Allowed

M/S Iassit Advisory Pvt. Ltd. v. Dragonstone Reality Pvt. Ltd.

Kerala HC12 Sept 2023AR/49/2023

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an arbitration request filed by M/S IASSIT Advisory Pvt. Ltd against respondents. The court held the request maintainable despite incomplete pre-arbitral negotiations, appointed an arbitrator at the request of both sides, and directed commencement of proceedings.

What did the court decide?

Arbitration request allowed; Sri. K.Sasidharan Nair appointed sole arbitrator; parties directed to mark appearance before him on 25.10.2023.

M/S Iassit Advisory Pvt. Ltd. Vs Dragonstone Reality Pvt. Ltd. — Arbitration | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 12TH DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945

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AR NO. 49 OF 2023

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PETITIONER:

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M/S IASSIT ADVISORY PVT. LTD
HAVING ITS REGD. OFFICE AT- 004, B M MYSTIC GREEN, 27TH
MAIN, 2ND SECTOR, HSR LAYOUT, BANGALORE, KARNATAKA –
560102.
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE, RAJESH
KUNDRA (DIRECTOR), Tel:+91-8041207172
EMAIL:rajeshkundra@iassistadvisorycom
BY ADVS.
HARIKRISHNAN M.S.
VANDEETA GUPTA
MAYANK AGARWAL
KSHITIJ SARIN

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RESPONDENTS:

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1M/S DRAGONSTONE REALITY PVT. LTD
HAVING ITS REGD. OFFICE AT- 5A3, ARTECH CITY KALYANI,
VAZHUTHACAUD, SASTHAMANGALAM P.O, THIRUVANANTHAPURAM,
KERALA THROUGH ITS DIRECTOR MR. AJAY PRASAD EMAIL-
[email protected], PIN - 695010
2TAURUS INDIA OFFICE
HAVING ITS REGD. OFFICE AT- B-HUB, MAR IVANIOS, VIDYA
NAGAR, NALANCHIRA, THIRUVANANTHAPURAM THROUGH ITS
MANAGING DIRECTOR, PIN - 695015
BY ADVS.
R.SANTHOSH (VARKALA)
MUKESH KUMAR G.(K/000133/2019)
C.R.VIJAYAKUMARAN PILLAI(K/765/1992)

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THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON
12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AR NO. 49 OF 2023

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O R D E R

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The petitioner, which is stated to be a

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Private Limited Company, has filed this

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Arbitration Request asserting that Annexure – 2
Agreement has been entered into by them with the
respondent and that certain disputes have
arisen between the parties, particularly with

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respect to the payments eligible to them under
it.

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2.The petitioner says that even though

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Clause 8.2 of the Agreement makes it incumbent

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that the parties shall submit themselves to
discussions and negotiations at the initial
stage, even this was not acceded to by the
respondents; and consequently, that they
addressed Annexure – 2 to them, asking them to

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AR NO. 49 OF 2023

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either accede to their demands, or to agree to
the appointment of an Arbitrator in terms of the
afore said Clause. They assert that even though
said notice has been received by the 1st
respondent, they have refused to accede to
honour their claim, or to agree to the
appointment of an Arbitrator; thus constraining
them to approach this Court through this
Arbitration Request.

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3.In refutation, Sri.R.Santhosh – learned

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counsel for the 1st respondent, submitted that
even though Annexure – 7 and 8 communications
have been issued by the petitioner to the 1st
respondent, it was addressed to its Director and
not to its Associate Vice President, as was
required under the contract; and that hence, it
cannot be construed to be in conformity with the

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AR NO. 49 OF 2023

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requirements under Clause 8.2 of the Agreement.

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His specific contention was that when the
parties had not entered into discussions or
negotiations, which is the precursor to the

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Arbitration exercise, an arbitration request of

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this nature is not maintainable. As an alternate
submission, he submitted that if this Court is
not inclined to accept his afore contentions,
then a suitable and competent Arbitrator be
appointed, to resolve the disputes, since the
issues are in the realm of accounting and demand
of money.

