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THE ARBITRATION AND CONCILIATION ACT, 1996
The Income- Tax Act, 1995
The Arbitration Act, 1940
Section 5 in The Arbitration Act, 1940
Section 5 in THE ARBITRATION AND CONCILIATION ACT, 1996
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(India Tv) Independent News ... vs India Broadcast Live Llc And Ors. on 10 July, 2007

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Delhi High Court
Citi Corp And Anr. vs Todi Investors And Anr. on 12 October, 2006
Equivalent citations: 2006 (4) ARBLR 119 Delhi, 2006 (33) PTC 631 Del
Author: R Khetrapal
Bench: R Khetrapal

JUDGMENT Reva Khetrapal, J.

Page 3360

1. Plaintiffs have filed the above suit claiming a decree of permanent injunction against the defendants from using the trademark 'CITI' of the plaintiffs as a domain name, a decree of mandatory injunction for transfer of the domain name "citi.in" of the plaintiffs and for rendition of accounts for passing off and infringement of the aforesaid registered trademark of the plaintiffs.

Page 3361

2. The plaintiffs in filing the above suit have stated that the plaintiff No. 1 is a company organized and existing under the laws of State of Delaware, United States of America and plaintiff No. 2 is a wholly owned subsidiary of the first plaintiff. Plaintiffs No. 1 & 2 have a corporate office at New York, USA. The plaintiffs are well-renowned and world leaders, inter alia, in banking and financial services and their renowned trademarks are CITIBANK bank, CITI and a number of other well-known family marks such as CITICORP, CITIGROUP, CITISELECT, CITIBANKING, CITICARD, CITIONE, CITIPHONE, CITIGOLD, CITISERVICE, CITILIFE, CITITREASURY. During the sunrise period (January 1,2005 to January 21, 2005), the Country Code Top Level Domain (ccTLD)) ".in" were made available for registered proprietors of trademarks only, and later, on February 16, 2005 for the general public on a first to apply basis. The plaintiffs during this period obtained registration of the domain names "citicorp.in" and "citibank.in" as they had registration for these trademarks in India. For the remaining trade names, the plaintiff No. 1 applied for registration of domain names "citi.in", "citifinancial.in" and "citigroup.in" with one of the accredited Registrars, namely, Net4India, appointed by the National Internet Exchange of India (NIXI) as early as January 28, 2005. However, the plaintiffs were shocked to learn that the defendants had applied for and were granted the domain name "citi.in", though the defendants had not launched any website for the said domain name. The plaintiffs accordingly instituted the above suit.

3. Defendants have filed the present application for rejection of the above plaint in view of the subsequent development relating to establishment of. In Domain Name Disputes Resolution Policy (hereinafter referred to as INDRP) for adjudication of all disputes arising out of the registration and use of in Internet Domain Name. The contention of the defendants is that with the formulation of the INDRP, the present proceedings are liable to be terminated as the subject matter of suit is covered by the said Policy (Annexure-A to the application) and the Rules framed there under. As such, the suit be dismissed as no longer maintainable in view of the provisions contained in Section 2(2) and 5 of the Arbitration & Conciliation Act, 1996 read with Section 9 of the Code of Civil Procedure.

4. In the course of hearing in order to rebut the aforesaid contention of the defendants, counsel for the plaintiffs made a four-fold submission as follows:

(i) The present application under Section 151 of the Code of Civil Procedure has been filed on the same facts and legal propositions as those taken in I.A. No. 4842/2006 (under Order VII Rule-11 CPC). The said application having been dismissed as withdrawn vide order dated 19th April, 2006, the present application which is on identical pleas cannot be entertained. Even otherwise, the application under Section 151 of the Code of Civil Procedure cannot be entertained for rejection of a plaint for which a specific provision is made by the Code of Civil Procedure by enactment of Order VII Rule 11.

(ii) Under Section 9 of the Code of Civil Procedure, the jurisdiction of civil courts can only be ousted by an express or implied bar and there is no such bar either express or implied in the instant case. Thus, the jurisdiction of the Civil Court does not stand ousted in effect or by necessary implication by the setting up of the Arbitral Tribunal under the INDR Policy.

Page 3362

(iii) Arbitral Tribunal set up under the INDR Policy has limited jurisdiction and the scope and ambit of the instant suit is far wider than what can be adjudicated by the Arbitral Tribunal under the said Policy.

(iv) Provisions of the Arbitration & Conciliation Act, 1996 cannot be invoked in view of the fact that there is no arbitration agreement between the parties which is a sine qua non for resort to arbitration proceedings under Section 7 of the Act. Resultantly, Section 5 of the Arbitration Act has no application to the present proceedings and the reliance placed by the defendants upon the said Section is entirely misplaced.

