IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32415 of 2008(H)
1. M/S.P.P.ENTERPRISES, REPRESENTED BY ITS
... Petitioner
Vs
1. IDEA MOBILE COMMUNICATIONS LTD.,
... Respondent
2. MANAGER, IDEA CELLULAR LTD., MERCY
3. MANAGER, IDEA CELLULAR LTD.,
For Petitioner :SRI.AVM.SALAHUDIN
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :12/11/2008
O R D E R
K.P. Balachandran, J.
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W.P(C)No.32415 of 2008 H
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JUDGMENT
Plaintiff is the petitioner. The prayer in
this writ petition is to declare that Exhibit P4
order passed by the court below on I.A.No.3034/08
in O.S.No.575/08 is illegal and to set aside the
same and to direct the court below to dispose of
the suit O.S.No.575/08 on merits.
2. The suit was instituted by the petitioner
against the respondents for a decree of permanent
prohibitory injunction restraining them from
terminating the franchisee agreement otherwise than
by due process of law and in strict compliance with
the terms of the agreement and from restricting,
controlling, revising, stopping or in any way
denying any of the services, facilities or products
of the respondent company to the petitioner/
plaintiff, including the products yet to be
released by Idea Cellular Services.
WPC 32415/08 2
3. Respondents, on entering appearance in the
court below, filed I.A.No.3034/08 praying for the
dispute involved in the suit being referred to
arbitration as per clause 15(1) of the Franchise
Agreement. Exhibit P3 counter was filed thereto by
the petitioner and the court below, vide Exhibit P3
order, referred the parties to arbitration.
4. It is vehemently contended before me by the
learned counsel for the petitioner/plaintiff that
the franchisee agreement had expired, though they
are continuing as before in continuation of the
franchisee agreement and that therefore, the
arbitration clause in the franchisee agreement is
not applicable. The contention is not tenable as
the suit itself was filed basing on the rights of
the petitioner on the franchisee agreement, copy of
which was produced as Item No.1 in the list of
documents annexed to the plaint. Though this Court
directed the petitioner to produce the franchise
agreement, the said agreement is not produced and
WPC 32415/08 3
today, a photostat copy of the agreement is
submitted before me for perusal.
5. Clause 15(1) of the said agreement deals
with settlement of dispute. It is that clause that
is extracted in Exhibit P2 petition by the
respondents. If the said provision for settlement
of dispute in the franchise agreement is acted
upon, reference of the dispute to arbitration
cannot be found fault with. All the same, counsel
for the petitioner has advanced an argument that
under Section 8(2) of the Arbitration and
Conciliation Act, an application referred to in
Section 8(1) of the Act (Exhibit P2 in the instant
case) shall not be entertained unless it is
accompanied by original agreement or a duly
certified copy thereof. The said provision applies
only in cases where the agreement is not already
produced before the court. In the instant case, the
franchise agreement, which contains the arbitration
clause is produced by the petitioner/plaintiff
WPC 32415/08 4
himself along with the suit and therefore, the
petitioner/plaintiff cannot dispute the
authenticity of the said agreement. In such event,
there is no necessity to comply with Section 8(2)
of the Act by the respondents, who filed Exhibit P2
petition. Reference to arbitration by the court
below, vide Exhibit P5 order, in the circumstances,
is in order and cannot be faulted. There is no
merit in this writ petition.
This writ petition is, hence, dismissed.
12th November, 2008 (K.P.Balachandran, Judge)
tkv