Man Mohan Sharma vs Depinder Singh

Lt. Gen. Depinder Singh ... Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The respondent herein, Lt. General Depinder

Singh (Retd.), entered into a Publication

Agreement with Dattatreya Prakashan in

September, 1991, for publication of his book

titled "IPKF in Sri Lanka" regarding his

experiences while leading the Indian Peace

Keeping Force in Sri Lanka. Pursuant to the

said Agreement, the first edition of the book 2

was published in 1991. In paragraph 2 of the

said Agreement, whereby the respondent assigned

his exclusive rights for production and

publication of the book to Dattatreya

Prakashan, it was indicated as follows:

"2. The AUTHOR(S) hereby assigned to the PUBLISHERS, during the legal terms of copyright including any renewals thereof, the exclusive rights to produce and publish the WORK in a volume form in any part of the world in the original language in which it is written as also to license its translation in any other languages and publication of any other editions, but the copyright in the WORK shall remain vested in the AUTHOR(S). The AUTHOR (S) shall not during the continuance of this Agreement publish or cause to be published in any part of the world any copy of the WORK or any translation thereof save as herein provided."

3. The business interest in Dattatreya Prakashan

was acquired by the appellant who was carrying on

business in the name and style of "Trishul

Publications", which published the second edition

of the book in May, 1992. From the materials on

record it appears that, although, initially there 3

was a demand for the book, such demand decreased

and the appellant was, thereafter, reluctant to

invest money in printing further editions of the

book. In fact, in response to the respondent's

query regarding publication of a further edition

the appellant on 11.11.1991 wrote to the respondent

and expressed his unwillingness to publish any

further edition of the book. He also informed the

respondent on 1.6.1993 that the book was a dead

stock and it had to be pushed at a lower price. On

28.10.1997, the appellant again wrote to the

respondents stating that he had conducted a market

survey and the demand of the book did not warrant

any reprint. He also advised the respondent to

authorize one Bharat Verma to publish the book. As

the said letter is relevant to a decision in this

case, the contents thereof are reproduced

hereinbelow:

"With reference to our last tele- conversation, I have carried out a thorough market survey and come to the conclusion that there is no large enough demand for the book warranting a special reprint. I have tried to check up from Lancers but drawn a 4

blank. Bharat Verma is a good businessman and has perhaps received some demand from his foreign contacts of which his staff are not aware. He will do a good job for the Book and you may kindly authorize him to publish. No problem. I have, however, a suggestion. You may reshape the book - a new book titled "Failure of IPKF in Srilanka" and draw lessons from it for posterity........."

4. The respondent, thereafter, approached one Shri

Upender Arora, sole proprietor of Natraj

Publishers, with a request to print and publish the

book in question. Thereafter, by a letter dated

28.8.2000 the respondent informed Shri Arora that

he had no objection to Mr. Arora's desire to

reprint 1000 copies of the book, but he also

suggested that Shri Arora should obtain the

concurrence of the appellant for doing so.

5. Pursuant to the aforesaid suggestion, Shri

Arora wrote to the appellant on 31.8.2000 stating

that the respondent had granted permission to

reprint the book but had also suggested that

concurrence of the appellant should be obtained. 5

Shri Arora, accordingly, requested the appellant to

agree to the proposal so that he could go ahead

with the reprint of the book. In reply to the said

letter, the appellant on 2.9.2000 wrote back to

Shri Arora as follows:

"TRISHUL PUBLICATIONS

216, Sector-28, Arun Vihar, Noida-201

303. 2 Sep 2000

NATRAJ PUBLISHERS DEHRADUN

THE IPKF IN SRI LANKA

Dear Sir,

Ref. Your letter of Aug 31, 2000.