5. As regards the first submission of counsel for the plaintiffs, counsel for the defendants submitted that the defendants had filed the application under Order VII Rule 11 of the Code of Civil Procedure being I.A. No. 4288/2006 praying for rejection of the plaint on gathering information that the INDR Policy had been framed on 28th June, 2005, but since the said application had been filed without invoking the provisions of Section 5 of the Arbitration & Conciliation Act, 1996 as also Section 9 of the Civil Procedure Code, the same was withdrawn with liberty to file an appropriate application in terms of the new Policy. Hence the present application has been filed under Section 151 of the Code of Civil Procedure.

6. Counsel for the plaintiffs, on the other hand, emphasized that the earlier application seeking rejection of the plaint in view of the formulation of the aforesaid Policy having been rejected, the present application deserves to be thrown out at the very threshold.

7. A perusal of order dated 19th April, 2006 shows that learned Counsel for the defendants, after some arguments, had sought permission to withdraw the application with liberty to file an appropriate application in terms of the new policy, namely, the INDR Policy. The application was dismissed as withdrawn with liberty as prayed for. I am, therefore, of the view that the present application deserves to be considered on its own merits.

8. In support of his second contention that the Civil Court's jurisdiction is ousted in view of the provisions of the INDR Policy, reliance was placed by counsel for the defendants on the law enunciated in Paidi Peda Appanna and Ors. v. Mocherla Sriramamurty 1958 Andhra Weekly Reporter 420; Maddada Chayanna v. Karnam Narayana and Anr. ; State of Mizoram v. Biakchhawna ; Punjab State Electricity Board and Anr. v. Ashwini Kumar ; State of A.P. v. Manjeti Laxmi Kantha Rao and Dhruv Green Field Ltd. v. Hukam Singh and Ors. .

Page 3363

9. Counsel for the plaintiffs in turn relied upon the pronouncements of the Apex Court in the case Dhulabhai v. State of M.P. , Raja Ram Kumar Bhargava v. Union of India and State of Tamil Nadu v. Ramalinga Samigal Madam .

10. The principles relating to the question as to when exclusion of Civil Courts jurisdiction can be inferred have been indicated in several judicial pronouncements of the Privy Council. In Secretary of State v. Mask & Company , the Judicial Committee observed as follows:

It is settled law that exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied". It is also well settled that "even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

11. The next case is Raleigh Investment Co. Ltd. v. Governor-General-in Council AIR 1947 PC 78, which was an appeal to the Privy Council from a judgment of the Federal court of India in civil appellate jurisdiction reversing a decree passed by a Special Bench of the Calcutta High Court in its original civil jurisdiction. It arose from a suit filed for recovery of a sum paid under protest pursuant to an assessment to income tax of the Investment Company on the ground that computation of income tax under a particular provision of the Income Tax Act was ultra vires the Indian legislature. One of the defenses in the suit was that the civil court was excluded from exercising its jurisdiction by Section 226 of the Government of India Act, 1935 and Section 67 of the Indian Income Tax Act. When the case reached the Judicial Committee, the case was considered under Section 67, but not under Section 226. To discover the force of the prohibition under Section 67 of the Act, the Judicial Committee applied the following tests:

a) Does the Act contain machinery by which the assessed can raise the question of the vires of the provision before the special authorities?

b) This test was not conclusive but one to be considered.

c) If there is no such machinery and yet the civil courts were barred, the vires of Section 67 itself might come in for consideration.

The Judicial Committee eventually came to the conclusion that the Income Tax Act gave the assessed an opportunity to raise the question under the said Act. The provision for a case stated for the advisory opinion of the High Court was available and even otherwise, the High Court could be directly approached. The decision of the High Court was also subject to further appeal and thus there was suitable and adequate machinery under the Income Tax Act to question the assessment. The jurisdiction to question the assessment otherwise than by that machinery was, therefore, held barred.

Page 3364

12. In both the above cases, it is noteworthy that there was an express bar of the jurisdiction of the Civil Courts. The presence of a section barring the jurisdiction was the main reason, but there was a supplementary reason as well. The supplementary reason was the existence of an adequate machinery for the same relief. Even so, in the case of Mask & Co. (supra), it was observed that the Civil Courts have jurisdiction to examine the cases where the provisions of the Act had not been complied with or the statutory Tribunal had not acted in conformity with the fundamental principles of judicial procedure.

13. The observations made in both the aforesaid cases were accepted by the Supreme Court in Firm of Illuri Subayya and Chetty Sons v. State of Andhra Pradesh and in Kerala v. Ramaswami Iyer and Sons . In the latter case, it was observed as follows:

It is true that even if the jurisdiction of the Civil Courts is excluded, where the provisions of the statute have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine these cases....

