provisions of the Companies Act, 1956 having its office at No.10, 3rd Main, Ashwini Layout, Intermediate Ring Road, Ejipura, Kormangala, Bengaluru and Represented by its Authorised Representative Mr.Philip Rajan.
(By Sri.B.N.Prakash, Advocate) AND:
Tiny Tots School 67, Raidopur, Azamgarh, Uttar Pradesh – 276001, Represented by its Secretary.
... Petitioner ... Respondent (Notice to Respondent held sufficient) This Civil Miscellaneous Petition is filed under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon’ble Court to: a) Appoint an Arbitrator in terms of the Arbitration Agreement contained in the Agreement dated 20th February 2010 to resolve the dispute between the petitioner and the respondent, by appointing Mr.Yeshwanth Kumar, Civil Judge (Retired), Bengaluru as sole Arbitrator b) Award cost of the Petition and c) Grant such other reliefs as this Hon’ble Court may deem fit to grant on the facts and circumstances of the case.
This Civil Miscellaneous Petition coming on for Admission, this day, the Court made the following:
O R D E R Sri.B.N.Prakash, learned counsel for petitioner submits that legal notice issued to the respondent in the address mentioned in the Agreement dated 20.02.2010 is neither served on the respondent nor acknowledgment has been received. Therefore, presumption has to be drawn compliance of the provisions of Section 27 of the General Clause Act, 1897 that notice is deemed to have been served. It is further contended that in spite of demand service is taken through paper publication on 31.05.2019 and even on paper publication made to the last address of the respondent shown in the agreement, notice issued by this Court. In view of the order passed by this Court permitting the petitioner to take out notice to the respondent by way of paper publication in ‘Times of India’ English Daily, having circulation at Jabalpur District, Madhya Pradesh State on 21.03.2019 and the same was published on 26.04.2019. Therefore, he submits that in view of the dictum of the Hon’ble Supreme Court in the case of Ajeet Seeds Limited vs. K.Gopala Krishnaiah reported in (2014) 12 Supreme Court Cases 685 in para Nos.10, 11 and 12, the service of notice to respondent to be held as sufficient.
2. The said submission is taken on record.
3. The petitioner has filed a present Civil Miscellaneous Petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the ‘Act’) for appointment of Sole Arbitrator to resolve the dispute between the parties in terms of clause of the Agreement entered into between the parties on 20.02.2010.
4. It is the case of the petitioner that the petitioner is engaged in the business of manufacturing, developing, exploring, importing, consulting and advising in all or any of the activities of information technology, computer solution and computer based education, educational aids and providing solution with digital content and required hardware components for K12 and higher education markets and is the Proprietor of the Trade mark known as “DigitALLy” representing high standards in the field of education. The respondent is engaged in imparting education and pursuant to discussion with petitioner, the respondent has engaged the services of the Company for setting up and implementing Pearson’s educational services.
5. It is further case of the petitioner that believing the representations, assurances and promising prospects made by the respondents, the petitioner Company entered into an Agreement dated 20.02.2010 with the respondent. The Agreement holder Company namely Pearson Education Services Pvt Ltd has been merged with M/s Tutor Vista Global Private Limited by virtue of the order passed by the Hon’ble High Court of Judicature, Madras in Co.P.No.240/2014. In terms of the Agreement, the petitioner has provided its services to the respondent and requested the respondent to clear the dues of the petitioner for the services rendered by the petitioner. However, for one reason or the other, the Respondent did not heed to the request of the petitioner. Therefore, the petitioner was constrained to issue legal notice dated 28.08.2014 calling upon the respondent to clear the outstanding amount due to the petitioner. In spite of receipt of legal notice, the respondent failed to comply with the demand made in the notice. The respondent is due to the petitioner a sum of Rs.10,02,060/-. Therefore, the petitioner was constrained to invoke the Arbitration clause contained in the Agreement vide legal notice dated 26.12.2014 nominating Mr.Yeshwanth Kumar, Retired Civil Judge, Bengaluru as Arbitrator. In spite of the receipt of the legal notice, the respondent neither replied to the legal notice nor agreed for arbitration. Therefore, the petitioner is before this Court.
6. The respondent though served through Paper Publication dated 26.04.2019 but unrepresented.
7. I have heard the learned counsel for the petitioner.
8. Sri.B.N.Prakash, learned counsel for petitioner contended that the existence of Agreement dated 20.02.2010 between the parties is not in dispute and there is an arbitration clause in the Agreement to resolve the dispute between the parties with regard to any dispute pertaining to the Agreement. He has complied the provisions of Section 11(5) of the Arbitration and Conciliation Act, 1996 issuing the legal notice. The said legal notice neither served on the respondent nor replied. Therefore, learned counsel for the petitioner stated in the beginning para that the notice is deemed to have been served. Therefore, he sought to allow the Civil Miscellaneous Petition.
9. Having heard the learned counsel for the petitioner and the original Agreement dated 20.02.2010 produced before this Court. On careful perusal of the said agreement, it clearly reflects that both parties have signed the said agreement as contemplated under Section 7 of the ‘Act’. According to the petitioner, in spite of repeated demands, the amount due to the petitioner has not been paid by the respondent. Hence, the dispute arises between the parties. It is also not in dispute that there is an existence of arbitration clause to resolve the dispute between the parties in terms of arbitration clause of the Agreement, which reads as under;
“All disputes and differences whatsoever which may at any time hereafter (whether during the continuance of these presents or upon or after its discharge or determination) arise between the parties hereto in respect of, concerning, touching or arising out of these presents, shall be amicably settled in the first instance failing which it shall be referred to arbitration. The arbitration shall be conducted by a sole arbitrator to be mutually agreed upon by the parties and in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 with any statutory modifications or re-enactments thereof for the time being in force. The venue of the Arbitration shall be Bangalore only. The expenses of the Arbitration proceedings shall be each party in equal proportion or as per the decision of the Arbitrator.”
10. It is also not in dispute that the petitioner issued legal notice dated 28.08.2014 as contemplated under Section 11(5) of the Act. In view of the aforesaid admitted facts, there is no impediment by this Court to appoint Sole Arbitrator to adjudicate the dispute between the parties.
11. For the reasons stated above, the Civil Miscellaneous Petition is allowed. Sri.Vishwanath V.Angadi, Former District Judge is appointed as an Arbitrator to adjudicate the dispute between the parties in terms of arbitration clause of the agreement dated 20.02.2010 entered between the parties.
12. Registry is directed to send a copy of this order to Sri.Vishwanath V.Angadi, Former District Judge and Arbitration Centre forthwith for reference.
SD/- JUDGE NBM