HOME STUDIO (INDIA) PRIVATE LIMITED v. NOLTE KUCHEN GMBH AND CO KG

NOLTE KUCHEN GMBH AND CO KG A COMPANY REGISTERED UNDER THE LAWS OF GERMANY ANNI NOLTE STRABE 32584 LOHNE GERMANY REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER MR. HANS HERMANN HAGELMANN (BY SMT. AISHWARYA AMAR., ADV. FOR SMT. POORNIMA HATTI., ADVOCATES) …RESPONDENT THIS AP.IM IS FILED UNDER SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO GRANT THE FOLLOWING RELIEFS (I) TEMPORARY INJUNCTION RESTRAINING THE RESPONDENT - 2 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024 FROM GIVING EFFECT TO THE ATTEMPTED TERMINATION VIDE THE FIFTH AND SIXTH NOTICES DATED 24TH JUNE 2024 AND 26TH JUNE 2024 ANNEXURE N AND ANNEXURE P UNTIL 90 DAYS AFTER THE RECEIPT OF THE ARBITRAL AWARD, IN TERMS OF THE ARBITRAL AGREEMENT DATED 10TH APRIL 2010 ANNEXURE B AND ETC. IN AP. IM. No.5/2024 BETWEEN: HOME STUDIO (INDIA) PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NO.61, BREN BALAVANA, GROUND FLOOR AND 1ST FLOOR, 5TH ‘A’ BLOCK, KORAMANGALA BANGALROE – 560 095 REP. BY ITS MANAGING DIRECTOR MR J BOOPESH REDDY. …PETITIONER (BY SRI. UDAYA HOLLA., SENIOR COUNSEL APPEARING FOR SRI. NAMAN JHABAKH., ADVOCATE) AND:

1. NOLTE KUCHEN GMBH AND CO KG A COMPANY REGISTERED UNDER THE LAWS OF GERMANY ANNI NOLTE STRABE 32584 LOHNE GERMANY REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER MR. HANS HERMANN HAGELMANN.

2. NOLTE FZE A COMPANY REGISTERED UNDER THE LAWS OF DUBAI, UAE OFFIE-405, E-WING DUBAI SILICON OASIS, H.P. DUBAI, DUBAI UNITED ARAB EMIRATES -341 265 REPRESENTED BY ITS MANAGING DIRECTOR MR. SELVAKUMAR RAJULU (BY SMT. AISHWARYA AMAR., ADV. FOR SMT. POORNIMA HATTI., ADVOCATES) …RESPONDENTS - 3 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024 THIS AP.IM IS FILED UNDER SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO GRANT THE FOLLOWING RELIEFS (I) TEMPORARY INJUNCTION RESTRAINING THE RESPONDENT NO.2 FROM ATTEMPTING TO TERMINATE THE DISTRIBUTION AGREEMENT DATED: 10TH APRIL 2010 BETWEEN THE RESPONDENT NO.1 AND THE PETITIONER, OR GIVING EFFECT TO THE ATTEMPTED TERMINATION VIDE THE FIRST, SECOND, THIRD AND FOURTH NOTICES UNTIL 90 DAYS AFTER THE RECEIPT OF THE ARBITRAL AWARD AND ETC. THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In AP.IM No.5/2024, petitioner has sought for the following reliefs:- “ i) Temporary Injunction restraining the Respondent No.2 from attempting to terminate the Distribution Agreement dated: 10th April 2010 between the Respondent No.1 and the Petitioner, or giving effect to the attempted termination vide the First, Second, Third and Fourth Notices until 90 days after the receipt of the Arbitral Award; ii) Temporary injunction restraining the Respondents from acting as/ appointing another distributor for the products manufactured by the Respondent No.1 in the India until 90 days after the receipt of the Arbitral Award; iii) Temporary Injunction restraining the Respondents from publishing, writing or republishing any further letters or communicating in any other manner insinuating that the days after the receipt of the Arbitral Award; - 4 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024 iv. Grant exemplary costs as this Hon’ble court deems fit; and v. Grant such other and further reliefs as are just equitable.” In AP.IM No.7/2024, petitioner has sought for the following reliefs:- “ i) Temporary Injunction restraining the Respondent from giving effect to the attempted termination vide the Fifth and Sixth Notices dated 24th June 2024 and 26th June 2024 (Annexure-N and Annexure P) until 90 days after the receipt of the Arbitral Award; Interims of the Arbitral Agreement dated: 10th April 2010 (Annexure-B); ii) Mandatory Injunction directing the Respondent to fulfil all pending orders and future orders that shall be placed by the Petitioner until 90 days after the receipt of the Arbitral Award; iii) Grant exemplary costs as this Hon’ble Court deems fit; and iv) Grant such other and further relief’s as are just and equitable.

