Ministry Of Sound International ... vs M/S. Indus Renaissance Partners ...
2009 Latest Caselaw 10 Del

I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008                     Page No.1



                                                            REPORTABLE

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       I.A. NO. 2926/2008 IN CS (OS) NO. 241/2008

%                              Date of Decision : January     7th, 2009.

MINISTRY OF SOUND INTERNATIONAL LTD.                  .... Plaintiff.

                             Through Mr. A.S. Chandhiok, Sr.Advocate
                             with Mr.Mukul Baneja, Ms.Rashi Nagpal,
                             Ms.Shweta, Mr.Arjun, Advocates.

                                   VERSUS


M/S. INDUS RENAISSANCE PARTNERS

ENTERTAINMENT PVT. LTD.                              ..... Defendants

                                  Through Mr. Jayant Nath, Sr. Advocate,
                                  Mr.L.M. Asthana, Mr.Upender Thakur,
                                  advocates for defendants 1 & 2.

                                  Mr.Arvind Nayar, Mr.Vikas Kumar,
                                  advocates for defendant no.4.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1.

Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ? Yes.

3. Whether the judgment should be reported Yes.

in the Digest ?

SANJIV KHANNA, J:

 I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008                  Page No.2



   1. Indus Renaissance Partners Entertainment Pvt. Ltd.             and

Mr.Anshuman Kapur, defendants 1 and 2 have filed an

application under Section 8 of the Arbitration and Conciliation

Act, 1996 (hereinafter referred to as Act, for short) for

disposal/dismissal of the Suit filed by Ministry of Sound

International Ltd, the plaintiff herein on the ground that the

disputes are covered by the arbitration clause between the

parties. The plaintiff, as per the plaint, is a private company

incorporated under the laws of Ireland.

2. The plaintiff and the defendant no.1 admit execution of the

Agreement dated 7th December, 2006 granting licence to

defendant no.1 to use its trademarks/copyright in respect of

„Ministry of Sound‟, „The Ministry‟, „Ministry‟, „MOS‟ and logo of

the plaintiff and to run a night club by the name of „The

Pyramid‟.

3. Agreement dated 7th December, 2006 incorporates Clause 29

under the heading Governing law, Jurisdiction and Dispute

Resolution. The said Clause reads as under :-

"29. Governing Law, Jurisdiction and Dispute Resolution.

29.1 This Agreement is governed in all respects in accordance with English law and shall be construed and take effect as an agreement made in England.

I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.3

29.2 The Licensee shall conduct its business under this Agreement in a lawful manner and will faithfully comply with all applicable laws or regulations for the conduct of its business.

29.3 The parties agree that, in the event of any dispute arising out of or in connection with this Agreement which the parties are unable to resolve in the normal course, the parties agree that the matter shall be referred to the Licensor Representative and Licensee Representative. The Licensor Representative and Licensee Representative shall meet to attempt resolution. Should they not resolve the matter within 10 Business Days then each party shall escalate the issue to its board of directors.

29.4 If the parties have not resolved the dispute within 30 Business Days of the matter first being referred to the Licensor Representative and Licensee Representative for resolution then each party shall be free to pursue the rights granted to it by this Agreement in respect of such matter.

29.5 For avoidance of doubt, clauses 29.3 and 29.4, shall not prevent either party from :

(a) Seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or infringement by the other of any Intellectual Property; or

(b) Commencing any proceedings where this is necessary to avoid any loss of a claim due to the rules on limitation of actions.

29.6 Subject to the foregoing, any dispute arising out of or in connection with this Agreement shall be submitted to the arbitration in London of the London International Court of Arbitration ("LICA") under and in accordance with the Arbitration Act 1996 and the LICA Rules in force at the date of such submission, which Rules are deemed to be incorporated by I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.4

reference within this Clause. The tribunal shall consist of a sole arbitrator."

