The entire subject matter of a suit should fall within the arbitration agreement, and parties cannot abandon or waive their right to arbitration by invoking civil proceedings.

1. Indus Renaissance Partners Entertainment Pvt. Ltd. and Mr.Anshuman Kapur, defendants 1 and 2 have filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act, for short) for disposal/dismissal of the Suit filed by Ministry of Sound International Ltd, the plaintiff herein on the ground that the disputes are covered by the arbitration clause between the parties. The plaintiff, as per the plaint, is a private company incorporated under the laws of Ireland.

2. The plaintiff and the defendant no.1 admit execution of the Agreement dated 7th December, 2006 granting licence to defendant no.1 to use its trademarks/copyright in respect of ‘Ministry of Sound’, ‘The Ministry’, ‘Ministry’, ‘MOS’ and logo of the plaintiff and to run a night club by the name of ‘The Pyramid’.

3. Agreement dated 7th December, 2006 incorporates Clause 29 under the heading Governing law, Jurisdiction and Dispute Resolution. The said Clause reads as under :- ‘29. Governing Law, Jurisdiction and Dispute Resolution. 29.1 This Agreement is governed in all respects in accordance with English law and shall be construed and take effect as an agreement made in England. 29.2 The Licensee shall conduct its business under this Agreement in a lawful manner and will faithfully comply with all applicable laws or regulations for the conduct of its business. 29.3 The parties agree that, in the event of any dispute arising out of or in connection with this Agreement which the parties are unable to resolve in the normal course, the parties agree that the matter shall be referred to the Licensor Representative and Licensee Representative. The Licensor Representative and Licensee Representative shall meet to attempt resolution. Should they not resolve the matter within 10 Business Days then each party shall escalate the issue to its board of directors. 29.4 If the parties have not resolved the dispute within 30 Business Days of the matter first being referred to the Licensor Representative and Licensee Representative for resolution then each party shall be free to pursue the rights granted to it by this Agreement in respect of such matter. 29.5 For avoidance of doubt, clauses 29.3 and 29.4, shall not prevent either party from : (a) Seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or infringement by the other of any Intellectual Property; or (b) Commencing any proceedings where this is necessary to avoid any loss of a claim due to the rules on limitation of actions. 29.6 Subject to the foregoing, any dispute arising out of or in connection with this Agreement shall be submitted to the arbitration in London of the London International Court of Arbitration (‘LICA’) under and in accordance with the Arbitration Act 1996 and the LICA Rules in force at the date of such submission, which Rules are deemed to be incorporated by reference within this Clause. The tribunal shall consist of a sole arbitrator.’

4. Defendant nos. 1 and 2 rely upon the said arbitration Clause and submit that the disputes cannot be resolved in a civil litigation before this Court. The defence of the plaintiff in the reply is: (a) Defendant nos. 3-5 are not parties to the arbitration agreement. (b) Arbitration Clause 29.6 is subject to Clause 29.5(a) relating to breach of obligation of confidentiality or infringement of intellectual property right and therefore non arbitrable. (c) Conduct of defendant by filing CS (OS) 1223/2008 and waiver. (d) Section 45 and not Section 8 of the Act is applicable.

5. The last objection relates merely to the heading of the application as mentioned in the cause title. A wrong heading in the cause title will not result in dismissal of the application. It is admitted by the learned counsel for the parties that Part II, Chapter I of the Act is applicable as the plaintiff is a company incorporated in Ireland and defendant no.1 is a company