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TMI Blog2016 (4) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Rules of the Dutch Arbitration Institute. The said agreement was sought to be terminated by a notice by the respondent on 12.3.2007. The termination was to take effect from 23.02.2008. The dispute went before the Arbitral Tribunal. On 11.6.2008, the appellant filed an application for registration of Patent Nos.10-0865115 and 100909490 in the United States as well as in India. In the arbitral proceedings, a Partial Final Award (for short, PFA) came to be passed by the Arbitral Trinunal on 23.12.2011. We are presently concerned with the Indian Patents in which the appellant's rights and interest were involved, namely, Patent Nos. 2143/MUM/2008 and 2144/MUM/2008. The relevant part of the award (viz) paragraphs 7 and 9, of the PFA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of transfer of the patents. In the opening paragraph of the draft transfer deed a reference was made to PFA rendered on 23.12.2011 of CASE NAI 3625, in order to ascertain the obligation of the appellant to execute the transfer of the patents. It is not in dispute that subsequent to the said letter dated 19.1.2012 and the enclosures, discussions were held between January and March, 2012 among the advocates of the appellant and the respondent to finalize the draft deed of transfer. 5. Thereafter, again at the instance of the respondent through a communication dated 3.4.2012 of the respondent's lawyers addressed to the appellant a re-draft of the deed of transfer was enclosed, which was dated 4.4.2012. In the opening part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbassy in Seoul and dispatch the same to the respondent's lawyers in Amsterdam. The appellant executed the deed of transfer dated 4.4.2012 and thereby transferred all its rights and interests in the Indian Patents in favour of the respondent. The appellant's lawyers sent an electronic copy of the said document to the respondent duly notarized with an assurance that the original would be promptly couriered to the respondent upon confirmation. In response to the same, the lawyers of the respondent in their email dated 11.4.2012 intimated that the signature part of the deed was correctly executed by the appellant and also wanted the original deed to be sent by courier to their Amsterdam Office for carrying out other additional formalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also replied on behalf of the appellant on 20.3.2013 wherein the respondent was reminded as to the confirmation of the steps taken based on the transfer deed executed by them. For the first time, on 8.6.2013, by way of e-mail at the instance of the respondent's lawyers it was intimated that respondent was not willing to accept the transfer of Indian Patents based on the language used in the draft deed as signed by the appellant. The said e-mail was also duly replied on behalf of the appellant on 15.6.2013 pointing out that the deed was executed as per the draft forwarded to the respondent by their lawyers and consequently the appellant was not in any way liable for either any delay or for the terms contained in the transfer deed. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice of the Court about the extensive correspondence which took place between 19.1.2012 and 15.6.2013, that after the appellant in its Chamber Summons brought to the notice of the Court the relevant information, namely, the re-draft sent by the respondent on 3.4.2012 which contained the variation in para 'B' as between the one contained in the earlier draft of 19.1.2012 and 3.4.2012 as well as the arbitration clause and the governing law contained in paragraphs 5.5 and 5.6, the respondent for the first time in their rejoinder referred to those documents. The learned senior counsel pointed out that learned Judge completely omitted to take note of such relevant factors and proceeded to hold as though the draft sent by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. If the respondent failed to act based on the final transfer deed executed by the appellant on 4.4.4012, which was in tune with the draft forwarded by the respondent themselves, the appellant cannot be in any way blamed for the misfeasance committed by the respondent. 15. In the above-stated background, when we consider the prayer of the respondent as claimed in the application, the prayer was for a direction to the appellant to execute the deed of transfer and assignment of Patent Nos. 2143/MUM/2008 and 2144/MUM/2008 in favour of the respondent in terms of the draft deed in Annexure P6, which was dated 4.4.2012. In fact the learned Judge, as rightly pointed out by Mr. Vishwanathan, learned senior counsel for the appellant, completely m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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