IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 32415 of 2008(H) ---------------------------------- OS.575/2008 of PRL.M.C.-II, KOZHIKODE .................... PETITIONER: --------------- M/S.P.P.ENTERPRISES, REPRESENTED BY ITS SOLE PROPRIETOR MR.P.P.ABDUL NAZAR, S/O.AHAMMED HAJI. AGED 41, R/AT P.P.HOUSE, MANKAVU, CALICUT 613007. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS: ------------------ 1. IDEA MOBILE COMMUNICATIONS LTD., REPRESENTED BY ITS CHAIRMAN, REGD. OFFICE A.30, MOHAN CO-OPERATIVE, INDUSTRIAL ESTATE, MADURA ROAD, NEW DELHI PIN 110044. 2. MANAGER, IDEA CELLULAR LTD., MERCY ESTATE, 2ND FLOOR, REVIPURAM, M.G.ROAD, COCHIN 682015. 3. MANAGER, IDEA CELLULAR LTD., CENTRAL ARCADE BUILDING, PUTHIYARA, CALICUT-673004 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. ------------------------- W.P(C)No.32415 of 2008 H ------------------------- JUDGMENT Plaintiff is the petitioner. The prayer in this writ petition is to declare that Exhibit P4 order passed by the court below on I.A.No.3034/08 in O.S.No.575/08 is illegal and to set aside the same and to direct the court below to dispose of the suit O.S.No.575/08 on merits. 2. The suit was instituted by the petitioner against the respondents for a decree of permanent prohibitory injunction restraining them from terminating the franchisee agreement otherwise than by due process of law and in strict compliance with the terms of the agreement and from restricting, controlling, revising, stopping or in any way denying any of the services, facilities or products of the respondent company to the petitioner/ plaintiff, including the products yet to be released by Idea Cellular Services. WPC 32415/08 2 3. Respondents, on entering appearance in the court below, filed I.A.No.3034/08 praying for the dispute involved in the suit being referred to arbitration as per clause 15(1) of the Franchise Agreement. Exhibit P3 counter was filed thereto by the petitioner and the court below, vide Exhibit P3 order, referred the parties to arbitration. 4. It is vehemently contended before me by the learned counsel for the petitioner/plaintiff that the franchisee agreement had expired, though they are continuing as before in continuation of the franchisee agreement and that therefore, the arbitration clause in the franchisee agreement is not applicable. The contention is not tenable as the suit itself was filed basing on the rights of the petitioner on the franchisee agreement, copy of which was produced as Item No.1 in the list of documents annexed to the plaint. Though this Court directed the petitioner to produce the franchise agreement, the said agreement is not produced and WPC 32415/08 3 today, a photostat copy of the agreement is submitted before me for perusal. 5. Clause 15(1) of the said agreement deals with settlement of dispute. It is that clause that is extracted in Exhibit P2 petition by the respondents. If the said provision for settlement of dispute in the franchise agreement is acted upon, reference of the dispute to arbitration cannot be found fault with. All the same, counsel for the petitioner has advanced an argument that under Section 8(2) of the Arbitration and Conciliation Act, an application referred to in Section 8(1) of the Act (Exhibit P2 in the instant case) shall not be entertained unless it is accompanied by original agreement or a duly certified copy thereof. The said provision applies only in cases where the agreement is not already produced before the court. In the instant case, the franchise agreement, which contains the arbitration clause is produced by the petitioner/plaintiff WPC 32415/08 4 himself along with the suit and therefore, the petitioner/plaintiff cannot dispute the authenticity of the said agreement. In such event, there is no necessity to comply with Section 8(2) of the Act by the respondents, who filed Exhibit P2 petition. Reference to arbitration by the court below, vide Exhibit P5 order, in the circumstances, is in order and cannot be faulted. There is no merit in this writ petition. This writ petition is, hence, dismissed. 12th November, 2008 (K.P.Balachandran, Judge) tkv