Gujral Resturants And Management Pvt Ltd & Anr. vs Sky High & Anr.

Court
Delhi High Court

$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 20.04.2026
+ O.M.P.(I) (COMM.) 165/2026 & I.A. 10624/2026 (For
Exemption)

GUJRAL RESTURANTS AND MANAGEMENT PVT LTD &
ANR. .....Petitioners
Through: Mr. Rishabh Sharma and Ms.
Ambica Sood, Advocates for
P-1.
versus

SKY HIGH & ANR. .....Respondents
Through: Mr. Ishan Jain, Advocate.

CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR

% JUDGEMENT (ORAL)
1. The present Petition has been filed under Section 9 of the
1
Arbitration and Conciliation Act, 1996 , seeking the following
reliefs:
“…..
i. Pass an Ex-parte Order of the Injunction against the Respondents, its
principals, partners, officers, employees, agents, distributors, suppliers,
affiliates, subsidiaries, franchisees, licensees, representatives, group
companies, assigns, etc. be restrained by an Order of injunction from:
Advertising, selling, offering for sale, marketing, promoting any restaurant
and catering business or in any other manner whatsoever, using the
Impugned Marks „MOTI MAHAL‟, „MOTI MAHAL DELUX‟ or any
other mark which is deceptively and/or confusingly similar and/or
identical/virtually identical to the Petitioner‟ earlier, well – known and

1
A&C Act
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registered trademarks „MOTI MAHAL‟, „MOTI MAHAL' formative
marks or any of the trademarks or in any other manner whatsoever, which
would amount to infringing the Petitioner' earlier well-known registered
trademarks and passing off;


ii. The Respondent No. l, its principals, partners, officers, employees, agents,
distributors, suppliers, affiliates, subsidiaries, franchisees, licensees,
representatives, group companies, assigns, etc. be ordered by a decree of
mandatory injunction;

iii. Cost of the Petition be Awarded in favour of the Petitioner.

iv. Pass any other Order as it may deemed fit in the facts and the
circumstances of the present case.”



2. Learned counsel Mr. Ishan Jain, who enters appearance on
behalf of the Respondents on advance notice, objects to the grant of
any relief as sought for, on the ground that a suit came to be filed by
the Petitioners herein and which was later withdrawn.
3. He submits that since the said suit came to be withdrawn
without any liberty being granted to prefer any further proceedings,
the present Petition is barred under the law. In this regard, he relies
upon the judgment of the Hon‟ble Supreme Court in Bakhtawar
2
Singh v. Sada Kaur and in particular Paragraph 8 thereof, which
reads as under:
“8. The contention of the learned counsel for the appellants is that
since the plaintiffs had withdrawn their earlier suit (Civil Suit No.
661 of 1964) with permission to file a fresh suit on the same cause
of action in accordance with the provisions contained in clause (3)
of Rule 1 of Order 23 of the Code of Civil Procedure (hereinafter
„the Code‟) and, therefore, the plaintiffs were entitled to exclude
the time spent in prosecuting the said earlier suit as provided under
Section 14 of the Limitation Act, 1963 (hereinafter „the Act‟). The
question, therefore, that arises for our consideration is whether the
plaintiffs-appellants were permitted to withdraw the suit in
accordance with the provisions contained in clause (3) of Order 23

2
(1996) 11 SCC 167
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Rule 1 of the Code and whether in the facts and circumstances of
the present case the plaintiffs-appellants are entitled for exclusion
of the time under Section 14 of the Act. Clause (3) of Order 23
Rule 1 of the Code contemplates that where the court is satisfied
( a ) that a suit must fail by reason of some formal defect, or ( b ) that
there are sufficient grounds for allowing the plaintiff to institute a
fresh suit for the subject-matter of the suit or part of a claim, it may
on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim with liberty to
institute a fresh suit in respect of subject-matter of such suit or such
part of the claim. In the present case all the courts below including
the High Court concurrently found that the plaintiffs/appellants
failed to produce any evidence to show that the permission to
withdraw the suit was given on the ground that the suit was bound
to fail by reason of some formal defect or there were sufficient
grounds for allowing the plaintiffs to institute a fresh suit in respect
of the same subject-matter. Not only this, the plaintiffs had not
even produced the application which is said to have been filed for
withdrawal of the earlier suit with permission to file a fresh suit on
the same cause of action to show as to what was the formal defect
in the earlier suit by reason of which it was sought to be
withdrawn. However, the order dated 20-5-1971 passed by the civil
court was on record which did not indicate as to what was the
formal defect in the suit by reason of which the permission to
withdraw the same was accorded. In these facts and circumstances
no case for fresh institution of suit on the same cause of action and
for the same relief after the withdrawal of the earlier suit was made
out by the plaintiffs/appellants in accordance with the provisions of
clause (3) of Order 23 Rule 1 of the Code.”

