Tag: #Agreement

-Report by Mehul Jain

It was held by the Delhi High Court in the case of M/S THE COMMERICAL ELECTRIC WORKS & ORS VS SHARDA GUPTA that the Delhi High Court on April 06, while not changing the decision of Trial Court for giving landlady property to his grandson for bona fide needs. Because of the dicta of the Supreme Court, this Court is of the view that the issues raised by the Petitioner herein do not merit any interference and the finding of the Trial court does not suffer from any infirmity. The petition of the petitioner is dismissed by the Hon’ble High Court.

FACTS

The judgment is made by the learned Single Judge bench on 06 April 2023. The judgment is given by “HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA”. This revision petition has been filed by the Petitioners, tenants, assailing the eviction order dated 23.03.2019, passed by the Additional Rent Controller, Central District, Tis Hazari Courts, Delhi (‘Trial Court’), in Eviction Petition No. E-150/16 (New No. 15/17).

The Respondent, the landlady, is stated to be the owner of the entire property bearing No. 1814-1815, ward No. IV, Chandni Chowk, Delhi (‘subject property’) which comprises a Ground Floor (‘GF’), Mezzanine Floor, First Floor (‘FF’), Second Floor (‘SF’), and Third Floor (‘TF’).

The Respondent filed the eviction petition for recovery of the commercial premises being the ground floor, mezzanine floor, and third floor of property No. 1814-1815, ward No. IV, Chandni Chowk, Delhi (‘tenanted premises’) located in the subject property. The eviction petition was filed by the landlady on the plea that she has a bona fide need for her grandson i.e., Mr. Kanishk Gupta, who has recently graduated and wants to establish, run and operate his own business or join the landlady in her existing business and expand the said business, from the tenanted premises. It was asserted that there is no other commercial property owned by the landlady. However, before this Court, the learned Counsel for the Petitioners has restricted his oral submissions to assail the findings concerning bona fide need on the plea that FF and SF of the subject property are lying vacant and are therefore, available to the landlady for the alleged business of her grandson. The Trial Court after considering the submissions of the parties held that the Respondent is the owner as well as landlady in respect of the tenanted premises. The Trial Court further held that the tenanted premises are bona fide and required for the business of the grandson. The Trial Court rejected the submission of the Petitioners herein that the landlady has suitable alternative accommodation on the FF and SF of the subject property. The Trial Court relied upon the photographs placed on record to opine that the FF and SF are in a dilapidated condition. The Trial Court, further, held that there is no parity between commercial premises located on the ground floor vis-à-vis upper floors. In light of the aforesaid facts and findings, the Trial Court rejected the application seeking leave to defend and passed the impugned eviction order.

PETITIONER CONTENTION

The petitioner’s counsel states that the tenanted premises are not bona fide required by the Respondent, landlady, since her grandson, for whose bona fide need the tenanted premises are required, is working as a relationship manager in the HDFC Bank branch at A-9, Lajpat Nagar-4, New Delhi.

Petitioner states that the FF and SF of the subject property were recovered by the Respondent, landlady, in May 2013, in an eviction petition (E106/13/09) filed by her under Section 14(1)(e) of the DRC Act. In this regard, he has placed on record the electricity bill issued by BSES Yamuna Power Limited (‘BSES’) for the meters installed on the said floors, to show the negligible consumption of electricity in the said premises. 

He relies upon the Petitioners’ averments recorded in the order dated 06.09.2019 passed by this Court, whilst issuing notice in the present petition. Petitioner states that the non-use of the FF and SF by the Respondent belies the plea of bona fide need and the Trial Court erred in dismissing the leave to defend the application.

RESPONDENT’S CONTENTION

In reply, learned counsel for the Respondent, the landlady, states that currently, both, the Respondent’s son i.e., Mr. Manish Gupta and grandson i.e., Mr. Kanishk Gupta are unemployed. Both the grandson was employed before but they leave their job for operating or running the business.

He states that the landlady along with her daughter-in-law i.e., Ms. Madhu Gupta had started the business of sale of women’s wear under the name and style of ‘Kanishk Sarees’ in the year 2014, from the FF of the subject property. He states that however, the said business has failed as customers are unwilling to come to FF in the subject property. However, FF and SF are unsuitable for new businesses.

He states that the Petitioners herein have abused the procedural safeguards to delay the hearing in the present revision proceedings. He states that even during the adjudication of the eviction petition, though the leave to defend application was filed, however, a copy of the same was not provided to the landlady for almost 3 years.

