JSW GMR Cricket Private Limited v. Mother's Eye Production Pvt Ltd

1. The present petition has been filed under section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred as ‘A&C Act’) seeking appointment of a sole arbitrator to adjudicate the disputes between the parties.

SACHIN DATTA, J. (ORAL)

2. The disputes between the parties have arisen in the context of a Brand Promotion Agreement dated 06.05.2021, in terms of which the petitioner granted permission to the respondent to use/utilize petitioner’s brand name “Delhi Capitals (DC)” to promote respondent’s brand name “Hunk”. The said agreement was valid till 31.12.2021.

3. As per the agreement the respondent agreed to pay a sum of Rs.60,00,000/- alongwith applicable taxes towards brand promotion fees in four equal tranches/instalments and provide products equivalent to the value of Rs.5,62,600/- to the petitioner during the Indian Premier League season 14 (IPL).

4. The IPL was scheduled to take place in India, however, due to the spread of COVID-19/pandemic, only the first half of season was played in India and the remaining season as per the directions of the Board of Cricket Control in India (BCCI) was shifted and completed in the UAE.

5. The arbitration clause in the Agreement between the parties, is in the following terms: “10.[2] Dispute Resolution 10.2.[1] In the event of a dispute relating any of the matters set out in this Agreement, the Parties shall discuss in good faith to resolve the difference within 15 Business Days of the dispute being raised (or such longer period as the parties to the dispute may mutually agree to in writing). 10.2.[2] Disputes shall be referred to arbitration before a sole arbitrator to be jointly appointed by the Parties. If the Parties are unable to agree on a sole arbitrator within 30 days of the dispute being raised, the sole arbitrator shall be appointed in accordance with the provisions of the Arbitration and Conciliation Act, 1996, as amended (“Arbitration Act”). 10.2.[3] The arbitration proceedings shall be carried out in accordance with the Arbitration & Conciliation Act, 1996, as amended by a sole arbitrator and the seat of arbitration shall be New Delhi, India. The arbitration proceedings shall be conducted in the English language. 10.2.[4] The award of the arbitrator shall be final, conclusive and binding upon the Parties, and the Parties shall be entitled (but not obliged) to enter judgement thereon in any one or more of the highest courts having jurisdiction. 10.2.[5] The sole arbitrator shall also have the power to decide on the costs and reasonable expenses (including reasonable fees of its counsel) incurred in the arbitration and award interest up to the date of the payment of the award. 10.2.[6] When any dispute is referred to arbitration, except for the matters under dispute, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement. 10.2.[7] The costs of the arbitration shall be borne by the Parties in such manner as the arbitral tribunal shall direct in their arbitral award.”

6. Dispute/s have arisen between the parties on account of alleged failure of the respondent to pay the tranches/instalments towards the brand promotion fee. The petitioner has averred that the respondent has fully availed the brand promotions agreed under the agreement, however, despite repeated reminders and requests paid only part payment towards the brand promotion fee and have been deliberately avoiding to repay the outstanding payment.

7. Disputes having arisen between the parties, a legal notice dated 17.01.2022 was issued by the petitioner. The respondent vide letter dated 01.02.2022 refuted the averment made in the aforesaid notice.

8. Since the disputes between the parties persisted, the petitioner communicated its grievances through various representations/letters. It is averred in the petition that the respondent failed to take any concrete steps for resolution of the disputes.

9. Finally, the petitioner invoked arbitration as per clause 10 of the agreement vide legal notice dated 23.05.2024. The same was not responded to.

10. In the above circumstances, the petitioner has approached this Court, through the present petition, seeking the appointment of a sole arbitrator to adjudicate the dispute/s between the parties.

11. In the present proceedings, notice was issued by the Court on 16.10.2024. However, since none appeared on behalf of the respondent, a fresh notice was issued by the Court on 21.11.2024. An affidavit of service has been filed by the petitioner on 10.12.2024 wherein it has been stated that the petitioner has taken the requisite steps to serve the respondent at its known addresses. The communication/s sent to the said address/es via speed post were returned with the notations, “Addressee left without instructions” and “no such person in the address” whereas the communications sent via Courier at the address/es of the respondent were returned with the notations “party shifted.”

12. It is stated that the respondent has also been served via email at motherseyeproduction@gmail.com, sam.oceans7@gmail.com and info@hunkwater.com.

13. Section 3 of the A&C Act contemplates that a written communication is deemed to have been received if it is sent to the addressee’s last known place of business or mailing address by any means which provides a record of the attempt to deliver it. In the present case, the petitioner has made numerous attempts to effect service on the respondent and has thereby discharged its onus to effect service on the respondent.

14. In the circumstances, the present petition is taken up for hearing and disposal, despite no appearance on behalf of the respondent.