ARBITRATION

Sisna – introduce arbitration

Diwakar – self introduction

Raagavan – self introduction + parties and counsels introduction

Ilamaran – self introduction

Swesthiga – self introduction

Shibi – self introduction

Dhivya – self introduction

Diwakar – arbitral clause + arbitrator appointment issue

Shibi – deny the arbitration clause

Sisna – question to shibi

1. Were you aware of existence of dispute resolution mechanism at the time signing the
dealership agreement? – Yes
2. If not arbitration, how did you perceive clause 21? – doubtful

Raagavan – can the counsel for respondent substantiate this allegation with relevant case laws.

Dhivya – legally substantiating with case laws

Diwakar – thank you, does the claimant wish to make a statement on it

Ilamaran –

Swesthiga – legally substantiate, “reference” and “final”

Raagavan –

Sisna – I concur

Diwakar – I am of the same opinion, since it is unanimously decided by us that the present clause is
arbitration clause, so parties and respective counsels can address us as arbitrators, now lets move to
next challenge – appointment of arbitrator

Shibi – mr. roshan is an indirect beneficiary as his wife mrs. rashmika mandanna is a shareholder in
aquafeeds.

Sisna – aren’t you aware of this during the time of dealership agreement

Shibi – responding to this question

Dhivya – 12(5), schedule 7 – 17th point

Diwakar – how substantiate,

Dhivya – exhibits

Sisna – lets ask from claimant regarding this

Ilamaran – factual detail

Swesthiga – legally substantiating + not a present shareholder

Diwakar – respondent allegations are forfeiture + we dismiss their allegations

Sisna – I am of the same opinion, it is to be appreciated that mr. roshan did not provide any
comments of the respondent’s allegation.

Raagavan – I too concur with my co – arbitrators, these contentions will be mentioned in AA + lets
move to the factual matrix

Ilamaran – facts narrate

Diwakar – respondent

Shibi – facts narrate

Sisna – there is no factual conflict here,

1. Whether this arbitration is barred by limitation?

2. Whether the default of payment is permissible under dealership agreement?

Swesthiga – arbitration clause 32, demand letter, intimation

Raagavan – annexures

Swesthiga – response

Diwakar – respondent’s stand on the same

Dhivya – arbitration clause 32, special reminder letter, intimation, more than 120 days

Raagavan – annexures

Dhivya – response

Sisna – don’t you think the demand letter must be considered as a notice because it exclusively
states about invocation of dispute resolution clause of the dealership agreement?

Dhivya – dictionary meaning of intimation, hint, special reminder letter is in a nature of hint

Swesthiga – I would like to oppose, payment default clause, to intimate the stoppage of supply, not
in a nature of notice for invocation of dispute resolution clause

Dhivya – intrudes

Diwakar – we have discussed enough on this issue, lets proceed to issue of default of payment

Ilamaran –

Raagavan – we can understand, but we must here from respondent too on this issue

Shibi – covid, lockdown, post pandemic effect, claimant knows covid lockdown falls under force
majeure clause but still they demand us to pay – cruelty

Sisna – okay mr. durai we can understand but why are you silent on the fact that even before you
had defaulted your payment in the month of February?

Shibi – due to financial crisis that M/s. durai ltd faced

Diwakar – now lets discuss this issue in detail – claimant counsel

Swesthiga – March and April doesn’t falls under force majeure event so force majeure clause not
applicable

Raagavan – how can a pandemic not an act of god?

Dhivya – intrudes

Raagavan – yes dhivya proceed

Dhivya – pandemic is force majeure event + case law for the same

Swesthiga – force majeure clause applicable for my client too + aquafeeds managed to give supply,
so asper agreement if there is supply there should be payment, default made even before force
majeure so they can’t claim (case law)

