GUJRAL RESTURANTS AND MANAGEMENT PVT LTD v. SKY HIGH

1. The present Petition has been filed under Section 9 of the Arbitration and Conciliation Act, 1996[1], seeking the following reliefs: “….. i. Pass an Ex-parte Order of the Injunction against the Respondents, its principals, partners, officers, employees, agents, distributors, suppliers, affiliates, subsidiaries, franchisees, licensees, representatives, group companies, assigns, etc. be restrained by an Order of injunction from: Advertising, selling, offering for sale, marketing, promoting any restaurant and catering business or in any other manner whatsoever, using the Impugned Marks „MOTI MAHAL‟, „MOTI MAHAL DELUX‟ or any other mark which is deceptively and/or confusingly similar and/or identical/virtually identical to the Petitioner‟ earlier, well – known and A&C Act registered trademarks „MOTI MAHAL‟, „MOTI MAHAL' formative marks or any of the trademarks or in any other manner whatsoever, which would amount to infringing the Petitioner' earlier well-known registered trademarks and passing off; ii. The Respondent No. l, its principals, partners, officers, employees, agents, distributors, suppliers, affiliates, subsidiaries, franchisees, licensees, representatives, group companies, assigns, etc. be ordered by a decree of mandatory injunction; iii. Cost of the Petition be Awarded in favour of the Petitioner. iv. Pass any other Order as it may deemed fit in the facts and the circumstances of the present case.”

2. Learned counsel Mr. Ishan Jain, who enters appearance on behalf of the Respondents on advance notice, objects to the grant of any relief as sought for, on the ground that a suit came to be filed by the Petitioners herein and which was later withdrawn.

3. He submits that since the said suit came to be withdrawn without any liberty being granted to prefer any further proceedings, the present Petition is barred under the law. In this regard, he relies upon the judgment of the Hon‟ble Supreme Court in Bakhtawar Singh v. Sada Kaur[2] and in particular Paragraph 8 thereof, which reads as under:

4. A perusal of Bakhtawar Singh (supra) would indicate that the Judgement relates to the filing of a fresh suit after withdrawal of a previous suit, albeit the same does not pertain to an arbitration proceeding being instituted.

5. This Court is of the considered opinion that in view of the fact that the relationship as between the parties, which is governed by a Franchise Agreement dated 23.11.2020[3], contains an arbitration clause, the present Petition is clearly maintainable. The relevant arbitration clause, being Clause XXVII of the Agreement, reads as under: “XXVII) ARBITRATION In the event of any dispute or difference between the parties hereto, whether arising during the currency or after the completion or abandonment of this agreement, or after the determination thereof ( whether for breach or for any other reason) in regard to any matter of thing of whatsoever nature arising out of this agreement or in connection therewith, then either party shall give to the other notice in writing of such dispute or shall give to the other notice in writing of such dispute or difference and the same shall be referred to an Arbitrator mutually consented by both parties appointed by the Franchisor & Franchisee only, the venue of the arbitration shall be Delhi, India in accordance with the Arbitration & Conciliation Act 1996 or any statutory modification or amendment thereof. Subject to the foregoing parties submit to the Jurisdiction of Courts at Delhi only. The arbitration proceedings shall be conducted in the English Language. The award of the respective arbitration shall be binding on all parties. That any dispute or differences arising out of or in relation to this Agreement shall be at the first instance settled expeditiously and fairly by the chief executives / authorized representatives of the concerned Parties hereto. In the event of the chief executives / authorized representatives of the concerned Parties not being able to resolve the disputes / differences amicably.”

6. Upon a pointed query being put to learned counsel appearing on behalf of the parties, they submit that they have no objection to the disputes as raised herein being referred to arbitration by a Sole Arbitrator.

7. Since the parties have mutually consented to the adjudication of their disputes by way of Arbitration, this Court is of the view that the commencement of arbitral proceedings to adjudicate the disputes between the parties should not be unduly delayed. Accordingly, in the peculiar facts of the present case, the requirement of Section 21 notice and initiation of separate proceedings under Section 11 of the A&C Act are dispensed with, with the consent of the parties.

8. In view thereof, this Court is of the view that the matter may be referred to arbitration by a Sole Arbitrator for the purpose of the adjudication of the disputes between the parties.

9. Material on record reflects that the valuation of the subject matter of the disputes is stated to be approximately Rs. 2,00,05,000/-.

10. Accordingly, this Court hereby requests Hon’ble Mr. Justice (Retd.) Dr. Bharat Bhushan Prasson (Former Judge of Punjab and Haryana High Court) (Mobile No. 9999688588), to enter upon the reference and adjudicate the disputes inter se the parties.

11. The learned Sole Arbitrator may proceed with the arbitration proceedings, subject to furnishing to the parties the requisite disclosures as required under Section 12(2) of the A&C Act within a week of entering the reference.

12. The Registry is directed to forward a copy of this order to the learned Arbitrator through all permissible modes, including electronic means..

13. The learned Arbitrator shall be entitled to a fee in accordance with the Fourth Schedule of the A&C Act or as may otherwise be agreed to between the parties and the learned Arbitrator.