Mr.Annamalai, v. M/S. Gtl Infrastructure Limited, (Formerly M/S. Chennai Network Infrastructure Ltd)

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.04.2022

CORAM

THE HON'BLE MR. JUSTICE M.SUNDAR

1. Mr.Annamalai, S/o.Mr.M.Sivaguru.

2. Mrs.A.Indra, W/o.Mr.Annamalai.

... Petitioners Vs.

M/s.GTL Infrastructure Limited, (Formerly M/s.Chennai Network Infrastructure Ltd) Rep.by its Managing Director, City Centre, 3rd Floor, No.232, Old No.186, Purasawalkam High Road, Kellys, Chennai 600 010.

... Respondent Arbitration Original Petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 read with clause 2 of the Appointment of Arbitrator's Scheme by the Chief Justice of Madras High Court's Scheme, 1996, to appoint an independent sole arbitrator to adjudicate the disputes arising between the petitioners and the respondent as per clause 16 of the License Agreement dated 08.08.2013 and direct the respondent to pay the cost of this petition.

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For Petitioners : Ms.N.Shalini, for Mr.S.Jaganathan.

For Respondent : Mr.C.Sakthi Manikandan

ORDER

This order will now dispose of the captioned 'Arbitration Original Petition' ['Arb.OP' for the sake of brevity].

2. Proceedings/orders made in captioned Arb.OP in the earlier listings on 14.03.2022 and 28.03.2022 read as follows: 'Proceedings dated 14.03.2022:

Ms.N.Shalini, learned counsel representing the counsel on record for petitioner submits that captioned Arb.OP is under Section 11(6) of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake brevity with a prayer for appointment of an Arbitrator.

2. Learned counsel submits that captioned Arb.OP is predicated on Clause 16 of an agreement dated 08.08.2013 captioned 'License Agreement'. This Clause 16 reads as follows: '16. Any dispute or claim between the parties hereto arising out of or relating to this agreement, or its implementations and / or its effect, or the breach, 2/22

termination, due to efflux of time or otherwise, or invalidity thereof, either during its subsistence or after its termination, shall be referred to the arbitration of a sole arbitrator in accordance with the provisions of Arbitrations and Reconciliation Act, 1996. The Arbitration shall be held at Chennai.'

3. Learned counsel submits that arbitrable disputes arose inter alia regarding licence fee. A trigger notice dated 04.11.2020 followed by two other notices dated 15.02.2021 and 14.12.2021 were issued but they have not evoked any reply or response from the respondent necessitating the presentation of present Arb.OP in this Court is learned counsel's further say.

4. Prima facie case for issue of notice made out. Issue notice to respondent returnable in a fortnight i.e., returnable by 28.03.2022. Private notice permitted. Private notice through electronic modes of communications (subject to proof being demonstrated) also permitted.

List on 28.03.2022.'

'Proceedings dated 28.03.2022:

Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 14.03.2022.

2. Mr.V.Rengasubramanian, learned counsel on record for two petitioners is before this Court.

3. Pursuant to aforementioned earlier proceedings dated 14.03.2022, lone respondent has been duly served. Mr.C.Sakthi Manikandan, learned counsel with address for service at No.1173/22

118, Angappa Naicken Street, Chennai, who is before this Court submits that he has instructions to enter appearance on behalf of the respondent. Learned counsel submits that vakalatnama will be filed at the earliest. Learned counsel also submits that the respondent is disputing the existence of arbitration agreement inter alia on the ground that the arbitration agreement is insufficiently stamped. Learned counsel submits that he will file a counter affidavit within a fortnight. Let the matter appear in the list a fortnight hence. Registry to show the name of learned counsel for respondent in the cause list in the next listing.

List on 11.04.2022.'

3. Aforementioned two proceedings/orders shall be read as an integral part and parcel of this order. Today, Ms.N.Shalini, learned counsel for two petitioners and Mr.C.Sakthi Manikandan, learned counsel for lone respondent-Company are before this Court.

4. Adverting to aforementioned earlier proceedings made in the listing on 28.03.2022, learned counsel for lone respondent submits that counter affidavit has been filed but the sheet anchor submission is regarding whether the petitioners restrict the captioned Arb.OP to be one predicated 4/22

on Clause 16 of the 'License Agreement dated 08.08.2013' [hereinafter 'primary contract' for the sake of convenience and clarity].

5. To be noted, Clause 16 of the primary contract has already been extracted and reproduced in the earlier proceedings dated 14.03.2022 which in turn has been reproduced supra.

6. Learned counsel for petitioners submits that the petitioners restrict captioned Arb.OP to Clause 16 of the primary contract.

7. Learned counsel for petitioners placed before this Court an order dated 24.01.2020 made in O.P.No.961 of 2019 by this Court which is as follows:

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8. A careful perusal of sub-paragraph (iv) of paragraph No.9 of aforementioned order makes it clear that under some what similar circumstances the petitioners in that case made it clear that they restrict Section 11 OP to Clause 16 of License Agreement in that case.

9. Both the learned counsel submit that the case on hand i.e., captioned Arb.OP is directly covered by the aforementioned order in terms of principle though the arbitrable lis is different. It is also submitted in one voice by both the learned counsel that the aforementioned order dated 24.01.2020 made in O.P.No.961 of 2019 by this Court has not been assailed in Hon'ble Supreme Court, it has been accepted by both sides, learned Arbitrator has entered upon reference, adjudicated upon the disputes and has reserved the matter for making the Award. This makes the task of disposal of captioned Arb.OP fairly simple. Learned counsel submit that sheet anchor submission that lease deed is compulsorily registrable now pales into insignificance in the light of the petitioners restricting the captioned Arb.OP to the License Agreement.

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11. In the light of the narrative thus far, captioned Arb.OP is disposed of by appointing the same individual as sole Arbitrator. In other words, Mr.M.Senthil Kumaran, Advocate, Flat No.A, Jayam Villa, No.11, East Circular Road, Mandaveli, Chennai 28 (Mobile No:75501 11110) is appointed as Sole Arbitrator to enter upon reference qua said license agreement i.e., License Agreement dated 08.08.2013.

12. Learned Arbitrator is requested to conduct arbitration proceedings in accordance with the Madras High Court Arbitration Proceedings Rules, 2017 and the fee of the learned Arbitrator shall be in accordance with Madras High Court Arbitration Centre (MHCAC) (Administrative Cost and Arbitrator's Fees), Rules 2017.

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M.SUNDAR.J., gpa/nsa

13. Captioned Arb.OP is disposed of in above terms. There shall be no order as to costs.

11.04.2022 Speaking/Non-speaking order Index : Yes / No gpa/nsa Note: Registry is directed to communicate a copy of this order forthwith to Mr.M.Senthil Kumaran, Advocate, Flat No.A, Jayam Villa, No.11, East Circular Road, Mandaveli, Chennai 600 028.

Mobile No:7550111110.

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