Bombay High Court
Stoughton Street Tech Labs ... vs Jet Skyesports Gaming Private ... on 6 June, 2022
Bench: G.S. Patel, M. G. Sewlikar
Stoughton Street Tech Labs Pvt Ltd v Jet Skyesports Gaming Pvt Ltd
8-IAL-16497-2022-in-appl-16492-2022-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 16492 OF 2022
WITH
INTERIM APPLICATION (L) NO. 16497 OF 2022
IN
APPEAL (L) NO. 16492 OF 2022
Stoughton Street Tech Labs
Pvt Ltd,
Company incorporated under the
Companies Act 2013, having its registered
office at 11th Floor, Lotus Business Park, Off
Link Road, Andheri West, Mumbai, ...Applicant/
Maharashtra, India - 400 053 Appellant
~ versus ~
SHEPHALI
SANJAY
MORMARE Jet Skyesports Gaming Pvt Ltd,
Digitally signed
by SHEPHALI
Company incorporated under the
SANJAY
MORMARE
Date: 2022.06.08
Companies Act 2013, having its registered
17:10:37 +0530
office at No. 2, 8th Cross Street, (10th Cross
Street as per document), Kurinji Nagar,
Perungudi, Chennai, India 600096 ...Respondent
A PPEARANCES
for the applicant Mr Ravi Kadam, Senior Advocate,
/appellants with Ashish Kamat, Nishant
Singh, Rajan Raj, Nikhil Bhat,
Tanya Mehta, Narayani
Bhattacharyya.
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for respondent Mr Dinyar Madon, Senior
Advocate, with Rhia Marshall,
Aditi Tiwari, i/b Jerome
Merchant & Partners.
CORAM : G.S.Patel &
M.G. Sewlikar, JJ
DATED : 6th June 2022
ORAL JUDGMENT (Per GS Patel J):-
1. The appeal is by the original Petitioner in an arbitration
petition under Section 9 of the Arbitration and Conciliation Act
1996. By an order dated 4th May 2022, the learned Single Judge
dismissed the Section 9 Petition. He found, essentially, that there
was no concluded contract at all, and therefore no possibility of
relief under Section 9.
2. We have heard Mr Kadam for the Appellant and Mr Madon
for the Respondent at some length. After a careful consideration of
the rival submissions and material on record, we are not persuaded
that the impugned order calls for interference. In saying this, we are
mindful of our responsibilities in appeal, and in particular, those
enunciated by the Supreme Court in Wander Limited v Antox India
Pvt Ltd.1 In paragraph 14, the three-Judge Bench of the Supreme
Court said:
1 1990 (SUPP) SCC 727.
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"14. The appeals before the Division Bench were
against the exercise of discretion by the Single Judge. In
such appeals, the Appellate Court will not interfere with
the exercise of discretion of the court of first instance
and substitute its own discretion except where the
discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the
court had ignored the settled principles of law regulating
grant or refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an appeal on
principle. Appellate Court will not reassess the material
and seek to reach a conclusion different from the one
reached by the court below if the one reached by the
court was reasonably possible on the material. The
appellate court would normally not be justified in
interfering with the exercise of discretion under appeal
solely on the ground that if it had considered the matter
at the trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by the
Trial Court reasonably and in a judicial manner the fact
that the appellate court would have taken a different
view may not justify interference with the trial court's
exercise of discretion. After referring to these principles
Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan
Joseph: (SCR 721) :
"... These principles are well established, but
as has been observed by Viscount Simon in
Charles Osention & Co. v. Johnston '...the law
as to the reversal by a court of appeal of an
order made by a judge below in the exercise of
his discretion is well established, and any
difficulty that arises is due only to the
application of well settled principles in an
individual case."
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The appellate judgment does not seem to defer to this
principle."
(Emphasis added)
3. It is also well settled that when considering an application for
interim relief, a Single Judge is not expected and is in fact not
permitted to conduct a mini-trial. It is the prima facie case that is to
be assessed.2
4. Further, as the Supreme Court said in Monsanto Technology
LLC v Nuziveedu Seeds Ltd,3 the appeals court must not 'usurp the
jurisdiction of the Single Judge'; it must confine itself to an
adjudication of whether the impugned order was or was not justified
in the facts and circumstances of the case. Where there are
complicated mixed questions of law and fact, these cannot be dealt
with in a summary adjudication, but must be examined on evidence
led in the suit.
5. In the very recent decision of 14th March 2022 in Shyam Sel
& Power Ltd & Anr v Shyam Steel Industries Ltd,4 the Supreme Court
reiterated the law in Wander Ltd and Monsanto.5 The Shyam Sel
court went on to hold that the appellate court must assess whether
the discretion exercised by the learned single Judge was arbitrary,
capricious or perverse.
2 SM Dyechem Ltd v Cadbury India Ltd, (2000) 5 SCC 573; Anand Prasad
Agarwalla v Tarkeshwar Prasad & Ors, (2001) 5 SCC 568; Zenit Mataplast Pvt
Ltd v State of Maharashtra & Ors, (2009) 10 SCC 388.
3 (2019) 3 SCC 381.
4 2022 SCC OnLine SC 313.
5 Paragraphs 11, 29, 31, 34, 35, 36.
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6. It is with this in mind that we approach the Appeal. Once we
find that the decision of the learned Single Judge is a plausible one
-- not arbitrary, capricious or perverse -- then we cannot substitute
our view for that of the learned single Judge.