4. Defendant nos. 1 and 2 rely upon the said arbitration Clause

and submit that the disputes cannot be resolved in a civil

litigation before this Court. The defence of the plaintiff in the

reply is:

(a) Defendant nos. 3-5 are not parties to the arbitration agreement.

(b) Arbitration Clause 29.6 is subject to Clause 29.5(a) relating to breach of obligation of confidentiality or infringement of intellectual property right and therefore non arbitrable.

(c) Conduct of defendant by filing CS (OS) 1223/2008 and waiver.

(d) Section 45 and not Section 8 of the Act is applicable.

5. The last objection relates merely to the heading of the

application as mentioned in the cause title. A wrong heading in

the cause title will not result in dismissal of the application. It is

admitted by the learned counsel for the parties that Part II,

Chapter I of the Act is applicable as the plaintiff is a company

incorporated in Ireland and defendant no.1 is a company

registered in India and defendant no.2, is an Indian national

residing in India. It will not be proper to dismiss the application

merely because a wrong provision of the Act is mentioned in

the cause title. Pleadings as made satisfy requirements of I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.5

Section 45 of the Act. I am not therefore inclined to dismiss the

application for quoting a wrong Section/provision in the cause

title. I may note here that Section 45 of the Act, does not

require filing of an application and mere request by a party is

sufficient (See, observations of this Court in Bharati

Televentures Private Ltd versus DSS Enterprises Private

Ltd and others reported in 123 (2005) DLT 532, para 11, page

550).

6. The objection (a) of the plaintiff is based on the decision of the

Supreme Court in Sukanya Holdings Pvt. Ltd. versus Jayesh

H. Pandya and another reported in (2003) 5 SCC 531. The

said decision relates to Section 8 of the Act and it was held that

a subject matter of a suit cannot be bifurcated. One part of the

suit cannot be referred to arbitration and the remaining part or

part subject matter of the cause continues before a Civil Court.

Section 8 of the Act requires that the entire subject matter of

suit should be the subject matter of the arbitration agreement. It

is only when the entire subject matter of the suit is covered and

is subject matter of the arbitration agreement that Section 8 of

the Act is applicable. It was observed that division or bifurcation

of the subject matter, one to be decided by the arbitrator and

the other to be decided by the Civil Court would inevitably delay

the proceedings. The object and purpose of arbitration is I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.6

speedy disposal of cases and reducing the cost of litigation

would be frustrated by bifurcation of cause of action, besides

there being a possibility of conflict of decisions.

7. There is some difference in the language of Sections 8 and 45

of the Act. While Section 8 refers to a matter which is subject

matter of the arbitration agreement, Section 45 of the Act refers

to "action" in a matter in respect of which the parties have an

arbitration agreement. However for the purpose of deciding the

present matter, I have proceeded on the basis that the decision

in the case of Sukanya Holdings (supra) equally applies to

Section 45 of the Act. On careful examination of the said

decision and the averments made in the plaint, I am however

not inclined to accept the second objection on merits.

Paragraphs 1 to 17 of the plaint elaborates business activities

of the plaintiff, its goodwill, popularity, labels, logos, etc. in

which the plaintiff claims intellectual property rights in form of

copyright and trademark. It is also claimed that its trademarks,

„Ministry of Sound‟, „Ministry of Sound‟ with device of crown,

„The Ministry‟, „Ministry‟, „MOS‟, „ labels, etc. are registered in

India. Plaintiff in paragraph 18 onwards in the plaint states that

they had entered into an Agreement dated 7th December, 2006

with defendant no.1 under which a licence was granted to

defendant no. 1 to run the night club „Pyramid‟ and use I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.7

the trademarks / marks of the plaintiff and logos in

connection with the said night club. It is further stated that by

notice dated 8th August, 2007, the licence was terminated and

thereafter/henceforth defendant no.1 was not entitled to use

the said trademarks in terms of the said licence. It is alleged

that defendant no.1 has also failed to pay the licence fee.