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4.I have examined the afore submissions on
the touchstone of various materials on record,
particularly the correspondence between the
parties.

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5.It is without doubt that the petitioner

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AR NO. 49 OF 2023

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had addressed the 1st respondent through various

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correspondence which are available from
Annexures – 7 and 8, to which a reply was also
issued as discernible from Annexure 7(a). The
argument that these correspondence ought to have
been addressed to the Associate Vice President
and not to the Director of the 1st respondent,
cannot hold water because it is admitted that
the former Authority is only a paid employee of
the company, while the latter is its Director.
Obviously, when the Director received the
notices and was not agreeable to involve himself
in the disputes, then he should have said so to
the petitioners and to have then instructed them
to address the competent Authority to the 1st
respondent. He did not do so, but on the
contrary, as evident from Annexure – 7(a), he

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AR NO. 49 OF 2023

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acceded to the request for an attempt at

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negotiation and settlement, which never happened
thereafter. The argument that the petitioner did
not invoke the Pre-arbitral steps cannot,
therefore, be found to be worthy or with merit.

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6.That apart, Clause 8.2 of the Agreement

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only says that “the parties shall agree to co-
operate and conduct in good faith discussions
and negotiations as may be necessary to amicable
resolve any dispute”(sic). The pleadings on
record, as also the submissions made by the
rival parties, render it indubitable that such
negotiations or discussions would be of no
consequence now and that the matter will require
to be resolved under the aegis of Arbitration.

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7.The afore being said, Clause 8.2 of the

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Agreement certainly enjoins the parties to

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AR NO. 49 OF 2023

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resolve all the disputes between them arising

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from its terms and with respect to their
obligationsunderit,solelythrough

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arbitration. Since both sides agree to this
without any reservation, I am certain that this
Arbitration Request is deserving of being
allowed.

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8.After I dictated this part of the

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judgment, the learned counsel for both sides
prayed in unison that this Court may appoint a
sole Arbitrator, rather than a panel, as has
been stipulated the Agreement, since this will
be more cost effective to both of them.

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In the afore circumstance, this Arbitration

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Request is allowed in the following manner:

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(a) I nominate Sri.Sri.K.Sasidharan Nair,

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Krishna, TC No.29/76 (85/46 New), M.K.K Nair

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AR NO. 49 OF 2023

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Road, Pettah.P.O, Thiruvananthapuram-695 024 as

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the sole Arbitrator to adjudicate and resolve the
disputes and differences between the parties to

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this case arising from Annexure -2 Agreement.

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communicate a copy of this order to the learned
Arbitrator, within a period of two weeks from
today and to obtain a Statement of Disclosure

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from him under Section 11(8) read with Section

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12(1) of the Arbitration and Conciliation Act,
1996.

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obtained from the learned Arbitrator, the

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Registry shall release the certified copy of this
order, with a copy of the said statement appended

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to it, retaining the original of the same on the

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files of this case.

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AR NO. 49 OF 2023

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governed by the Fourth schedule to the
Arbitration and Conciliation Act, 1996.

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commence the proceedings without delay, I direct

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the parties to mark appearance before him at 11
AM on 25.10.2023.