2. Both these petitions are seriously contested and opposed by the respondents, who have filed their statement of objections, to which the petitioner has filed rejoinder. - 5 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024

3. Heard learned Senior counsel for the petitioner and learned counsel for the respondents and perused the material on record.

4. Though several contentions have been urged by both sides, it is an undisputed fact that both the petitioner and 1st respondent are parties to the Distribution Agreement dated

10.04.2010 entered into between them, which contains an arbitration agreement at clause No.22, which reads as under:-

22. JURISDICTION AND GOVERNING LAW In the event of a dispute, difference or claim between the Parties arising out of this Agreement or in any way relating hereto, or arising out of any term, condition or provision herein mentioned or the construction or interpretation thereof or otherwise in relation hereto and if the same not being settled between the parties by mutual negotiations within one month from the date of commencement or negotiations, such dispute/s shall be referred to arbitration in accordance with the Arbitration and Conciliation Act, 1996, or any statutory modification or re-enactment thereof for the time being in force and such arbitration proceedings shall be held in English at Bangalore. The arbitration shall be conducted by a panel of 3 (three) arbitrators, 1 (one) each appointed by Supplier and the Distributor and the third arbitrator jointly appointed by the aforesaid two arbitrators. The arbitral award shall be final and binding upon the parties”. - 6 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024

5. Though the aforesaid arbitration agreement at clause No.22 contemplates the arbitration proceedings to be conducted with the panel of 3 arbitrators, both sides have agreed and given consent to constitute an arbitral tribunal comprising of a sole arbitrator by appointing Sri. A.S.Bopanna, Former Judge, Hon’ble Supreme Court of India, as the sole arbitrator to resolve the dispute between the parties. Accordingly, Sri. A.S.Bopanna, Former Judge, Hon’ble Supreme Court of India, is appointed as a sole arbitrator to resolve the dispute between the parties under the provisions of the Arbitration and Conciliation Act, 1996.

6. The Arbitral tribunal is requested to convene the first meeting of the arbitration proceedings at the earliest since the present petitions are filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short ‘the said Act of 1996’) and an ex- parte interim order of temporary injunction has been passed by this Court in favour of the petitioner against the 1st respondent who is seriously opposing and contesting the claim of the petitioner in both the petitions as well as the interim order passed by this Court.

7. Liberty is reserved in favour of the petitioner to file an application under Section 17 of the said Act of 1996 on the date of - 7 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024 the first sitting of the arbitral tribunal, and the respondents would be entitled to file their objections to the said application and pursuant thereto, the arbitral tribunal is requested to dispose of the said application as expeditiously as possible. All claims and contentions of any of the parties including jurisdiction, limitation, maintainability etc., are left / kept open to be decided by the Arbitral Tribunal and no opinion is expressed on the same.

8. It is directed that in the event, the petitioner files an application under Section 17 of the said Act of 1996 on the first date of sitting of the arbitral tribunal, the interim order passed by this Court on 04.06.2024 shall continue to remain in force and operate between the parties till disposal of the application to be filed by the petitioner under Section 17 of the said Act of 1996.

9. A copy of this order be sent forthwith to Sri.A.S.Bopanna, Former Judge, Hon’ble Supreme Court of India, to the following address; No.191, SFS 208, Opposite Mother Diary, Yelahanka New Town, Bengaluru-560 064. - 8 - NC: 2024:KHC:30133 AP.IM No. 7 of 2024 C/W AP.IM No. 5 of 2024

10. Subject to the aforesaid directions, petitions stand disposed of. Srl. Sd/- (S.R.KRISHNA KUMAR) JUDGE