ABP PRIVATE LIMITED Vs. MEDIA RESEARCH USERS COUNCIL

JUDGEMENT

(1.) This is an application filed under Section 8 of the Arbitration and Conciliation Act, 1996 (1996 Act). The case of the defendant-applicant is that it is registered under the Companies Act, 1925. It was created by the users, for the users and of the users. The plaintiff is a member subscriber and a purchaser of its software which is published on the basis of the readership figures i.e. data based on Media research. Such data in the form of a software is sold to the public at a price and at a subsidized rate to its members. The plaintiff is a member of the defendant-applicant and in 2008 bought its software as a user.

(2.) The terms and condition of such software is applicable to the plaintiff as a user. One of the terms and condition of the software purchased is to refer disputes to arbitration. The invoice by which the software has been purchased does not contain an arbitration clause but while using the software the user has to either agree or disagree to accept the terms and condition. Only if it agrees to the terms and condition will the data be available to it. Therefore the option exercised under Section 39 of the Contract Act if repudiated under Section 75 of the Contract Act will entitle the user to damages. The IRS annexed to the petition is a scanned copy of the software under challenge as the software of the plaintiff is with it and the defendant-applicant has no access thereto but the software so also the terms and condition are the same.

(3.) The main grievance of the plaintiff is that the methodology adopted in round 1 of 2008 was defective, accordingly a new yardstick was adopted in 2009 and such yardstick was as per the suggestion made by it. It is the alleged defective methodology of round 1 of 2008 which is under challenge and although the new methodology has been adopted an adjudication into the methodology of round 1 of 2008 is sought by the plaintiff as otherwise its report for that round will remain incomplete.