IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.207/2019 BETWEEN:
VABIVA TECHNOLOGIES PVT. LTD., NO.401, SANNIDHI ENCLAVE, 5TH MAIN, 5TH CROSS, NRUPATUNGA NAGAR, J.P.NAGAR 7TH PHASE, BENGALURU-560078. REP. BY ITS DIRECTOR, SRI. BASAVARAJ B. PATIL, ...PETITIONER (BY SRI MANMOHAN P. N., ADVOCATE) AND:
UNIBRAIN CONSULTANCY SERVICE PVT. LTD., NO.A41, 4TH FLOOR, HIMALAYA HOUSE, 23 KG MARG, NEW DELHI-110 001.
REP. BY ITS DIRECTOR (BY SRI GOUTHAM A.R., ADVOCATE) …RESPONDENT ***** THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR AS PER CLAUSE 16 OF THE MOU DATED 19.05.2018 (PRODUCED AS ANNEXURE-A) AND PASS SUCH OTHER ORDERS AS DEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has filed the present memorandum of Civil Miscellaneous Petition under the provisions of Section 11(5) of the Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as ‘the Act’) for appointment of Sole Arbitrator in terms of Clause-16 of the Memorandum of Understanding (for short, hereinafter referred to as ‘MoU’) dated 19.5.2018 entered into between the parties.
2. The brief facts of the case are that the petitioner and the respondent entered into a Memorandum of Understanding on 19.5.2018 to put to use the software developed by the petitioner-Company and the respondent took the responsibility of bringing in work orders. The respondent has breached the contract by unilaterally taking control over the product to the exclusion of the petitioner and by diverting all the business from the said product to its new deceptively similar produce by name ‘euniwizarde.com’. Therefore, the petitioner issued a notice on 25.4.2019 to the respondent demanding compensation of Rs.25,00,00,000/- for breach of contract by invoking the arbitration clause contained in Clause-16 of the Memorandum of Understanding. The respondent though received the notice on 30.4.2019 did not reply to the same. Therefore, the petitioner is before this Court for the relief sought for.
3. I have heard the learned Counsel for the parties to the lis.
4. Sri Manmohan. P.N., learned Counsel appearing for the petitioner reiterating the averments made in the civil miscellaneous petition contended that there is no dispute with respect to existence of Memorandum of Understanding dated 19.5.2018 between the parties and clause-16 stipulating Arbitration Clause in the Memorandum of Understanding as well as the petitioner has complying with the provisions of Section 11(5) of the Act and therefore, sought to allow the civil miscellaneous petition.
5. Per contra, Sri Goutham A.R., learned Counsel for the respondent neither disputes the Memorandum of Understanding entered into nor the existence of Clause-16 in the Memorandum of Understanding stipulating arbitration clause which reads as under:
“Arbitration: This Agreement is governed by and will be construed in accordance with the Indian Laws. Any dispute, controversy or claims arising out of or relating to this agreement or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the provision of the Indian Arbitration and Conciliation Act, 1996. The arbitral tribunal shall be composed of a sole arbitrator to be appointed by both the parties with mutual understanding for a fixed fee. In case the parties fail to come to a consensus for appointment of a sole arbitrator within a period of one month from the date of communication of the dispute, the parties shall appoint an arbitrator each, who in turn shall appoint the third arbitrator. The place of arbitration shall be Bangalore and any award whether interim or final, shall be made and shall be deemed for all purposes between the parties to be made in Bangalore”
6. It is also not in dispute that the petitioner has complied the provisions of Section 11(5) of the Act by issuing legal notice. Therefore, there is no impediment for this Court to appoint sole arbitrator to adjudicate the dispute between the parties.
7. Both the learned Counsel for the parties voluntarily submitted that the Hon’ble Mr. Justice V. Jagannathan, Former Judge of this Court be appointed as the Sole Arbitrator to adjudicate the dispute between the parties. The said submission is placed on record.
8. In view of the aforesaid reasons, Civil Miscellaneous Petition is allowed. Hon’ble Mr. Justice V. Jagannathan, Former Judge of this Court, is appointed as the sole Arbitrator to adjudicate the dispute between the parties in terms of Clause-16 of the Memorandum of Undertaking dated 19.5.2015 entered into between the parties and in accordance with law.
9. Registry is directed to send a copy of this order to – Hon’ble Mr. Justice V. Jagannathan, Former Judge of this Court as well as to the Arbitration Centre forthwith for reference.
Sd/-
JUDGE Nsu/-