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M/s. Shinhan Apex Corporation Versus M/s. Euro Apex B.V.

2016 (4) TMI 918 - SUPREME COURT

Arbitrial award - direction to the appellant to execute the deed of transfer and assignment - Held that:- Direction contained in paragraph 7 of the PFA of the Arbitral Tribunal was duly carried out by the appellant based on the first request of the respondent themselves as made on 19.1.2012 and as per the modified request dated 3.4.2012. If that was the real fact situation in regard to the execution of the transfer deed, which was completely omitted to be noted by the learned Single Judge, it mu .....

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n the passing of the impugned order. In the light of the said patent illegality in the impugned order, the same is liable to be set aside. - Civil Appeal Nos. 4359-4360 of 2016 [ arising out of SLP (C) Nos. 3134-3135 of 2015] - Dated:- 22-4-2016 - Fakkir Mohamed Ibrahim Kalifulla And S. A. Bobde, JJ. JUDGMENT Fakkir Mohamed Ibrahim Kalifulla, J. Leave granted. 1. These appeals are directed against the order dated 29.9.2014 in Execution Application No.643 of 2013 in Award dated 23.12.2011 with Ch .....

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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 reads as under:- 7. Respo .....

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nt Act and applicable Indian laws; and to simultaneously provide copies of all the relevant correspondence relating to such transfer to the attorney of Claimant by fax and registered post (fax: +31-20-6513001, HIL International Lawyers & Advisers, PO Box 22678, 1100 DD Amsterdam, the Netherlands); 8. xxx xxx xxx 9. Respondent to pay a direct enforcement penalty in the amount of Euro 50,000 for each case in which Respondent infringes the arbitral orders sub 7 and 8 above, and Euro 5,000 for e .....

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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 insta .....

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he consideration for the sale and transfer of the patent and the patent rights shall be US$ 1 (United States Dollar One), receipt of which is hereby acknowledged . 6. That apart, in clause 5.5 of the re-draft it was mentioned that arbitration of the dispute arising out of or in connection with the deed should be initially settled under the Rules of Singapore International Arbitration Centre by a Sole Arbitrator appointed in accordance with the said Rules and the proceedings should be in English .....

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12 the governing law was to be the laws in force in India. 7. The appellant received the re-draft by way of e-mail on 3.4.2012 with a direction to the appellant to sign the document, get it legalized by the Indian Embassy 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 el .....

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ultaneously, their lawyers also on the same day informed the respondent confirming the forwarding of the transfer deed for effecting the transfer of the patent applications duly signed by the appellant. The original document was also forwarded to the lawyers of the respondent on 12.4.2012. 8. However, it appears that the respondent had its own issue with its lawyers as regards the draft as well as the final deed executed by the appellant in favour of the respondent which came to light when the p .....

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2.2012 taking the definite stand that after the execution of the transfer deed dated 4.4.2012 the requirement of the obligation to be fulfilled by the appellant was duly complied with as per the PFA dated 23.12.2011. Thereafter, by another communication dated 15.3.2013, the respondent's lawyers sent a fresh e-mail to the appellant's lawyers informing that fresh steps are required to be taken to arrive at a final settlement of disputes. The said e-mail was also replied on behalf of the ap .....

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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. It was in the above-stated background the present application came to be filed by the respondent on 8.7.2013 before the High Court of Bombay for the enforcement of paragraph 7 of the PFA dated 23.12.2011. By the impugned order, the learned Single Judge held that there was a material a .....

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ward holder in terms of Annexure P6 to the Execution Application incorporating therein the complete recital 'B' and the Arbitration Clause 5.5 showing the future arbitration in Netherlands within two weeks from the date of the order. Aggrieved by the impugned order, the appellant is before us. 11. We heard Mr. K.V. Vishwanathan, learned senior counsel appearing for the appellant and Mr. Manoj K. Singh, learned counsel appearing for the respondent. 12. Having drawn our attention to the ab .....

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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 respondent on 19.1.2012 alone was material an .....

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r detailed discussions between January and March, 2012, the re-draft was forwarded by the respondent on 3.4.2012 wherein the reference to PFA in the opening paragraph of the earlier draft was omitted and that the paragraphs relating to consideration was specified apart from the change about the venue and the applicable Rules of the Arbitral Tribunal was noted as Singapore instead of Netherlands and the governing law applicable was also changed from Netherlands to India. Learned counsel was also .....

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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 th .....

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