IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. CHANDRAIAH C.M.A.M.P. (SR) NO.39815 OF 2010 AND C.M.A. NO.814 OF 2010 DATED:3.11.2010 Between: IMI Software Limited 6-3-652, Kautilya, Somajiguda Hyderabad-82, Corporate Office at Plot No.770 Road No.44, Jubilee Hills Hyderabad … Petitioner/Appellant And Real Networks India (P) Limited, (Formerly known as Wider Than India (P) Limited Rep. by its Managing Director/Authorised Signatory UGF, Tower ‘A’, Building No.8, DLF Phase II, Gurgoan – 122002, Haryana, India … Respondent THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. CHANDRAIAH C.M.A.M.P. (SR) NO.39815 OF 2010 AND C.M.A. NO.814 OF 2010 JUDGMENT: (per the Hon’ble Sri Justice Goda Raghuram) Office objections 1 and 2 in filing the petition are complied with. Office objection No.3: As the settlement between the parties has been reached out of Court and the Settlement and Release Agreement signed by the respective parties and notarized; the same has been filed and is adverted to in the petition signed by respective parties and their Counsel, the office objection No.3 is overruled. The parties hereto in the civil miscellaneous appeal have composed their differences and have filed this application to record the terms of settlement of the disputes between them. The civil miscellaneous appeal is filed under Section 37(1)(A) of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’), aggrieved by an order of the Additional Chief Judge, City Civil Court, Hyderabad, dated 4.8.2010, in O.P. No.171 of 2010, a petition filed under Section 9 of the Act, pending settlement of disputes between the parties on a reference to an arbitrator. The parties have however settled their difference out of Court and have entered into a Settlement and Release Agreement dated 05.10.010. The terms of the settlement between the parties are as follows: “1. IMI shall pay to RNI in full and final settlement of all claims of RNI against IMI the total sum of Rs.12,50,00,000/- (Rupees Twelve Crores and Fifty Lakhs only) against all outstanding revenues. 1.1. IMI agrees to pay the above stated sum of Rs.12,50,00,000/- by simultaneously depositing with RNI by 05-10-2010: (i) A certified and irrevocable cheque dated 05-10- 2010 drawn in favour of RNI for a sum of Rs.3,50,00,000/-. (ii) A certified and irrevocable cheque dated 15-11- 2010 drawn in favour of the RNI for a sum of Rs.4,25,00,000/-. (iii) A certified and irrevocable cheque dated 15-03- 2011 drawn in favour of RNI for a sum of Rs.4,75,00,000/-. For the avoidance of any doubt, any and all payments shall be exclusive of the relevant service tax, which shall be charged separately on the invoice by RNI and IMI would make the payments subject to deduction of tax at source (“TDS”). 2. RNI in turn in full and final settlement of the claims of IMI RNI agrees to pay the total sum of Rs.2,20,00,000/- (Two Crore Twenty Lakhs only) for marketing expenses. 2.1. RNI agreed to pay the above said amount of Rs.2,20,00,000/- (Two Crore Twenty Lakhs) by simultaneously depositing with IMI by 05-10-2010: (i) A certified and irrevocable cheque dated 06-10- 2010 drawn in favour of IMI for a sum of Rs.70,00,000/-. (ii) A certified and irrevocable cheque dated 16-11- 2010 drawn in favour of IMI for a sum of Rs.1,00,00,000/-. (iii) A certified and irrevocable cheque dated 16-03- 2011 drawn in favour of IMI for a sum of Rs.50,00,000/-. For the avoidance of any doubt, any and all payments shall be exclusive of the relevant service tax (if applicable), which shall be charged separately on the invoice by IMI and RNI would make the payment subject to deduction of TDS, if applicable. 3. Once the Condition set forth in above 1.1 and Condition set forth in above 2.1, are met, RNI and IMI shall: 3.1. File an application in C.M.A. No.814/2010 for recording compromise and passing orders in terms of this Settlement and Release Agreement. 3.2. The amount of Rs.1,00,00,000/- (One Crore) deposited by IMI in O.P. No.171/2010 shall be refunded to IMI. 3.3. Transfers the jointly owned hardware to IMI with effect from the date of the Settlement and Release Agreement. 4. The parties hereby admit and acknowledge that the settlement and release is arrived at in full and final settlement of their respective claims against each other and they have no further claims or demands of whatsoever against each other nor will make any such claims against each other at any point of time in future arising out of this Agreement and the Collaboration Agreement which shall deemed terminated. 5. The parties agree not to make any negative, disparaging, defamatory or derogatory comments to any firm, person, corporation or other business entity concerting the parties, its past, current, and future directors, officers or employees, its business, products or services. 6. Each party represents and warrants that as on the date of this Agreement it has full power, capacity, authority and legal right, has obtained all necessary approvals and consents necessary, to execute and deliver this Agreement and to perform the terms hereof and thereof and that the execution, delivery and performance of this agreement by each party has been duly authorized by all necessary actions on the part of the parties, and does not violate or create a default under its organizational documents, nor any law, rule, regulation, instrument or agreement, or other commitment or obligation to which the parties may be subject to. 7. The laws of India shall govern this Agreement and the courts of Hyderabad shall have exclusive jurisdiction in respect of any disputes arising under this Agreement. 8. In the event of either of the parties committing default in honouring the cheques issued under the clause 1 and 2 above and/or RNI committing default in transferring the jointly owned hardware to IMI, in addition to the remedies available under the Negotiable Instruments Act, 1881, the other party may file execution petition against the party committing default treating the Settlement and Release Agreement as a decree passed by competent Civil Court for recovery of money and mandatory injunction. 9. This agreement may be executed by the parties in any number of counterparts each of which is an original but all of which together constitute one and the same instrument.” The parties and Counsel have also appended their respective signatures to the affidavit in verification of the terms of the Settlement and Release Agreement referred to above, which is signed by the parties and is stated to have been so signed, today in the Court. The parties and Counsel are present in the Court. In view of the settlement between the parties, which includes an undertaking to abide by the terms of the settlement and performance in terms thereof, the cause in this civil miscellaneous appeal does not survive for adjudication. The appeal is accordingly disposed of in terms of the compromise, extracted supra in the Order. There shall be no order as to costs. _________________ GODA RAGHURAM, J ________________ G. CHANDRAIAH, J 3-11-2010 bnr