7. The two parties are both private limited companies. The
nature of the business has to do with organising various e-sports,
live-gaming streaming tournaments and other online content and
services. The Petitioner, Stoughton Street Tech Labs Pvt Ltd
("Stoughton") is a relative newcomer to the field. The
Respondent, Jet Skyesports Gaming Pvt Ltd ("Skyesports") has
been in this sector for some time. Stoughton provides an online
streaming platform called Loco. Skyesports develops content. The
Skyesports content may be streamed on any number of online
streaming platforms similar to Loco, including YouTube, Facebook
and others. There is material to indicate that some content was
subjected to a 'simulcast' -- simultaneous broadcasting -- across
multiple platforms.
8. The learned Single Judge found that towards the end of
September 2021, Skyesports signed an agreement that had been sent
to it by Stoughton. However, Stoughton itself had not signed the
Agreement; or, at any rate, there was nothing to indicate until very
late in the day, well after disputes arose, to indicate that Stoughton
had told Skyesports that it had also signed the agreement in
question. It is principally for this reason that the learned Single
Judge held, and in our view, and for the reasons that we will shortly
set out, correctly, that there was no concluded contract.
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9. Mr Kadam takes issue with this construct. He submits that
once Skyesports signed the contract it was bound by its terms.
Stoughton sent the contract to Skyesports for signature, and once
Skyesports signed the contract it could not later turn around and say
that there was no concluded contract for want of Stoughton's
signature. He maintains that the Stoughton did in fact sign the
document but overlooked sending Skyesports a counterpart of the
agreement bearing the signatures of both sides. He therefore
maintains that there was indeed a concluded contract of 30th
September 2021/1st October 2021 (the former being the date of
Skyesports' email and the latter being the effective date of the
contract). According to Mr Kadam, the parties agreed very shortly
thereafter to vary the financial terms of this contract -- entirely to
the benefit of Skyesports, or so he claims -- and this was accepted
by an exchange of email correspondence.
10. The main contract undoubtedly had a dispute resolution
clause 14 providing for arbitration.
11. The contract with which Stoughton came to Court was not
merely the document that Skyesports signed but that document read
with the variation that Stoughton propounds as having been
confirmed and agreed in correspondence.
12. This is important for two reasons. What we have before us is
not only a question of the existence of a contract within the meaning
of Section 4 of the Indian Contract Act, 1872 but also an assessment
of whether the contract in question (which contains an Arbitration
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Clause, and for which reason Section 9 relief was sought) fulfils the
requirements of Section 7 of the Arbitration and Conciliation Act.
13. Section 4 of the Contract Act reads thus:
"4. Communication when complete.--The
communication of a proposal is complete when it comes to
the knowledge of the person to whom it is made.
The communication of an acceptance is complete,--
as against the proposer, when it is put in a
course of transmission to him so as to be out of the
power of the acceptor;
as against the acceptor, when it comes to the
knowledge of the proposer.
The communication of a revocation is complete,--
as against the person who makes it, when it is
put into a course of transmission to the person to
whom it is made, so as to be out of the power of the
person who makes it;
as against the person to whom it is made,
when it comes to his knowledge."
14. Section 7 of the Arbitration and Conciliation Act says:
"7. Arbitration agreement. -- (1) In this Part, "arbitration
agreement" means an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or
which may arise between them in respect of a defined legal
relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate
agreement.
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(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is
contained in--
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or
other means of telecommunication which provide a
record of the agreement; or
(c) an exchange of statements of claim and
defence in which the existence of the agreement is
alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing
an arbitration clause constitutes an arbitration agreement if
the contract is in writing and the reference is such as to
make that arbitration clause part of the contract."
15. Mr Kadam's submission is that the contract in question urged
in the Petition is a hybrid that falls within both Section 7(4)(a) and
(b). It is a combination of the signed document and the later email
exchange.
16. A proposal for a second variation a little later in February
2022 never materialised. Mr Kadam submits that this is immaterial
because no part of his cause of action is based on this second
proposal.
17. He claims he is able to show that in fact the first variation was
accepted by Skyesports and that Skyesports drew its invoices
strictly in accordance with the first variation. He also drew our
attention to certain WhatsApp correspondence by which he claims
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to be able to show that Skyesports had accepted the existence of the
principal Agreement.
18. It is therefore, Mr Kadam's submission that the impugned
judgement cannot possibly stand. This is, after all, the way the
world does business today: by email and WhatsApp, and hardly ever
in the older manner with the formality of signed documents. Just
because documents are exchanged digitally does not mean that they
should be held not to exist. This would be extremely disruptive of
modern commercial practices. Whether documents are exchanged
in hard copy or not is no longer a consideration. Indeed, the
agreement itself contemplates the exchange of counter part
documents in PDF format by Clause 16.1. Therefore, Mr Kadam
submits, once the contract was shown to exist, the learned Single
Judge was bound to proceed to a consideration of whether the
Petitioner had a sufficient prima facie case under Section 9.
Skyesports having admittedly signed the document could not be
allowed to say there was no contract or that it was not bound by the
terms of what it signed.
19. He is also quick to point out that the threshold required in
regard to the existence of a contract for the purposes of Section 9 is
quite distinct from that under Section 11 of the Arbitration and
Conciliation Act. This submission really requires no great
discussion. It is well tested and completely correct. A Section 9
Court is not making an order under Section 11 though sometimes a
combined order is made by a Court, usually for economy. But this
does not mean that a Section 9 Court will examine all the contours
and parameters that apply to a Section 11 Application.
