VIJAYWARGI FOODS PVT. LTD vs P K T ASSOCIATES INC

The Court : The dispute is between a foreign principal having its office at New Jersey, United States of America and his agent in India. The plaintiff is an agent appointed by the defendant through which various sales in India had taken place. The grievance of the plaintiff is that the commissions payable to the plaintiff on account of such transactions have not been fully discharged. The claim is on account of unpaid commissions. The disputes have started sometimes in January, 2015. The suit is filed in December, 2017. The defendant, upon notice being served upon it, has appeared and filed an affidavit. In the affidavit an objection is taken with regard to the jurisdiction of this Court to try, decide and adjudicate the suit between the parties on the ground that the several contracts of sale contain an arbitration clause, namely, GRAFTA 24/88 ARBITRATION 125 LONDON. The defendant has also filed an application under Section 8 of the Arbitration and Conciliation Act. The learned counsel representing the defendant has referred to the various sale contracts and submits that each of the sale contract would unmistakably show the existence of arbitration clause in the contract which reads : ''GRAFTA 24/88 ARBITRATION 125 LONDON''.

The several sale contracts disclosed in this proceeding read as a whole shows that several agreements for sale have been entered into between the respective buyers with the defendant and the sales are to be effected through the plaintiff. The parties to the said agreement are the respective buyers and the defendant. Each of the sale contracts referred to a clause which says that the sale is made through the plaintiff. This clause does not make the plaintiff a party to the sale contract. The sale agreement clearly shows the intention of the parties that in the event any dispute arises between the buyer and the defendant, the same shall be decided in terms of GRAFTA 24/88 ARBITRATION 125 LONDON. The arbitration agreement does not cover and extend of any dispute between the plaintiff and the defendant.

Under such circumstances, this Court is unable to accept the submission on behalf of the defendant that the disputes raised in the plaint are to be referred to arbitration. This could be a pyrrhic victory for the plaintiff as the other prayers in favour of the plaintiff, this Court is unable to grant. With the objection raised by the defendant with regard to the maintainability of the suit being answered in this proceeding and as the security over which the plaintiff seeks to enforce its monetary claim has disappeared, this application has now become infructuous.

Without prejudice to the rights and contentions of the defendant, Ms. Anjana Banerjee, learned advocate appears and submits that she has received instruction to accept the plaint on behalf of the defendant. A copy of the plaint along with a copy of the writ of summons shall be served upon Ms. Anjana Banerjee, Advocate representing the defendant in this proceeding. Ms. Anjana Banerjee shall accept service of the plaint along with the writ of summons without prejudice to the rights and contentions of the defendant. The defendant may file written statement within six weeks from the date of service of the plaint along with the writ of summons.

GA No.3941 of 2017 is, accordingly, disposed of. However, there shall be no order as to costs.