COURT’S DECISION

The Hon’ble High Court observed that the decision of the Trial Court was correct and there is no need to change or revision of that judgment. So, the Hon’ble High Court gives the judgment in the favour of Respondent. And the Hon’ble High Court referred the case which is related to this matter as “Abid-ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30”[2].

The subject eviction petition was filed much later on 26.12.2016 and for the bona fide need of the grandson, which in this opinion of this Court has rightly upheld by the Trial Court. The Supreme Court in the case of Abid-ul-Islam (Supra) has after discussing the law held that the scope of the revisional jurisdiction under Section 25B(8) of the DRC Act is limited.

Accordingly, because of the aforesaid discussion, this Court finds no merit in this revision petition, which is hereby dismissed and the eviction order dated 23.03.2019 is upheld. The pending applications are disposed of. The interim order dated 06.09.2019 is hereby vacated. The Respondent is at liberty to proceed with the execution of the eviction order and the Petitioners will be liable to continue to pay the use and occupation charges at Rs. 15,000/- per month, until the handing over of the possession to the Respondent.

READ FULL JUDGEMENT: https://bit.ly/40SpfYo

-Report by Harshit Yadav

The present case of DR. REDDYS LABORATORIES LIMITED versus RIKON PHARMACEUTICALS PVT. LTD. is a legal settlement agreement between two parties regarding a trademark dispute that was settled with the intervention of the Delhi High Court Mediation and Conciliation Centre. The settlement agreement outlines the terms and conditions that both parties have agreed to abide by, and the judgment confirms that the suit is decreed in terms of the settlement agreement, which shall be binding on both parties. The plaintiff is entitled to a refund of court fees, if any, deposited by them.

FACTS:

The parties involved in this case were disputing over the ownership and use of a trademark named “NISE” and “RIKONISE”. The plaintiff was the owner of the trademark “NISE”, which they claimed was being infringed upon by the defendant’s use of the trademark “RIKONISE”. The defendant was manufacturing and using the mark ‘RIKONISE-P’ or ‘NISE-P’ in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India and for export.

ISSUES RAISED:

Whether the defendant’s use of the mark “RIKONISE-P” infringed upon the plaintiff’s exclusive proprietary rights in the trademark “NISE”.
Whether the defendant’s use of the mark “RIKONISE-P” constituted passing off of their goods as that of the plaintiff’s.
Whether the plaintiff was entitled to damages, the account of profits or any other relief for the alleged infringement and passing off.
Whether the parties could reach a settlement agreement that would resolve the dispute between them.

PLAINTIFF’S CONTENTIONS:

The plaintiff claimed that they had exclusive proprietary rights in the trademark “NISE” and that the defendant’s use of the mark “RIKONISE-P” in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India and for export was an infringement of their trademark rights. The plaintiff further contended that the defendant’s use of the mark “RIKONISE-P” was likely to cause confusion among consumers and constitute passing off of their goods as that of the plaintiff.

DEFENDANT’S CONTENTIONS:

The defendant, on the other hand, denied that their use of the mark “RIKONISE-P” amounted to infringement of the plaintiff’s trademark rights or passing off. The defendant claimed that the mark “RIKONISE-P” was distinctive and not deceptively similar to the plaintiff’s mark “NISE”. The defendant also argued that they had been using the mark “RIKONISE-P” for a long period of time without any objection from the plaintiff and that their use of the mark was honest and in good faith.
The parties also contested whether the plaintiff was entitled to any damages, the account of profits or any other relief for the alleged infringement and passing off.
Finally, the parties attempted to resolve their dispute through mediation, with the Delhi High Court Mediation and Conciliation Centre intervening to facilitate the settlement agreement. The contention was whether the settlement agreement was acceptable to both parties and could resolve the dispute between them.

JUDGMENT:

The dispute was resolved with the intervention of the Delhi High Court Mediation and Conciliation Centre, and a settlement agreement was reached between the parties. The terms of the settlement agreement were as follows:

1. The defendant acknowledged the plaintiff’s exclusive proprietary rights in the trademark “NISE” and agreed not to challenge the plaintiff’s statutory and proprietary rights directly or indirectly in India or globally.
2. The defendant confirmed that they had stopped manufacturing and using the mark ‘RIKONISE-P’ or ‘NISE-P’, directly or indirectly in medicinal and pharmaceutical preparations of suspension syrups for domestic sale in India or for export, as per the directions passed by the Hon’ble High Court of Delhi vide order dated 22/07/2022 in CS (COMM) No. 495 of 2022.
3. The defendant confirmed that they had manufactured tablets and capsules under the mark ‘RIKONISE-P TABLETS’ for domestic sale in India and that they had agreed to stop the manufacture and use of tablets under the mark ‘RIKONISE-P TABLETS’.
4. The defendant agreed not to manufacture any fresh batch of products bearing the mark ‘RIKONISE-P’ and ‘RIKONISE-P TABLETS’ and declared that any further production would make them liable for cost and damages.
5. The defendant confirmed that they did not have in stock any further products, packaging, or printed material bearing the mark ‘RIKONISE-P TABLETS’ and ‘RIKONISE-P’ in India, and any unused printed material would be destroyed by the defendant at their own cost.
6. The defendant agreed not to use in future any mark containing the mark “NISE” or “NICE”.
   The defendant undertook to apply to cancel their registration for the mark “RIKONISE” in class 5 within 30 days of recording of these settlement terms.
7. The defendant undertook not to adopt any mark in future that is identical or deceptively similar to the plaintiff’s mark “NISE” or carry out any such activities as may be likely to cause confusion or deception amounting to, passing off their goods under captioned Trademark as and for that of the plaintiff.
   

The settlement agreement was binding on both parties, and the Delhi High Court decreed the suit in terms of the mediation settlement agreement. The plaintiff was entitled to a refund of court fees, if any, deposited by them. The settlement agreement resolved the trademark dispute between the parties amicably and avoid prolonged litigation.

READ FULL JUDGMENT: https://bit.ly/3l05MFr

-Report by Shreya Gupta

The petition and respondent in this case is SMT. SUNITA GARG and M/S SCRAFT PRODUCT P LTD respectively. The case arose due to the arbitration clause in the lease agreement.

FACTS:

The present case has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 in order of appointment of an arbitrator. The dispute has risen between them due to a lease deed according to which the petitioner is the owner of the property and the respondent is the tenant. The tenant had approx. 25000 sq. feet on ground floor, 25000 sq. feet on first floor, total area 50000 sq. feet which also included the mezzanine floor sides, washroom and rooms at the back, genset panel and the sundry assets area etc. at a monthly rent of Rs. 8,00,000/- exclusive of all other charges.

PETIONER’S CONTENTION:

The petioner contended that the respondent is a defaulter in payment of rents and he is required to pay arrears of rent amounting to Rs.29,49,350/-.

RESPONDENT’S CONTENTION:

The respondent contends that the clause 25 in the lease deed does not constitutes an arbitration agreement rather it states an alternative to reach to the Delhi high court. He also draws attention to the clause 27 of the agreement. He contends further that when cluse 25 is read with clause 27 it gives the option to either invoke arbitration or to approach a civil court for getting the leased premises vacated in the event of any violation or infringement on the part of the lessee, whereas, for the purpose of the claims of the respondent, no such option has been given. He further takes support of the previous judgements of Wellington Associates Ltd. vs. Kirti Mehta and Shri Chand Construction and Apartments Pvt. Ltd and Ors. Vs. Tata Capital Housing Finance Ltd.

JUDGEMENT:

The court stated that “ the contention of learned counsel for the respondent that Clause-25 in the said lease deed gives an option to the petitioner/lessor to either take recourse to the arbitration or pursue her remedies in a court of law, is misconceived and is based on a misreading of the Arbitration Clause. The clause unambiguously provides that any disputes arising with regard to “interpretation and/or implementation of terms and conditions of this deed the same shall be referred to an arbitrator under the Arbitration and Conciliation Act, 1996, whose decision shall be final and binding on both the parties‖. The later part of the clause i.e., the words “and/or the same may be defended subject to Delhi Court Jurisdictions only”, are evidently, intended to convey that any decision of the arbitrator would be subject to jurisdiction of the Delhi Courts. The Clause cannot be construed as giving an option to any party to either take recourse to arbitration or alternatively, file a civil suit.” The court stated that the reliance placed on the previous judgements is completely misconceived. The court appointed Mr. Vikas Gupta as the sole arbitrator in this case.

READ FULL JUDGEMENT: https://bit.ly/41qr3IE

Neutral Citation Number: 2023/DHC/001285                    

Introduction

An “arbitration agreement” is an agreement between the parties which can in the form of an arbitration clause in a contract or as a separate agreement for resolving a dispute (if any dispute comes up) without filing a lawsuit and going to court. The definition of arbitration agreement is given under section 7 of the Arbitration and Conciliation Act, 1996.