2. Kindly go ahead with the reprinting of IPKF in Srilanka.

3. Do send us a complimentary copy.

4. We could help you in the marketing at a suitable discount.

Yours faithfully,

(M.M. SHARMA)"

6 6. While giving his concurrence to Shri Arora to

go ahead with the reprinting of the book, the

appellant also wrote to the respondent on 5th

September, 2000, indicating that although he had

given his consent to the reprint of 1000 copies of

the Book the reprint would have to have the Trishul

name on the jacket as well as a suitable noting on

the copyright page, namely, "First Published by

Trishul Publications, NOIDA". "This edition with

special permission from Trishul Publications".

7. Pursuant to the consent given by the appellant,

Shri Arora published the book without acknowledging

the fact that such publication was with the leave

and concurrence of Trishul Publications. Claiming

that such publication by Shri Arora amounted to

piracy and plagiarism, the appellant sent a

detailed report to the Copy Right Board in terms of

Section 19A of the Copy Right Act for necessary

administrative action. The appellant also issued a

notice on 10.5.2002 to the respondent and also to 7

Shri Arora requiring them to desist from

distribution of the "Parallel edition of the book".

In stead of doing so, the respondent by a letter

dated 20.6.2001 terminated the agreement between

the parties, which resulted in the filing of an

application by the appellant under Sections 8 and

11 of the Arbitration and Conciliation Act, 1996,

before the Chief Justice of Delhi High Court,

invoking clause 17 of the Agreement which contains

the arbitration agreement in the following terms :

"ARBITRATION

17. If any question, difference or dispute shall arise between the AUTHOR (S) and the PUBLISHERS relating to this Agreement or any matter arising therefrom or incidental thereto, the same shall be submitted to the arbitration of two persons (one to be named by each party) and in case of the said arbitrators not agreeing, then it may be submitted to the award of an umpire to be appointed by the arbitrators in writing before proceeding on the reference. The decision of the arbitrator or, in the event of their agreeing of the umpire appointed by them, shall be final and conclusive.

The provisions of the Indian Arbitration Act 1940 and the Rules thereunder any 8

statutory modifications thereof shall be deemed to apply to the reference."

8. The application was heard by the designated

Judge who came to the conclusion that the appellant

had forfeited all his rights in connection with the

book after having given his consent to Natraj

Publishers to go ahead with the reprint of the

same. The learned Judge also held that the

appellant was estopped by his own act and conduct

from asserting any right in support of the said

book. According to the learned Judge, there was

hardly any dispute which needed further reference

to arbitration.

9. Another fact which weighed with the learned

Judge was that Shri Arora had filed a suit

which was pending in the Court of District

Judge, Dehradun, Uttranchal, and the issues

involved therein were purportedly identical

with those raised in the application for 9

appointment of an Arbitral Tribunal. The

learned Judge also observed that this fact had

not even been mentioned by the appellant in

his application for appointment of an Arbitral

Tribunal.

10. On the basis of his said conclusions, the

learned Judge dismissed the application filed

by the appellant.

11. The Division Bench in appeal taking note of

the pending civil suit filed by Shri Arora in

which both the appellant as well as the

respondent had been made parties, chose not to

interfere with the decision of the learned

designated Judge and dismissed the appeal in

order to avoid conflicting decisions.

12. Appearing in support of the appeal, Mr. M.S.

Vinaik, and Ms. Anjali Sharma, learned

advocates for the appellant, submitted that

both the learned designated Judge and also the 10

Division Bench had misunderstood the scope of

Section 11 of the Arbitration and Conciliation

Act, 1996, in rejecting the appellant's prayer

for appointment of an Arbitral Tribunal on the

ground that a civil suit was pending between

Shri Arora, the appellant and the respondent.

It was urged that the disputes in the pending

civil suit and those raised in the application

for appointment of an Arbitrator were not the

same, though based on the same set of facts.

13. It was urged that while the pending suit had

been filed by Shri Arora, who was not a party

to the Publication Agreement, the prayer for

appointment of an Arbitral Tribunal had been

made by the appellant with regard to the

disputes that had arisen between the appellant

and the respondent out of the same Agreement

and had little to do with Shri Arora who had

merely been granted permission by the

appellant to reprint 1000 copies of the Book.

