M/S. ACE Engineering Academy vs Ravindra Suryabhan Thube

Heard Mr. K.S. Suneel, learned counsel representing M/s. Chandrasen Law Offices, learned counsel for the petitioner and Mr. Sharad Sanghi, learned counsel for the respondent.

The present Arbitration Application is filed under Sections - 11 (5) and 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the Act, 1996’) for appointment of an arbitrator to resolve the disputes between the parties.

CASE OF THE PETITIONER:

i) The petitioner and respondent have entered into a service agreement dated 13.12.2019 on the specific terms and condition mentioned therein for providing services. The said agreement is for a period of five (05) years commencing from 13.12.2019. Thereafter, they have also entered into another service agreement dated 09.07.2020 on the specific terms and conditions agreed therein for providing services.

ii) The petitioner herein is service receiver and the respondent is service provider. In the said agreements, it is specifically mentioned that the petitioner - service receiver is a reputed organization/company and a nationally renowned institute with a prime motto of imparting quality education among engineering students and moulding them to crack competitive examinations of ESE, GATE, PSUs, and other competitive exams relating to engineering and in this regard the service receiver desires to obtain the services of the Service Provider, and the service provider to render such services on the terms and conditions set forth in the said agreement.

iii) According to the petitioner, there are arbitral disputes between the petitioner and the respondent with regard to the said agreements. Therefore, it has invoked Clause - 14 of the said service agreement dated 09.07.2020 by way of issuing notice dated 25.08.2021 proposing the names of three (03) retired District Judges to resolve the disputes. Despite receiving and acknowledging the said notice, the respondent did not respond to it. Therefore, the petitioner herein has filed the present arbitration application seeking appointment of an Arbitrator to resolve the said disputes.

CONTENTION OF THE RESPONDET:

The respondent filed counter contending that the service agreement dated 13.12.2019 is the principal agreement and there is no arbitration clause in the said agreement. The contents of the said agreement prevails over the service agreement dated 09.07.2020. The service agreement dated 13.12.2019 is the first agreement and it prevails over all other agreements including the service agreement dated 09.07.2020. Further, the respondent is claiming that it has provided services from 01.04.2020 to 08.07.2020 basing on the oral agreement between the parties on the same terms and conditions. Therefore, the petitioner is not entitled for appointment of an Arbitrator.

Learned counsel for the petitioner would submit that the petitioner and respondent have entered into service agreement dated 31.12.2019 for the period of five years, for which an advance amount of Rs.5.00 lakhs was paid to the respondent. Thereafter, another service agreement was entered with the respondent on 09.07.2020 considering all the factors specifically mentioned therein. Based on an oral agreement as well as the subsequent service agreement dated 09.07.2020, the respondent provided services from 01.04.2020 till 15.05.2021 and, thereafter he submitted his resignation dated 15.05.2021 for which the petitioner did not accept and communicated the same to him on 17.05.2021 through WhatsApp and advised him to continue the services as per the said agreement dated 09.07.2020. The petitioner had also paid an amount of Rs.3.00 lakhs on 04.02.2021 and another Rs.3.00 lakhs on 10.02.2021. Thus, the petitioner paid an amount of Rs.11.00 lakhs which includes the advance amount. Thereafter, the petitioner paid monthly remuneration amounting to Rs.27,28,000/- for the period from April, 2020 to May, 2021. In all, the petitioner paid an amount of Rs.38,28,000/- to the respondent even during pandemic situation. Whereas, for the services provided by the respondent for the period from 01.04.2020 to 15.05.2021, remuneration payable is only Rs.6,27,400/-. Thus, the respondent is liable to pay an amount of Rs.32,00,600/- (Rs.38,28,000/- minus Rs.6,27,400/-). As per the terms of the agreement, the respondent cannot stop the services by submitting his resignation. In view of the same, he is liable to pay the aforesaid amount. Further, the respondent cannot oppose the present application seeking appointment of arbitrator.

On the other hand, Mr. Sharad Sanghi, learned counsel for the respondent, would submit that the first agreement dated 13.12.2019 will prevail over the second agreement dated 09.07.2020. Clause - 12 of the said service agreement dated 13.12.2019 deals with ‘entire agreement’, and it says that the agreement contains the entire agreement between the parties and the understandings pertaining to the services of the Service Receiver by the Service provider and shall be amended or modified only by written instrument signed by both the parties and the parties agree that in the event any article or part thereof is held to be unenforceable or invalid then the said article or part shall be struck and the remaining provision shall remain in full force and effect. He has also placed on the decisions rendered by the Hon’ble Supreme Court in Radha Sundar Dutta v. Mohd. Jahadur Rahim AIR 1959 SC 24 and Kaivelikkal Ambunhi (dead) by L.Rs. v. H. Ganesh Bhandary AIR 1995 SC 2491.

In Radha Sundar Dutta AIR 1959 SC 24, it was held that rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim " ut res magis valeat quam per-eat ". It was further held that there is a conflict between the earlier clause and the later clauses, and it is not possible to give effect to all of them, then the rule of construction is well-established that it is the earlier clause that must override the later clauses and not vice versa.