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20. The question, however, is whether the learned Single Judge
could be said to have been entirely mistaken in his view that there
was no concluded contract. This is where Mr Madon's answer has a
significant bearing. Mr Madon has taken us through some portions
of the Petition to show that the contract that Stoughton sent to
Skyesports was one that only Skyesports signed but Stoughton never
did. It is in fact his suggestion that Stoughton never signed this
document till very late in the date, quite possibly after the Affidavit
in Reply was filed to the Petition itself. He submits that a fair
reading of the Petition itself shows that there was no concluded
contract. It is because there was no concluded contract that
Stoughton proposed a few months later a different payment basis.
This revised basis did not even mention the formal document and
was unlinked to any clause or term of the document. The second
proposal was clearly not accepted;
21. To put this into some time context: the document that
Skyesports signed was of 30th September/1st October 2021. The
so-called first variation Stoughton proposed was of 15th November
2021. This has no reference at all to the signed document, by date,
nomenclature or reference to any clause. It is said to have
'substituted' a specific commercial term in the signed document,
but it contains no reference to any commercial term in the hard copy
printed document. In February 2022, Stoughton proposed another
agreement, the one that was never accepted. But this also makes no
reference at all to the signed document in any shape, fashion or
form.
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22. In the meantime, Skyesports did do business and did deliver
content. It also raised an invoice (in January 2022) but the invoice
makes no mention of the September/October 2021 document. It has
no reference to any clause of that Agreement. It is not on the basis of
the payment terms set out in that Agreement. The mere fact that
Skyesports's invoice accords or may accord with the November
2021 proposal does not, Mr Madon submits, ipso facto establish that
the September/October 2021 document constituted a concluded
contract signed by both parties. On the contrary, it is his submission
that it establishes that the September/October 2021 document was
still born and was never signed by Stoughton.
23. This is a broad outline of the rival submissions before us
today. One of the grounds for the learned Single Judge refusing
reliefs is the fact that even before September/October 2021
Stoughton and Skyesports did have a working relationship. As Mr
Madon points out this is not just not denied; it is admitted in
paragraph 3 of Petition which reads thus:
"3. The Petitioner and Respondent have shared a
working relationship since 2020. In or around September
2021, certain discussions commenced between the parties
in relation to executing an exclusive long-term arraignment
by which the Petitioner would engage the services of the
Respondent, and the Respondent would exclusively provide
his services to the Petitioner as the Tournament organizer
and service provider for various e-sports, live-gaming
streaming tournaments and other gaming related content
and services. Pursuant to discussions and negotiations, a
Term Sheet was initially shared by the Petitioner with the
Respondent on 21st September 2021. hereto annexed and
marked as "Exhibit A" is a copy of the e-mail dated 21st
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September 2021 addressed by the Petitioner to the
Respondent enclosing the communication between the
parties and the said Term Sheet.
24. The case therefore, that Stoughton came to Court with was
that Stoughton and Skyesports had a working relationship prior to
September/October 2021. Then, in the petition Stoughton claimed
that Taral Patel, its Head of Operations, sent to Skyesports's Shiva
Nandy on 30th September 2021 a draft for execution. Nandy signed
this and emailed a signed copy back to Stoughton. Paragraph 4 of the
Petition says that on receipt of the copy signed by Skyesports,
Stoughton signed and executed the Agreement. It is for this reason
that Stoughton claims that there was an Agreement effective 1st
October 2021 captioned "Tournament Organizer cum Service
Provider Agreement".6 Paragraph 4 of the original petition says:
4. Pursuant to further discussions and negotiations, an
agreement was drawn up between the parties. The draft
agreement was sent by Taral Patel, Head of Operations of
Loco from the Petitioner's company to Shiva Nandy from
the Respondent company on 30 September, 2021 for
execution. Thereafter, the Respondent signed the
agreement and sent it to the Petitioner. Upon receipt of the
executed copy of the agreement from the Respondent,
the Petitioner signed and executed the agreement. The
Petitioner and the Respondent (hereinafter collectively
referred to as "Parties") accordingly entered into the
"Tournament Organizer-Cum-Service Provider
Agreement" (hereinafter referred to as the "Agreement")
6 Stoughton then claims that there was an exclusivity, an aspect we will
shortly turn to the extent necessary. But this is pleaded in support of the prayer
(4), an injunction against Skyesports from providing online content to other
platforms.
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effective 1st October, 2021. By this Agreement, the
Petitioner engaged the Respondent to provide on 'an
exclusive basis' services to the Petitioner as the Tournament
organizer and service provider for various e-sports, live-
game streaming and tournaments and other gaming related
content and services the scope of which is defined under
the said Agreement. Pertinently, the Agreement records
that the contract between the parties was an exclusive
agreement and also, specifically barred the Respondent
from engaging, inter alia, with any other third party for any
work "which is similar or identical to the Tournament or that
competes with the Tournament", or any work whatsoever
during the subsistence of the Agreement dated 1st October
2021. A copy of the Tournament Organizer-Cum-Service
Provider Agreement dated 1st October, 2021 is hereto
marked and annexed as "Exhibit B"."
(Emphasis added)
25. In this narrative, as unamended, there is no mention,
significantly, of what Stoughton apparently did after it allegedly
signed the Agreement that it received with Skyesports's signature.
Curiously, Stoughton then amended the Petition and inserted
paragraph 4A. This paragraph reads:
"4A. As stated above, subsequent to the Term Sheet, the
parties negotiated and/or agreed upon the long form
agreement. The final concluded Long Form Agreement was
concluded after an exchange of emails. On 30th September
2021, under cover of its email sent at 11:28 AM (Pg. 29 of
the Petition), the Petitioner forwarded the Agreement to
the Respondent and requested it to share a signed copy with
the former. On the same day and by its email sent at 12:31
pm (Pg 29), the Respondent duly forwarded a signed
copy of the Agreement to the Petitioner. By signing the
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agreement and forwarding the same to the Petitioner,
the Respondent agreed to the terms of the Agreement
(including the arbitration clause) and a valid binding
and subsisting contract came into being between the
parties. The email correspondence between the parties on
30th September 2021 is already annexed herewith at Exhibit
A to the Petition. The Agreement duly signed and sent by
the Respondent is already on record at Exhibit B (Pg. 32)."
