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2018 Supreme(Del) 3251
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, J.
Brightstar Telecommunications India Ltd. - Appellant
Vs.
Iworld Digital Solutions Private Ltd - Respondent
Arbitration Petition No. 662 of 2017, 663 of 2017; Original Miscellaneous Petition (I) (Comm) No. 526 of 2017, 527 of 2017
Decided On : 21-12-2018
Ashwini Kumar, Adv., Harsh Kaushik, Adv., Savita Panda, Adv., K. Tama, Adv., Abhishek Manu Singhvi, Adv., Pulkit Deora, Adv., Roopesh Singh Bhardwaj, Adv., Nikhil Rohtagi, Adv., Nikhil Kohli, Adv.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 9, 11 – Agreement – Arbitration – Jurisdiction – Scope of – Dispute between the parties pertains to the pre-existing trade in Apple iPhones – It is beyond the scope of the subject agreements which relate to landline phones – Invoices advert to exclusive jurisdiction of Delhi Courts – Conclusion can be drawn is that Apple iPhones do not fall within the scope and ambit of the arbitration agreement – Parties have dealt with Apple iPhones is not a good enough reason to have them agree to an adjudicatory process to which they have not agreed – Nothing mentioned above will impact the stand of the parties with regard to the tenability of their respective claims and counter claims – Enquiry of this Court was restricted to whether or not disputants had agreed to have their grievances addressed via an arbitral mechanism – Arbitration petitions as well as the accompanying Section 9 petitions are dismissed.
JUDGMENT :
Rajiv Shakdher, J.
The captioned petitions, though four in number, they are, in fact, two sets comprising two arbitration petitions and corresponding petitions for interim relief’s.
1.1 Therefore, Arbitration Petition No.662/2017, which is filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter referred to as "1996 Act") is relatable to OMP(I) (Comm.) No.527/2017, which is a petition filed under Section 9 of the 1996 Act. Likewise, Arbitration Petition No.663/2017, filed under Section 11 of the 1996 Act, is connected with OMP(I) (Comm.) No.526/2017, which is also preferred under Section 9 of the 1996 Act.
2. Counsel for the parties, who have appeared before me, submitted that the facts obtaining in these matters are similar and therefore, the assertions made are also similar. Thus, the arguments advanced by either side before me qua the captioned petitions are also identical.
2.1 The only difference being that in Arbitration Petition No.662/2017, the respondent is described as M/s. iWorld Digital Solutions Private. Ltd. (in short "IDS"), while in Arbitration Petition No.663/2017, the respondent is described as M/s iWorld Business Solutions Private Ltd. (in short "IBS").
2.2 Though, the petitioner has taken the stand that IDS is the subsidiary of IBS, this aspect is refuted by the aforesaid entities. Thus, for the purpose of narration of the events and otherwise, I would be referring to IDS and IBS collectively as the respondents unless they need to be referred to separately.
2.3 It may also be relevant to note that IDS and IBS had entered into two separate agreements of even date, that is, 12.2.2015, which are also, concededly, identical. Therefore, they would be collectively referred to hereafter as "subject agreements".
3. However, before I proceed further, it would useful to note at the very outset that the subject agreements contain Clause 26, which, purports to be the arbitration agreement obtaining between the parties qua the dispute at hand. This is an aspect which I will elaborate upon in the latter part of my judgment. Suffice it to say at this juncture that a perusal of the record and the pleadings would show that while the respondents have taken the stand that they signed the subject agreements, they insist that the petitioner did not hand over the counter-signed counterpart to either IDS or IBS.
3.1 The defence of the respondents is that they never conducted business with the petitioner in pursuance of the subject agreements; and that the agreements have schedules appended thereto which describes the product qua which transactions were to be undertaken by the parties.
3.2 Simply put, the stand of the respondents is that since the product referred to in Schedule-I appended to the subject agreements is "Landline Telephones", therefore, this Court cannot appoint an Arbitrator in respect of the moneys claimed by the petitioner vis--vis another product, i.e. Apple iPhones, said to have been supplied to the respondents.
4. Thus, the moot point which I need to address is: was the reference to landline telephones in Schedule-I annexed to the subject agreements an inadvertent typographical error or was it, as the respondents put it, an attempt by the petitioner to slip in a product, that is, Apple iPhones, which was never intended to be covered vide the subject agreements.
5. Therefore, the following facts and/or assertions are required to be noticed in order to adjudicate upon the issue at hand.
5.1 As alluded to hereinabove, the petitioner claims that the respondents entered into two separate agreements of even date, that is, 12.2.2015 with the petitioner. It is the petitioner's case that the respondents are "authorised premium resellers" of Apple products. It is also the petitioner's stand that the petitioner being a distributor of Apple iPhones, the subject agreements, amongst others, covers Apple iPhones.
5.2 It is the petitioner's case that the subject agreements provided that in order to procure