8. Allegations against defendant nos.4 and 5 in the plaint are

to be found in para 22 thereof. The relevant portion reads:-

"....An order of injunction becomes even more imperative in view of a new night club which Defendants Nos. 1 and 2 are planning to open in collaboration with Defendants Nos.4 and

5..."

9. Learned counsel for the defendant no.1 during the course

of hearing on the application has stated that defendant nos. 1

and 2 have no intention of entering into any agreement with

defendant nos. 4 and 5 and the said statement was taken on

record. The statement is binding on defendant nos. 1 and 2.

10. With regard to defendant no.3, orders have been passed

in I.A. no.5596/2008. Learned counsel for defendant no.3 on 8th

September, 2008 had stated that his client was not aware of

inter se disputes between the plaintiff and defendant nos.1 and

2 and that the said defendant will not sponsor any event in

which the trademark/mark/logo of the plaintiff is a subject I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.8

matter without verification and acknowledgment from the

plaintiff. Learned counsel for the plaintiff thereupon had taken

time to get instructions, on whether on the basis of the said

statement the suit can be disposed of. On 23rd October, 2008,

learned counsel for the plaintiff had stated on instructions that

the statement made by defendant no.3 was acceptable and the

suit can be disposed of on the basis of the said statement.

Accordingly, I.A. No.5596/2008 was disposed of by a separate

order on 23rd October, 2008 holding that defendant no.3 would

be bound by the statement made. In view of the above factual

position, I do not think the present application under Section 45

of the Act is liable to be dismissed on the ground that defendant

nos. 3-5 are not parties to the arbitration clause. I may,

however, observe that while applying the ratio of Sukanya

Holdings (supra), courts may in a given case examine this

question with reference to substance and not merely form of

plaint lest in a case a plaintiff may deliberately, intentionally

introduce parties to get over the arbitration agreement. Each

case, therefore, has to be scrutinized carefully. The Supreme

Court in the said case emphasized that bifurcation of the

subject matter of the suit is not permissible and the entire I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.9

matter in the suit should come within the ambit of the arbitration

clause. In paragraph 15 of the judgment it was held as under:-

"15. The relevant language used in Section 8 is: "in a matter which is the subject of an arbitration agreement". The court is required to refer the parties to arbitration. Therefore, the suit should be in respect of "a matter" which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced -- "as to a matter" which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Section 8. The words "a matter" indicate that the entire subject-matter of the suit should be subject to arbitration agreement."(emphasis supplied).

First objection is accordingly rejected.

11. The objection (b) pertains to the scope of arbitration and

whether the subject matter of the present suit is covered by the

said arbitration clause. Clause 29 of the Agreement dated 7th

December, 2006 has been quoted above. The Clause provides

that in case of disputes, the parties will try and resolve the

same in normal course and then through mediation/talks

between their representatives and on their failure to resolve the

matter within 10 business days, through their Board of

Directors. However, in case the disputes are not resolved in 30

business days, then each party will be free to pursue their rights

granted under the Agreement.

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12. Clause 29.5 stipulates that inspite of Clauses 29.3 and

29.4 for resolution of disputes within 30 business days, a party

can seek injunctive relief in case of breach or threat to breach

of obligation of confidentiality or infringement of intellectual

property rights. Sub-clause (b) of Clause 29.5 is not applicable

and is not relevant. The object and purpose behind Clause

29.5(a) is not to bar or prevent a party from seeking injunctive

relief of the nature specified, even when 30 business days

period for resolving disputes has not lapsed. The jurisdiction of

the Court to grant injunctive relief is not barred for disputes or a

cause is pending settlement under clauses 29.3 and 29.4 and

30 business days period has not expired.

13. Clause 29.6 is the arbitration clause and is widely

worded. It stipulates that "any dispute arising out of or in

connection with the agreement" will be submitted to arbitration

of a sole arbitrator of London International Court of Arbitration.

The said Clause begins with the word "subject to foregoing".