Due to the underlying principles of party autonomy and confidentiality, it has evolved into a standalone dispute resolution mechanism. The arbitration agreement creates a binding procedure for the parties as well as by the arbitral tribunal in making its decision. The underlying principles of arbitration such as party autonomy and confidentiality make it an attractive alternative to dispute resolution between parties, however, the technicalities involved in arbitration may make it bit daunting.  

It should be understood that unlike the normal dispute resolution methods, the arbitration process doesn’t start from the date the dispute arose. Regardless of the dispute, the arbitration process begins when the parties enter into an arbitration agreement. If a dispute happens, it is the arbitration agreement that mandates, guides and establishes the arbitration proceedings. The arbitration agreement, therefore, becomes an important aspect of any settlement, where the parties prefer to arbitrate their issues and it requires considerable brainstorming and foresight.

The present article traces the recent developments within the arbitration field and attempts to encapsulate the guidelines and principles required to draft an undisputed arbitration agreement.

Forms of Arbitration Agreement

Section 7 gives freedom to the parties to enter into an arbitration agreement in a number of ways, as detailed below:

A standalone separate Arbitration Agreement

A separate arbitration agreement may be made in reference to and in addition to the operative agreement between the parties.

An Arbitration Clause

An arbitration clause may be constituted in the operating agreement as a clause of the agreement concerning the rights and options of the parties in the event of a legal dispute arising out of the contract. An arbitration clause is treated as an arbitration agreement.

Incorporation by reference

An arbitration clause contained in a separate contract may also be included in the contract being entered into. In accordance with Section 7(5), any reference to a document containing an arbitration clause shall also be deemed to be an arbitration agreement, provided that the contract referred to is in writing and the reference is made with the intention of forming part of that arbitration clause.

In the case M/s Elite Engineering and Construction (HYD.) Private Ltd. v. M/s Techtrans Construction India Private Ltd., the Supreme Court held that a general reference to the inclusion of a separate arbitration clause will not be valid in law. The context should be clear and indicate the intention of the parties to include it.

By communication

According to Section 7(b) of the Arbitration and Conciliation Act of 1996, an arbitration agreement may also be inferred from the exchange of letters, telex, telegrams, or other means of telecommunication, which provides a record of the agreement between the parties. 

Recently, in the case of Galaxy Infra and Engineering Pvt. Ltd v. Pravin Electricals Pvt. Ltd, the Delhi High Court held that the draft agreement exchanged by email between the parties can be treated as a valid arbitration agreement.

In Pravinchandra Murarji Savla v. Meghji Murji Shah, it was held that it is the essence of the agreement and not the form that is of importance.

Also, as per Section 7(c) of the 1996 Act and S.N. Prasad v. Monnet Finance Ltd., where a statement of claims or allegations is made and met with ‘non-denial’ by the other party, the presence of an arbitration agreement may be construed. 

Even though the 1996 Act has left the field open with an abundance of methods for creating an arbitration agreement, it is always recommended to select an arbitration clause in a contract itself as a standard practice.

Drafting an Effective Arbitration Agreement

The Supreme Court, in Jagdish Chander v. Ramesh Chander and K. K. Modi v. K. N. Modi directly dealt with the question of what constitutes a valid arbitration agreement. The Hon’ble Court arrived at a list of principles that should be included in the arbitration agreement. The principles are as follows:

1. The arbitration agreement must be in writing.
2. The parties should agree to refer any dispute (current or future) arising out of a contract to a private tribunal.
3. The private tribunal should be empowered to adjudicate disputes in an impartial manner, giving the parties a fair opportunity to place their case before them.
4. The parties must agree to be bound by the decision of the arbitral tribunal.
5. The intention of the parties to refer the dispute to a private tribunal must be clearly indicated. 
6. There should be ‘consensus ad idem’ between the parties i.e. they should agree to the same thing in the same sense.
7. To enforce the term arbitration shall consider an obligation and determination on the part of the parties, and not merely a possibility. 
8. The clauses of the contract shall in no way specifically exclude any of the above exigencies. For example, a clause that allows the tribunal to adjudicate a claim without hearing the other party.

Although it is always better to draft clear and explicit clause, an arbitration agreement that does not mention the words “arbitration”, “arbitration tribunal” and/or “the arbitrator” can still be considered a valid arbitration agreement if the basic qualities of a valid arbitration agreement (as stated above) are therein. 

It should be noted that the above list is not exhaustive. In order to draft effective arbitration agreements, consideration of certain additional mechanisms can help the parties to overcome the complexities that may arise in the arbitration process.

