TaxTMI 
TaxTMI 
2013 (6) TMI 166
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....ted 9th September, 2010 and submitted that the present suit ought to be referred to arbitration. 3. Mr. P.D. Gupta, learned counsel for the plaintiff, though did not deny the existence of the arbitration clause but submitted that the present application is not maintainable inasmuch as the defendant has already filed a suit being CS (OS) 1016/2011 against the plaintiff herein with respect to the same agreement dated 9th September, 2010. 4. Having heard learned counsel for both the parties, this Court is of the view that the action of the defendant in filing its own aforesaid suit amounts to waiving its right to invoke or enforce the arbitration clause. 5. Consequently, the present application is dismissed. I.A. 18584/2012 1. P....
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....IR was lodged by the District Supply Officer, Alwar against the plaintiff for selling spurious material. He stated that following number of tests conducted by the Public Health Laboratory, Allahabad, the plaintiff's certificate from the Ministry of Agriculture (Agmark License) was suspended on 31st May, 2011 and finally cancelled on 6th June, 2011. 7. Mr. Uppal also stated that in terms of the Clause 5 of the Agreement, the defendant sent three warnings dated 11th January, 2011, 20th January, 2011 and 28th February, 2011 and pursuant to these warnings terminated the agreement with immediate effect. Mr. Uppal submitted that despite notice of termination and calling upon the plaintiff to stop using the brand name INDANA, the plaintiff stil....
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....the defendant. He submitted that in view of the aforesaid, the present application was liable to be dismissed and the suit was liable to be decreed forthwith in favour of the plaintiff. 11. Mr. Gupta further submitted that Section 10 CPC was not applicable to Order 37 proceedings as the latter was a Code within a Code. 12. Having heard learned counsel for the parties and perused the suit file, this Court is of the opinion that Section 10 of CPC would be applicable only if trial commence i.e. after leave to defend, is granted. In Indian Bank Vs. Maharashtra State Co-operative Marketing Federation Ltd., AIR 1998 SC 1952, the Supreme Court has held as under:- 10. Considering the objects of both the provisions, i.e., Section 10 and Ord....
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.... a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend. (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose cond....
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....he Second party shall be authorised to deduct TDS as per IT Act and rules. 3. That the second party shall pay to first party a sum of Rs. 50,00,000.00 (Rs Fifty Lacs only) as interst free security deposit for due performance of the agreement & shall be refunded by the first party to second party at the time of determination of this agreement for any reason whatsoever. 4. That the Second Party shall be fully authorised to advertise or publicise in any manner it likes the above products to be marketed by it in the brand name of "INDANA". However it will be ensured by the second party that in all advertisement material & packing material following legend is prominently appears. Trade Mark Owners - M/s. H.P. Printers Pvt. Ltd., New Del....
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....016/2011 against the present plaintiff alleging non-compliance of the terms and conditions of the Agreement by the plaintiff and praying for permanent injunction as well as damages amongst other reliefs, which is pending adjudication in this Court. Moreover, the present plaintiff has also alleged violation of the agreement by the defendant in the abovesaid suit and has even challenged the validity of termination of the contract. 17. Further, in the opinion of this Court, if the submission of the plaintiff is accepted the very purpose and meaning of the security amount for due performance would lose its significance and would get nullified. The refund of security amount cannot be divested from due performance of the agreement. The relevan....