Mayo College General Council Mayo ... vs Shree Prahalad Ahuja Foundation ...
2022 Latest Caselaw 6067 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               S.B. Arbitration Application No. 35/2021

Mayo College General Council Mayo College, Ajmer, Registered
Under    The    Societies     Registration         Act     1860,    Through    Its
Authorised Signatory Lt. Gen. Surendra Hari Kulkarni (Retd.)
                                                                     ----Applicant
                                    Versus
Shree Prahalad Ahuja Foundation (Society Registered Under The
C .g. Society Registration Act,1973), No. 44, 1973, Registered
Office At Sai Kunj Kali Mata Mandir Road, Civil Lines, Raipur
(Chattisgarh) Through Its President Mr. Mahendra Kumar Ahuja
S/o Shri Prahalad Rai Ahuja.
                                                                   ----Respondent

For Applicant(s)          :      Mr. Vagish Kumar Singh
                                 Mr. Anupam Bhargava
For Respondent(s)         :      Ms. Sunita Meena for
                                 Mr. Prakash Chand Thakuriya



          HON'BLE MR. JUSTICE PANKAJ BHANDARI

                                     Order

RESERVED ON                             ::                          31/08/2022
PRONOUNCED ON                           ::                          07/09/2022

1. The applicant has filed this arbitration application under

Section 11(6) of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as "the Arbitration Act") seeking

appointment of an arbitrator.

2. It is pleaded in the arbitration application that the applicant

and the non-claimant-respondent (hereinafter referred to as "the

respondent") entered into a written agreement on 28.08.2009 for

setting up of a school at Raipur offering CBSE/CISCE Curriculum

to be called "Mayoor School, Raipur" and for conditional grant of

license to use the name "Mayoor School", its logo, motto and other

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material. It is also pleaded that the respondents were obliged to

make payment of one time fee and thereafter, an yearly fee

(license fee) to the applicant. However, the respondents only

made payment of the one time fee of Rs.25 lakh and annual fee

for the years 2011-12, 2012-13, 2013-14. The respondents had

not paid annual fee after 2014-15 and a sum of Rs.37,50,000/- is

outstanding towards them.

3. It is pleaded in the arbitration application that the applicant

vide notice dated 18.01.2021 invoked the arbitration proceedings

and appointed Mr. S.K. Saxena, Advocate as applicant's nominee

arbitrator in accordance with Article 16(c) and the respondents

were requested to appoint nominee arbitrator, but the respondents

have not appointed their arbitrator within 30 days of the notice,

hence, the applicant is entitled to have an arbitrator appointed by

the Court.

4. The respondent has filed their reply and in the reply they

have raised an objection that the agreement has not been

executed on proper stamp and the same is liable to be

compounded. It is also mentioned in the reply that the subject

matter is not amenable to the jurisdiction of the arbitration. It was

also mentioned in the reply that the present application reference

is inter-alia sought against the alleged infringement and passing of

trademark "Mayoor School" logo and motto and further for alleged

passing off and unauthorized use of the copyright material. It is

further mentioned that the said dispute would fall within the

Trademark and Copyright Act and not within the ambit of

Arbitration Act.

5. I have considered the contentions and have carefully gone

through the material on record.

(3 of 5) [ARBAP-35/2021]

6. Admittedly, the execution of the agreement is not disputed

by the respondent. Clause 16 of the Agreement reads as under:

"ARTICLE 16. JURISDICTION

(a) In the event of any disputes, differences or claims arising between the PARTIES to this AGREEMENT, or in any way relating to any terms, conditions or provisions herein mentioned, or in the construction or interpretation of any of the Clauses herein, the PARTIES shall endeavour to settle such disputes, differences or claims by amicable consultations and conciliation proceedings. In the event, no amicable settlement is reached by the PARTIES hereto within 30 (thirty) days, the dispute shall be referred to Arbitration, to be conducted under the provisions of the Arbitration and Conciliation Act, 1996 and any statutory modification and amendments thereof.

(b) The place and venue for Arbitration shall be Ajmer, Rajasthan, India.

(c) Each party hereto shall have the right to appoint one (1) Arbitrator each, with a Chairman to be appointed with the mutual consent of the Arbitrators. The decision of the Arbitrators shall be entered as a final Judgment in any court of competent jurisdiction. Notwithstanding the provision that any disputes or controversies between the parties relating or, arising out of this AGREEMENT shall be referred to and settled by Arbitration, the PARTIES may seek any such temporary or provisional relief or remedy including injunctions, provided for by the laws of the Republic of India, which would ordinarily be available in an action based upon such disputes or controversy in the absence of an Agreement for arbitration.

(d) The parties agree that the award of the arbitrators shall be final and binding upon the parties.

(e) All arbitration proceedings shall be conducted in the English Language."

7. From perusal of the documents submitted with the

arbitration application, it is evident that a notice was given on

20.07.2019 to the non-applicant to participate in consultation and

conciliation proceedings at Mayo College, Ajmer on 06.08.2019 in

accordance with Article 16(a) read with Article 2 of the agreement.

(4 of 5) [ARBAP-35/2021]

8. The objection of the respondent that the agreement was not

executed on a proper stamp is without any basis because at the

relevant time when the agreement was executed, the same duty

payable on an agreement of this nature was Rs.100/-. The

objection of the applicant that the dispute falls within the purview

of Trademark and Copyright Act also cannot be accepted for the

very reason that it is only an agreement wherein the respondent

would have agreed to pay a yearly annual fee for use of the name

and it is not a case of infringement of trademark as the claimant is

claiming annual license fee. From the perusal of the documents on

record, it is evident that conciliation was a pre-condition to refer

the arbitration and the applicant on 20.07.2019 gave a formal

legal notice invoking conciliation. The conciliation proceedings

were held in the presence of Mutual Conciliator and the

conciliation proceedings resulted into failure which was

communicated to the respondent. It is also evident that the notice

invoking arbitration was issued on 18.01.2021 and no reply was

received by the applicant. It is also pertinent to note that the

respondent approached the Courts at Raipur under Section 9,

which was dismissed on 03.10.2018 on account of being barred by

jurisdiction.

9. In the light of the above, the arbitration application deserves

to be and is accordingly, allowed. This Court appoints Mr.

Justice R.S. Chauhan (Retired Chief Justice), 148, Dayanand Marg,

Tilak Nagar, Jaipur, as the sole arbitrator to decide the dispute.

10. The appointment of the sole arbitrator is subject to the

declarations being made under Section 12 of the Arbitration and

Conciliation Act, 1996 with respect to the independence and

(5 of 5) [ARBAP-35/2021]

impartiality, and the ability to devote sufficient time to complete

the arbitration within prescribed period.

11. Accordingly, arbitration application stands allowed. The

arbitrator shall be entitled to lay down fees as provided under

Manual of Procedure for Alternative Disputes Resolution, 2009 as

amended from time to time.

12. Registry is directed to intimate Mr. Justice R.S. Chauhan

(Retired Chief Justice) and obtain his formal consent.

13. The observations made herein-above are only for the

purpose of deciding the present application and the same will not

disentitle the parties to raise all valid objections before the learned

Arbitrator and the Arbitrator will be free to dispose the said

objection without being influenced by the observations made by

this Court.

(PANKAJ BHANDARI),J

SUNIL SOLANKI /PS

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