14. In Pabbojan Tea Co. Ltd. v. Dy.Commissioner, Lakhimpur , the Apex Court, however, rejected the extreme proposition propounded in Raleigh Investment Company (supra) that even the constitutional validity of the taxing provisions would have to be challenged by adopting the procedure prescribed by the Income Tax Act.

15. A Constitution Bench comprising of seven Judges in the case of Kamla Mills Ltd. v. State of Bombay , made observations to the following effect:

In cases where the exclusion of the civil courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by Tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil court s are prescribed by the said statute or not.

16. Referring to the decisions of the Apex Court cited by counsel for the defendants, in Paidi Peda Appanna (supra) the observations of Hon'ble Chief Justice Subba Rao, which were relied upon by counsel for defendants appear at page 424 of the Report as under:

Page 3365 The following principles emerge from a consideration of the aforesaid decisions:

(1) when a statute confers a power on any person for public purposes from which an individual may receive an injury, if the mode of redressing the injury is pointed out by the statute, the jurisdiction of the ordinary Courts is ousted and (2) where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. Both the principles are applicable to the present case. Under the Act, old rights were abolished and new rights were created. A lawful ryot is entitled to a patta. When a question arises whether a person is a lawful ryot or not, that question falls to be decided by the special Tribunal created by the Act. Secondly, the Act precludes the land holder from collecting arrears of rent due to him from ryots and empowers the Manager to collect the same. If a dispute arises in regard to arrears, the land-holder can only get it decided under the Act by the Settlement Officer and that decision can be canvassed only in the manner prescribed by the Act. From the standpoint of an injury caused to the land-holder or to the ryot or from the standpoint of the right of the land-holder to recover rent, the Act prescribes a new machinery for redressing the injury or for enforcing the right as the case may be and specifically makes the appellate order final and bars the jurisdiction of Courts from questioning it. We, therefore, hold, in respect of the questions that can be raised under Section 56 of the Act, that the jurisdiction of the Civil Courts is ousted.

17. In Maddada Chayanna (supra), the Apex Court relying upon the observations made by Hon'ble Chief Justice Subba Rao (as His Lordship then was) in Paidi Peda Appanna (supra), held that on general principles, the special tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide the disputes entrusted to them by the statute for their adjudication.

18. In the case of Biakchhawna (supra), which was a case under the Land Acquisition Act, 1894, the Apex Court at page 160 of the Report held as follows:

8. Thus, the scheme of the Act envisages that on making an application under Section 18, making a reference under Section 18 of the Act in the manner prescribed under Section 19 to the Court is mandatory and is sine qua non for the court to proceed 'thereupon' since it gets jurisdiction to issue a notice to the persons enumerated hereinabove specifying the day to appear before it. The Court then is enjoined to determine compensation in the manner prescribed in Part III of the Act. On such determination, it shall pass a decree and the award under Section 26 and in the form and manner specified therein. The Award is a decree and the statement of grounds a judgment under Sub-section (2) of Section 26 Page 3366 of the Act for the purpose of appeal under Section 54. Since this is a special procedure provided in the Act, by necessary implication, the Civil Court under Section 9 of the Civil Procedure Code 1908 has been prohibited to take cognizance of the objections arising under the Act for determination of the compensation for the land acquired under the Act.

19. In Punjab State Electricity Board (supra), which was a case under the Indian Electricity Act, the Apex Court held that in view of the statutory circulars and instructions issued by the Electricity Board, cognizance of Civil Courts has been by necessary implication excluded and as a consequence, the Civil Courts shall not be justified in entertaining the suit, and giving the declaration sought for by the respondent (plaintiff in the suit), without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the Instructions issued by the Board in that behalf from time to time.

20. In the case of Manjeti Laxmi Kantha Rao (supra), the Apex Court at Page 692, Paragraph-5 of the Report held as follows:

5. The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognisance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favor of the existence rather than exclusion of jurisdiction of the civil courts to try a civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai v. State of M.P. it was noticed that where a statute gives finality to the orders of the Special Tribunals, jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

21. In Dhruv Green Field Ltd. (supra), the question of bar of jurisdiction of Civil Courts was extensively discussed and it was categorically held that the jurisdiction of Civil Courts to try all suits of civil nature is very expansive and the statute which excludes such jurisdiction should be strictly interpreted. It was further held that where there is no express bar, but statutory provisions imply exclusion of jurisdiction, exclusion still cannot be inferred unless the statute also provides adequate and efficacious alternative remedy. At pages Page 3367 419-421 of the Report, in Paragraphs 8, 9 & 10, the position has been succinctly summed up by the Supreme Court as follows:

8. The jurisdiction of the courts to try all suits of civil nature is very expansive as is evident from the plain language of Section 9 of the Code of Civil Procedure. This is because of principle ubi jus ibi remedium. It is only where cognizance of a specified type of suit is barred by a statute either expressly or impliedly that the jurisdiction of the civil court would be ousted to entertain such a suit. The general principle is that a statute excluding the jurisdiction of civil courts be construed strictly.

