CAV JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

This commercial appeal is directed against the order dated 07.06.2024 passed on I.A.No.7/2024 in Com. O.S.No.1310/2023 by the LXXXVIII Addl. City Civil & Sessions Judge (Exclusive Commercial Court) Bengaluru (CCH-89) (hereinafter referred to as "Commercial Court" for short).

2. For the sake of convenience, the parties are referred to as per their ranking before the Commercial Court.

3. The Commercial Court after considering the contentions advanced found that a person who seeks a remedy under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short) has to make an application before disclosing his defence in the case. Further, the original arbitration agreement or certified copy thereof has to be filed along with application. If he is not in possession of such agreement he has to make an application calling upon the other party to produce the original. It was found by the Commercial Court that defendants No.1 and 2 have filed their written statement on 03.01.2024 and they have submitted their first statement on the substance of the dispute. Defendant No.3 had also filed a memo on 19.01.2024 adopting the written statement filed on behalf of defendants No.1 and 2. It is thereafter that I.A.No.7 under Section 8 of the Act was filed on 06.03.2024 without either the original or a certified copy of the Arbitration agreement. On these grounds, the application was dismissed with costs.

4. The learned counsel for the appellants/defendants submits that a Band under the name “Motherjane” was initially formed by the defendants and Mr. Suraj Mani, who later walked out from the band. Subsequently, Mr.Mani claimed rights over the band through Deed of Agreement dated 30.08.2008 which contained an arbitration clause (Clause 31) providing for arbitration as the mode of dispute resolution, which purportedly transferred certain rights to his Company. On the same day, a deed of assignment of trademark and copyright was also entered into between the parties. The same did not contain an arbitration clause. The defendants allege that they were misled into signing the said Deed of Assignment and were unaware of the full implication of the document. On the basis of this Deed of Assignment, Mr.Mani filed a suit in the Commercial Court, seeking an injunction to restrain the defendants from using the band’s intellectual property and claiming damages for infringement of his rights.

5. The learned counsel appearing for the appellants submits that the dispute should be referred to arbitration as per Section 8 of the Act. The appellants also claim that the Commercial Court erred in rejecting I.A.No.7/2024 seeking reference to arbitration, as the suit is not maintainable due to the arbitration agreement.

6. It is further submitted that the Commercial Court has taken a narrow view by equating the written statement with the "first statement on the substance of the dispute" under Section 8(1) of the Act. It is submitted that on 29.03.2023, a reply notice was sent by stating that the respondent failed to perform his obligation as per the contract. The pleadings of the respondent before the Commercial Court establishes the fact that the respondent- Company started claiming the rights over the Trade name "Motherjane" and its music composition only during March

2023, i.e., after lapse of execution of the said contract. 7. It is further submitted that the appellants since the departure of Mr. Suraj Mani in 2011, they have been operating the band "Motherjane" independently, with no interference or claims from the Plaintiff. They claim that they have registered the trademark for "Motherjane Kochi" and have successfully performed numerous shows without any objections from the Plaintiff until 2022. The appellants state that it was only when they were preparing to release their third album in 2022 that issues arose regarding their spotify and other social media accounts, which