Writ Petition No. 7178 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:18129 WP No. 7178 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 7178 OF 2025 (IPR) BETWEEN: M/S. KALLATRA TECHNOLOGIES PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT VINAYA MARGA, SIDDHARTHA NAGAR, MYSURU - 570 011, REPRESENTED BY ITS DIRECTOR MR. ABDUL MUNEER KALLATRA, AGED ABOUT 55 YEARS, S/O. MR. ABDUL KADER HAJI. (BY SRI. JUDE JAMES, ADVOCATE) AND: …PETITIONER 1. M/S. TELTONIKA INDIA PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED ADDRESS AT NO.133/2, JANARDHAN TOWERS, RESIDENCY ROAD, ASHOKNAGAR, RICHMOND TOWN, BENGALURU - 560 025. 2. MR. NISHAD ALI PUKLASSERY AGED ABOUT 42 YEARS, Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18129 WP No. 7178 of 2025
Legal Reasoning
S/O MR. ABDUL HAMEED PS, DIRECTOR, TELTONIKA INDIA PVT LTD, NO.133/2, JANARDHAN TOWERS, RESIDENCY ROAD, ASHOKNAGAR, RICHMOND TOWN, BENGALURU - 560 025. 3. MR. MARIUS DERENCIUS AGED NOT KNOWN TO THE PETITIONER, S/O. NOT KNOWN TO THE PETITIONER, DIRECTOR, TELTONIKA INDIA PVT. LTD., NO.133/2, JANARDHAN TOWERS, RESIDENCY ROAD, ASHOKNAGAR, RICHMOND TOWN, BENGALURU - 560 025. …RESPONDENTS (BY SRI.TEJAS S.R., ADVOCATE FOR R1 TO R3) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN COM.O.S NO.1006/2024, ON THE FILE OF THE LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, (EXCLUSIVE COMMERCIAL COURT), BENGALURU (CCH-89)SET ASIDE THE ORDER DTD 13.01.2025 PASSED BY THE LXXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, (EXCLUSIVE COMMERCIAL COURT), BENGALURU (CCH-89) IN COM OS NO. 1006/2024 AT ANNX-W AND ETC. THIS PETITION, COMING ON FOR FURTHER ARGUMENT, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ - 3 - NC: 2025:KHC:18129 WP No. 7178 of 2025 1. The petitioner is before this court seeking for the ORAL ORDER following reliefs; "a) Call for the records in Com O.S.No.1006/2024, on the file of the LXXXVIII Additional City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru (CCH-89); b) Issue a writ in the nature of certiorari setting aside the order dated 13.01.2025 passed by the LXXXVIII Additional City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru (CCH- 89), in Com.O.S.No.1006/2024 at Annexure-'W' and restore the suit by allowing the present Petition; c) Grant costs; and d) Such other reliefs as this Hon'ble Court deems fit to grant in the facts and circumstances of the case and in the interest of justice and equity." 2. The petitioner is aggrieved by an order passed by the LXXXVIII Additional City Civil and Sessions Judge, (Exclusive Commercial Court), Bangalore (CCH-89) on an application in IA No.2 filed in Com.O.S.No.1006/2024 under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as 'the Act of 1996'). The petitioner had filed Commercial O.S.No.1006/2024 seeking for the following reliefs; against the Defendants, "a. Pass a judgment and decree of permanent their injunction associates, representatives, correspondents, officers, employees, men and any other person/s from using the Trademark bearing trademark No.4237238 issued by the Trademarks Registry, Government of India or using a name or agents, - 4 - NC: 2025:KHC:18129 WP No. 7178 of 2025 mark identical with or deceptively similar to the trademark of the Plaintiff; b. Costs of this suit; and Grant such other order/s as this Hon'ble fit, proper necessary and c. Court may deem expedient in the circumstance of the case." 3. In the said suit, it had been contended that the petitioner is the owner of the Trademark 'Teltonika India’ and, as such, sought an injunction restraining the defendants from making use of the said mark. In the said suit, an application under Section 8 of the Act, 1996 came to be filed by defendants Nos.1 and 2 contending that there is an arbitration clause in terms of clause 27 of the sale agreement dated 08.04.2024 which sale agreement was relating to the sale by way of assignment of the registered Trademark 'Teltonika India' for a consideration of a sum of Rs.1,50,00,000/- on the ground that clause 27 provides for resolution of dispute by arbitration. It was contended that the suit was not maintainable, and the parties had to be referred to dispute resolution by way of arbitration. Clause 27, being the Arbitration Clause, is reproduced hereunder for easy reference. - 5 - NC: 2025:KHC:18129 WP No. 7178 of 2025 cannot be "GOVERNING LAW AND JURISDICTION: This Agreement shall be governed by and construed in accordance with the laws of India. All and any disputes and claims as fully and aforesaid, which satisfactorily resolved or settled by the parties as aforesaid, shall at the request of either party, be submitted to, and be settled by arbitration of a sole arbitrator to be jointly appointed by the Parties within a maximum period of 30 (thirty) days from the date of any written request by any Party to the other Party for appointment of such sole arbitrator. If there is no concurrence on the appointment of a sole arbitrator within such 30 (thirty) day period, then by 3 (three) arbitrators, in accordance with and the Conciliation Act, 1996 or any other statute as may be in force for the time being. The venue and seat of arbitration shall be at India. The arbitration decision shall be final and binding on the Parties." Arbitration 4. Taking into consideration, the said agreement and the contentions which had been raised by the parties the Commercial Court allowed IA No.2 and directed the parties to approach arbitration. What is required to be noticed is that the Commercial Court did not enter a reference to an Arbitrator or appoint an Arbitrator but only directed the parties to approach arbitration. It is challenging the said order, the petitioner is before this Court. - 6 - NC: 2025:KHC:18129 WP No. 7178 of 2025 5. The submission of the learned counsel Sri.Abhinav Ramananda, learned counsel, who had appeared for the petitioner earlier, had sought to contend that there was fraud which had been played by defendants Nos.1 and 2, and as such, fraud was not arbitrable. Therefore, the Commercial Court has no jurisdiction under Section 8 of the Act of 1996 to direct the parties to approach arbitration. It was also argued that what was the subject matter of the petition is the Trademark 'Teltonika India'. Intellectual property disputes are not arbitrable and as such, Section 8 application ought to have been dismissed. 