NISHA ANAND Vs SUMIT ANAND
Bench: T.S. THAKUR,R. BANUMATHI,UDAY UMESH LALIT
Case number: CONMT.PET.(C) No.-000162-000162 / 2015
Diary number: 3506 / 2015
Advocates: AMIT PAWAN Vs
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
ARBITRATION APPLICATION (CIVIL) NO. 4 OF 2015
ETOILE CREATIONS …Petitioner Versus
SARL DANSET DECO ...Respondent
J U D G M E N T
R. BANUMATHI, J.
In this petition under Section 11(5) read with Section
11(9) of the Arbitration and Conciliation Act, 1996, the petitioner
prays for the appointment of a sole arbitrator for adjudication of
disputes that have arisen between the parties in relation to ‘Buyers
Agreement’ dated 18.10.2012 executed between them.
2. Briefly stated case of the petitioner is as under:-
Petitioner is a proprietorship firm having its registered office at
C-291, Suraj Mal Vihar, Delhi. The petitioner is engaged in the
business of manufacturing of products relating to home furnishing
and upholstery etc., exclusively for the respondent since 2000. The
respondent-SARL DANSET DECO is a concern having its office at
1
Page 2
240 Rue De La Lys 59250, Halluin, France which is engaged in the
business of purchase and sale of the product relating to home
furnishing and upholstery and is the buyer of the products
manufactured by the petitioner. Accordingly, a ‘Buyers Agreement’
was executed on 18.10.2012 at New Delhi between the petitioner
and the respondent. As per the aforesaid agreement, the petitioner
has been selling/supplying its aforesaid products and the
respondent has been buying/purchasing the products for
resale/sale in the territory of France. There was a long business
relationship since 2000, even prior to execution of the agreement
and the petitioner was regularly supplying the products to the
respondent. At the time of execution of the aforesaid agreement, it
was acknowledged that the respondent owes a total amount of Euro
367814.80 as the outstanding amount. The details of the
outstanding dues have been mentioned in Schedule-I of the ‘Buyers
Agreement’. The petitioner has alleged that as per the terms and
conditions of the ‘Buyers Agreement’ dated 18.10.2012, the
respondent did not release the said outstanding amount within
seven days of the agreement. Despite numerous reminders for the
payment of dues through e-mails, SMS messages exchanged
between the parties during November 2012 to April 2013 and
2
Page 3
subsequent legal notices sent to the respondent, the respondent
failed to pay the admitted dues of the petitioner.
3. Clause 2.2 of the ‘Buyers Agreement’ imposed a
restriction upon the petitioner from supplying its product to any
other person/firm or company, in the territory of France. On the
other hand, the respondent agreed and assured that the products
ordered during each year of the term shall not fall short of the
target provided in Schedule-II of the said agreement. In the event
of the failure to meet such target, the agreement stipulated
termination of restriction so imposed upon the petitioner.
Petitioner supplied various materials to the respondent at different
points of time against various orders. The respondent cancelled a
few orders to the tune of Euro 272368.25. The respondent
committed breach of the terms and conditions of the ‘Buyers
Agreement’ because cancelled orders were not restored. Thus, the
respondent is liable to compensate the petitioner for cancelling
orders and reimburse for cost and damages incurred in procuring
material worth Euro 272368.25, just prior to the date of shipment
and also for preparing samples as per the request of the respondent
dated 25.05.2012 and 26.07.2012. As per Clause 4.1 of the ‘Buyers
Agreement’, the respondent shall not purchase/obtain/ deal with
3
Page 4
the products or any goods that compete with them, for sale from
any person, firm or company in India other than the petitioner.
The respondent not only cancelled the orders, but also in violation
of Clause 4.1 of the ‘Buyers Agreement’ dated 18.10.2012,
purchased the same products worth approximately Euro 700000
from M/s. Chahat Exports, 148-A, Basement, Deep Complex, Near
Maharani Bagh, New Delhi and Dhruv Overseas, 4502, Dau Bazar,
Cloth Market, Fateh Puri, Delhi. Placing such orders with other
firms, according to petitioner, is a violation of terms and conditions
of the terms of the ‘Buyers Agreement’ which stipulates
commitment between the parties for five years to maintain the
business relations; but the respondent by diverting those orders to
another agency has clearly breached the terms and conditions of
the agreement. Petitioner sent legal notices dated 08.05.2013,
04.07.2013 and 06.07.2013 calling upon the respondent to pay
unpaid invoices to the tune of Euro 393916.95 and also unpaid
invoices to the tune of Euro 209580.63 of M/s Creative
International (another partnership firm of the petitioner) alongwith
interest at the rate of 24% per annum.
4. As the respondent did not make the payment of the
invoices, the petitioner invoked arbitration clause agreed in Clause
4
Page 5
14 of the ‘Buyers Agreement’ for the appointment of three
arbitrators, one to be nominated by each party and the third to be
appointed by the two appointed arbitrators. As per Clause 14 of
the ‘Buyers Agreement’, the petitioner sent a statutory notice dated
14.08.2013, nominating on his behalf Mr. Subhash Chandra, LLM,
Higher Judicial Services (V.R.S.), Member Judicial, Railway Claims
Tribunal (Retd.) as an arbitrator. Petitioner requested the
respondent to nominate its arbitrator so as to enable these
arbitrators nominated by the parties to further nominate the
presiding arbitrator and constitute an arbitral tribunal.
