Samapti Chatterjee, J. - (1.) ASSAILING the interim Order dated 11th December, 2014 passed by the Hon'ble Single Bench of this Hon'ble Court in A.P No. 855 of 2013, G.A. No. 3851 of 2014 & G.A No. 3778 of 2014 thus prima facie holding that... "In my opinion if a dispute if arbitrated upon, it can never be called settlement of a dispute in the sense used in these clauses. The arbitration might end in mutual settlement or compromise. But the reference of arbitration cannot be called "settlement of disputes" in terms of this clause. Therefore, in my view the Courts of Rome would only be utilized for "settlement process". But the above view is prima facie and will be tested upon filing of affidavits and inviting further legal arguments.", the appellant Nuova Elettromeccanica Sud S.P.A filed the instant appeal.
(2.) BACKDROP of the present case is that the Modern Malleables Ltd. (being the Indian Company) executed an agreement on 3rd March 2009 with the appellant in Italy which contained an Arbitration Clause as follows: - "9. Arbitration -Applicable law 9.1. Any dispute arising from or in connection with this agreement shall be settled by mutual agreement between the parties, failing which it will be referred to Arbitration by English speaking personnel. 9.2. In case the parties do not settle the dispute by mutual agreement, then it will be settled under the competence of the Law Court of Rome, Italy." The Modern Malleables Ltd. (being an Indian Company) moved a Section 9 application in this Court (A.P No. 6 of 2012). In spite of repeated notice the appellant (the Italian Company) failed to appear before the Hon'ble Single Bench, as a result several Orders were passed in that Section 9 application. Ultimately on 27th January, 2012, the Section 9 application was disposed of in terms of the Prayer 'E' thereof which is quoted below: "Prayer E - An order of injunction restraining the respondent and its servants, men and agents from manufacturing or selling directly or indirectly any of the aforesaid products, viz. The spacer dampers which is the subject matter of the agreement of 3rd March 2009 in Indian in any manner whatsoever." In the said order the respondent/plaintiff was also given liberty to deposit 22,000/ - Euro with Registrar (Original Side) on 31st January, 2012. Liberty was also given to the respondent/plaintiff to directly pay the said amount to the defendant/appellant and the interim order passed earlier on 11th January, 2012 restraining the appellant (Italian Company) from taking any step in respect of termination letter was thus confirmed. On 7th August, 2013, the respondent/plaintiff filed an application for an Order restraining the appellant from taking any step in the proceedings. Thereafter on 3rd December, 2014 the appellant company filed an application (G.A. No. 3778 of 2014) praying inter alia for stay of all proceedings in application (A.P No. 855 of 2013). On 9th December, 2014 the appellant also took out another application (G.A. No. 3851 of 2014) praying inter alia for vacation of all the orders passed in the Section 9 application (A.P. No. 6 of 2012). In this scenario Mr. Tilok Bose, learned senior Counsel appearing for the appellant company contended that there was no Arbitration Clause in the agreement dated 3rd March, 2009. Mr. Bose also contended that the Clause 9 had no legal force as the said Clause 9.1 did not suggest that the disputes between the parties would be referred to the Arbitration proceedings. On the other hand Clause 9 provides that any dispute arising from or in connection with this agreement shall be settled by mutual agreement between the parties failing which it will be referred to arbitration by English Speaking Personnel. Mr. Bose further contended that Clause 9.2 clearly indicates that Section 9 application should be filed in a Court at Rome. Therefore, the Court of Rome, (Italy), has the jurisdiction to entertain any dispute arising out of the said agreement dated 3rd March, 2009. Mr. Bose further urged that already on 23rd November, 2012 the appellant/company initiated a civil suit in the Learned Court at Rome and the said suit has been proceeded ex parte against the respondent/plaintiff. Therefore, in his contention the Court in Rome has jurisdiction as per the agreement. In support of his contention Mr. Bose relied on Supreme Court decisions reported in (I) : 2004 (4) SCC Page -671 Paras -3, 5, 7, 8 & 9 (Hanil Era Textiles Ltd vs. Puromatic Filters (P) Ltd), (II) : 2013 (9) Supreme Court Cases Page -32, Para -7 (Swastik Gases Private Limited vs Indian Oil Corporation Limited), (III) : 2009 (3) Supreme Court Cases Page -107 Paras - 6, 7, 12, 14 & 36 (Rajasthan State Electricity Board vs Universal Petrol Chemicals Limited), (IV) : (2009) 17 Supreme Court Cases Page -338, Paras -4,7 & 10 (HBM Print Limited vs Scantrans India Private Limited) & (V) : (2015) 1 Supreme Court Cases Page -32, Paras -22 & 23 (State of West Bengal And Others vs Associated Contractors).
(3.) MR . S.N. Mukherjee, learned senior Counsel appearing for the respondent vehemently contended that upon giving notice to the appellant/company (Indian Company) moved the abovementioned A.P. No. 6 of 2012 praying inter alia for not to give any effect or further effect to the termination letter dated 23rd December, 2011. Prayer 'A' and Prayer 'E' of the said A.P. No. 6 of 2012 are quoted below: - "Prayer 'A' - An order of injunction restraining the respondent and its men, servants and agents from giving any effect or further effect to the letter dated 23rd December, 2011 being Annexure "O" hereto and exercise any right or deriving any benefit therefrom." "Prayer 'E' - An order of injunction restraining the respondent and it servants, men and agents from manufacturing or selling directly or indirectly any of the aforesaid products, viz. The spacer dampers which is the subject matter of the agreement of 3rd March, 2009 in India in any manner whatsoever". On 11th January, 2012 the Hon'ble Single Judge being prima facie satisfied was pleased to pass an interim Order in terms of Prayer 'A' till 18th January, 2012. Thereafter as no one appeared for the respondent/appellant on 16th January, 2012 the said Order was extended till 31st January, 2012. Ultimately on 27th January, 2012 the interim Order was confirmed as indicated above.;