The case of the plaintiff is that the aforesaid clause is subject to

Clause 29.5 and therefore suit for injunction for breach or

threatened breach of obligation of confidentiality or infringement

of intellectual property rights is not barred and cannot be made

subject matter of arbitration. I have examined the said

contention but I am unable to accept the same. The object of I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.11

Clauses 29.3 and 29.4 is that a party to the agreement should

not in a haste initiate arbitration proceedings but try and resolve

their disputes. For this 30 business days are considered to be

sufficient and after expiry of the said period, the parties are at

liberty to pursue their rights granted under the Agreement.

Clause 29.5(a) seeks to protect parties within the said 30

business days dispute resolution period and therefore makes

specific reference to Clauses 29.3 and 29.4. Even within this

period of 30 days, injunctive relief can be prayed for and

granted by a party moving to the court. Viewed in this manner,

Clause 29.5(a) does not seek to limit the subject matter of

arbitration. Subject matter of arbitration is the entire Agreement

dated 7th December, 2006 and all disputes arising out of or in

connection with the said Agreement have to be adjudicated and

decided by arbitration. Questions relating to intellectual property

rights and obligation of confidentiality can be made subject

matter of arbitration. If the plea of the plaintiff is accepted, then

in view of the decision of the Supreme Court in Sukanya

Holdings (supra) a suit for injunction in respect of obligation of

confidentiality or infringement of intellectual property rights with

addition of prayers and other reliefs including damages will

result in complete bar to arbitration. This was certainly not the

intention of the parties and is not the intention behind the I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.12

arbitration clause. The subject matter of the arbitration clause is

the entire agreement, which in substance is an agreement

authorizing use of the mark, names etc. which are essentially

intellectual property matters. A contract providing for arbitration

is a commercial document inter parties and must be interpreted

in a manner as to give efficacy by adopting a common sense

approach rather than pedantic or legalistic interpretation.

Reasonable construction should be adopted.

14. The words "subject to the foregoing.." in Clause 29.6

indicates that the arbitration clause should not be invoked till

representatives of the parties have tried amicable resolution of

the disputes and 30 business days period has expired. These

words also predicate that the arbitration clause can be invoked

and instituted even when a party has sought injunctive relief in

a court to prevent breach or threatened breach of obligation of

confidentiality or infringement of intellectual property rights. In

other words, arbitration agreement continues to subsist and can

be invoked even when an injunctive relief is applied and prayed

for by a party under Clause 29.5 (a).

15. Section 9 of the Act permits and allows a party to an

arbitration clause to obtain interim injunction even before

arbitration proceedings have commenced but a party intends to

commence or invoke the arbitration clause. Under Section 9 of I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.13

the Act, the Courts have the power to grant injunctive relief

even before arbitration has commenced.

16. Clause 29.1 states that the Agreement would be

governed in all respects by English Law and shall be

considered and taken effect as an agreement made in England.

Section 44 of the English Arbitration Act, 1996 stipulates that

unless otherwise agreed, a party can approach courts for the

purpose of and in relation to arbitration proceedings in matters

stipulated in Sub-section (2). Sub-section 2(e) allows a court to

grant interim injunction. Dealing with this aspect, Russell on

Arbitration (22nd Edition, pages 265-67) has examined the

question of injunctive relief. It has noticed that the English

Arbitration Act authorizes arbitration Tribunals to grant

injunctive relief and an arbitration Tribunal has the same power

as courts unless there is an agreement to the contrary. The

courts also have power to grant injunctive relief under Section

44(2)(e) of the English Arbitration Act, 1996 and the said power

is required to be exercised in cases of urgency as there is

bound to be some delay in establishment of a tribunal and then

for a party to apply for an interim award/order granting interim

relief. Read and understood in the above context, the entire

subject matter of the suit is subject matter of the arbitration

clause and the arbitration clause does not exclude from its I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.14

purview matters of confidentiality and/or infringement of

intellectual property rights. Clause 29.5(a) permits a party to

seek and get injunctive relief but does not seek to modify or

restrict the scope of the arbitration clause i.e. for any dispute

arising out of or in connection with the arbitration agreement. It

is clarified that I have not examined Clause 29.5(b) with

reference to Clause 29.6 as they do not arise for consideration.