5. The petitioner filed a petition before the Commercial
Court in Lille to seize all the bank accounts of the respondent with
the banks Caisse d’ Epargne, GCE Trade and HSBC bank
alongwith all money, values and/or bonds held by these banks on
behalf of the respondent. The court’s bailiffs seized a total amount
of Euro 48000 in HSBC bank on 11.10.2013 and Caisse d’ Epargne
on 14.10.2013 in compliance to order of Appellate Court, Douai,
France dated 25.09.2014. The petitioner filed a claim before the
Tribunal-DE-COMMERCIAL DE LILLE METROPOLIS, France for
recovery of debt amounting to Euro 393916.95, the Tribunal
however dismissed the claim of the petitioner vide its order dated
5
Page 6
30.01.2014. Petitioner then filed an Appeal No. Minute:14/389/RG
14/01147 before the Appellate Court, Douai, France against the
order dated 30.01.2014 passed by the President of the Commercial
Court of LILLE, which also came to be dismissed by its judgment
dated 25.09.2014. The appellate court declared the appeal
inadmissible on the issue of jurisdiction in view of the arbitration
agreement and also held that there was no emergency to approach
the court instead of seeking remedy under the Arbitration
Agreement. According to the petitioner, the aforesaid disputes and
differences have arisen in India, are covered by the terms and
conditions of the ‘Buyers Agreement’ and are to be resolved by the
arbitrator in view of the arbitration clause 14 of the ‘Buyers
Agreement’. Hence, the petitioner has filed this petition invoking
the arbitration clause 14 of the ‘Buyers Agreement’ for appointment
of a sole arbitrator in terms of ‘Buyers Agreement’ dated
18.10.2012 qua recovery of Euro 393916.95 payable to the
petitioner alongwith interest at the rate of 24% per annum.
6. As per the Office Report dated 06.04.2016, counsel for
the petitioner has on 23.02.2016 filed an affidavit of dasti service
alongwith proof of service on respondent and proposed respondents
and the service of notice is complete.
6
Page 7
7. We have heard the learned counsel for the petitioner at
some length. Despite service of notice, respondent has chosen not
to appear. The material facts are not in dispute that ‘Buyers
Agreement’ was executed between the parties on 18.10.2012.
Clause 14 of the said agreement provides for settlement of dispute
in relation to the agreement by way of arbitration. Clause 14 reads
as under:-
“14. Arbitration
14.1 Any dispute, difference, controversy or claim (“Dispute”) arising between the Parties out of or in relation to or in connection with this Agreement, or the breach, termination, effect, validity, interpretation or application of this Agreement or as to their rights, duties or liabilities hereunder, shall be settled by the Parties by mutual negotiations and agreement. If, for any reason, such Dispute cannot be resolved amicably by the parties, the same shall be referred to and settled by way of arbitration proceedings by three arbitrators, one to be nominated by each Party and the third to be appointed by the two appointed arbitrators. The arbitration proceedings shall be held in accordance with the Arbitration and Conciliation Act, 1996, or any subsequent enactment or amendment thereto (the “Arbitration Act”) by a sole arbitrator appointed by the First Party. The decision of the arbitrator shall be final and binding upon the Parties. The venue of arbitration proceedings shall be Delhi. The language of the arbitration and the award shall be English.”
8. As is evident from the averments in the petition,
disputes have actually arisen between the parties in relation to the
agreement and in view of clause 14 such disputes could be resolved
only by way of arbitration. Whether the respondent is bound to
pay Euro 393916.95 alongwith interest at the rate of 24% per
annum; whether the respondent has committed breach of Clause
7
Page 8
2.2 of the agreement in cancelling the orders; whether the
respondent is liable to compensate for cancelling the orders and
reimburse the cost and damages incurred by the petitioner;
whether the respondent acted in violation of Clause 4.1 of ‘Buyers
Agreement’ dated 18.10.2012 by diverting the orders to another
agency and, if so, whether the respondent is liable to compensate
the petitioner and such other incidental questions can be examined
only by the arbitrator. When an arbitration agreement exists
between the parties, the present petition under Section 11 (5) read
with Section 11 (9) of the Arbitration and Conciliation Act, 1996,
shall have to be allowed with appropriate directions.
9. In the result, we allow this petition and appoint
Mr. Justice Kailash Gambhir, a Former Judge, Delhi High Court as
a Sole Arbitrator for adjudication of the disputes that have arisen
between the parties in relation to the ‘Buyers Agreement’ dated
18.10.2012 executed between them. We leave it open for the parties
to make their claims and counter claims in relation to the
agreement aforementioned before the Arbitrator. All contentions
otherwise open to the parties on facts and in law shall be open to
be urged before the arbitrator. The arbitrator shall fix his own fee.
The petition, is accordingly, allowed with the above directions
8
Page 9
leaving the parties to bear their own costs. Parties are directed to
appear before the arbitrator on 14.09.2016.
……………………….CJI. (T.S.THAKUR)
…………………………..J. (R.BANUMATHI)
..…………………………J. (UDAY UMESH LALIT)
New Delhi; July 25, 2016
9
Page 10
10