Conclusion

When the dispute resolution mechanism can have such far-reaching effects, it should be given careful attention to detail. Interpretations made by various High Courts and the Hon’ble Supreme Court highlight the need to carefully draft the arbitration clause in the settlement. Treating it like just another boilerplate clause can be like playing with fire.

Bibliology

1. Diganth Raj Sehgal, Arbitration agreement: a primer and a checklist, https://blog.ipleaders.in/arbitration-agreement-primer-checklist/.
2. Definition and form of arbitration agreement, https://www.jus.uio.no/lm/en/html/un.arbitration.model.law.1985/7.html.
3. Jane Haskins, What Is an Arbitration Agreement? , https://www.legalzoom.com/articles/what-is-an-arbitration-agreement.

This article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

LATEST POSTS

• Job opportunity at EXO Edge, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
• Internship opportunity at Vishwas Advisors, Kalyan, Maharashtra, India: Apply Now!!
• Internship opportunity at Kulfi Collective, Mumbai, Maharashtra, India: Apply Now!
• Job opportunity at The Neotia University, Diamond Harbour, West Bengal, India: Apply Now !!
• Job opportunity at Morgan Stanley, Mumbai, Maharashtra, India: Apply Now!!
• Job opportunity at VISA INTELLIGENCE CONSULTANCY LLP, New Delhi, Delhi, India: Apply Now!!  
• Job opportunity at Amazon Web Services (AWS), Gurugram, Haryana, India: Apply Now!!
• Job opportunity at Stelcore Management Services Private Limited, Mumbai, Maharashtra, India: Apply Now!!
• Job opportunity at Zscaler, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
• Job opportunity at Irish Expert, Delhi, India: Apply Now!!
• Job opportunity at UnitedLex · Gurgaon, Haryana, India: Apply Now!
• Internship opportunity at Vineforce · Nabha, Punjab, India: Apply Now!!

---

• CLAT-Peeps! (10)
  • Current Affairs (2)
• competitions (132)
• Conferences and Seminars (201)
  • Webinar (1)
• Course and Workshops (107)
• Debates (46)
• Eassy Competitions (69)
• Fellowships & Scholarships (56)
• Guest Blogs (6)
• important (29)
• Internships and Jobs (2,317)
• interviews (8)
• moot court (180)
• Opportuintes (2,731)
  • Job Opportunity (1,191)
• opportunity (2,559)
  • Call for papers (475)
  • Quizes,fests and others (298)
  • Work Opportunity (836)
• Our Blog (1,049)
  • Administrative Law (17)
  • ADR (13)
  • Arms Act (2)
  • Case Analysis (205)
  • Company law (36)
  • Constitutional Law (143)
  • Consumer Protection Act (17)
  • Contract Law (62)
  • CPC (10)
  • Criminal Law (140)
  • Cyber Law (13)
  • Environmental Laws (30)
  • Evidence Act (20)
  • Family Law (12)
  • General (205)
  • International Humanitarian Law (8)
  • International law (23)
  • IPR (10)
  • Jurisprudence (13)
  • labor laws (7)
  • Maritime Laws (1)
  • Partnership Act (2)
  • personal law (33)
  • Taxation (10)
  • Tort (64)
  • Transfer of Property (2)
• Our Services (11)
  • career advice (2)
  • others (6)
• Top Stories (524)
• Uncategorized (720)

ARCHIVES

• November 2023 (26)
• October 2023 (1)
• September 2023 (5)
• August 2023 (2)
• July 2023 (25)
• June 2023 (23)
• May 2023 (40)
• April 2023 (136)
• March 2023 (124)
• February 2023 (138)
• January 2023 (61)
• December 2022 (39)
• November 2022 (103)
• October 2022 (178)
• September 2022 (342)
• August 2022 (240)
• July 2022 (273)
• June 2022 (196)
• May 2022 (27)
• April 2022 (99)
• March 2022 (190)
• February 2022 (196)
• January 2022 (193)
• December 2021 (152)
• November 2021 (203)
• October 2021 (189)
• September 2021 (177)
• August 2021 (192)
• July 2021 (393)
• June 2021 (293)
• May 2021 (179)
• April 2021 (61)
• March 2021 (46)
• February 2021 (56)
• January 2021 (63)
• December 2020 (86)
• November 2020 (94)
• October 2020 (146)
• September 2020 (220)
• August 2020 (173)
• July 2020 (165)
• June 2020 (119)
• May 2020 (136)
• April 2020 (7)
• February 2020 (37)
• January 2020 (3)
• November 2019 (1)