17. During the course of arguments, learned counsel for the

plaintiff submitted that defendant nos. 1 and 2 had filed a civil

suit being suit no.1223/2008 titled M/s. Indus Renaissance

Partners Entertainment Pvt. Ltd. versus Elevate Entertainment

Pvt. Ltd and Ministry of Sound International Ltd. in this Court

and therefore they have abandoned the arbitration clause. I

may note here that this plea is not specifically taken in the reply

filed by the plaintiff. Under Section 45 of the Act, if a Court

comes to the conclusion that a matter in a suit is the subject

matter of an agreement under Section 44 of the Act, it shall

refer the parties to arbitration on a request being made.

Request, however, can be declined when the agreement is null

and void, inoperative or incapable of being performed. I have

already examined the said aspect while dealing with the second

ground and have held that the agreement in question is not null

and void or inoperative. The expression "incapable of being I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.15

performed" will include cases where the parties have waived or

abandoned the arbitration clause by invoking jurisdiction of a

civil court. In such cases where a party has decided to give go

bye and novated the arbitration clause, they cannot later on be

permitted to turn around and invoke the arbitration clause when

civil proceedings are initiated by the other side. However, the

facts of the present case and the suit filed by the defendant no.

1 & 2 being CS(OS).No.1223/2008 may be noticed.

18. The present Suit was filed on 5th February, 2008 and by

Order dated 18th February, 2008, notice was issued to the

defendant. An ex parte injunction order was also passed on the

same date. The present application for reference to arbitration

was filed on or about 4th March, 2008. Subsequent thereto,

defendant no.1 filed their written statement on 24th April, 2008.

Written statement also makes specific reference to Clause 29.6

of the Agreement and the fact that the defendant nos. 1 & 2

have filed the present application.

19. Long after filing of the present application, defendant nos.

1 and 2 also filed a civil suit against the plaintiff on 3rd July,

2008. The said Suit was with the following prayers :-

"i) a decree of permanent injunction restraining the defendants, their directors, assignees, employees, servants, agents and all other persons action on their behalf from using in any way the trade mark i.e. Ministry of I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.16

Sound and its logo and also be restrained from holding any events on 5th July, 2008 or in future under the brand name of Ministry of Sound or its logo;

ii)a decree of damages to the tune of Rs.21 lacs for harm caused to the goodwill and reputation of the plaintiff may be passed in favour of the plaintiff and against the defendants;

iii) costs of the present proceedings be awarded to the plaintiff;"

20. The said suit has been withdrawn by the defendants on

23rd October, 2008 stating, inter alia, that the matter between

the parties is covered by arbitration clause. I do not think by

filing the civil Suit, the defendants 1 and 2 have abandoned or

waived their rights under the arbitration clause. All along,

defendant nos. 1 and 2 had been pressing for the present

application and had not abandoned the same, though I find that

the conduct of defendant nos. 1 and 2 in filing the civil suit is

rather peculiar and not in consonance with their stand in the

present suit. Defendant nos. 1 and 2 may be guilty of trying to

take contradictory stand but they did not abandon or waive their

right to have the disputes resolved by arbitration. Abandonment

or acquiescence or waiver is not established. Defendant nos. 1

and 2 have all along pressed this application and have not

given up their rights under the arbitration clause.

21. I may notice here the distinction between the language of I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.17

Sections 8 and 45 of the Act. Section 8 of the Act requires an

application to be filed by a party not later than submitting his

first statement on the substance of the dispute. In Section 45 of

the Act, there is no such requirement. Section 8(1) of the Act is

differently worded and more liberal than Section 34 of the

Arbitration Act, 1940 which required that an application for stay

of the suit/legal proceedings should be filed before a party

requests for and is granted any time for filing of a written

statement or taking steps in the proceedings. It was observed in

Rashtriya Ispat Nigam Ltd versus Verma Transport

Company reported in AIR 2006 SC 2800 that the two

Sections, i.e. Section 34 of the Arbitration Act, 1940 and

Section 8(1) of the Act are different and the words not later than

submitting "first statement" should be distinguished from the

expression "written statement" as used in Section 34 of the

Arbitration Act, 1940. If an application under Section 8(1) is filed

before actually filing the first statement, the said application is

maintainable and the same cannot be dismissed on the ground

that the party has waived his right to invoke the arbitration

clause or has acquiesced himself to jurisdiction of the Court.

