TMI Blog2012 (7) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... p, etc. qua the trademark/words IMS of the respondent. The respondent claims to be a leading player in management entrance test coaching with specific focus on Common Admission Test (CAT). In the course of business, the respondent entered into arrangements to carry out its business through its business partners and franchisees, making available its proprietary and copyrighted course material and the benefit of its trademark IMS . One such arrangement was arrived at with the appellant under an agreement dated 1.4.2007, which was valid for a period of three (3) years. On expiry of the said agreement by efflux of time a fresh agreement was executed on 1.4.2010 on similar terms conditions. This agreement was to be valid till 31.3.2013. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel contends that the Supreme Court has held that the mere termination of the agreement on account of alleged breach, does not bring the agreement qua resolution of disputes by arbitration to an end. 6. The question for adjudication as framed in para 1 by the Supreme Court itself of the said judgment reads as under: 1. The core question that falls to be determined in this appeal by special leave is : does the arbitration agreement survive for the purpose of resolution of disputes arising under or in connection with the contract even if its performance has come to an end on account of termination due to breach? 7. Learned counsel also specifically draws strength from the observations made in para 12, wherein the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heymen v. Darwins Ltd., 1942 AC 356 : 1942 1 All ER 337 (HL), referred to the following observations of Subba Rao, J (as his Lordship then was) in Union of India v. Kishorilal Gupta Bros., AIR 1959 SC 1362: 8. Uninfluenced by authorities or case-law, the logical outcome of the earlier discussion would be that the arbitration clause perished with the original contract. Whether the said clause was a substantive term or a collateral one, it was nonetheless an integral part of the contract, which had no existence de hors the contract. It was intended to cover all the disputes arising under the conditions of, or in connection with, the contracts. Though the phraseology was of the widest amplitude, it is inconceivable that the parties inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent of accord and satisfaction in respect of the earlier contracts dated 01.04.2007 and 01.04.2010. In terms of the decision of the Supreme Court in Kishorilal Gupta (supra) (which is a three-Judge bench decision), if that had been the issue raised, the appellant may have been justified in claiming that the said dispute, i.e. whether there has been accord and satisfaction in respect of the two agreements should be referred to arbitration in terms of the arbitration agreement contained in the said two agreements. 11. Reliance placed on para 32 of the judgment in Kishorilal Gupta (supra) rendered by A.K. Sarkar, J in his concurring opinion appears to be misplaced. The Supreme Court in para 32 of the decision in Kishorilal Gupta (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. That was a case where there had been alleged breach of the contract and the parties had agreed to cancel the contract. They had also agreed to enter into a fresh contract. In this background, the Supreme Court observed that even if performance of the contract comes to an end on account of repatriation, frustration or breach of the contract the arbitration agreement would survive for the purpose of resolution of disputes arising out of under or in connection with the contract. A reference was made, inter alia, to the decisions in Heymen (supra) and Kishorilal Gupta (supra). This decision, therefore, has no relevance in the present context. 15. We are, thus, of the view that the learned single Judge was right in coming to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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