It was submitted that the dispute between the 11

appellant and the respondent stemmed from

breach of the conditions of the Agreement, as

also the termination thereof, which gave rise

to disputes inter se between the parties and

that it was for such purpose that paragraph 17

had been included in the Publication

Agreement. It was submitted that the learned

designated Judge had wrongly dismissed the

appellant's application on the erroneous

finding that hardly any dispute existed

between the parties which warranted the

appointment of an Arbitral Tribunal. The

decision of the Division Bench was also

impugned on the same grounds.

14. Dr. Roxna Swami, who appeared for the

respondent, on the other hand contended, that

it was clear from the letters addressed by the

appellant to the respondent that he had no

intention of publishing any further edition of

the book and he actually advised the

respondent to authorize one Bharat Verma to 12

publish further editions of the book. Instead

of entrusting Bharat Verma with the

publication of the further edition of the book

as suggested by the appellant, the respondent

gave such right to Shri Arora and Natraj

Publications after terminating the Publication

Agreement with the appellant.

15. The learned counsel also submitted that the

civil suit filed by Shri Arora covered all the

said issues, and, as had been rightly held by

the learned designated Judge, continuance of

the suit as well as the arbitration

proceedings simultaneously, could result in

conflicting decisions.

16. Learned counsel submitted that there was no

case for interference with the decisions both

of the designated Judge and also the Division

Bench of the High Court.

13

17. Having considered the submissions made on

behalf of the parties and having further

perused the materials on record, we find

ourselves unable to agree with the decision of

the learned designated Judge as also that of

the Division Bench of the High Court impugned

in this appeal.

18. While the learned Single Judge came to the

conclusion that there was hardly any dispute

between the parties which merited the

appointment of an Arbitral Tribunal and that a

civil suit was pending over the selfsame

issues, the Division Bench relied more on the

pendency of the pending civil suit at Dehradun

in rejecting the appellant's prayer for

appointment of an Arbitral Tribunal for

settlement of the dispute which according to

the appellant had arisen between the parties.

19. There is no denying the fact that a

Publication Agreement had been executed 14

between the appellant and the respondent

herein by which the power to produce and

publish the book in question during the period

of the Copy Right and its extension was

assigned by the respondent to the appellant.

It is quite true that the appellant did not

think it fit to publish a third edition of the

book at the relevant point of time as there

was little demand for the same, but it also

appears from the materials disclosed that he

had agreed to reprint of the second edition to

the extent of 1000 copies by Shri Arora. The

very fact that the Publication Agreement was

terminated by the respondent is a matter of

dispute between the appellant and the

respondent. What would be the commercial

ramifications on account of the publication of

the edition by Shri Arora is also a matter

between the appellant and the respondent to a

large extent. These are issues which cannot be

decided in the suit filed by Shri Arora, as

these amount to breach of the terms of the 15

Publication Agreement with which Shri Arora

had no concern. The principle of estoppel

sought to be invoked by the learned designated

Judge, also appears to have been wrongly

applied to the facts of the case since the

learned designated Judge was only required to

examine as to whether any dispute existed

between the parties which could be referred to

arbitration. The said question, in our view,

should have been left to the Arbitral Tribunal

for a decision.

20. For the reasons aforesaid, we are unable to

sustain the order of the Division Bench of the

High Court impugned in this appeal or the

judgment of the learned designated Judge, and,

accordingly, set aside the same. The matter is

remanded to the learned designated Judge for

appointment of an Arbitral Tribunal in

accordance with the Arbitration Agreement

contained in paragraph 17 of the Publication 16

Agreement arrived at between the respondent

and the appellant in September 1991.

21. The appeal is allowed. There will, however,

be no order as to costs.

_______________J.

(ALTAMAS KABIR)

_______________J.

(MARKANDEY KATJU)

New Delhi Dated: 26.11.2008