OMNIA TECHNOLOGIES P. LTD.versusW.M.A. VAN LOOSBROEK

                     [2011] 3·$.C.R. 711
                              I




              OMNIA TECHNOLOGIES P. LTD.                             A
                                  v.
                 W.M.A. VAN LOOSBROEK
             (Arbitration Petition No.10 of 2010)
                       MARCH 3, 2011
                                                                     B
                       [T.S. THAKUR, J.]

    ARBITRATION AND CONCILIATION ACT, 1996:

     ss. 11 (6) and (9) - Petition for appointment of arbitrator- c
HELD: In view of consent of respondent, all disputes including
existence of arbitrable disputes, referred to the sole arbitrator,
nominated.
     An agreement was entered into between the parties
on 14.1.2008 whereby the petitioner, an Indian company,              D
appointed the respondent, a Dutch citizen, as its
marketing representative to promote sale of its products
in European market. The agreement was terminated by
the parties in terms of another agreement dated 29.2.2008.
The Indian company filed the instant petition u/ss 11 (6)            E
and (9) of the Arbitration and Conciliation Act, 1996 for
appointment of an arbitrator contending that the
respondent committed violation of original agreement as
the obligation cast upon him under clause 13 thereof was
not discharged by him which gave rise to arbitrable                  F
disputes. The respond~nt filed counter affidavit.
Ultimately, the respondent consented to the appointment
of an arbitrator for adjudication of all issues including the
existence of arbitrable disputes ·by the arbitrator so
appointed.                                                           G
    Allowing the petition, the Court
     HELD: All disputes between the parties relating to

                                  711                                H
    712      SUPREME COURT R~PORTS                [2011] 3 S.C.R.


A   and arising out of agreement dated 14-1-2008 and
    termination agreement dated 29-2-2008 including Clause
    4 thereof are referred to the sole Arbitrator nominated.
    The parties are directed to appear before the Arbitrator
    on 2-4-2011. [para 7] [716-G-H]
B
        CIVIL APPELLATE JURISDICITION : Arbitration Petition
    No.10 of 2010.

       Under Section 11 (6) and (9) of the Arbitration &
    Conciliation Act, 1996.
c
         Deepak Dhingra, (for Animesh K. Sinha), Nikhil Jain for
    the Petitioner.

        U.U. Lalit, Ugen Tashi Bhuita, T. Sunder Ramanathan (for
    M. P. Devanath for the Respondent.
0
          The Judgment of the Court was delivered by

       T.S. THAKUR, J. 1. The respondent is a Dutch citizen.
  He entered into an agreement dated 14th January, 2008 with
E the petitioner-company whereby the latter appointed him as its
  marketing representative to promote sale of RFID Tags and
  Components manufactured by the petitioner-company in
  European market. Clause (1) of the agreement executed
  between the parties stipulated the terms on which the
F respondent was to work as the petitioner's representative. It
  reads:

           "1.   OMNIA does hereby appoint PIM as its
                 Representative for Europe, and PIM hereby accepts
                 the aforesaid appointment, upon the following
G                terms:

           (a)   PIM would market the Products manufactured by
                 OMNIA, on an exclusive basis, to his clients in
                 Europe, and would be responsible for obtaining the
H
   OMNIA TECHNOLOGIES P. LTD. v. W.M.A. VAN                      713
         LOOSBROEK [T.S. THAKUR, J.]
            business in the nature of contracts, for supply by           A
            OMNIA.

      (b)   PIM would be the front-end, dealing with the clients
            in Europe, and OMNIA would be introduced as the
            Indian Parent Company.                                       .B
      (c)   In all situations, PIM would be required to introduce
            the two parties to this Agreement, as a single entity,
            responsible for managing clients/prospective
            clients in the whole of Europe.
                                                                         c
      (d)   All proposals, documentation submitted, would be
            in the name of OMNIA as the Indian Parent
            Company, with PIM being reflected as Sole
            Representative in Europe."

     2. The agreement in Clauses 2 and 3 thereof set out the             D
obligations which the respondent was to discharge and those
to be discharged by the petitioner. Other conditions like
remuneration etc. were also stipulated by the agreement
including obligations cast upon the parties after termination of
the agreement. Clause 13 of the agreement relevant in this               E
regard, reads:

      "13. Obligations Upon Termination

     (a}    The termination of this agreement shall not affect           F
            any liability of either party to the other, accruing prior
            to the date of termination, or arising out of this
            agreement.

     (b)    Upon termination, PIM agrees to immediately
            discontinue the use of any trademarks or trade               G
            names in whole or in part belonging to OMNIA.

     (c)    After termination PIM shall not represent, and shall
            not continue any practices, which might take it,
            appear, that he is still an authorized OMNIA agent           H
    714         SUPREME COURT REPORTS                [2011) 3 S.C.R.


A                and shall permanently discontinue any use of the
                 word "OMNIA" thereform, all without any expenses
                 to OMNIA.

