BIRD INFORMATION SYSTEMS PVT. LTD. Vs. GO AIRLINES (INDIA) PVT. LTD.
HIGH COURT OF DELHI
Bird Information Systems Pvt. Ltd.
Go Airlines (India) Pvt. Ltd.
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BADAR DURREZ AHMED, J. -
(1.) THIS is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act') for the appointment of an arbitrator. According to the petitioner, the arbitration clause is contained in the Memorandum of Understanding entered into between the petitioner on the one hand and the respondent on the other on 01.08.2005. The arbitration clause reads as under: This memorandum of understanding and the Agreement shall be governed by and construed in accordance with the laws of India.
All disputes and differences which may arise between the parties with respect to the performance, interpretation or execution of this memorandum of understanding and the Agreement shall be referred to arbitration before a sole arbitrator in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996 as amended. Such arbitration shall be conducted in the English language and the seat of such proceeding shall be at New Delhi.
(2.) THE learned Counsel for the petitioner referred to the notice dated 11.10.2006 invoking the arbitration clause. The said notice has been received by the respondent as is evident from the reply dated 06.11.2006. The respondent instead of agreeing on arbitration, raised the issue that no agreement has been entered into between the parties and, thereforee, there can be no cause for calling any party thereto to arbitration. The learned Counsel appearing on behalf of the respondent has amplified on that stand and submitted that the Memorandum of Understanding does not constitute a binding agreement. He referred to Section 29 of the Indian Contract Act, 1872 which relates to agreements void for uncertainty. He submitted that the Memorandum of Understanding, as indicated by the third recital therein, was actually an arrangement whereby the parties had agreed to explore the possibilities of the petitioner licencing the use of its software referred to as AIRS to the respondent w.e.f. 01.08.2005. Referring to the same recital, he submitted that the parties had in good faith agreed to negotiate and enter into a definitive licencing agreement for this purpose. However, the agreement was never entered into. He also referred to Clause 'F' of the Memorandum of Understanding which reads as under: F. TERMS OF THE AGREEMENT TO BE EXECUTED
The Agreement shall initially remain in effect for a minimum term of two (2) years from the date of execution of the Agreement. Thereafter the Agreement to be executed shall automatically be extended for Subsequent Term of Five (05) years each on the same terms and conditions (except for charges which may be revised as per provisions mentioned above) without any further documentation, unless a party serves written notice of 120 days to the other party of its decision to terminate the Agreement.
Reading the aforesaid clause, he said that the terms of the agreement, which was to be executed, were inconclusive and, thereforee, there was uncertainty and as such the Memorandum of Understanding was void on account of uncertainty and that being the case, the arbitration clause which found place in the Memorandum of Understanding was also void. The learned Counsel for the respondent also submitted that from the tenor of the Memorandum of Understanding one can discern the intention of the parties that they were not wanting to bind themselves until and unless the definitive licencing agreement was executed. He submitted that it is also not so stated anywhere in the agreement.
(3.) I have heard the counsel for the parties and I do not agree with the submissions made by the learned Counsel for the respondent. The Memorandum of Understanding was entered into between the parties and the same had been admittedly executed by them. There is also no doubt that clause 'H' of the Memorandum of Understanding contains the arbitration clause which clearly stipulates that all the disputes and differences which may arise between the parties with respect to the performance, interpretation or execution of 'this Memorandum of Understanding' and the agreement shall be referred to arbitration before a sole Arbitrator. thereforee, the clause clearly stipulates that if there are disputes or differences which may arise between the parties with respect to the performance, interpretation or execution of, inter alia, the memorandum of understanding, then those disputes and differences would be referable to arbitration. The factum of the non -execution of the definitive licencing agreement would not come in the way of referring the disputes to arbitration if the disputes arise between the parties with respect to what is stated and agreed upon in the Memorandum of Understanding.;
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