TMI Blog2001 (12) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... licant, that the agreement dated December 1, 1999, provided that the contract was valid for two years effective from December 1, 1999, and renewable for further period either on the same terms and conditions or on terms mutually agreed and acceptable, that the applicant had added several new buses to its fleet and even in June 2001, the applicant at the request of the respondents, had purchased four new bus coaches specifically for the respondents services for a sum of Rs. 36,00,000 that to prevent unilateral cancellation or termination of the agreement, the renewal clause had been provided, that the applicant had given a proposal for renewal containing the details as to payment and as to how the services were to be upgraded, that the respondents called on the applicant for a meeting to discuss the said proposals for upgrading, so that the clause regarding the renewal of the agreement could be acted upon, that to the shock and surprise of the applicant, the respondents by their letter dated October 31, 2001, had unilaterally cancelled the agreement without assigning any reasons, that as contemplated under the agreement dated December 1, 1999, the respondents had agreed to renew th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the agreement itself provides for termination by November 30, 2001, the respondents had issued a month s notice of termination to the applicant. No breach had been committed by the respondents. On merits it had to be stated that the applicant had conveniently chosen not to mention that the agreement was terminable on a month s notice, which had to be clarified at the time of arguments. It was not correct to say that there had been no complaints against the applicant as regards its services. The respondents had frequently drawn the applicant s attention to the deficiency in service rendered by them and the applicant had assured that it would take remedial measures, which it had not done. There had been no agreement by the respondents to renew the contract. It was also denied that 18 buses were operated by the applicant for the exclusive use of the respondents. The respondents did not want to continue the contract with the applicant. It was terminated vide their letter dated October 31, 2001. There were no merits in the application and the same was liable to be dismissed. 4. Mr. R. Krishnaswami, learned senior counsel for C. Ramesh, counsel for the applicant, drew my attentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that when an application under section 9 is filed before the commencement of the arbitral proceedings, there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings, if, at the time when the application under section 9 is filed, the proceedings have not commenced under section 21 of the 1996 Act. In order to give full effect to the words before or during arbitral proceedings occurring in section 9, it would not be necessary that a notice invoking the arbitration clause must be issued to the opposite party before an application under section 9 can be filed. The issuance of a notice may, in a given case, be sufficient to establish the manifest intention to have the dispute referred to an Arbitral Tribunal. But a situation may so demand that a party may choose to apply under section 9 for an interim measure even before issuing a notice contemplated by section 21 of the said Act. If an application is so made, the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration...What is apparent, however, is that the Court is not debarred from dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The renewal clause in the lease deed in that case provided as follows : "And also he the said Mr. Francis Schuler, his heirs, administrators, or assigns fulfilling the covenants and agreements contained in the said indenture and on his part to be performed and yielding at the end and expiration of the aforesaid term of 99 years unto the said United company, their successors or assigns the full and just sum of 100 pagodas current money of Fort St. George, then the said lease should and might be renewed for a further term of 99 years upon such terms and conditions as should be judged reasonable." (p. 513) 11. This clause clearly provides for renewal on payment of 100 pagodas. Apparently, as to what pagodas meant the lessees did not know. They sent Rs. 100 and after it brought to their notice that a rupee was not an equivalent to pagoda, they offered to pay the balance amount and it was held that the lessees were entitled to renewal. This decision of the Division Bench was approved by the Supreme Court in Damodhar Tukaram Mangalmurti s case ( supra ) in the following terms : "... The learned judges of the High Court unanimously expressed the view that the lease was not voi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case ( supra ), the arbitrator has held that the distributorship was revocable in accordance with clauses 27 and 28 of the agreement between the parties. The Supreme Court observed as follows: "The finding in the award being that the distributorship agreement was revocable and the same being admittedly for rendering personal service, the relevant provisions of the Specific Relief Act were automatically attracted. Sub-section (1) of section 14 of the Specific Relief Act specifies the contract which cannot be specifically enforced, one of which is a contract which is in its nature determinable . In the present case it is not necessary to refer to the other clauses of sub-section (1) of section 14, which also may be attracted in the present case since clause ( c ) clearly applies on the finding read with reasons given in the award itself that the contract by its nature is determinable. This being so granting the relief of restoration of the distributorship even on the finding that the breach was committed by the appellant-Corporation is contrary to the mandate in section 14(1) of the Specific Relief Act and there is an error of law apparent on the face of the award which is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
