Kewal Krishan Gupta vs Kamal Kishore

Arun Palli, CJ

The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of an arbitrator.

The parties to the petition at hand are partners of the partnership business run under the name and style of M/s Vaid Electricals and a partnership deed is stated to have been executed between the parties on 17th September, 2009. The partnership firm of the parties has obtained a registered trademark “WH White House” under the Trademarks Act, 1999, and the same is being used by it. It is alleged that respondent, at the back of the petitioner, filed an application before the Registrar of Trademarks for changing the name of the firm from M/s Vaid Electricals to Westing House Industries, proprietorship firm belonging to the respondent, without disclosing that M/s Vaid Electricals is a partnership firm and not the proprietorship firm. The respondent also filed an application before the Registrar of Trademarks seeking to change the user of the trademark “WH White House” by the Westing House Industries belonging to the respondent. And the respondent is using the trademark WH White House in an illegal and deceitful manner detrimental to the rights and interests of the petitioner. On coming to know about the above narrated facts, the request made by the petitioner for settlement of accounts with regard to the partnership firm M/s Vaid Electricals was not acceded to by the respondent. Owing to the said facts, a dispute is alleged to have arisen between the parties and Clause 8 of the partnership deed dated 17th September, 2009, executed between the parties, specifically provides for dispute resolution by arbitration. The petitioner invoked the said clause and served notice dated 03.12.2022 upon the respondent requesting for appointment of an arbitrator. Owing to the non-consideration of the request of the petitioner, the petitioner has been constrained to approach this Court in terms of Section 11(6) of the Arbitration and Conciliation by the medium of petition at hand.

Pursuant to the notice issued by this Court, the respondents had caused appearance and filed the response. In brief, what is sought to be urged is that the petition is not maintainable as no cause of action has accrued to the petitioner. It is submitted that the trademark WH White House was issued in favour of the respondent in the year 2001 when petitioner was not a partner to the partnership concern M/s Vaid Electricals. And the trademark WH White House being the sole property of the respondent was legally and lawfully transferred by him to be used for Westing House. It is submitted that the partnership firm M/s Vaid Electricals is not functional from last 4-5 years and the said partnership firm is deemed to have been dissolved.

The existence of the arbitration clause, as aforesaid, and its invocation by the petitioner vide notice dated 03.12.2022 is not disputed.

Although, as indicated earlier, the respondents have filed objections to the petition but during the course of hearing, learned counsel for the respondent pleads no objection in case the petition is allowed.

In the given facts and circumstances, coupled with statement made at the Bar by learned counsel for the respondent, the petition is allowed. Accordingly, with consent of learned counsel for the parties, Mr. Justice Tashi Rabstan (Former Chief Justice, High Court of Jammu & Kashmir and Ladakh) is appointed as the sole arbitrator. Who shall proceed with the matter in accordance with the provisions of the Act. And to make an award within the time provided in the Act itself after charging the prescribed fee along with incidental expenses to be shared by the parties.

Registry to send a copy of this order to the learned arbitrator.