6. At the stage when orders were to be dictated, the learned counsel for the petitioner was called upon to make enquiry and obtain instructions and make his submission as to whether the petitioner is willing for appointment of an arbitrator and a mutually agreeable name could be suggested to this Court to appoint an arbitrator. 7. Thereafter, surprisingly, the earlier counsel retired from the matter and a new counsel has entered appearance. The submission of Sri. Jude James, learned counsel, who has now entered appearance is that there is a - 7 - NC: 2025:KHC:18129 WP No. 7178 of 2025 suppression made by defendants Nos.1 and 2 in the said proceedings in as much as defendants Nos.1 and 2 had filed a proceeding in Com.Appeal.No.452/2024 under Section 9 of the Arbitration Conciliation Act, 1996 seeking for an injunction restraining the petitioner herein from using the Trademark and or alienating the said Trademark. Notice having been issued as regards the first relief an order of injunction has been passed restraining the petitioner from alienating the Trademark. 8. The agreement which has been sought to be relied upon, as per clause 27, is a fraudulent document. There is no consent on the part of the petitioner in respect of the said agreement. Therefore, the said agreement cannot be relied upon. His further submission is that the agreement is contrary to the provision of the Companies Act. No resolution has been passed as per the requirement of the Companies Act and as such, the agreement is void and not enforceable. On that ground he submits that there is perversity on the part of the Commercial Court in allowing the application under Section 8 of the Act of 1996 without considering the above. - 8 - NC: 2025:KHC:18129 WP No. 7178 of 2025 9. On enquiry as to whether these documents which have been filed before this court along with memo dated 24.04.2024 had been placed on record before the Commercial Court, he clearly admits that the said documents had not been placed. 10. The mere fact that those documents have not been placed before the Court would indicate that the said Court could not have considered the documents which had not been placed on record. Hence, the question of any perversity in the order on account of non consideration of the same would not arise. What is to be considered by the Court are the documents which have been placed on record and whether it includes an arbitration agreement. Whether the agreement has been validly executed, whether there is any perversity, whether the agreement is void, voidable or alive and subsisting would have to be decided by the Section 11 Court under the Act of 1996. 11. It is the Section 11 Court which would have to decide whether to appoint an Arbitrator or not. The Court considering an application under Section 8 of the Act of 1996 was only required to consider the existence of the - 9 - NC: 2025:KHC:18129 WP No. 7178 of 2025 arbitration clause in an agreement and that has been so considered by the Court while considering an application under Section 8 of the Act of 1996. The same cannot be found fault with in the manner as sought to be ascribed by the counsel for the petitioner. 12. Section 8 of the Act, 1996 reads as under: "[(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] [Substituted by Act No.3 of 2016 dated 31.12.2015.] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.[Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.] [Inserted by Act No.3 of 2016 dated 31.12.2015.] (3)Notwithstanding that an application has been made under sub-section (1) and that the issue is - 10 - NC: 2025:KHC:18129 WP No. 7178 of 2025 judicial authority, an pending before arbitration may be commenced or continued and an arbitral award made". the 13. Sub-section 1 of Section 8 of the Act of 1996 requires any judicial authority before whom an action is brought in the matter which is the subject matter of an arbitration agreement and if the defendants therein were to apply not later than the date of submitting its first statement for reference of the matter to arbitration proceedings, it would have to be considered by the Court and necessary orders to be passed. 14. For the purpose of such consideration, what is required is only the production of the original arbitration agreement or a duly certified copy thereof. The Section 8 Court is not required to ascertain the validity, veracity and authenticity or otherwise of the said arbitration agreement. What Section 8 of the Act of 1996 does is restrain a Court from proceeding with the suit which had been filed, the subject matter of which is alleged to be covered under an arbitration agreement. 15. That is what has been done in the present case by the Commercial Court directing the parties to approach - 11 - NC: 2025:KHC:18129 WP No. 7178 of 2025 arbitration in furtherance of which the defendant Nos.1 and 2/respondent Nos.1 and 2 herein have filed a petition under Section 11 of the Arbitration Conciliation Act after issuance of the notice to the petitioner calling upon the petitioner to appoint an arbitrator. Such a notice having been issued, the petitioner has not appointed an arbitrator on the ground that there is no arbitration clause as also by taking various defences. These defences and contentions of the petitioner would have to be considered by the Section 11 Court and decide whether to appoint an arbitrator or not. Needless to say, if the Section 11 court were to come to a conclusion that there is no arbitration clause, then the same would result in setting aside the order passed under Section 8 which is impugned in these proceedings requiring the suit to proceed. If the Section 11 Court were to appoint an arbitrator, the order passed under Section 8 would stand confirmed. 16. Thus all the aspects which had been agitated by the petitioner can not be considered by this Court when Section 11 Court is seized of those contentions. - 12 - NC: 2025:KHC:18129 WP No. 7178 of 2025 17. With the above observations, no grounds being made out the petition stands dismissed. SD/- (SURAJ GOVINDARAJ) JUDGE AMM List No.: 2 Sl No.: 35