          (d)    PIM shall return all manuals, informational materials,
                 instruction booklets, and all data and information in
B
                 printed form or stored in floppies, CD-ROMS,
                 computer diskettes, or in any other version or
                 medium that was given by OMNIA pursuant to this
                 agreement, immediately on termination of this
                 agreement. Electronic mail messages are
c                excluded. PIM shall destroy or render unusable all
                 other proprietary material and copies thereof, which
                 for any reason cannot be delivered to OMNIA. In
                 such event, PIM shall certify in writing to OMNIA that
                 all proprietary material has been delivered to
D                 OMNIA or destroyed and that PIM has discontinued
                 use of the same.

          (e)     Both the parties agree to fulfill all obligations to
                  each other under all the work orders in force at the
E                 time of termination of this agreement until the
                  completion of the services specified in the work
                  orders."

       3. It is common ground that the agreement in question was
  terminated by the parties in terms of another agreement dated
F 29th February, 2008 executed between the parties. This
  termination purported to be in conformity with the provisions of
  Clause 11 of the Original Agreement. The Petitioner-company's
  case in the present petition under Section 11 (6) and (9) of the
  Arbitration and Conciliation Act, 1996 is that the respondent
G has committed a violation of the Original Agreement inasmuch
  as obligations cast upon the respondent under clause 13 of the
  agreement (supra) have not been discharged by the
  respondent thereby giving rise to disputes that are in terms of
  Clause 1~ of the original agreement arbitrable. The petitioner-
H company appears to have invoked the arbitration clause and
   OMNIA TECHNOLOGIES P. LTD. v. W.M.A. VAN                    715
         LOOSBROEK [T.S. THAKUR, J.]
asked for appointment of an Arbitrator but since the respondent        A
refused to do the needful, the petitioner has filed the present
petition and prayed for the appointment of an independent
Arbitrator to adjudicate upon the said disputes.

      4. Respondent has appeared and filed a counter-affidavit         8
in which it was, inter alia, asserted that there is no subsisting
'arbitrable' disputes to call for the appointment of an Arbitrator.
The respondent has in this regard relied upon Clause 4 of the
termination agreement which reads as under:

     "4. Subject to the signing of this termination agreement by       C
     the parties, the parties hereby grant each other full and final
     discharge from all claims, rights and obligations arising out
     of or relating to the termination of the Representative
     Agreement. The parties acknowledge that thereafter no
     claims, rights or obligations will remain existing on             D
     whatever ground or whatever relation between the parties
     in respect of the issue at hand.

     This termination agreement constitutes the entire.
     agreement and understanding between the parties."  E

      5. When this petition came up for hearing before me on
15th November, 2010, it was pointed out to learned counsel ·.
for the respondent that in case this Court was to pronounce
upon the effect of Clause 4 of the termination agreement finally
and further in case this Court were to hold that Clause 4 did F
not prevent the petitioner from raising the disputes regarding
post-termination obligations of the parties, the Arbitrator
appointed by this Court shall have no option but to fall in line
and accept that determination as final and binding on the
parties. Learned counsel for the respondent was, therefore, G
asked to take instructions whether interpretation of Clause 4
which was by itself a disputed matter and requires to be
adjudicated upon, could be left to be determined by the
Arbitrator. Learned counsel for the respondent has, in response
                                                                 H
    716      SUPREME COURT REPORTS                   [2011) 3 S.C.R.

A filed a letter consenting to the appointment of an Arbitrator for
  adjudication of all issues including the existence of arbitrable
  disputes by the Arbitrator so appointed. The relevant portion
  of the letter filed on behalf of the respondent is as under:

          "In this connection, learned Senior Advocate Mr. U.U. Lalit
B
          had mentioned the subject arbitration petition on Friday
          February 4, 2011 before Hon'ble Justice T.S. Thakur in
          Court No.8 and informed the Hon'ble Court that the
          Respondent has consented to the appointment of the
          arbitrator by the Hon'ble Supreme Court of India and further
c         consented to raising all issues including the existence of
          the arbitral dispute before the appointed arbitrator.

                As the power of attorney holder of the respondent is
          not in the country, I, the Advocate on Record of the
D         Respondent after having taken instructions would like to
          place on record through this letter that

           (a)   The Respondent has consented to· the appointment
                 of arbitrator

E          (b)   the Respondent has consented to raising all the
                 issues including the existence of the arbitral dispute
                 before the said arbitrator."

        6. In the light of the above I see no reason why the present
F petition cannot be allowed and all disputes including the dispute
  regarding interpretation and effect of Clause 4 of the termination
  agreement referred for adjudication by arbitration.
       7. I accordingly allow this petition and refer all disputes
  between the parties relating to and arising out of agreement
G dated 14th January, 2008 and termination agreement dated
  29th February, 2008 including Clause 4 thereof to the sole
  Arbitration Mr. Justice Anil Dev Singh, former Chief Justice of
  Rajasthan High Court. The parties are directed to appear
  before the nominated Arbitrator on 2nd April, 2011. The
H
    OMNIA TECHNOLOGIES P. LTD. v. W.M.A. VAN                717
          LOOSBROEK [T.S. THAKUR, J.]
Arbitrator shall be free to fix his fee and charges and the ratio A
in which the same shall be paid by the parties. Registry shall
forthwith forward a copy of this order along with a copy of the_
petition to the worthy Arbitrator for information and necessary
action.
                                                                    B
R.P.                                  Arbitration Petition allowed.