DIVA ENTERPRISES (P) LTD v. INSTITUTE OF MEDICO LEGAL PUBLICATION(P) LTD

1. Present appeal has been filed challenging the order dated 23rd June 2020 passed by the learned District Judge (Commercial Courts)-01, New Delhi District,Patiala House Court whereby application of the Appellant, under Section 8 of the Arbitration andConciliation Act,was dismissed.

2. Learned counsel for the Appellant submits that the learned District Court erred in holding that thenatureof the disputes between parties is not arbitrable and hasto be adjudicatedby the Court. Learned counsel also submitsthat the dispute at hand is purely contractualand that relief sought is damages and injunction, which are both reliefs that an arbitrator can well grant. 2021:DHC:1075-DB

3. Learned counsel for the Appellant further submits that the Court failed to recognise that it is settled law that the arbitration clause in the contract shall be treated as independent of other terms of the contract and shall be enforceable even after the termination of theagreement.

4. Having heard learned counselfor appellant,this Court is of the view that though the arbitration clausesurvives the termination of the agreement, yet the dispute between theparties is non-arbitrable as the reliefs sought for damages and injunction is primarily based upon the Intellectual Property Rights.

5. The Supreme Court of India in the case of A. Ayyasamy vs. A. Paramasivam & Ors., (2016) 10 SCC 386 has held as under:- “.........The following categories of disputes are generally treated as non-arbitrable:

(i) patent, trade marks and copyright;

(ii) anti-trust/competition laws;”

6. At this stage, learned counsel for the Appellantstates that the Madras High Court in the case of Lifestyle Equities CV PrinsBernhardplein vs. Zdseatoman Designs Pvt. Ltd., 2017 SCC OnLine Mad 7055 has after taking into consideration the judgment of the Supreme Court in A. Ayyasamy (supra) heldas under:- “5(s) Pivotal submission of Lifestyle on this aspect of the matter is that the aforesaid judgment of the Hon'ble Supreme Court of India has not considered or excluded IPR disputes from the scope of arbitrability. For absolute clarity on this aspect of the matter, learned counsel for Lifestyle referred to paragraph 14 of Ayyasamy case and said that the list of disputes which may not be arbitrable as adumbrated therein is not the ratio or conclusion of the Hon'ble Supreme Court of India, but a mere extract from a book titled The Law and Practice of Arbitration and Conciliation'. A perusal of paragraph 14 affirms this position and very fairly, learned Senior Counsel for QDS does not dispute this.”

7. This Court is of the opinion that as the Supreme Court in A. Ayyasamy (supra) has quoted with approval thetext book titled ‘The Law and Practice of Arbitration and Conciliation’, it is not open to this Court to sit in appeal over the judgment of the Supreme Court. Consequently, the Madras High Court judgment relied upon by learned counsel for appellant offers no assistance to the appellant. Accordingly,the present appeal along with pending application is dismissed. MANMOHAN,J ASHA MENON, J MARCH 23, 2021 KA