TMI Blog2019 (4) TMI 1950X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 too and to the facts of present case. I have enquired from counsel for plaintiffs, why in accordance therewith, the entire dispute not arbitrable. The subject matter brought by the plaintiffs by way of the present suit is subject matter of an agreement referred to in Section 44 of the Arbitration Act - Suit disposed off. - CS(COMM) 811/2016 - - - Dated:- 4-4-2019 - HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW For the Appellant : Mr. Ravjyot Singh with Ms. Hiba Mr. Aman Tajta, Advs. For the Respondent : Mr. Dinesh Agnani, Sr. Adv. with Mr. Nishant Menon, Ms. Kavita Sarin Mr. Deepesh, Advs. for D-1 2. ORDER OA No.75/2018 (of D-1 for setting aside of order dated 21.05.2018) IA 9291/2018 (for condonation of 7 days delay in filing thereof) 1. The defendant no.1 has preferred this Chamber Appeal against the order dated 21st May, 2018 of the Joint Registrar of dismissal of IA No.848/2017 filed by the defendant no.1 under Order I Rule 10 (2) CPC for deletion from the array of defendants. 2. Ms. Hiba, Advocate for the plaintiffs states that Mr. Ravjyot Singh Advocate is in Tis Hazari Courts and has not reached till now and seeks a pass over. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant, in the year 2007-08 appointed many other dealers; (g) the action of the defendant was violative of the gentlemen s agreement ; (h) a letter dated 30th November, 2011 of non-renewal was sent by the defendant to the plaintiffs; and (i) the action of the defendant had caused damages to the tune of ₹ 1,00,01,000/- to the plaintiffs. 7. The Senior Counsel for the defendants has drawn attention to the Master Dealer Agreement at pages 12 and 15 of the Part III-A File to demonstrate that the same was between the plaintiff no.2 AMS International B.V. and the present defendant no.2 Bang Olufsen Middle East FZ LLC and the defendant no.1 was not a party thereto. 8. On enquiry about the subsequent Agreement, the Senior Counsel for the defendants states that the plaintiffs have not even filed the Dealer Agreement dated 4th July, 2007 before this Court. 9. The Senior Counsel for the defendants contends that the learned Joint Registrar in the impugnd order has reasoned that because it is the case of plaintiffs that the defendant no.1 is the holding company of the defendant no.2, it would make the defendant no.1 a necessary and proper party to the suit, notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the plaintiffs, that because a money decree if awarded in favour of the plaintiffs cannot be executed against the defendant no.2, would not in law entitle the plaintiffs to sue and recover the monies from the defendant no.1, even if a 100% shareholder of the defendant no.2, without a plea for piercing of corporate veil being made in the plaint and being proved. Moreover, as and when the plaintiffs amend the plaint and are found entitled to impleadment of defendant no.1, the said aspect can be considered and as of today, on what the plaintiffs may do in future, decisions cannot be taken. 14. The impugned order is indeed found to have not considered the matter in this light and to have decided on the basis of the arguments rather than on the basis of pleadings. 15. The delay of seven days in filing the Chamber Appeal is thus condoned for the reasons pleaded and the Chamber Appeal is allowed. The order dated 21st May, 2018 of the Joint Registrar of dismissal of IA No.848/2017 is set aside and IA No.848/2017 is allowed, deleting the name of the defendant no.1 from the array of defendants. 16. The Chamber Appeal and the application for condonation of delay are disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, I have enquired from the counsel for the plaintiffs, that the plaintiffs having produced the Master Dealer Agreement, whether the defendant, along with an application under Section 8, was still required to file another copy of the said agreement. 22. The counsel for the plaintiffs has handed over a copy of order dated 22nd June, 2018 of the High Court of Madhya Pradesh in Civil Revision No.547/2017 titled Union of India Ors. vs. M/s. K. Kapoor and P. R. Mahant Khandwa and states that it has been held therein that even if the plaintiff has filed a copy of the agreement containing the Arbitration Clause, the defendant seeking reference to Arbitration is still required to file another copy of the agreement. However, the counsel for the plaintiffs upon being asked to show the paragraph holding so, has drawn attention to the following paragraph of the order:- In the aforesaid judgment, the Supreme Court has observed that on filing a photocopy of the lease agreement which contained Arbitration Clause is sufficient compliance of Section 8 of Act of 1996. However, I am not convinced with the argument of Shri Ruprah for the reason that in the same case as has been relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention, that the application under Section 8 of the Arbitration Act is liable to be rejected. 28. As far as the second argument of the counsel for the plaintiffs is concerned, though the plaintiffs in the plaint, besides referring to the Master Dealer Agreement dated 25th January, 2005 (which was terminated on 1st May, 2007) have also referred to a Dealer Agreement dated 4th July, 2007 between the plaintiff no.3 i.e. AMS Distributors Private Limited and which as per the plaint continued to be in force till 31st May, 2012, but the plaintiffs while suing the defendant for damages, have sued for lumpsum damages in the sum of ₹ 1,00,01,000/-, without giving any particulars thereof and without specifying what loss has been suffered by which of the plaintiffs. The figure of 1,00,01,000/- though appears to have been chosen, to bring the suit within the pecuniary jurisdiction of this Court and avoid filing thereof in the Subordinate Courts. There are no particulars at all in the plaint, of the damages claimed. 29. I have again perused the plaint. While the plaintiffs no.1 3 i.e. Saga Lifestyle Pvt. Ltd. and AMS Distributors Pvt. Ltd. are Indian entities, plaintiffs no.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on clause in the principal / main agreement would cover ancillary agreements and parties thereto also even though the ancillary agreements do not provide for arbitration. It was reasoned that in such eventuality disputes between the parties to various agreements could be resolved only by referring all parties to arbitration. Though the said judgment is in the context of Section 8 of the Arbitration Act but in my view would apply to Section 45 too and to the facts of present case. I have enquired from counsel for plaintiffs, why in accordance therewith, the entire dispute not arbitrable. 32. The senior counsel for the defendant in this context has drawn attention to Ministry of Sound International Ltd. Vs. Indus Renaissance Partners Entertainment Pvt. Ltd. 2009 (1) Arb. LR 566 (Delhi) and Virender Yadav Vs. Aerosvit Airlines 2008 (3) Arb. LR 445 (Delhi) holding that where there is unison of cause of action and when arbitration agreement is with respect to one of the parties only but the other parties are not sued in their independent capacity and the actions alleged are closely interrelated, the application for reference of the parties to arbitration cannot be dismissed. 33. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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