In Forbes v. Git (1922) 1 AC 256 = AIR 1921 PC 209] it was held that if in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case, two clauses cannot be reconciled and the earlier provision in the deed prevails over the later.

In the aforesaid case, it was a settlement of Chaukidar, whereas in the present case, it is a service agreement between the parties for providing services. They have entered into the aforesaid agreements dated 13.12.2019 and 09.07.2020 on the specific terms and conditions mentioned therein. According to the petitioner, there is arbitral dispute between the parties. Therefore, the aforesaid facts are different to the facts of the present case.

In Kaivelikkal Ambunhi AIR 1995 SC 2491, it was interpretation of the contents of the Will deed. Therefore, the facts of the said case are also different to the facts of the present case.

The contention of learned counsel for the respondent that agreement dated 13.12.2019 is not an arbitration agreement, no arbitration clause subsists, therefore, the present application, on the basis of the said agreement, dated 13.12.2019, is not maintainable cannot be accepted. The petitioner had filed the present application seeking appointment of an arbitrator under Clause - 14 of the Service Agreement dated 09.07.2020.

In the service agreement dated 09.07.2020, Clause - 14 deals with ‘arbitration’ and the same is extracted as under:

“In case of disputes or differences arising between the parties hereof, the same shall be subject matter of Arbitration under the Arbitration and Conciliation Act, 1996 and any subsequent related amendments thereto unless settled amicably between the parties hereto referred to Arbitration. The Arbitration Proceedings shall be at Hyderabad. The decision of the Arbitrator on the Dispute shall be Final and binding on the Parties. The arbitrator shall be appointed by issuing a notice to other party mentioning the name and place of arbitration. If the other party intends to change the arbitrator, he/she shall convey the same within a period 15 days from the date of receipt of notice and not later in any manner. If the sole arbitrator could not be appointed within a period of forty five days by both the parties then the matter may be referred to concerned court having jurisdiction to appoint the arbitrator.”

According to the petitioner, there are arbitral disputes between the petitioner and respondent with regard to the aforesaid services provided by the respondent. The respondent has submitted resignation on 15.05.2021, therefore, the petitioner demanded an amount of Rs.32,00,600/- from the respondent. The aforesaid facts would reveal that there are arbitral disputes between the petitioner and the respondent. However, the respondent is claiming that it has provided services from 01.04.2020 to 08.07.2020 basing on the oral agreement between the parties on the same terms and conditions. However, there is no mention about the said oral agreement either in the service agreement dated 09.07.2020 or in the notice dated 25.08.2021 or in the present application. There is no explanation from the petitioner with regard to non-mentioning of the said oral agreement in the agreement dated 09.07.2020 and notice dated 25.08.2021 and also in the present application. However, the said aspects have to be considered by the Arbitrator himself. There are disputes with regard to the period from 09.07.2020 to 15.05.2021. It is covered by service agreement dated 09.07.2020.

After 2015 amendment to the Arbitration and Conciliation Act, 1996, the scope under Sections - 11 (5) and 11 (6) of the Act, 1996 is very limited. The said fact was also considered by the Apex Court in Vidya Drolia v. Durga Trading Corporation (2021) 2 SCC 1 and the relevant paragraph of the same is extracted hereunder:

“244. Before we part, the conclusions reached, with respect to Question 1, are:

244.1. Sections 8 and 11 of the Act have the same ambit with respect to judicial interference.

244.2. Usually, subject-matter arbitrability cannot be decided at the stage of Section 8 or 11 of the Act, unless it is a clear case of deadwood.

244.3. The court, under Sections 8 and 11, has to refer a matter to arbitration or to appoint an arbitrator, as the case may be, unless a party has established a prima facie (summary findings) case of non-existence of valid arbitration agreement, by summarily portraying a strong case that he is entitled to such a finding.

244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. “when in doubt, do refer”.

244.5. The scope of the court to examine the prima facie validity of an arbitration agreement includes only:

244.5.1. Whether the arbitration agreement was in writing? or

244.5.2. Whether the arbitration agreement was contained in exchange of letters, telecommunication, etc.?

244.5.3. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?

244.5.4. On rare occasions, whether the subject-matter of dispute is arbitrable?”

In Ameet Lalchand Shah v. Rishabh Enterprises (2018) 15 SCC 678, the Apex Court considered with regard to the inter-connected agreements and principal agreement amongst such inter-connected agreements, and also relevancy of the same, for determination of such inter-connectivity and also common purpose of the agreement. It was held that the said aspects are to be considered by an Arbitrator not by the High Court while deciding an application under Section - 11 (6) of the Act, 1996.

In light of the aforesaid discussion and the law laid down by the Supreme Court, the present arbitration application is allowed. Accordingly, Mr. Mangari Rajender, Retired District Judge, Villa No.142, Keerthi Richmond Villa, Sun City, Hyderabad - 500 086, is appointed as the sole arbitrator to resolve the disputes between the parties.

As a sequel, the miscellaneous applications, if any, pending in the Arbitration Application shall stand closed.