Vamika Entertainment Private Limited … vs Desai Commercial Llp on 20 January, 2025

Calcutta High Court

Vamika Entertainment Private Limited … vs Desai Commercial Llp on 20 January, 2025

Author: Shampa Sarkar

Bench: Shampa Sarkar

OCD-17
                            AP-COM/1083/2024
                     IN THE HIGH COURT AT CALCUTTA
                   ORDINARY ORIGINAL CIVIL JURISDICTION
                          COMMERCIAL DIVISION


            VAMIKA ENTERTAINMENT PRIVATE LIMITED AND ANR
                                VS
                       DESAI COMMERCIAL LLP


  BEFORE:
  The Hon'ble JUSTICE SHAMPA SARKAR
  Date : 20th January, 2025.

                                                                        Appearance:
                                                       Mr. Sourojit Dasgupta, Adv.
                                                           Mr. Vikas Baidya, Adv.
                                                           Ms. Ranjana Seal, Adv.
                                                              . . .for the petitioner.

                                                          Mr. Altamash Alim, Adv.
                                                               Mr. Arun Tanti, Adv.
                                                            . . .for the respondent.

The Court: This is an application for appointment of a learned Arbitrator,

filed by the company/petitioner No.1, through the petitioner No.2.

The joint petition under Order XXIII Rule 3 of the Code of Civil Procedure

read with Section 30 of the Arbitration and Conciliation Act, 1996 filed before

learned Arbitrator, has been filed before this Court, by the respondent.

It appears that Vamika Entertainment Private Limited (claimant) and Desai

Commercial LLP (respondent) had requested the learned Arbitrator to pass an

award on the terms of settlement referred to in the schedule appended to the said

application. Accordingly, the learned Arbitrator passed an award on October 8,

2024 in terms of Clauses (a) to (d) of the settlement agreement as set out below:
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“a. The lease agreement dated 1st April 2024 executed between the

parties, in respect to vacant space on the Ground Floor on the back side

of the building named “Shree Hari” situated at Premises No.138 Rash

Behari Avenue, Kolkata 700029, stood cancelled.

b. A sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) deposited with

the Respondent on account of Security Deposit as referred to in

Lease Agreement dated 1st April 2024, shall be treated as full and

final payment, on account of the principal dues of Rs.20,60,768/-

(Rupees twenty Lakhs Sixty Thousand Seven Hundred And Sixty

Eight Only) payable by the Claimant to the Respondent on account of

lease rent and electricity charges.

c. Claimant shall handover vacant and peaceful possession of the said

vacant space on the Ground Floor on the back side of the building

named “Shree Hari” situated at Premises No.138 Rash Behari

Avenue, Kolkata-700029, to be Respondent within 12th October 2024

d. Both claimant and/or respondent have no monetary or other claim

or grievance of any nature whatsoever against each other.

In view of such settlement/compromise entered by and between the parties

on terms as referred to in Schedule appended to the joint

Compromise/settlement application which is also referred to in point (a) to

(d) above, I pass the award in accordance to such terms of settlement

and/or compromise entered by and between the parties.”

The claimant had (company/petitioner No.1) also undertaken before the

learned Arbitrator in the meeting dated September 26, 2024, that the
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company/petitioner No.1 would withdraw the proposal to appoint a learned

Arbitrator in terms of the notice invoking Arbitration dated September 9, 2024.

Copies of the joint compromise petition and the award is retained with the

record.

Mr. Dasgupta, learned advocate for the petitioner submits that the joint

compromise petition was perpetrated by fraud. Two other directors signed the

same without the consent of the petitioner No.2. All the steps, including the

passing of the award, took place behind the back of the petitioner no.2. The

petitioner no.2 issued the notice invoking arbitration and the other directors

could not unilaterally withdraw from giving effect to the same. Secondly, the

petitioner no.2 was never consulted when the compromise petition was filed and

the award was passed. Those two directors were hand in glove with the

respondent and acted adverse to the interest of the company. The other two

directors who ultimately represented the company before the learned Arbitrator,

and under whose signature the compromise petition was filed, were not

signatories to the agreement. The company was all along represented by the

petitioner no. 2. Possession was handed over when the assets of the company

were present inside the premises. Serious loss has been suffered by the

Company.

Heard the learned advocates for the respective parties. The petitioner

seeks appointment of an Arbitrator in terms of an arbitration Clause, on the

basis of the notice invoking arbitration dated September 9, 2024. The minutes

dated September 26, 2024 in the arbitration proceedings records that the parties

had agreed not to proceed with the said notice. In any event, the award has been
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passed in terms of the compromise petition. Thus, at this stage, the question of

appointment of another Arbitrator, to arbitrate upon the disputes between the

parties does not arise.

Learned Advocate for the respondent submits that the money payable by

the company was adjusted against the security deposit and vacant possession of

the property was handed over to the respondent.

The application, being AP-COM 1083 of 2024 is, accordingly, dismissed.

The petitioner is always at liberty to take appropriate steps, that may be

permitted under the law.

(SHAMPA SARKAR, J.)
sp/