Delhi High Court
Prabhakar Jeyapathy vs Akshaya Pvt Ltd on 7 November, 2016
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. 973/2012
PRABHAKAR JEYAPATHY ..... Petitioner
Through: Ms. Pragya Baghel, Advocate.
versus
AKSHAYA PVT LTD ..... Respondent
Through: Mr. Arjun Krishnan & Mr. Ankur Singh,
Advocates for the Respondent.
Ms. Karnika Seth & Ms. Shruti Bisht,
Advocates for National Internet Exchange
of India.
CORAM: JUSTICE S.MURALIDHAR
ORDER
% 07.11.2016
1. The challenge in this petition under Section 34 of the Arbitration and
Conciliation Act, 1996 ('Act') is to an Award dated 4th August, 2012 passed
by the sole Arbitrator in the disputes between the Petitioner and the
Respondent in relation to the use of the domain name „akshaya.in‟.
2. The background facts are that the Petitioner is a software professional
working as a Consultant to a Financial Institution in the United States of
America since 1993. The Respondent Akshaya Private Limited is a builder
involved in construction business. The Petitioner claims to have
approached Goodluck Domains for registration of domain name „Akshaya‟
for the purposes of setting up a family portal for the benefit of his family
living in Coimbatore and in other parts of India and abroad.
3. The Petitioner states that on 5th April, 2009, he was approached by a
Web Designing Company from Chennai with an interest of buying the
domain name „akshaya.in‟ and that they were approaching him on behalf
of the Respondent. He then informed the said web designing company that
he had no interest in selling the said domain name. The Petitioner further
states that on 9th September, 2011, he was made a similar offer, which he
again refused.
4. The Petitioner states that on 23rd August, 2012 he received an e-mail for
the first time from [email protected] informing him that the impugned Award
had been passed by the sole Arbitrator restraining him from using the
domain name „akshaya.in‟. It is only thereafter that the Petitioner came to
know that the Award was an ex parte Award. The Petitioner claims never
to have been served with any notice of the said proceedings.
5. One of the main grounds is that the Award being an ex parte Award is
violative of the principles of natural justice since no notice was ever
received by the Petitioner of the arbitral proceedings.
6. With a view to ascertaining the factual position the entire Arbitral record
was summoned by this Court by the order dated 16 th October, 2012.
Ultimately on 13th March, 2015, the Arbitrator, who passed the impugned
Award appeared in the Court and showed a copy of the relevant e-mail sent
to the parties with a copy being marked to [email protected], which
was the e-mail ID of the Petitioner. The Court then directed that the
Arbitral record be requisitioned from the CEO of National Internet
Exchange of India („NIXI‟).
7. Ms. Karnika Seth, Advocate for NIXI has appeared together with the
entire arbitral record, which has been perused by the Court.
8. The arbitral record shows that an e-mail was sent by the learned
Arbitrator on 26th November, 2011 to the Respondent with a CC (copy
being marked) to [email protected] In other words the notice was
not issued directly and principally to the Petitioner herein. That apart what
is important is that the attachment to this e-mail was the notice of the
arbitration and not a copy of the complaint filed by the Respondent. There
is nothing to indicate that a scanned copy of the complaint was attached to
the above e-mail.
9. It was sought to be urged by the learned counsel for the Respondent that
once the above notice was sent by e-mail to the Petitioner it was then up to
the Petitioner to find out about the said case and there was no obligation on
the Respondent to ensure service of notice.
10. The above submission totally overlooks the Rules of Procedure devised
by NIXI itself as regards service of notice is concerned. The IN Registry‟s
dispute resolution process refers to the .IN Domain Name Dispute
Resolution Policy („INDNDRP‟) and the INDRP Rules of Procedure both
of which have been in vogue since 28th June, 2005.
11. Para 2 of the INDRP Rules of Procedure provides how complaints and
communications should be served upon the Respondent. Paras 2(a) and
2(b) read as under:
"2. Communications
a. When forwarding a Complaint to the Respondent, .IN Registry
shall ensure to employ reasonably available means to serve notice of
complaint to the Respondent. Service of notice, or employing the
following measures to do so, shall discharge this responsibility:
i. sending the Complaint to all postal-mail and facsimile
addresses shown in the domain name's registration data
through.IN Registry's WHOIS database at www.registry.in ;
and
ii. sending the Complaint in electronic form (including
annexes to the extent available in that form) by e-mail to:
A. the e-mail addresses shown in the domain name's
registration data through .IN REGISTRY'S WHOIS
function at www.registry.in: and
B. [email protected][the contested domain name]
iii. sending the Complaint to any address the Respondent has
notified to the .IN Registry in writing (including email) at
which it prefers and, to the extent possible, to all other
addresses provided to the .IN Registry by Complainant under
Paragraph 3(b)(v).
b. Except the service of the notice of Complaint as provided in
Paragraph 2(a), any written communication to Complainant or
Respondent provided for under these Rules of Procedure shall be
made
i. by facsimile transmission, with a confirmation of
transmission; or
ii. by registered post and/or, speed post."
12. It is evident that as far as the complaint itself is concerned it should be
made available both in hard copy as well as in electronic form. The mere
sending of a notice without the complaint will not satisfy the requirement
of para 2 of the above Rules. There is a distinction made between the
complaints that are to be served in terms of para 2(a) and the
communications that have to be served in terms of para 2(b). Para 2(b)
begins with the words "Except the service of the notice of Complaint as
provided in Paragraph 2(a), any written communication to Complainant or
Respondent.........shall be made (i) by facsimile transmission, with a
confirmation of transmission; or (ii) by registered post and/or, speed post."
The service of a written communication can be either by facsimile
transmission or by registered post. Therefore, there is an option as far as
simple communications are concerned. However, where what is to be
served is a complaint there is no option but to serve it both by surface mail
as well as by e-mail.
13. There is absolutely nothing in the arbitral record to indicate that a copy
of the complaint was, in fact, served upon the Petitioner herein both by
surface mail as well as e-mail. As already noted hereinbefore what was
served upon the Petitioner by e-mail was a notice of the arbitration and not
a copy of the complaint.
14. It cannot be possibly argued by the Respondent in the present case that
no prejudice was caused to the Petitioner on account of the failure to serve
the complaint. Without a complaint copy being served there was no
effective opportunity to the Petitioner to defend himself in the arbitration
proceedings. Under Section 34(2)(a)(iii) of the Act an Award is liable to be
set aside where "the party making the application was not given proper
notice of the appointment of an arbitrator or of the arbitral proceedings or
was otherwise unable to present his case;"
15. In the present case there can be no doubt that in the absence of service
of the complaint on the Petitioner he was unable to present his case in the
arbitral proceedings.
16. The Court is, therefore, satisfied that the impugned Award cannot be
sustained in law as it was rendered ex parte without proper service of the
complaint upon the Petitioner.
17. The impugned Award is accordingly set aside and the petition is
allowed but in the circumstances no orders as to costs.
NOVEMBER 07, 2016 S. MURALIDHAR, J.
b'nesh