(Emphasis added)
26. In the Affidavit in Rejoinder, Stoughton says there was an
oversight on its part in sending back to Skyesports a copy of the
document with Stoughton's signature.
27. If what Stoughton says in paragraph 4 is true, viz., that it had
signed the document Skyesports had, then paragraph 4A was wholly
unnecessary. The two narratives are materially divergent. Paragraph
4A takes the stand that Skyesports is bound by the Agreement
because it had signed it and put it into transmission -- clearly an
argument under Section 4 of the Contract Act. But that is not the
case pleaded in paragraph 4. The question is whether Stoughton can
establish that it had in fact also signed the very same document that
it sent to Skyesports. The learned Single Judge found that it had
not. It is not until the Rejoinder that Stoughton sought to clarify this
position inter alia in paragraph 12 at page 225 by saying that it was
mere oversight that Stoughton did not send a copy of the
countersigned document (i.e. the one that Stoughton signed) back to
Skyesports.
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28. From paragraphs 15 to 19B of the petition (including several
paragraphs added by amendments), we find Stoughton's assertions
about its so-called variation or modification of the 30th
September/1st October 2021 Agreement.
15. Inspite of contractual requirements, the Respondent
was unable to meet the minimum commitments set out in
Clause 3.3 of the Agreement for the first one month after
the Agreement was executed and was therefore not eligible
to receive any payments from the Petitioner for that
months. For this reason, after the execution of the said
Agreement, discussions ensued between the parties to
revise the payment structure that was agreed upon in the
said Agreement.
16. Pursuant to these discussions, the Petitioner
offered revised payment terms to the Respondent at INR
6 (Indian Rupees Six only) per Live Watch Hour
("LWH") by their email dated 16th November 2021.
This revised payment structure was duly accepted by
the Respondents by their email of even date. Hereto
annexed and marked as "Exhibit C" is a copy of the
Petitioner's email dated 16th November 2021 and the
response of the same date from the Respondent. Except
for this all the terms and conditions of the said
Agreement dated 01 October, 2021 remain unchanged
and continued to govern the contract between the
Petitioner and the Respondent.
17. Notwithstanding these discussions regarding the
payment terms, the parties were always aware and accepted
that the said Agreement was a legal, valid and binding
agreement between the parties and constituted a concluded
and binding contract. The Respondent, in the month of
December 2021, rendered services to the Petitioner in
accordance with the terms of the Agreement and organized
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a Tournament known as "Skyesports Grandslam 2022
Season 1" during this period. Pertinently, this Tournament
was a huge success. The Respondent accordingly raised
an invoice for payment as per the revised payments
terms that were duly agreed by the parties on 10th
January 2022. Hereto annexed and marked as "Exhibit
D" is a copy of the email dated 10th January 2022. It is
pertinent to note that the invoice raised by this email
was in accordance with the renegotiated payment terms
which were discussed and agreed by the parties. The
Petitioner craves leave to refer to and rely upon
contemporaneous material to demonstrate this.
17A. The Respondent's Invoice of 10th January 2022
was on the basis of it having achieved an LWH of
504.301 live watch hours. It was thus liable to be paid a
sum (pre-GST) of Rs. 30,25,806/- (INR 6 x 504301
LWH) for which it raised an Invoice of Rs. 35,70,451/-
(Rs. 30,25,806 + GST of Rs. 544,645 at 18%).
18. It is not in dispute that payments under this invoice
were duly and promptly made and cleared on 21st January
2022 via NEFT/RTGS/internet banking vide reference
number FCM-2201210IRQX0. The copy of the payment
receipt evidencing this payment is annexed hereto and
marked as "Exhibit E".
18A. In or around mid-January 2022, the Parties once
again re-negotiated the consideration payable under the
Agreement. This re-negotiation interalia took placed
through an exchange of WhatsApp messages between Mr.
Taral Patel of the Petitioner and Mr. Shiva Nandy, the CEO
of the Respondent. On or around 18th January, 2022, the
parties agreed upon the following further revised payment
terms viz
Consideration - Rs. 50,000/- per streaming
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day + Live Watch Hour (LWH) Tiered
Payment
LWH Tiered Payment Formula
No. of Live Watch Hours Rate (in INR)/Per Live
Watch Hour (LWH)
0-100k INR 4/LWH
100k-500k INR 5/LWH
500K+ INR 6/LWH
Other than these changes, the Agreement remained valid,
subsisting binding upon both parties. The WhatsApp
transcripts of 18th January 2021 of the discussions
pertaining to these further revised rates are annexed
herewith at "Exhibit E-1".