9. The question, when and in what circumstances, can a suit of civil nature be said to be barred by a special statute, is no longer res integra. In Kamala Mills Ltd. v. State of Bombay a seven-Judge Bench of this Court laid down the principle thus:

The question about the exclusion of the jurisdiction of civil courts either expressly or by necessary implication must be considered, in every case, in the light of the words used in the statutory provision on which the plea is rested, the scheme of the relevant provisions, their object and their purpose. (AIR p.1951, para 30) Whenever a plea is raised before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. Where the exclusion of the civil court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of remedies provided for by it may be relevant, it cannot, however, be decisive.

But when exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and, in conceivable circumstances, might even become decisive. If a statute creates a special right or liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it is pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (AIR p. 1952, para 32) That judgment was followed in Ram Swarup v. Shikar Chand . There Gajendragadkar, C.J. speaking for a Constitution Bench of this Court formulated the following tests:

The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention; and (b) does that statute provide for an adequate and satisfactory alternative to a party that may Page 3368 be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded. (AIR p.896, para 12) The bar excluding the jurisdiction of civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity. (AIR p.896, para 13)

10. In the light of the above discussion, the following principles may be restated:

(1) If there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified there under the jurisdiction of an ordinary civil court shall stand excluded.

(2) If there is no express is no express provision in the Act but an examination of the provisions contained therein leads to a conclusion in regard to exclusion of jurisdiction of a civil court, the court would then inquire whether any adequate and efficacious alternative remedy is provided under the Act; if the answer is in the affirmative, it can safely be concluded that the jurisdiction of the civil court is barred. If, however, no such adequate and effective alternative remedy is provided then exclusion of the jurisdiction of the civil court cannot be inferred.

(3) Even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity."

22. Adverting to the judgments relied upon by the plaintiffs, in the Dhulabhai case (supra) the Apex Court categorically held that alternative statute must provide for determination of all rights and liabilities of the parties for Section 9 of the CPC to be applicable. In Paragraph-35 at Page-7 of the Report, it was observed as follows:

35. ...The result of this inquiry into the diverse views expressed in this Court may be stated as follows:

(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a Page 3369 special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether the remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) ...

(4) ...

(5) ...

(6) ...

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

23. In Raja Ram Kumar Bhargava (supra), the Apex Court in paragraph-19 at Page 688 of the Report summed up the law in this regard as follows:

19...The question turns on the scope of the exclusionary clause in the statute. The effect of clauses excluding the civil court's jurisdiction are considered in several pronouncements of the Judicial Committee and of this Court (see Secretary of State v. Mask & Co.; K.S.Venkataraman & Co. v. State of Madras; Dhulabhai v. State of Madhya Pradesh; Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke). Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu then, even in the absence of an exclusionary provision the civil court's jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognized by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil court's jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai case.

24. Next, reference was made by counsel for the plaintiffs to the decision of the Supreme Court in State of Tamil Nadu v. Ramalinga SamigaL Madam wherein Justice Tulzapurkar enunciated the law as follows:

When a statute creates a special right or liability and provides for its determination, it should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted Page 3370 by it. If there is no such provision it will be difficult to infer ouster of the Civil Court's jurisdiction to adjudicate all other questions pertaining to such right or liability...In the case of an application for a ryotwari patta by a ryot under Section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant but impliedly a decision on this aspect of the matter must be arrived at by the Settlement Officer before he passes his order on either granting or refusing to grant such patta. Such a decision will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an inquiry conducted for revenue purposes cannot be regarded as final or conclusive so as to constitute a bar to a Civil Court's jurisdiction adjudicating upon the same issue arising in a suit for injunction filed by a ryot on the basis of title and/or long and uninterrupted possession.

Even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Court's jurisdiction. Where an application is made under Section 11 for a ryotwari patta, the Settlement Officer has power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But the applicant even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the Civil Court may have to adjudicate upon the real nature or character of the land if the same is put in issue. Thus the Settlement Officer having no power to do what Civil Court would normally do in a suit, ouster of Civil Court's jurisdiction cannot be implied simply because finality has been accorded to the Settlement Officer's order under Section 64C of the Act.

25. Strong reliance was placed by counsel for plaintiffs on the above observations made by the Apex Court in the case of Ramalinga Samigal Madam (supra) as well as on the observations made at page 78 of the Report in Dhulabhai's case (supra) holding that the alternative statute must provide for determination of all rights and liabilities of the parties for Section 9 to be applicable (paragraph 35 of the judgment).

