M/S. Opm Dream Mill Cinemas and Entertainment Pvt. Ltd. v. M/S. Malayalam Communications Ltd.

Kerala HC21 Nov 2016AR/30/2016

Case brief

AI extract

What is this about?

Petitioner sought appointment of an arbitrator to resolve contractual disputes regarding satellite telecast rights acquisition. Court examined agreement clauses and notices, finding a valid dispute. Court appointed a retired District Judge as sole arbitrator under the 1996 Act.

What did the court decide?

Appointed Sri. D. Pappachan, retired District Judge, as the sole arbitrator.

M/S. Opm Dream Mill Cinemas and Entertainment Pvt. Ltd. Vs M/S… — Arbitration | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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AR.No. 30 of 2016 ()

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PETITIONER :

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M/S. OPM DREAM MILL CINEMAS AND ENTERTAINMENT PVT. LTD., FIRST FLOOR, DIA BUILDING, NORTH JANATHA ROAD, PALARIVATTOM, KOCHI - 682 021, REP. BY ITS MANAGING DIRECTOR, P.ABOO ASIQ, AGED 37 YEARS, S/O.C.M.ABOO, PUNNAKKAPARAMBIL, ADARSH LANE, THRIKKAKKARA P.O., KOCHI - 682 021.

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BY ADVS.SRI.DINESH R.SHENOY

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SMT.K.K.JYOTHILAKSHMY

SRI.SANIL JOSE

SRI.EBIN MATHEW

RESPONDENT :

M/S. MALAYALAM COMMUNICATIONS LTD., REP. BY ITS DIRECTOR (PROGRAMMES), SOMA KUMAR, 61, VIKRAMAPURAM HILLS, KURAVANKONAM, KAVADIYAR P.O., THIRUVANANTHAPURAM - 695 003.

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BY SRI.T.KRISHNANUNNI,SENIOR ADVOCATE ADVS. SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SRI.K.C.KIRAN SRI.VINAY MATHEW JOSEPH SMT.MEENA.A.

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THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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AR.No. 30 of 2016

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEX A1	COPY OF THE AGREEMENT DATED 6/1/2014 EXECUTED BETWEEN THE PETITIONER AND RESPONDENTS.
ANNEX A2	COPY OF THE NOTICE DATED 9/4/2015 ISSUED BY PETITIONER'S ADVOCATE, SRI.DINESH R.SHENOY.
ANNEX A3	COPY OF THE REPLY NOTICE ISSUED BY ON BEHALF OF RESPONDENTS DATED 20/4/2015
ANNEX A4	COPY OF THE NOTICE DATED 12/05/2015 ISSUED BY PETITIONER'S ADVOCATE, SRI. DINESH R.SHENOY.
ANNEX A5	COPY OF THE NOTICE DATED 19/10/2015 ISSUED BY PETITIONER'S ADVOCATE, SRI. DINESH R.SHENOY
ANNEX A6	COPY OF THE ACKNOWLEDGEMENT CARD DATED 26/10/2015.

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.A.TO JUDGE

sts

SHAJI P. CHALY, J.

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A.R. No.30 of 2016

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Dated this the 21^st day of November, 2016

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ORDER

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Respondent had executed an agreement with the petitioner for acquisition of the World-wide Satellite Telecast Rights for the film “Gangster” (malayalam), on 06.01.2014 at Ernakulam, evident from Annexure-A1. It was expressly agreed that, in case the petitioner is held liable for payment of service tax, respondent shall also pay to the petitioner the entire service tax payable for the transaction on the total consideration amount at the applicable rates, on the value billed at each point of time, as per the payment schedule specified in the agreement.

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Petitioner has paid to the Department of Customs, Central Excise and Service Tax, a total amount of Rs.67,98,000/- as service tax together with Rs.6,35,668/- as interest and fine for non-payment/delayed payment of service

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tax on account of failure on respondent's part to pay the service tax in time, in spite of request.

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A.R. No.30 of 2016

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In the said circumstances, petitioner caused to issue a legal notice to the respondent, calling upon them to honour and perform all their obligations as per the contract and to pay forthwith the amount of Rs.40,54,763/-, being the balance amount due to the petitioner as per Clause 3 of the agreement, and also making other claims with interest within 10 days from the date of receipt of the notice.

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Respondent has caused to issue a reply lawyer notice refuting the claims and demands made by the petitioner. In that circumstances, petitioner has issued a notice dated 19.10.2015, evident from Annexure-A5, invoking the arbitration clause and suggested two possible arbitrators. But the respondent has not replied or concurred or indicated any preference from among the two arbitrators nominated by the petitioner. It is in this background, to appoint an Arbitrator, petitioner has approached this Court.

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There is no counter affidavit filed by the respondent

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even though learned counsel entered and argued the matter. From the tenor of the contentions contained in the arbitration request, and Annexure-A-2 notice and Annexure-A3 reply, it is categoric and clear, there exists a dispute by and between the

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A.R. No.30 of 2016 3

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petitioner and the respondent on Annexure-A1 agreement entered into by and between the parties, dated 06.01.2014.

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As per clause 7 of Annexure-A1, any dispute arising

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from the interpretation of the agreement or relating to any rights or obligations contained therein, and if such disputes could not be resolved amicably, same shall be referred to and finally resolved by arbitration at Trivandrum. Clause 7.2 enables the parties to elect unanimously an arbitrator who shall decide the dispute in accordance with law. Clause 7.3 deals with the situation wherein, if the parties not agreeing unanimously on the arbitrator, each party shall nominate an arbitrator and these arbitrators on assuming charge shall appoint a common umpire and the contract deemed to be submitted to arbitration within the meaning of the Indian Arbitration Act, 1996, or as amended from time to time.

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Reckoning the facts and circumstances, I am of the considered opinion, there exist disputes by and between the petitioner and the respondent and an arbitrator is to be appointed to resolve the disputes. Learned counsel for the petitioner as well as the respondent submitted that a retired District Judge may be appointed in order to resolve the

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A.R. No.30 of 2016

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dispute.

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Accordingly, I appoint Sri. D. Pappachan, retired District Judge, H.No.32/1603, YMCA Road, Palarivattom P.O., Kochi-682 025, as the arbitrator to resolve the disputes by and between the petitioner and the respondent. The arbitrator shall enter on the disputes and proceed in accordance with law. I have no reason to think that the arbitrator will not take note of Sec.29A of the Arbitration and Conciliation Act, 1996 and attain a finality as specified thereunder.

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The arbitration request is disposed of accordingly.

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Sd/- SHAJI P. CHALY JUDGE

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//true copy//

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P.S. to Judge

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St/21.11.2016

M/S. Opm Dream Mill Cinemas and Entertainment Pvt. Ltd. v. M/S. Malayalam Communications Ltd.

Case brief

What is this about?

What did the court decide?

M/S. Opm Dream Mill Cinemas and Entertainment Pvt. Ltd. v. M/S. Malayalam Communications Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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