18B. The fact that the further rates were not only agreed
but acted upon is borne out by communications between the
aforesaid Petitioner and Respondent's representatives on
WhatsApp between 4th - 5th March 2022. On 4th March
2022, the Respondent sought an update in relation to the
billing for February 2022. in response, the Petitioner's
representative stated that an LWH of 1165466 had been
achieved and that the streaming days was known to the
Petitioner. On 5th March 2022, the Respondent sought and
received a confirmation by the Petitioner of the following
figures for work done in February 2022:
LWH 0-100K (Rs. 4) Rs. 400,000/-
LWH 100-500K (Rs. 5) Rs. 20,00,000/-
LWH 500K - 1165K Rs. 39,90,000/-
(Rs. 6)
Loco Stream of 27 days Rs. 13,50,000/-
(Rs. 50,000/ day)
Total Amount Rs. 77,40,000/-
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18C. The Petitioner confirmed the correctness of these
figures, and the Respondent thereafter raised its Invoice of
5th March 2022 for Rs. 91,33,200 (Rs. 77,40,000+GST of
13,93,000 at 18%) thereafter. The WhatsApp transcripts of
4th - 5th March 2022 are annexed at "Exhibit E-2".
19. In fact, the Respondent raised an additional invoice
on 5th March 2022, again under the revised payment terms.
Hereto annexed and marked as Exhibit G is a copy of the
Respondent's email addressed to the Petitioner on 5th
March 2022 in this regard.
19A. Subsequently, the Petitioner was desirous that the
lock in period agreed upon be deleted and a Right of First
Refusal introduced. The Petitioner via an email dated 22nd
February 2022 forwarded a draft agreement which interalia
proposed a deletion of the Lock-in period of 12 months
subsisting under the existing Agreement and introduction
of a Right of First Refusal to the Petitioner. The
Respondent did not agree to do so and this proposal thus
proved to be a non-starter. A copy of the Petitioner's email
of 22nd February 2022 with the Draft is annexed
collectively at "Exhibit G-1".
19B. Consequently, the only agreement between the
parties is the Agreement dated 30th September 2021
with the agreed further revised payment terms as set out
in paragraph 18B above. The existing Agreement
continued to govern the parties legal relationship and
remained valid, subsisting and binding".
(Emphasis added)
29. Stoughton's case, therefore, is that the change it proposed on
16th November 2021 was a modification of the commercial terms of the
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30th September / 1st October 2021 'contract'. Necessarily, this would
require the 'modification' to reference the September/October 2021
in some manner. It does not. Mr Kadam's submission is that
Skyesports's January 2022 invoice was drawn in terms of the
November 2021 'modification', and this therefore 'establishes' that
there existed a contract. How else, he asks, could that invoice have
been drawn except under the contract? This is where, as Mr Madon
points out, Mr Kadam's construct falters. For, even on Stoughton's
own showing, particularly paragraph 3 of the petition, the parties
already had a pre-existing commercial relationship. Skyesports was
indeed doing work for Stoughton, and this was evidently unrelated
to any contract but on some ad hoc basis. Therefore, neither the
invoice nor the proposal for its terms (of November 2021)
unequivocally or unambiguously establishes the existence of a
concluded contract.
30. We must now look to certain provisions of the 30th
September/1st October 2021 Agreement which we find at Exhibit
"B" from page 92. Clause (2) is relevant. This sets out the purpose
and more importantly defines what is meant by a 'tournament',
something that is essential to this one year contract. Clauses 3.1, 3.2
and 3.3 have also been relied on by both sides. They read thus:
3. TERMS OF ENGAGEMENT,
DELIVERABLES, TIER-STRUCTURE AND
PAYMENTS
3.1 Subject to the fulfillment of obligations under this
Agreement, Stoughton shall pay the Organizer the
consideration pursuant to the terms set out in Annexure I
of this Agreement which may be updated from time to time
and annexed with additional annexures by mutual
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agreement of the Parties ("Consideration"). The Parties
acknowledge and agree that this engagement shall be a long-
term engagement for various Tournaments, each with
commercials that shall be decided prior to the Tournament.
Such updated Consideration for Tournaments shall be
recorded by way of additional annexures that shall be
signed by both Parties which shall be annexed herewith.
Any and all such annexures shall be considered to be a
part and parcel of this same Agreement. All other terms
of this Agreement shall remain the same for any and all
Tournaments.
3.2 The Organizer shall be solely and exclusively
responsible for:
(a) organizing, producing, marketing, promoting,
managing and monetizing any and all such
Tournaments as required by Stoughton;
(b) ensuring the participation of steamers and teams for
the Tournaments and the streamers shall be as
required by Stoughton;
(c) coordinating with any and all teams and ensuring the
teams and streamers participate in the Tournaments
and adhere to the Tournament guidelines and Loco
and Stoughton policies;
(d) be responsible for educating the streamers and teams
of the Tournament eligibility, requirements,
guidelines, policies of Stoughton and Loco, Terms of
Use of Loco and all other necessary information to
ensure compliance with guidelines;
(e) All the casing / commentating talent engaged by the
Organizer shall be exclusive to Loco during the Term
and shall not be entitled to provide their services to
any competing medium/platform except for
YouTube;
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(f ) ensure that the streamers create individual profiles
and channels on Loco;
(g) ensure and be solely and exclusively responsible for
payment of any and all prize money to the teams
and/ or streamers;
(h) maintain and submit to Stoughton, timely and
regular records of any and all payments made
towards the services/Deliverables under this
Agreement;
(i) maintain and submit to Stoughton, timely and
regular records of any and all payments made to the
teams/streamers in relation to the Tournaments and
this Agreement;
(j) any additional services required by Stoughton and
mutually agreed between the Parties from time to
time;
(k) diligently provide services as may be mutually agreed
between the Parties; and
(l) shall ensure compliance with the terms of this
Agreement.
3.3 The Organizer shall be solely and exclusively
responsible for:
a. Exclusive Scrims - Once a week, fixed days every
week
b. Streamer Battle- Once a week, fixed days every week
c. Skyesports YT Scrims - Simulcast on Loco
d. Exclusive Tournament Events with pro teams
e. Skyesports Content - Exclusive Interviews, Coffee
chats etc.
f. 1,50,000 Live Watch Hours cumulatively every
month from all streams.