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DEVAN RAMACHANDRAN

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JUDGE

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SAS

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AR NO. 49 OF 2023

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APPENDIX OF AR 49/2023

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PETITIONER’S ANNEXURES

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`Annexure-1`	`TRUE COPY OF THE BOARD RESOLUTION OF THE` `PETITIONER COMPANY DATED 06.02.2023`
`Annexure-2`	`TRUE COPY OF THE CONSULTING AGREEMENT DATED` `06.06.2018`
`Annexure-3`	`TRUE COPY OF EMAIL DATED 03.08.2019`
`Annexure-4`	`TRUE COPY OF EMAIL DATED 18.11.2020 BY THE` `PETITIONER`
`Annexure-4a`	`TRUE COPY OF EMAIL DATED 19.11.2020 BY THE` `RESPONDENT NO. 1`
`Annexure-5`	`TRUE COPY OF EMAIL DATED 23.09.2021 BY THE` `PETITIONER`
`Annexure-5a`	`TRUE COPY OF EMAIL DATED 23.09.2021 BY THE` `RESPONDENT NO. 1`
`Annexure-6`	`TRUE COPY OF EMAIL DATED 02.12.2021 BY THE` `PETITIONER`
`Annexure-6a`	`TRUE COPY OF EMAIL DATED 03.12.2021 BY THE` `RESPONDENT NO. 1`
`Annexure-6b`	`TRUE COPY OF EMAIL DATED 03.12.2021 BY THE` `PETITIONER`
`Annexure-7`	`TRUE COPY OF EMAIL DATED 10.10.2022 BY THE` `PETITIONER`
`Annexure-7a`	`TRUE COPY OF EMAIL DATED 10.11.2022 BY THE` `RESPONDENT NO. 1`
`Annexure-8`	`TRUE COPY OF LEGAL CUM DEMAND NOTICE DATED` `03.01.2023 SENT THROUGH DTDC`
`Annexure-8a`	`TRUE COPY OF THE POSTAL RECEIPTS DATED` `04.01.2023`
`Annexure-8b`	`TRUE COPY OF THE SHIPMENT TRACKING HISTORY FOR` `THE LEGAL CUM DEMAND NOTICES SENT THROUGH DTDC` `BY THE PETITIONER TO THE RESPONDENTS`
`Annexure-8c`	`TRUE COPY OF THE EMAIL DATED 03.01.2023 SENT` `BY THE COUNSEL OF THE PETITIONER TO THE` `RESPONDENTS`
`Annexure-9`	`TRUE COPY OF LEGAL NOTICE FOR INVOKING` `ARBITRATION DATED 20.01.2023 SENT THROUGH` `INDIA POST`

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AR NO. 49 OF 2023

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11

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`Annexure-9a`	`TRUE COPY OF THE POSTAL RECEIPTS DATED` `21.01.2023`
`Annexure-9b`	`TRUE COPY OF THE TRACK CONSIGNMENT REPORTS FOR` `THE LEGAL NOTICE FOR INVOKING ARBITRATION SENT` `THROUGH INDIA POST BY THE PETITIONER TO THE` `RESPONDENTS`
`Annexure-9c`	`TRUE COPY OF THE EMAIL DATED 20.01.2023 SENT` `BY THE COUNSEL OF THE PETITIONER TO THE` `RESPONDENTS`
`Annexure-10`	`TRUE COPY OF LEGAL NOTICE FOR INVOKING` `ARBITRATION DATED 20.01.2023 SENT THROUGH DTDC`
`Annexure-10a`	`TRUE COPY OF THE POSTAL RECEIPTS DATED` `28.02.2023`
`Annexure-10b`	`TRUE COPY OF THE SHIPMENT TRACKING HISTORY FOR` `THE LEGAL NOTICES FOR INVOKING ARBITRATION` `SENT THROUGH INDIA POST BY THE PETITIONER TO` `THE RESPONDENTS`
`Annexure-11`	`TRUE COPY OF THE REPLY DATED 19.02.2023 FROM` `RESPONDENT NO. 1`
`RESPONDENTS’ ANNE`	`XURES`
`Annexure R1`	`THE TRUE COPY OF THE RESOLUTION DATED` `14.06.2018 OF THE 1ST RESPONDENT.`
`Annexure R2`	`THE TRUE COPY OF THE GST REGISTRATION` `CERTIFICATE NO. 32AAFCD4865QIZ5 DATED` `08/11/2018 ISSUED BY THE GOVT. OF INDIA TO THE` `1ST RESPONDENT.`

M/S Iassit Advisory Pvt. Ltd. v. Dragonstone Reality Pvt. Ltd.

Case brief

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M/S Iassit Advisory Pvt. Ltd. v. Dragonstone Reality Pvt. Ltd.

Case brief

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