CUREWELL INDIA LIMITED Vs. PHARMACHIM

JUDGEMENT

(1.) By this order I am disposing the present petition filed by the petitioner under Section 33 of the Arbitration Act. As per the respondents, certain disputes had arisen between the parties and relying upon the arbitration clause In an agreement entered Into between the petitioner, viz., Curewel (India) Ltd. and M/s.Techno Export, the Respondent Pharmachim has approached Federation of Indian Chambers of Commerce and Industry for adjudication of the disputes. The case of the petitioner is that arbitration clause is contained in an Agreement entered Into between the petitioner and M/s.Techno Export and respondent is not a party to the said Agreement. Therefore, the respondent cannot rely upon the said arbitration clause and otherwise there being no arbitration agreement between the petitioner and the respondent, no arbitration of the alleged disputes is permissible. In order to appreciate the controversy, it would be appropriate to take stock of the admitted facts in brief.

(2.) The petitioner entered into an Agreement dated 6/4/1967 with M/s.Techno Export, an enterprise incorporated and registered under the Bulgarian Register of Foreign Trade Enterprises having its registered office in Sofia at Bulgaria. This was a Joint venture agreement whereby said Techno Export have equity share capital in the petitioner and they were also to provide technical know-how and purchase the products manufactured by the petitioner in collaboration with them. Under the Agreement Techno Export was entitled to dividend on the shares held by them as and when the same was declared by the petitioner and they were also entitled to Royalty @ 3% on the annual turnover for a period of seven years from the date of Agreement. Subsequently a Protocol dated 30/12/1972 was signed between Techno Export and the respondent. The petitioner is not a party to the said Protocol. As per -that'respondent took over all the rights and obligations in respect of the entire share capital of M/s. Techno Export in the petitioner company. The said Protocol also provided that Royalty w.e.f. 31/12/1972 may be remitted to the respondent. This Protocol provides for the following:

(3.) The respondent alleged that certain Royalties were not paid by the petitioner to the respondent which became payable to the respondent because of the said Protocol. It, therefore, invoked arbitration clause contained in Agreement dated 6/4/1967 between the petitioner and Techno Export. It is this invocation which is challenged by the petitioner on the ground that as far as petitioner and respondent are concerned there is no arbitration agreement and arbitration clause contained in Agreement dated 6/4/1967 between Techno Export and petitioner cannot be treated as arbitration agreement between respondent and the petitioner.