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g. Maintain active concurrent users of 3000 on each
stream and have at least 40,000 unique users on each
stream."
(Emphasis added)
31. Clause (3.1) makes a specific reference to Annexure 1 at page
104. This deals with consideration and it says:
"CONSIDERATION
Subject to the complete, timely and satisfactory
performance of this Agreement and compliance with all its
terms and conditions and the Organizer not being in breach,
in relation to the Deliverables and the Terms of
Engagement the Organizer shall be paid on all inclusive sum
of INR 10,00,000/- (Indian National Rupees 10 Lakhs
Only) on a monthly basis and upon the Organizer
raising a due and valid invoice.
The Parties have mutually decided that a bonus of:
INR 0.5/- shall be payable per unique viewers after 1
Million unique viewers on the platform via the Organizer."
(Emphasis added)
32. Clearly this clause provided for a flat fee of Rs.10 lakhs per
months against an invoice. In addition, there was an Agreement for
bonus with a rate specified and computed per unique viewer after
one million unique viewers were on the Loco platform via the
organizer. The organizer is, by definition, Skyesports (under its
earlier name).
33. As we have seen from the portions emphasized above, any
updates to the consideration Annexure 1 had to be recorded by way
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of additional measures to be signed by both parties, and this could,
presumably, be in soft copy. It had to be annexed to the Agreement.
We do not think it is necessary to hold that this necessarily means
that these annexures had to be in hard copy, but they certainly
needed the consent of both sides. This portion of Clause (3.1) will
have to be read with Clause 16.7, set out below.
16.7 Entire Agreement and Amendments. The
Agreement, any documents that expressly incorporate by
reference constitute the sole and entire agreement between
the Parties with respect to the Engagement and supersede
all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, with
respect to the Engagement. None of the terms of this
Agreement shall be amended except by way of execution
of any addendum/amendment agreement which must be
signed by both Parties.
(Emphasis added)
34. This is in the usual form but whatever the medium, hard copy
or soft copy, the clause clearly requires a consensus ad idem of both
sides. Indeed this is the essence of arbitration law as a whole.
35. The non-compete clause is also relevant because of the
interim relief sought. It reads thus:
"8. NON-COMPETE OBLIGATIONS
8.1 The Organizer acknowledges it has various other
skill sets which, if deployed by it after it ceases to be
associated with Stoughton would be sufficient to be
gainfully employed without having to engage with any
Competing Platforms and / or compete with the Company
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or its Affiliates with respect to the Tournaments and subject
matter of the Agreement.
8.2 The Organizer undertakes that it shall not, during
the Term, anywhere in the world, whether by itself or with
any third party engage, directly or indirectly and whether as
a n individual, through a partnership or as a shareholder,
joint venture partner, collaborator, consultant, advisor,
director, committee member, agent or in any other manner
whatsoever, whether for profit or otherwise, commence,
engage or be concerned with, in any tournament, contest or
any other entertainment / infotainment programme,
whether online or otherwise, which is similar or identical
tot he Tournament or that competes with the Tournament.
8.3 No separate non-compete fees are payable to the
Organizer and it confirms the same."
36. Mr Madon may be right in saying that there was never any
absolute bar on Skyesports transacting with other parties. As the
emphasized portions above show, content that Skyesports developed
exclusively for Stoughton under this contract could not, without
Stoughton's express consent, be streamed on any other platform.
But content that was not prepared bespoke by Skyesports for
Stoughton could be simulcast without Stoughton's consent. The
reason this is of some relevance is that the reliefs sought both before
the learned Single Judge and in the Interim Application before us
are far broader than this clause could possibly justify.
37. This, then, is broadly the Agreement itself. On 16th
November 2021, Stoughton's Taral Patel sent an email to
Skyesports's Nandy proposing a payment of Rs. 6/- per Live
Watching Hour (for the whole duration of the Championship). Mr
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Kadam says that this was the variation proposed of Annexure 1 and
Clause 3.1 of the contract. The document at Exhibit "C" at page 105
has no reference to the contract, Clause 3.1 or Annexure 1 at all.
Annexure 1 stipulated, as we have seen, a monthly fee of Rs. 10
lakhs and a bonus which was also not on a LWH basis but on the
basis of unique viewers, possibly an entirely distinct metric. As we
have noted, the reason Mr Kadam says that the November 2021
proposal was accepted is because on 10th January 2022 Skyesports
drew an invoice on Stoughton (Exhibit "D"). This was for a
December 2021 service for " Skyesports". A copy of the invoice is
available at page 108. It refers to the Skyesports Mobile Open. It is
not computed on the Annexure 1 basis at all; it could not be because
that was a monthly payment. The invoice also makes no reference to
the 30th September/1st October 2021 document either by date or by
nomenclature. At this stage we note that there is not even an
attempt to show that there is compliance with the provisions of
Clauses 3.1 and 16.7 by a mutually signed document of modification.
38. It is therefore entirely plausible -- perhaps even likely -- that
the 16th November 2021 payment suggestion was not in fact a
variation of any September/October 2021 'Agreement' but was
simply an arrangement being made on an ad-hoc basis. This is
further established by the fact that the invoice is not drawn in terms
of the September/October 2021 Agreement at all. That required the
invoice to have a clause stipulating payment in 45 days as per Clause
3.5 (b) at page 95. The invoice, one that was paid by Stoughton,
provides for a 30 day payment period. There is no explanation
whatsoever for this discrepancy. We will not trouble with the
subsequent invoice that remained unpaid.
