Wikreate Worldwide Private ... vs The Calcutta Medical Research ...
2023 Latest Caselaw 2985 Cal/2

OCD-9

                                 ORDER SHEET
                       IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction
                                 ORIGINAL SIDE
                              (Commercial Division)

                                  AP/731/2023

                  WIKREATE WORLDWIDE PRIVATE LIMITED
                                  VS
                THE CALCUTTA MEDICAL RESEARCH INSTITUTE


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
  Date : 16th October, 2023.
                                                                             Appearance:
                                                             Mr. Sukrit Mukherjee, Adv.
                                                      Mr. Subhankar Chakraborty, Adv.
                                                      Mr. Saptarshi Bhattacharjee, Adv.
                                                                     ...for the petitioner

                                                               Mr. Snehashis Sen, Adv.
                                                           Mr. Abhishek Banerjee, Adv.
                                                                   ...for the respondent

The Court:- The resistance to the Section 11 application is not that there

is no dispute between the parties but that the petitioner should be kept within

the confines of the last and fourth agreement executed between the parties,

namely, the Service Agreement dated 17th December, 2022. There is a reason

for this resistance since this is the only agreement which contains an

arbitration clause; none of the earlier three agreements contain an arbitration

clause. The respondent hence says that the petitioner cannot consolidate its

claims under all the four agreements and sustain them by way of a Section 21

notice which was issued to the respondent on 7th May, 2023.

The only point which is to be decided is whether the Court can ignore the

first three agreements and rely on the last and final Service Agreement and if

yes, whether the petitioner can be kept within the bounds of the final

agreement in respect of the claims raised by the petitioner on the respondent.

The four agreements are of 21st December, 2020 followed by two Addenda

of 1st July, 2021 and 1st April, 2022. The last "Service Agreement" which

contains the arbitration clause is of 17th December, 2022. It is not in dispute

that the scope of work was delineated in the first agreement where the

petitioner was engaged as the digital marketing service provider for the

respondent. The scope of work continued thereafter through the two Addenda

and culminated in the Service Agreement which contains the arbitration

clause.

It is also not in dispute that both the parties before the Court executed

and were signatories to all the four agreements. This Court not only finds

commonality of parties but also commonality of work and purpose in all the

four agreements. The parties would hence be covered by the Supreme Court

decision in Ameet Lalchand Shah Vs. Rishabh Enterprises and Another, (2018)

15 SCC 678 and Chloro Controls (I) P. Ltd. Vs. Severn Trent Water Purification,

reported in (2013) 1 SCC 641 where even non-signatories were brought within

the fold of the arbitration agreement. Ameet Lalchand Shah involved a parent

agreement and offspring agreements with a common connection which were

also brought within the fold of arbitration. Both these judgments were

considered by a co-ordinate Bench in Tantia Constructions Vs. Mather and Platt

Pumps Limited, 2023 SCC OnLine Cal 1142. The petitioner here in fact is on a

better footing than the petitioner in Tantia Constructions in relation to the fact

of supersession.

The petitioner has provided consolidated service to the respondent by

way of the four agreements; the obligation of the respondent to pay for the

service rendered by the petitioner hence cannot be restricted only to the final

Service Agreement of 17th December, 2022. The respondent's reply of 13th

June, 2023 to the petitioner's Section 21 notice does not dispute the

arbitration agreement but raises the point of supersession. In any event, the

argument made by the parties can well be considered by the Arbitrator

including that of supersession and the claim being restricted to the Service

Agreement.

The Court is of the view that the arbitration agreement in the last and

final Service Agreement can actually be traced back to the three agreements

which were executed between the parties before the Service Agreement.

AP/713/2023 is accordingly allowed and disposed of by appointing Mr.

Abhidipto Tarafdar, Counsel to act as the Arbitrator to resolve the disputes and

differences between the parties subject to the learned Arbitrator

communicating his consent in the prescribed form to the Registrar, Original

Side of this Court within three weeks from date.

The Advocate-on-Record of the petitioner will communicate this order on

the Arbitrator by 18th October, 2023 along with the relevant details of the

contact person.

(MOUSHUMI BHATTACHARYA, J.)

T.O.

A.R.(C.R.)