26. This then is the body of law relating to ouster of jurisdiction of civil courts. Before proceeding to apply the same to the instant case, however, it is deemed expedient to examine minutely the provisions of the IN Domain Name Dispute Resolution Policy (for short INDRP) for the purpose of enquiring whether the remedies provided therein deserve the epithets of "adequate" and "sufficient", and whether remedies normally associated with actions in civil courts are prescribed by the provisions of said Policy. I, therefore, embark upon the exercise of placing each and every provision relating to the Policy under the judicial scanner. The Policy took off on being posted on the internet on 28th June, 2005. Paragraph 1 of the aforesaid Dispute Resolution Policy relates to definitions including the definitions of arbitrator, complainant and registrant, which are as follows:

Page 3371 "Arbitrator" refers to the experts who have expertise on computer and/or laws, possess a high sense of professional ethics and are capable of rendering independent and unbiased decisions in domain name disputes.

"Complainant" refers to the person who has complaint against the Registrant.

"Registrant" is a holder of the in Internet domain name.

Thus, as per the definition clause, the plaintiffs fall within the definition of 'Complainants' while the defendants fall within the definition of 'Registrants'.

27. Paragraph 2 of the policy sets out the purpose of formulation of the Policy, being to resolve a dispute between the "Registrant" and the "Complainant" arising out of the registration and use of the in Internet Domain Name. Paragraph 3 deals with the Registrant's representations and lays down that it is the Registrant's responsibility to determine whether the Registrant's domain name registration infringes or violates someone else's rights. Paragraph 4 spells out the types of disputes and states that any person who considers that a registered domain name conflicts with his legitimate rights or interests may file a complaint to the IN Registry. As per this paragraph, the Registrant is required to submit to "a mandatory Arbitration proceeding in the event that a Complainant files a complaint to the IN Registry, in compliance with this policy and Rules there under". It is note worthy that there is no provision in the policy requiring the "Complainant" to submit to a mandatory Arbitration proceeding and paragraph 4 only states that any person may file a complaint to the IN Registry and the Registrant will have to submit to a mandatory Arbitration proceeding.

28. Paragraph 5 of the Policy deals with the procedure of dispute resolution and lays down that the Arbitrator shall conduct the Arbitration proceedings in accordance with the Arbitration & Conciliation Act, 1996 as amended from time to time and also in accordance with this Policy and rules provided there under. It further lays down that IN Registry shall appoint an Arbitrator out of the list of Arbitrators maintained by the Registry and that the said list of Arbitrators shall be published on line by the IN Registry on its website at www.registry.in. Paragraph 6 of the policy delineates what would constitute evidence of registration and use of domain name in bad faith by the "Registrant" for the purposes of paragraph 5 of the policy. The Policy then illustrates and describes the rights to and legitimate interests in the domain name vide paragraph 7. Paragraph 8 lays down the fees charged by the IN Registry in connection with any dispute pursuant to the Policy shall be paid by the complainant. Paragraph 9 states that the Registry and the Registrars shall not participate in the domain name dispute resolution proceedings in any capacity or manner other than providing information relevant to the registration and use of the domain name upon the request of the Arbitrator, and that neither the Registry nor the Registrar shall be liable for any decisions rendered by an Arbitrator.

29. Paragraph 10 of the policy provides that the remedies available to a Complainant pursuant to any proceedings before an Arbitrator shall be limited to requiring the cancellation of the Registrant's domain name or the transfer of the Registrant's domain name registration to the Complainant and to such Page 3372 costs as may be deemed fit to be awarded by the Arbitrator. This paragraph being significant for the purposes of the present application, I propose to deal with the same at some length at a subsequent point of time.

30. Paragraph 11 provides for publication of all decisions under the Policy on the internet. Paragraph 12 lays down that a Registrant shall not transfer the domain name registration to another holder during the pendency of Arbitration proceedings or during the pendency of Court proceedings unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the Court or Arbitrator. Paragraph 13 reserves to the Government of India the right to add, delete, amend or modify the policy at any time.

31. The aforesaid dispute resolution policy is accompanied by Rules of Procedure described as INDRP Rules and Procedure, to some of which I shall presently advert. There is also the IN Dispute Resolution Arbitrators list, which reads as follows:

IN Dispute Resolution Arbitrators The below arbitrators have been chosen by NIXI after having proved their qualifications. They have signed a Declaration of Impartiality and Independence, under which they discharge their responsibilities.

