TMI Blog2008 (12) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the execution of the Services Agreement dated July 15, 2006, which are arbitrable. Under the circumstances, the instant application will have to be accepted. Mr. Justice Arvind Sawant (Retd.), former Chief Justice, High Court of Kerala, is appointed as the sole arbitrator - application allowed. - J.M. Panchal For the Appellant: Bela Maheshwari, Advs. For the Respondent: Ravi Prakash Mehrotra, JUDGMENT J.M. Panchal, J. 1. By filing the instant application under Section 11(6) of the Arbitration and Conciliation Act, 1996 ( the Act for short), the applicant, i.e., Speech Software Technologies (India) Pvt. Ltd. has prayed to appoint Mr. Justice Arvind Sawant (Retd.), former Chief Justice, High Court of Kera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the agreement. By the said letter the applicant also appointed Mr. Justice Arvind Sawant (Retd.), former Chief Justice of Kerala High Court, as the sole arbitrator and called upon the respondent to appoint its arbitrator in the event the respondent did not agree to the appointment of Mr. Justice Arvind Sawant (Retd.) as the sole arbitrator. A copy of the notice dated February 15, 2007 is produced by the applicant at Annexure `3' to the application. 3. On receipt of the notice the advocate of the respondent addressed a letter dated March 15, 2007 urging the applicant not to take any unilateral action for a period of two weeks so as to enable him to obtain comprehensive instructions in the matter in order to effectively study and ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the applicant is not entitled to invoke arbitration clause incorporated in the agreement dated July 15, 2006. It is claimed by the respondent that the Tripartite Share Purchase Agreement stood novated, rescinded and revoked on account of Letter of Intent dated August 1, 2006, executed by the parties, which totally replaced the Tripartite Share Purchase Agreement and, therefore, also the present application was not maintainable. By filing the reply, the respondent demanded dismissal of the application filed by the applicant. 5. The applicant has filed rejoinder affidavit to the affidavit in reply filed by the respondent. In the rejoinder affidavit, the applicant has, by and large, reiterated what is stated in the application a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Tripartite Share Purchase Agreement, ceased to exist, cannot be accepted. 9. In order to ascertain whether the Services Agreement dated July 15, 2006 exists or not, it will be relevant to notice salient features of two agreements, namely, (1) Services Agreement dated July 15, 2006 and (2) Tripartite Share Purchase Agreement executed on August 1, 2006. Clause (2) of the Services Agreement dated July 15, 2006 requires the applicant to supply services to the respondent on payment of consideration by the respondent. The services to be supplied have been detailed in Schedule 2 to the agreement. The consideration to be paid by the respondent is mentioned in Schedule 1 to the agreement. Clause 4 of the said agreement provides that invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tite Share Purchase Agreement, which is to be found on running page 99 of the short counter affidavit filed on behalf of the respondent, provides the venue where completion of the said agreement would take place and also mentions post completion obligations. According to clause 5.1 of the said agreement, completion was to take place at a venue to be agreed between the applicant and Abela on the second business day after the day on which the conditions stipulated were satisfied. The consequences which were to follow on the completion of the Tripartite Share Purchase Agreement are mentioned in clause 5.2. Clause 5.2.5 of the agreement reads as under: SST and the Company shall enter into the Services Agreement and Shareholders Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is wrong to contend that the Services Agreement ceased to exist on termination of the Tripartite Share Purchase Agreement. 11. Similarly, the plea that the Tripartite Share Purchase Agreement was novated, rescinded and revoked on account of Letter of Intent dated August 1, 2006 and, therefore, the instant application should be rejected, has no force. The Letter of Intent dated August 1, 2006 under no circumstances can be treated as novating, rescinding or revoking the Tripartite Share Purchase Agreement. The said Letter of Intent on a bare reading is nothing but an agreement to enter into another agreement because it is provided in the said letter that both parties agree to have set a deadline to sign this agreement by 15th Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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