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39. Another variation of February and March 2022 was also to
payment terms as shown in Exhibit "E-1" at pages 111 and 112. The
entire exchange is on WhatsApp. In any event this was never agreed
and that is common ground.
40. Stoughton proposed yet another agreement on 22nd February
2022 with completely different terms as to consideration. This can
be seen from the document at pages 184 to 201. This has never been
acted upon. But this also does not establish the existence of a
previous concluded contract of September/October 2021. To the
contrary: it is prima facie evidence that there was no previous
concluded contract. The reason is plain. Even in the draft Stoughton
sent Skyesports on 22nd February 2022 there is no reference to the
previous so-called agreement of September/October 2021 being
superseded when the new agreement took effect. It is of little use to
Mr Kadam to rely on a generic clause saying that the new agreement
superseded 'all previous agreements'. Had there been a concluded
contract of an earlier date, its supersession would have been
mentioned; and, further, in the recitals themselves of the revised
proposal, there would have had to be some reference to a previous
concluded contract. There is none.
41. Mr Kadam's next submission is based on a set of WhatsApp
messages that are annexed to the Affidavit in Rejoinder. Here
Stoughton says, having found that Skyesports was now dealing with
other platforms, that Skyesports was in breach of its Agreement.
The answer from Skyesports's Nandy was to ask where Skyesports
was in violation and, when a clause was pointed out, to respond that
there were no payments made to Skyesports until December 2021.
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We do not believe that a Section 9 Petition can be founded on an
exchange of WhatsApp correspondence between litigants like this.
What is perhaps more significant is to see how parties understood
the case in the legal notices that came to be exchanged between
them.
42. In the legal correspondence, Stoughton's lawyers invoked the
September/October 2021 Agreement and gave Skyesports three
days to refund Rs.33 lakhs apart from demanding that Skyesports
should remedy its breaches within one day failing which it would
stand terminated under Clause 10.2. From Mr Kadam's perspective,
this was perhaps unfortunate because this was not Stoughton
protesting against a termination of the agreement by Skyesports. It
was the other way around. If Stoughton had terminated the
agreement it propounds, it is difficult to see how it could then come
to Court seeking relief under Section 9. Perhaps realising this, a few
days later, Stoughton purported to withdraw its termination. Mr
Kadam says this cannot count against Stoughton. Apart from
anything else the parties continued to work together and in any case
this is not proof of a total absence of a contract. But what is more
important in this correspondence is what Skyesports said on 21st
March 2022 at Exhibit "M" -- it totally and completely denied the
existence of any contract specifically stating in paragraph 2 thus:
"2. Firstly, we would like to state that there is no valid or
existing contract executed between your Client and us any
time whatsoever. As for the document dated 1st October
2021 titled 'Tournament Organizer-Cum-Service Provider
Agreement') "Unexecuted Agreement"), we did not
receive any executed copy of the said document from your
Client at any time, either by facsimile or electronic mail.
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Accordingly, your client had no intention to execute and
bind itself to the Unexecuted Agreement. This was further
substantiated by the fact that, your Client contacted us in
December 2021 to revise the terms of the said Unexecuted
Agreement, further to which your Client has shared another
draft document with us in February 2021. it is also pertinent
to note that neither have we raised any invoice as per Clause
3.1 (read with Annexure 1) of the Unexecuted Agreement
and neither has your Client made any payment thereunder.
It is therefore clear that there exists no binding agreement
between the parties and the parties have neither by
execution, conduct or otherwise bind themselves to the
Unexecuted Agreement."
43. Mr Madon has also drawn our attention to a tabulation at page
209, Exhibit "D" to the Affidavit in Reply, which shows the various
programs broadcast and content produced by Skyesports and the
platforms on which this content was periodically broadcast. Two
things emerge from this. It shows that Skyesports and Stoughton
had a relationship that goes back at least to May 2020, possibly
earlier. Item 1 of this list is the Skyesports Grand Slam 2020. That
was broadcast on the YouTube and Stoughton's Loco platform in
that year. Therefore, what is said in paragraph 3 of the Petition is
correct, viz., that there was a pre-existing relationship; and this is a
plausible answer to Mr Kadam's case on the January 2022 invoice
based on the November 2021 pricing. In this list we are concerned
with Items 37 and 40, the Skyesports Mobile Open (the subject
matter of the first invoice of January 2022) and the unpaid
subsequent invoice of the Skyesports Pro-League. The first of these
was on three platforms, You Tube, Stoughton's Loco and highlights
on Facebook. The second was on YouTube and Stoughton's Loco
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platform. The relevance of these is that this simulcast was clearly
not of content developed exclusively by Skyesports for Stoughton,
i.e., content under the so-called agreement of September/October
2021. Had it been so, it would have required Stoughton's express
consent for broadcasting on any other channel. This consent is
supposedly to be inferred from some WhatsApp transactions where
we are asked to believe that because Stoughton asked that the
YouTube broadcast for item 37 be delayed by 10 minutes or be after
a 10 minute delay, this must necessarily mean (a) that there is a valid
consent by Stoughton and (b) that the content was exclusive; (c) that
exclusive content could have come only under the
September/October 2021 agreement; and (d) therefore there was a
concluded contract. There is a such a thing as stretching things too
far. Mr Madon submits that there is no evidence in this entire
matter of any exclusive content developed by Skyesports for
Stoughton. This, he submits, lends considerable heft and credence
to his submission that there was no agreement because even today
Stoughton is unable to show how it was acted upon in any manner,
at any time. We agree. There is no pleading or any other
documentation whatsoever that we can find to show that there was
exclusive content and that in writing or with some degree of
formality Stoughton consented to a broadcast on other platforms.