Mr. Uttam Prakash Agarwal Mr. Manoj Babubhai Bhatt Mr. Nikilesh Ramachandran Mr. A.K. Singh Mr. Rajeev Singh Chauhan Mr. Sanjay Kumar Singh Mr. G. Subba Rao Ms. Deepa Gupta Mr. G.S. Murty Mr. S.C. Inamdar Mr. Visheshwar Shrivastav.

32. Before proceeding further, I pause here to notice that learned Counsel for defendants vehemently contended that upon the posting of the INDRP, in view of the provisions of Section 5 of the Arbitration & Conciliation Act, 1996 exclusion of intervention of Civil Courts was a mandate of the legislature. In this context, reliance was placed by him upon a decision of the Bombay High Court in United India Insurance Co. Ltd. v. Kumar Texturisers wherein it was held that a conjoint reading of Section 5, Section 34, Section 37 and Section 14(2) of the Arbitration & Conciliation Act of 1996 will show that the Court can intervene only in cases covered by Section 14, Section 34 and Section 37.

33. Strong reliance was also placed by counsel for defendants in the same context upon the judgment of the Apex Court in Secur Industries Ltd. v. Godrej & Boyce Mfg. Co. Ltd. holding therein that with the Page 3373 applicability of Part I of the Arbitration & Conciliation Act, 1996 in all its force, the extent of judicial intervention in arbitrations is limited by the non obstante provisions of Section 5 of the said Act.

34. To the same effect is the judgment of the Apex Court in P. Anand Gajapathi Raju v. P.V.G. Raju (2004) 4 SCC 539 relied upon by counsel for defendants holding therein that Section 5 brings out clearly the object of the new Act (Arbitration & Conciliation Act, 1996), namely, that of encouraging resolution of disputes expeditiously and less expensively and when there is an arbitration agreement, the court's intervention should be minimal.

35. Per contra, counsel for the plaintiffs contended that the provisions of the Arbitration and Conciliation Act, including Section 5 of the said Act, cannot be invoked for the reason that arbitration, by its very nature, is an alternative dispute resolution mechanism involving consent of both the parties to refer their dispute to arbitration. Accordingly, Section 7 of the Act provides for the existence of an arbitration agreement between the parties. Then again, Section 8 of the Act lays down that this Court can only refer the parties to arbitration if there is an arbitration agreement, which term is defined under Section 7. Section 5, therefore, has no applicability to the present proceedings in view of the fact that this is not a matter in which there is an arbitration agreement between the parties. It is only after the complaint is filed in terms of the Policy and the Rules framed there under that the provisions of Section 7 of the Arbitration Agreement can be said to be satisfied, if at all. They (the plaintiffs) have not filed any complaint before the Tribunal and, as a matter of fact, had instituted the present suit much prior to the formulation of the Policy.

36. Amplifying upon the aforesaid contention, learned Counsel for the plaintiffs emphatically contended that the IN Domain Name Dispute Resolution Policy (INDRP), as was clear from the provisions thereof, by no means required the complainants (plaintiffs in the instant case) to submit to mandatory arbitration proceedings though the Registrant was required to do so, and in this context, the terms of paragraph 4 of the policy are relevant, which read as follows:

...

The Registrant is required to submit to a mandatory Arbitration proceeding in the event that a Complainant files a complaint to the IN Registry, in compliance with this Policy and Rules there under.

37. It was further pointed out that the INDRP Rules of Procedure, and particularly Rule 3(b)(ix), clarified that though the Registrant was required to submit to mandatory Arbitration proceedings in the event that a Complainant filed a complaint, the reverse was by no means true. Rule 3(b)(ix) is in the following terms:

3(b) The Complaint and the annexures attached to it shall be submitted in hard copy and as far as possible in electronic form also and shall incorporate the following:

(i) ...

(ii) ...

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(iii) ...

(iv) ...

(v) ...

(vi) ...

(vii) ...

(viii) ...

(ix) Conclude with the following statement followed by the signature of the Complainant or its authorized representative:

The Complainant, by submitting the Complaint agrees to the settlement of the dispute, regarding the domain name which is the object of the Complaint by final and binding arbitration in India in accordance with the Arbitration and Conciliation Act, 1996, the .IN Domain Name Dispute Resolution Policy of IN Registry; Rules of Procedure and any bye-laws, rules or guidelines framed there under.

38. Learned Counsel for plaintiffs emphasized that a conjoint reading of paragraph 4 of the INDRP Policy and Rule 3(b)(ix) of the Rules conclusively establishes that it is only upon the Complainant consenting to the settlement of the dispute by the forum provided by the INDR Policy that the provisions of the Arbitration & Conciliation Act, 1996 would come into play.

