1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4812 OF 2009 1 Hanumandas Mayaram Jakhotia 2 Mrs.Alaknanda Hanumandas Jakhotia 3 Shankarlal Mayaram Jakhotia ...Petitioners vs. 1 Purshottam Mayaram Jakhotia 2 Mrs.Ranjana Purshottam Jakhotia 3 Ramakant Purshottam Jakhotia ...Respondents Mr.Rahul Kulkarni for the petitioners Ms S.R.Kumbhat for respondent Nos.1 to 3. CORAM :A.S.OKA,J. DATE : FEBRUARY 10, 2010 P.C.: 1 The petitioners by this Writ Petition under Article 227 of the Constitution of India have taken an exception to the order dated 16 th February 2009 passed by the trial Court on applications at Exhibit-14,15,18, 19, 22 and 23. The petitioners in this writ petition are the original plaintiffs. 2 The petitioners filed a suit for perpetual injunction against the respondents. The petitioners contended that a partnership firm by name M/s.Shri Satyanarayan Textiles have been constituted by them along with the respondents (original defendants). It is alleged in the plaint that after the demise of the father of the plaintiffs, the said partnership was dissolved in the year 2001. It is asserted in the plaint that on 25 th March 2003, parties entered into an agreement providing for distribution of the business of the firm amongst the 2 parties. As per the said agreement, petitioners were entitled to use monograms, trademarks and materials thereof in the States of Maharashtra and Andhra Pradesh. The respondents agreed not to use the said monograms, trademarks and material thereof in the aforesaid two states. It is stated that the said agreement was acted upon between the parties. It is stated that the respondents published a public notice in May 2007 claiming that the said monograms, trademarks and materials thereof were solely owned by them. Therefore, a suit for injunction was filed by the petitioners restraining the respondents from interfering with the use of the petitioners of the trademarks, monograms and materials thereof in the States of Maharashtra and Andhra Pradesh. Injunction was sought for restraining the respondents from using the said trademark and monograms in the aforesaid two states. An application was made by the respondents at Exhibit-14 contending that they have entered the appearance under protest in the said suit filed by the petitioners. It is stated that the respondents did not desire to take any part in the trial. It was contended that there is a clear arbitration clause in the alleged agreement between the parties and therefore, in accordance with section 8 of the Arbitration and Conciliation Act,1996 (hereinafter referred to as the said Act) the said application has been filed. In the said application it was prayed that a reference be made to the arbitration as per clause 13 of the agreement relied upon by the petitioners. On the subsequent dates, applications containing identical prayers were made by the respondents at Exhibit-15, 18, 19 and 22. The said applications were opposed by the petitioners by filing a common reply. It was submitted that the respondents have not stated before the Court whether they are admitting the execution of the 3 document/agreement produced by the petitioners. Aforesaid applications were heard together. By impugned order, the applications at Exhibit-14,15,18, 19, 22 and 23 were allowed. The trial Court directed that a reference shall be made to the arbitrator appointed under the said agreement and the plaint shall be returned. It must be stated here that an application was made at Exhibit-28 by the petitioners claiming that the respondents be directed to file an affidavit stating on oath as to whether they are admitting the suit agreement relied upon in the plaint. By the impugned order, the said application was rejected. 3 The learned counsel for the petitioners submitted that at no stage, the respondents have admitted the execution and contents of the said agreement dated 25 th March 2003. He submitted that unless the respondents state that they are admitting the execution of the agreement, no purpose will be served by making a reference to the arbitration. He submitted that though time was granted by this Court, even before this Court the respondents have not accepted that they are bound by the said agreement. The learned counsel for the respondents submitted that there is a clear arbitration clause in the agreement relied upon by the petitioners and therefore, section 8 of the said Act was squarely applicable and the Civil Court had no choice but to make a reference to the arbitration. She submitted that the Civil Court ceases to have jurisdiction once arbitration clause is pointed out. She, therefore, submitted that no interference is called for. 4 I have carefully considered the submissions. In the plaint, the petitioners have relied upon the said agreement dated 25 th March 2005. According to the case of 4 the petitioners, as per the said agreement, exclusive right was conferred on the petitioners to use monograms and trademarks of partnership firm in the States of Maharashtra and Andhra Pradesh. Clause 13 of the said agreement clearly provides that if there was any dispute between the parties as regards the distribution of the assets, the parties will appoint Shri Gopikishan Badrinarayan Baheti as an Arbitrator and without going to the Civil Court, the dispute shall be referred to the Arbitrator named in the said clause no.13. The case in the plaint is that the respondents have not abided by the said agreement and they had committed breach. 5 Thus, from the assertions made in the plaint it is very clear that the dispute arising in the suit is squarely covered by the clause no.13 of the said agreement. 6 Admittedly, the application at Exhibit-14 was made by the respondents immediately after appearance in the Court without filing any statement of defence. As the trial court did not decide the said application, on every date fixed thereafter, the respondents made similar applications which shows that the respondents never agreed to submit to the jurisdiction of the trial Court. In view of the mandate of section 8 of the said Act, there was no choice but to make a reference in as much as the petitioners themselves were relying upon the agreement dated 25 th March 2005 and in fact the agreement is the basis on which the relief was sought. The entire dispute subject matter of the suit was covered by the arbitration clause. If the petitioners are relying upon the agreement dated 25 th March 2005, the petitioners cannot contend that order under section 8 of the said Act should not be made so long as the respondents do not 5 admit correctness of the said agreement. Therefore, there was every justification in passing the order under section 8 of the said Act. 7 In the circumstances, there is no merit in the objections raised by the petitioners and accordingly, petition is rejected. JUDGE