The Supreme Court has observed :-

"36. The expression "first statement on the substance of the dispute" contained in Section 8(1) of the 1996 Act must be I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.18

contradistinguished with the expression "written statement". It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable. We would deal with this question in some detail, a little later."

22. Section 45 of the Act does not refer to filing of first

statement or written statement or a request for filing of written

statement.

23. The two decisions relied upon by the plaintiff on the question of abandonment/waiver of rights, namely, Bharati Televentures (supra) and Raj & Associates versus VSNL reported in 113 (2004) DLT 318 are distinguishable. In both cases the parties had earlier invoked jurisdiction of civil courts ignoring the arbitration clause. In the case of Raj & Associates (supra), the plaintiff therein had filed a writ petition which was disposed of granting liberty to the plaintiff to initiate civil or arbitration proceedings and indisputably the plaintiff had filed a civil action for recovery of the dues instead of pursuing the path of arbitration. The defendant inspite of being fully conscious of the arbitration clause, resisted the civil suit and filed their counter claim. An arbitration clause, it is well settled does not bar/prohibit filing of a civil suit. The contesting party always has I.A.NO. 2926 /2008 IN

CS(OS) No.241/2008 Page No.19

option to continue with the civil proceedings and give up the right to enforce the arbitration clause. If the contesting party files an application under Sections 8 or 45 of the Act, the parties are relegated to arbitration. Plaintiff takes a risk when he invokes jurisdiction of a civil court inspite of an arbitration clause. Thereafter, it is a wish and will of the defendant which determines whether civil proceedings should continue or the parties should be relegated to arbitration if conditions of the sections 8/45 of the Act are satisfied. Once, however, parties have consented and allowed civil proceedings to continue they cannot subsequently invoke the arbitration clause and make the dead clause alive after the same has been ignored and not invoked. In the case of Bharati Televentures (supra) it was held that once a party has invoked jurisdiction of a civil court, it cannot subsequently rely upon the arbitration clause. Once jurisdiction of the civil court is invoked by a party it tantamounts to abandonment of the arbitration Clause. These decisions are distinguishable for the reason that in the present case, the defendant nos. 1 and 2 had invoked the arbitration clause by filing the present application. and have been pressing the present application. Subsequent to filing of the present application, defendant nos. 1 and 2 did file a civil suit but the said suit has been withdrawn. If the defendant nos. 1 and 2 had filed a civil suit and thereafter subsequently filed the present application under Section 8/45 of the Act, the situation would have been different. Filing of the civil suit in the present case will not amount to abandonment or waiver of the right to invoke arbitration.

24. Accordingly, the present application under Section 45 of

the Act is allowed and the parties are referred to arbitration.

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25. This Court by Order dated 18th February, 2008 has

granted interim injunction. The said interim injunction order still

continues. The Order will continue further for a period of 60

days to enable the plaintiff to take appropriate steps by either

initiating legal proceedings under section 9 of the Act or before

the arbitrators. Similarly, defendant nos. 1 and 2 will be entitled

to contest those proceedings on merits. It is clarified that this

Court while adjudicating the present application has not gone

into the merits and demerits of the interim order and also merits

of the case inter se the parties. Any observation in this regard

will not be binding on subsequent legal proceedings between

the parties.

26. Accordingly, the application and the suit is disposed of.

No order as to costs.

(SANJIV KHANNA)

JUDGE

JANUARY 7, 2009.

P/VKR