39. Next, reference was made by counsel for plaintiffs to the provisions of Paragraph 12(i) and (ii) of the Policy and Rule 3(b)(viii) to contend that the IN Domain Name Dispute Resolution Policy has tell-tale signs from which it can be inferred that the INDRP is not a mandatory procedure for domain name disputes. Paragraph 12 reads as follows:

12. Transfers During a Dispute The Registrant shall not transfer a domain name registration to another holder:

(i) In case an Arbitration proceeding is initiated pursuant to this policy, for a period of fifteen (15) working days ("working day" means any day other than a Saturday, Sunday or public holiday) after such proceeding is concluded; or

(ii) during a pending court proceeding or arbitration commenced regarding the domain name, unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator.

The Registry reserves the right to cancel any transfer of a domain name registration to another holder that is made in violation of this paragraph.

Rule 3(b)(viii) is as under:

3(b) The Complaint and the annexures attached to it shall be submitted in hard copy and as far as possible in electronic form also and shall incorporate the following:

(i) ...

(ii) ...

(iii) ...

(iv) ...

(v) ...

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(vi) ...

(vii) ...

(viii) Identify any other legal proceedings that have been commenced or terminated in connection with or relating to the domain name that is the subject of the Complaint.

40. In the above context, counsel for plaintiffs relied upon the decision of the Supreme Court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya . In paragraphs 12, 13 & 14, observations to the following effect were recorded:

12. ...This would, therefore, mean that the Arbitration Act does not oust the jurisdiction of the civil court to decide the dispute in a case where parties to the arbitration agreement do not take appropriate steps as contemplated under Sub-sections (1) and (2) of Section 8 of the Act.

13. Secondly, there is no provision in the Act that when the subject-matter of the suit includes subject-matter of the arbitration agreement as well as other disputes, the matter is required to be referred to arbitration. There is also no provision for splitting the cause or parties and referring the subject-matter of the suit to the arbitrators.

14. Thirdly, there is no provision as to what is required to be done in a case where some parties to the suit are not parties to the arbitration agreement....

41. Counsel for plaintiffs contended that the fact that the words "in case an Arbitration proceeding is initiated" have been used in Paragraph 12(i) of the Policy and the further fact that Paragraph 12(ii) of the Policy as well as Rule 3(b)(viii) of the Rules framed there under envisage the pendency of Court proceedings, conclusively establishes, beyond any iota of doubt, that the INDRP Policy does not prescribe a mandatory procedure for resolution of domain name disputes.

42. Reference was also made by counsel for the plaintiffs to the "Internet Corporation for Assigned Names and Numbers" (for short ICANN) approved "Uniform Domain Name Dispute Resolution Policy" (for short UDNDR Policy), posted on September 29, 1999 on the Net, to contend that the availability of Court proceedings was envisaged by the framers of the said policy, which was the forerunner of the INDRP, and that Rule 4(k) of the UDNDR Policy and Rule 18 framed under the said Policy clearly allowed intervention by the Court. The said provisions are extracted as under:

Rule 4(k) of the UDNDR Policy 4(k) Availability of Court Proceedings. The mandatory administrative proceeding requirement set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be cancelled or transferred, we will wait ten (10) Page 3376 business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a Mutual Jurisdiction regarding your right to use your domain name. For purposes of this Policy, a Mutual Jurisdiction is one defined as such in the Rules of Procedure (and in which both parties are subject to court jurisdiction). If we receive such documentation within the ten (10) business day period we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name.

Rule 18 of UDNDR Policy Rules

18. Effect of Court Proceedings

(a) In the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain name dispute that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to proceed to a decision.

(b) In the event that a Party initiates any legal proceedings during the pendency of an administrative proceeding in respect of a domain name dispute that is the subject of the complaint, it shall promptly notify the Panel and the Provider.

43. Having heard the respective contentions of counsel for both parties and carefully scrutinized the records, the INDRP Policy and the Rules framed there under as well as all the precedents cited at the bar, the following position, in my considered opinion, clearly emerges:

(i) The established law is that under Section 9 Code of Civil Procedure, jurisdiction of Civil Courts can only be ousted by an express or implied bar. Admittedly, there is no express bar pleaded in the instant case. The scheme of the Policy and the Rules framed there under, in any case, show that there is no explicit ouster of the jurisdiction of the Civil Court. The case is, therefore, pleaded on an implied bar.

(ii) It is well established that where a right pre-existing in common law is recognized by the statute and a new statutory remedy for its enforcement is provided, without expressly excluding the Civil Courts jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to persons of inherence. In the instant case, to my mind, no new statutory remedy is provided as such and all that has been formulated is an alternative Dispute Resolution Policy, and that too, not by the legislature but by NIXI with its corporate office at 121-123 Ansal Tower, Nehru Place, New Delhi 110 019. Had it been a new statutory remedy, even then it could not have been more than a concurrent remedy, leaving open an element of election to the aggrieved person to Page 3377 chose between filing a complaint before the IN Registry c/o NIXI, or to approach the Civil Court.