44. Mr Kadam relies heavily on the Judgment of the Supreme
Court in Trimex International FZE Limited Dubai v Vedanta
Aluminium Limited India.7 There is no quarrel with the legal
propositions that are set out in that Judgment. Indeed there cannot
be. Paragraphs 59 and 60 summarise the position in law:
7 (2010) 3 SCC 1.
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59. In Shakti Bhog Foods Ltd v Kola Shipping Ltd, this
Court held that from the provisions made under Section 7
of the Arbitration and Conciliation Act, 1996 that
"the existence of an arbitration agreement can
be inferred from a document signed by the
parties, or an exchange of letters, telex,
telegrams or other means of
telecommunication, which provide a record of
the agreement"
60. It is clear that in the absence of signed agreement
between the parties, it would be possible to infer from
various documents duly approved and signed by the parties
in the form of exchange of e-mails, letter, telex, telegrams
and other means of telecommunication.
45. But apart from the fact this is a decision in a Section 11
matter, this position in law does not take Mr Kadam the required
distance.
46. To put it into an appropriate context:
(a) Stoughton cannot show unequivocally that it signed the
September/October 2021 document;
(b) it admits that it never sent a copy of this document
signed by Stoughton to Skyesports;
(c) there is no material to indicate that the 16th November
2021 proposal was linked to the September/October
2021 document;
(d) there is no document that is in compliance with the
requirements of Clause 3.1 or Clause 16.7 for any
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variation of this alleged agreement of
September/October 2021;
(e) the invoice that was drawn by Skyesports in January
2022 was in accordance with the unlinked proposal of
16th November 2021 but was materially in variance
with the September/October 2021 document and for
which there is no explanation at all;
(f ) there is nothing to show exclusivity of content
developed by Skyesports for Stoughton under the
September/October 2021 so-called agreement or
express consent for sharing on other platforms in
writing.
47. We agree that a party must be bound by the bargain it struck.
But it must be shown that a bargain was in fact struck, and that is the
whole of Mr Madon's case: there was no concluded contract. It is
possible, he submits, that since there was a working relationship,
parties proceeded on an ad-hoc basis from one contract or
tournament to the next. But that is a very different thing from saying
that there was a binding agreement with an arbitration clause and
which granted to Stoughton exclusivity over all Skyesports-
developed content. That is beyond Stoughton's reach in the Petition
as it currently stands.
48. The upshot of all of this is that we are today, as was the
learned Single Judge, asked to conjecture on almost every single
aspect of the matter. The one thing that is known is that Skyesports
signed a document. But this has some how become a springboard for
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Stoughton to have us imagine almost everything else. We must now
assume that Stoughton signed the Agreement. We must assume that
Stoughton's November variation was of the September/October
2021 so-called agreement. We must further assume that the invoice
that Skyesports drew was in accordance with the variation of the
September/October 2021 agreement. We must continue to assume
that all content was developed by Skyesports only for Stoughton.
Finally, we must assume that the February 2022 proposal was in
replacement of the September/October 2021 so-called agreement.
This is asking us to assume rather too much. Pegged only to
Skyesports's signature on one document, the entire case is based on
conjecture and surmise that there must have existed a concluded
contract.
49. In addition there is Mr Madon's submission on Section 42 of
the Specific Relief Act. Section 42 reads thus:
"42. Injunction to perform negative agreement.--
Notwithstanding anything contained in clause (e) of section
41, where a contract comprises an affirmative agreement to
do a certain act, coupled with a negative agreement, express
or implied, not to do a certain act, the circumstances that
the court is unable to compel specific performance of the
affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement:
Provided that the plaintiff has not failed to perform
the contract so far as it is binding on him."
50. This is cited because Mr Kadam before us today argued that
the Section 9 Petition was really to enforce a negative covenant (i.e.
the non-compete clause). The answer by Mr Madon to this is simple
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and is based on the proviso that in order to succeed on this
argument, Mr Kadam would have to show that Stoughton was not
itself in default of performance of its obligations under the contract.
This is not a matter that is reflected in the decision of the learned
Single Judge and we need not say anything further.
51. One last point is to be noted. We heard the matter fully in the
morning session. Since there were other matters listed, we indicated
we would deliver judgment in the afternoon session. When the
matter was called, and before we began dictating the judgment in
open court, we asked the advocates for Stoughton to take
instructions if they wanted to unconditionally withdraw the appeal.
The impugned order would stand, but we indicated that subject to
that, we would make an order keeping open any civil remedies
Stoughton might have wished to pursue. On taking instructions
while the court waited, the advocates for Stoughton reported that
their instructions were to invite a judgment. We therefore proceeded
to deliver this judgment.
52. Returning to the Wander v Antox principle, we find that view
the learned single Judge was not merely plausible. It was the only
possible view in the circumstances of the case, and one with which
we are entirely in agreement. There were other reasons set out by
the learned single Judge, but those need not detain us. Equally, it is
true that our order today considers additional factors and is for
further reasons, but we have arrived at precisely the same
conclusion as the learned single Judge. The brevity of the learned
single Judge's order is not a reason to disturb it -- indeed, with
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profound respect, it may instead speak to the learned single Judge's
greater acuity and incisiveness.
53. We see no substance in the Appeal. It is dismissed.
54. In view of this, the Interim Application does not survive and
it is disposed of.
(M.G. Sewlikar, J) (G. S. Patel, J)
6th June 2022