Sisna – we have discussed enough on the issues

Diwakar – final summary of AA

MEDIATION

Dhivya – self introduction + welcoming for mediation

Swesthiga – self introduction + procedure for mediation

Shibi – self introduction + asking for parties’ introduction

Raagsy – Ashoka introduction

Sisna – counsel for Ashoka introduction + advisory nature

Diwakar – durai introduction

Ilamaran – counsel for durai + advisory nature

Shibi – thank you now move on to the factual matrix

Raagsy – fact narration + my counsel will elaborate on it

Sisna – supportive arguments slightly legal in nature

Swesthiga – thank you now let us hear from respondent durai

Diwakar – fact narration + my counsel will elaborate

Ilamaran – supportive arguments + pandemic

Dhivya – agenda

Raagsy – we didn’t take pandemic as excuse

Diwakar – intrudes

Shibi – tries to calm down durai

Raagsy – elaborates his stand

Diwakar – direct argument with Ashoka

Both counsels tries to intrude

Swesthiga – allows sisna to speak

Sisna – substantiating pandemic excuse + pre pandemic default

Ilamaran – client’s financial loss

Dhivya – we understood both the parties + claim of both the parties

Raagavan – monetary loss + monetary value detailed manner

Sisna – how big the loss is you would have understood – total amount + interest

Shibi – we can understand the loss you face let us hear from opposite party

Diwakar – February pandemic + post pandemic effect so I can’t pay

Ilamaran – generosity of my client + every business has its own obligations

Swesthiga – conflict still prevails we suggest for private session + caucus

Dhivya – nature of caucus

Raagsy – relationship is important for me or else I would have filed case in court but now I am in
need of money, full money

Shibi – complete money claim is not wrong but dispute will not get resolved

Raagsy – minimum 65% + 12% interest of total default amount without interest; maximum 85% of
total default with 20% interest

Sisna – I feel my client has made a fair claim, no interest

Dhivya – reveal?

Raagavan – don’t reveal minimum only maximum

Dhivya – we would like to call opposite party

Swesthiga – thank you for agreeing caucus now let us know your claim

Diwakar – I cannot pay blah blah blah

Ilamaran – do you mediators think my client’s claim is unfair

Swesthiga – show some flexibility

Diwakar – I can understand but I am not in a situation to pay

Shibi – you would have decided maximum or minimum amount

Diwakar – 50% only without interest

Shibi – that seems too low for aqua feeds do consider a bit and come forward

Diwakar – interest claiming unfair I cant pay interest at any cost

Diwakar – can you please reveal us the claim of aqua feeds

Shibi – 85% + 20% interest

Diwakar – interest definitely I can’t pay and 85% is too high only 65% I can pay

Shibi – no its too low blah blah

Diwakar – to the maximum I can pay only3/4 th of the default amount i.e., 75% only 50% I can pay
now balance 25% I can pay only in future for which I can provide a promisary note if in case of urgent
requirement, I can provide shares for Aquafeeds in my company for the remaining 25%

Ilamaran – I think my client has made a fair claim

Shibi – shall we reveal this to opposite party

Respondent – yes

Caucus ends

Dhivya – respondent durai limited had agreed to pay 75% without any interest

Sisna – my client claimed for atleast 65% + 12% interest amount and this seems to be unfair we
don’t think this is going to work out

Ilamaran – after coming to this much adjustment we feel it is not good to be so stubborn

Swesthiga – understand ms. Sisna there is no big difference between what you claimed and what
respondent agreed to pay only its 2.5 lakh lesser to what your client had claimed. Blah blah blah

Raagavan – anyway for the benefit of novel relationship with my customer I am hereby agreeing
with the amount which they have agreed to pay.

Diwakar – I am very glad that aquafeeds agreed to the amount that we decided to pay and even we
don’t want to break the novelty of our business relationship.

Mediators asking for finalizing the claim and both parties signing agreement

65% of default amount + 12% interest

81,60,237 + 15,06,505 = 96,66,742

75% of default amount = 94,15,659

As a chairman of the arbitration panel I will be now giving the concurring decision on the two issues.

With respect to the limitation issue the arbitration panel is of the opinion that the demand letter
must be construed as notice which gives rise to cause of action as it exclusively deals with invocation
of clause 21. The word intimation must not be interpreted in literal sense but in the context of the
subject matter, therefore the word intimation would mean communication exclusively about the
invocation of dispute resolution clause. Hence the demand letter is in notice nature and not the
reminder letter which only talks about the consequences. Therefore this arbitration is not barred by
limitation.

With respect to the issue of payment default it is evident that the pandemic has constitutes as a
force majeure event which leads to the exercise of force majeure clause as per the dealership
agreement. Form the facts of the case and argument of the respective counsels it can be construed
that the month of march April can be exempeted for pandemic and may and June can be exempted
for considering post pandemic effect prevailed and also the interest amount is also exempted.
Therefore arbitration panel order for the repayment of the defaulted amount for the month of
February, July august September and October till 15 th.

The parties to the Dealership Agreement should resort to the consented Dispute
Resolution Mechanism Panel consisting of Mr. Roshan (Retired High Court Judge), Mr.
Vijay Kumar (Senior Advocate – Supreme Court) and Mrs. Kareena Chopra (Retired
High Court Judge), in case of any dispute arising out. Reference to the Dispute
Resolution Panel can be made by either of the parties, whose decision shall be final.