(iii) It is trite law that an alternative statute must provide for determination of all the rights and liabilities of the parties for Section 9 of the Code of Civil Procedure to be applicable. In the instant case, the whole scheme of the IN Domain Name Dispute Resolution Policy shows that the remedies available under the said Policy are of an extremely limited nature - "limited to requiring the cancellation of the Registrant's domain name or the transfer of the Registrant's domain name registration to the Complainant" (paragraph 12 of the Policy). Paragraph 2 of the Policy, which lays down the purpose of the policy, limits the same to resolution of a dispute between the Registrant and the Complainant "arising out of the registration and use of the IN Internet Domain Name". The scope of the suit is far greater than the disputes that the INDR Tribunal can adjudicate upon. Substantive relief is claimed for "infringement of trademark" and "passing off" which includes infringing the use of CITI in any manner or form either as a domain name or as a trademark or trade name or on the website.

Further, perusal of the written statement of defendant No. 2 shows that defendant No. 2 has expressed intensive plans for launching of portal and using CITI which can only be adjudicated in a suit and not before the INDR Tribunal. Rendition of accounts, which is also claimed by plaintiffs in the suit, quite obviously, cannot be claimed from the Tribunal. Thus, by no stretch of imagination, can it be said that the Policy contains machinery by which adequate and complete relief can be provided to the plaintiffs herein. At the risk of repetition, it is emphasised that the only order the INDR Tribunal is authorized to pass is one for cancellation or transfer of the domain name and as held in Sukanya Holdings (supra) there is no provision for splitting up the cause when the subject-matter of the suit includes subject-matter of the arbitration agreement as well as other disputes.

(iv) The status of the IN Registry is that of a not for profit company. The IN Domain Name Dispute Resolution Policy is neither a statute nor an Act. It is, thus, not a creation of the legislature and must be distinguished from a Central Act or a State Act as defined in Section 3(59) of the General Clauses Act. The status of an Arbitrator under the INDRP is neither that of a Judge nor that of a Judicial Officer. He is not even a degree holder in law. The only qualification of an Arbitrator as laid down in the Policy is that he should have some expertise either in computers or in law. In direct contradistinction, Section 134 of the Trade Marks Act mandates that only a District Court/District Judge is empowered to deal with suits for infringement of a trademark or for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the trade mark of the plaintiff, whether registered or unregistered. The Tribunal, therefore, is not a forum which can be said to provide adequate and effective machinery for the redress of all the disputes.

(v) It is inconceivable that whereas the ICANN formulated UDNDR Policy evolved on 24th October, 1999 does not oust the jurisdiction of Civil Courts, the INDRP ousts the Civil Courts jurisdiction, more so in view of Page 3378 the fact that INDR Policy is formulated on the lines of the UDNDR Policy. After discussing the aforesaid policy, the Apex Court in Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd. 2004 (28) PTC 566 (SC), in paragraph 22 of its Judgment, held that Rule 4(k) of the UDNDR Policy would not prevent either the domain name owner/registrant or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution, either before proceeding under ICANN's policy or after such proceeding is concluded. The Supreme Court, however, noticed that there is no legislation in India which explicitly refers to dispute resolution in connection with domain names. The said lacuna has no doubt been filled by the INDRP, but as set out hereinbefore, the result by no means tantamounts to ouster of the jurisdiction of Civil Courts, more so, in cases where infringement of trade name/trademark and passing off are alleged and rendition of accounts and other reliefs such as are claimed in the present proceedings are prayed for.

(vi) It is well settled that the provisions of the Arbitration & Conciliation Act cannot be invoked unless there is a binding written agreement between the parties for arbitration. There is no such agreement in the instant case. The mere fact that the Registrants (Defendants herein) have registered themselves with the alternative dispute resolution forum cannot by any stretch of imagination be construed to mean that the Complainants (Plaintiffs herein) have consented to refer their dispute to Arbitration.

(vii) The policy itself envisages that the consent of the Complainant to arbitration proceedings must be forthcoming (See paragraph 4 of the Policy and Rule 3(b)(ix) of the Rules framed there under). The decision of the Apex Court in , that there is no power conferred on the Court to refer parties to arbitration sans an arbitration agreement between the parties, and that reference must be strictly in accordance with the arbitration agreement, clinches the issue.

44. In view of the aforesaid, I have no hesitation in holding that the IN Domain Name Dispute Resolution Policy (INDRP) does not oust the jurisdiction of this Court to deal with the present suit. The inevitable result is that the present application must be rejected. The same is accordingly rejected.

45. Parties are left to bear their own costs.