Delhi High Court
M/S. Classy Mobike Shop Pvt. Ltd. vs M/S.Yamaha Motor India Pvt. ... on 6 May, 2010
Author: Manmohan
F-45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. 423/2003
M/S. CLASSY MOBIKE SHOP PVT. LTD. ..... Petitioner
Through: None.
versus
M/S.YAMAHA MOTOR
INDIA PVT. LTD.AND ANR. ..... Respondents
Through: Mr. Vijay Nair, Advocate with
Mr. Lalan Sinha and Mr. Rajat
Joneja, Advocates, for respondent
No.1.
% Date of Decision : May 06, 2010
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
JUDGMENT
MANMOHAN, J (ORAL)
1. Despite the matter having been shown as part heard in the cause
list, none has appeared for the petitioner today. Even yesterday, none
had appeared for the petitioner. Yesterday's order is reproduced
hereinbelow:
"Despite the matter having been called out a number of
times, none has appeared for the petitioner. Today, I
have partially heard learned counsel for respondent no.1.
In the interest of justice, matter is adjourned to 6th May,
2010. Matter to retain its seniority. Registry is directed
to show this matter as „part heard‟."
2. Consequently, I have no other option but to proceed ahead with
the matter.
3. Upon perusal of the objection petition, I find that the primary
ground raised by the petitioner-objector is that the Dealer's Sales
Agreement does not constitute a valid agreement as it is not signed by
the respondent No.1-claimant.
4. Mr. Vijay Nair, learned counsel for respondent No.1-claimant
states that Dealer's Sales Agreement was executed in triplicate and one
of the copies that had been filed with the claim petition was not
executed by the respondent No.1-claimant. But as the two other
Agreements had been executed by both the parties, a copy of the
Dealer's Sales Agreement duly executed by both the parties was
subsequently filed before the Registrar of ICA on 13th June, 2002. He
has also handed over in Court today a photocopy of the Dealer's Sales
Agreement duly executed by the respondent No.1-claimant.
5. In any event, I find that this objection of the petitioner-objector is
untenable in law as this Court in TVC Sky Shop Ltd. vs. Sahara
Airlines Ltd. (Now known as Jet Lite (India) Ltd.) reported in
MANU/DE/0255/2010 has held as under:-
"2. The respondent contested the petition and first filed a counter
affidavit dated 18th February, 2008; in the said counter affidavit,
it is inter alia pleaded that the agreement containing the
arbitration clause relied upon by the petitioner and filed before the
court is not signed/accepted by the petitioner at the designated
place marked "Acceptance" (it is signed by the respondent only); it
is the case of the respondent that as per the terms of the
agreement, it was to become effective only upon receipt by the
respondent of signed copy of the agreement from the petitioner;
that the petitioner never signed the agreement and returned the
same to the respondent and hence no arbitration agreement came
into being between the parties. The petitioner there upon moved IA
No. 6271/2008 in this Court for permission to produce before the
Court, the original agreement bearing the signatures of the
petitioner also. The said application was allowed on 21st May,
2008. This Court on 18th August, 2008 directed the respondent to
file an affidavit clarifying its stand on the pleading of the petitioner
of the agreement having been acted. The respondent thereafter
filed an additional affidavit and also filed IA No. 12290/2008
under Section 340 of the Cr.P.C. In the additional affidavit, while
admitting the transactions with the petitioner, it is stated that the
same were on the basis of invoices raised by the petitioner on the
respondent and which did not contain an arbitration clause and
contain clause regarding jurisdiction of Mumbai. The senior
counsel for the respondent has urged that though the petitioner did
not return the signed agreement but the parties nevertheless
proceeded to transact business. The application under Section 340
of the Cr.P.C. has been filed on the ground that while the stand of
the petitioner originally was that the copy of the agreement filed
along with the petition was the only copy available with it, the
signed copy having already been forwarded to the respondent, the
petitioner forged the agreement subsequently filed and bearing the
signatures of both the parties.
xxx xxx xxx
8. In the present case, it is the respondent which forwarded the
duly signed agreement in writing containing an arbitration clause
to the petitioner, showing its willingness for arbitration of disputes
if any arising between the parties. The respondent thereafter
accepted the goods/services from the petitioner. Such acceptance
is also in writing through invoices. There is nothing in the said
invoices to indicate that the respondent had agreed to waive the
provision for arbitration contained in the document forwarded by
the respondent itself to the petitioner. In the opinion of this Court
from such conduct of the parties, an arbitration agreement came
into existence between the parties. The printed clause in the
invoices of the same being subject to Mumbai jurisdiction is not
found to be inconsistent to the arbitration agreement between the
parties."
6. Since in the present case, petitioner-objector has accepted
goods/services from the respondent No.1-claimant, in my opinion,
petitioner-objector would be bound by the Dealer's Sales Agreement
including the arbitration clause contained in the said agreement.
7. In view thereof, the objections raised in the present petition being
devoid of merit are dismissed but with no order as to costs.
MANMOHAN,J
MAY 06, 2010
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