IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6853 ………… of 2008 @

SPECIAL LEAVE PETITION (C) NO.18211 of 2007

Brigadier Man Mohan Sharma, FRGS (Retd.) ..Appellant

Vs.

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

1

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

2

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

3

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.

4

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)”

5

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

6

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

7

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

8

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

9

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

10

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

11

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.

12

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

13

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

14

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

15

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

16