Case: M/S Shinhan Apex Corporation Vs. M/S Euro Apex B.V

alteration in the draft deed forwarded by the respondent to the appellant when the final deed was executed in the deed dated 4.4.2012 and consequently, the appellant is bound to execute a transfer deed of assignment as per the draft sent by the award holder, namely, the respondent as was originally forwarded to the appellant.10. With that view, the learned Judge directed the appellant to execute the deed of transfer and assignment of Patent Nos. 2143/MUM/2008 and 2144/MUM/2008 in favour of the award holder in terms of Annexure P6 to the Execution Application incorporating therein the complete recital B and the Arbitration Clause 5.5 showing the future arbitration in Netherlands within two weeks from the date of the order. Aggrieved by the impugned order, the appellant is before us.11. We heard Mr. K.V. Vishwanathan, learned senior counsel appearing for the appellant and Mr. Manoj K. Singh, learned counsel appearing for the respondent. 12. Having drawn our attention to the above factual details which emanated after the passing of PFA dated 23.12.2011, Mr. Vishwanathan, learned senior counsel, contended that when the application was initially moved, the respondent failed to bring to the notice of the Court about the extensive correspondence which took place between 19.1.2012 and 15.6.2013, that after the appellant in its Chamber Summons brought to the notice of the Court the relevant information, namely, the re-draft sent by the respondent on 3.4.2012 which contained the variation in para B as between the one contained in the earlier draft of 19.1.2012 and 3.4.2012 as well as the arbitration clause and the governing law contained in paragraphs 5.5 and 5.6, the respondent for the first time in their rejoinder referred to those documents. The learned senior counsel pointed out that learned Judge completely omitted to take note of such relevant factors and proceeded to hold as though the draft sent by the respondent on 19.1.2012 alone was material and that the changes found in the final deed dated 4.4.2012 was at the instance of the appellant which unfortunately led to the passing of the impugned order.13. In reply, Mr. Singh, learned counsel appearing for the respondent, was not able to controvert the factual position, namely, that the first request of the respondent after the PFA dated 23.12.2011 was 19.1.2012, that along with the said communication the draft deed of transfer to be executed by the appellant was forwarded to it, that after detailed discussions between January and March, 2012, the re-draft was forwarded by the respondent on 3.4.2012 wherein the reference to PFA in the opening paragraph of the earlier draft was omitted and that the paragraphs relating to consideration was specified apart from the change about the venue and the applicable Rules of the Arbitral Tribunal was noted as Singapore instead of Netherlands and the governing law applicable was also changed from Netherlands to India. Learned counsel was also not able to controvert any of the other subsequent correspondence exchanged between the appellant and the respondent between 11.4.2012 and 15.6.2013.14. Having regard to the said development which had taken place after the PFA dated 23.12.2011 which discloses that the appellant did not commit any default in complying with the direction of the said Award and, therefore, the present direction of the learned Judge in the impugned order was wholly unwarranted. If the respondent failed to act based on the final transfer deed executed by the appellant on 4.4.4012, which was in tune with the draft forwarded by the respondent themselves, the appellant cannot be in any way blamed for the misfeasance committed by the respondent. 15. In the above-stated background, when we consider the prayer of the respondent as claimed in the application, the prayer was for a direction to the appellant to execute the deed of transfer and assignment of Patent Nos. 2143/MUM/2008 and 2144/MUM/2008 in favour of the respondent in terms of the draft deed in Annexure P6, which was dated 4.4.2012. In fact the learned Judge, as rightly pointed out by Mr. Vishwanathan, learned senior counsel for the appellant, completely missed to note that based on the correspondence exchanged between the respondent and the appellant between 19.1.2012 and 3.4.2012 Annexure P6 which was dated 4.4.2012 was the ultimate transfer deed which the appellant was obliged to execute, that the appellant duly executed the said document by signing the same on 4.4.2012 and forwarded to the respondents lawyers on 9.4.2012 and the due execution of which was also confirmed on behalf of the respondent by their lawyers on 11.4.2012. A further confirmation was made by the respondents counsel to the respondent themselves on the same day, i.e. 11.4.2012 as to the execution of the transfer deed dated 4.4.2012. The original documents were also forwarded by the appellant on 12.4.2012. After the above referred sequence of events as regards Annexure P6 dated 4.4.2012 are noted, it must be held that the direction contained in paragraph 7 of the PFA of the Arbitral Tribunal was duly carried out by the appellant based on the first request of the respondent themselves as made on 19.1.2012 and as per the modified request dated 3.4.2012. If that was the real fact situation in regard to the execution of the transfer deed, which was completely omitted to be noted by the learned Single Judge, it must be held that there was no occasion for the respondent to have any grievance in regard to the execution of the transfer deed as directed in paragraph 7 of the PFA of the Arbitral Tribunal dated 23.12.2011. The failure on the part of the learned Judge in having noted the fact that the transfer deed dated 4.4.2012 was as per the re-draft forwarded by the respondent themselves which was duly executed and sent back by the appellant by 9.4.2012 and the original by 12.4.2012 unfortunately resulted in the passing of the impugned order. In the light of the said patent illegality in the impugned order, the same is liable to be set aside.16. In the said circumstances, the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. Having regard to the said development which had taken place after the PFA dated 23.12.2011 which discloses that the appellant did not commit any default in complying with the direction of the said Award and, therefore, the present direction of the learned Judge in the impugned order was wholly unwarranted. If the respondent failed to act based on the final transfer deed executed by the appellant on 4.4.4012, which was in tune with the draft forwarded by the respondent themselves, the appellant cannot be in any way blamed for the misfeasance committed by thefailure on the part of the learned Judge in having noted the fact that the transfer deed dated 4.4.2012 was as per the re-draft forwarded by the respondent themselves which was duly executed and sent back by the appellant by 9.4.2012 and the original by 12.4.2012 unfortunately resulted in the passing of the impugned order. In the light of the said patent illegality in the impugned order, the same is liable to be set aside.