4. A perusal of Bakhtawar Singh (supra) would indicate that the
Judgement relates to the filing of a fresh suit after withdrawal of a
previous suit, albeit the same does not pertain to an arbitration
proceeding being instituted.
5. This Court is of the considered opinion that in view of the fact
that the relationship as between the parties, which is governed by a
3
Franchise Agreement dated 23.11.2020 , contains an arbitration
clause, the present Petition is clearly maintainable. The relevant
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arbitration clause, being Clause XXVII of the Agreement, reads as
under:
“XXVII) ARBITRATION
In the event of any dispute or difference between the parties hereto,
whether arising during the currency or after the completion or
abandonment of this agreement, or after the determination thereof
( whether for breach or for any other reason) in regard to any
matter of thing of whatsoever nature arising out of this agreement
or in connection therewith, then either party shall give to the other
notice in writing of such dispute or shall give to the other notice in
writing of such dispute or difference and the same shall be referred
to an Arbitrator mutually consented by both parties appointed by
the Franchisor & Franchisee only, the venue of the arbitration shall
be Delhi, India in accordance with the Arbitration & Conciliation
Act 1996 or any statutory modification or amendment thereof.
Subject to the foregoing parties submit to the Jurisdiction of Courts
at Delhi only. The arbitration proceedings shall be conducted in the
English Language. The award of the respective arbitration shall be
binding on all parties.
That any dispute or differences arising out of or in relation to this
Agreement shall be at the first instance settled expeditiously and
fairly by the chief executives / authorized representatives of the
concerned Parties hereto. In the event of the chief executives /
authorized representatives of the concerned Parties not being able
to resolve the disputes / differences amicably.”

6. Upon a pointed query being put to learned counsel appearing on
behalf of the parties, they submit that they have no objection to the
disputes as raised herein being referred to arbitration by a Sole
Arbitrator.
7. Since the parties have mutually consented to the adjudication of
their disputes by way of Arbitration, this Court is of the view that the
commencement of arbitral proceedings to adjudicate the disputes
between the parties should not be unduly delayed. Accordingly, in the

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Agreement
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peculiar facts of the present case, the requirement of Section 21 notice
and initiation of separate proceedings under Section 11 of the A&C
Act are dispensed with, with the consent of the parties.
8. In view thereof, this Court is of the view that the matter may be
referred to arbitration by a Sole Arbitrator for the purpose of the
adjudication of the disputes between the parties.
9. Material on record reflects that the valuation of the subject
matter of the disputes is stated to be approximately Rs. 2,00,05,000/-.
10. Accordingly, this Court hereby requests Hon’ble Mr. Justice
(Retd.) Dr. Bharat Bhushan Prasson (Former Judge of Punjab
and Haryana High Court) (Mobile No. 9999688588), to enter upon
the reference and adjudicate the disputes inter se the parties.
11. The learned Sole Arbitrator may proceed with the arbitration
proceedings, subject to furnishing to the parties the requisite
disclosures as required under Section 12(2) of the A&C Act within a
week of entering the reference.
12. The Registry is directed to forward a copy of this order to the
learned Arbitrator through all permissible modes, including electronic
means..
13. The learned Arbitrator shall be entitled to a fee in accordance
with the Fourth Schedule of the A&C Act or as may otherwise be
agreed to between the parties and the learned Arbitrator.
14. The parties shall share the learned Arbitrator‟s fee and arbitral
costs equally.
15. All rights and contentions of the parties are kept open, to be
decided by the learned Sole Arbitrator on their merits, in accordance
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with law.
16. Accordingly, the present Petition under Section 9 of the A&C
Act shall be treated as an Application under Section 17 of the A&C
Act, and appropriate directions may be passed by the learned
Arbitrator after entering upon the reference.
17. The learned Arbitral Tribunal is requested to accord their
consideration to the Section 17 Application as expeditiously as
possible.
18. Needless to state, nothing in this order shall be construed as an
expression of opinion of this Court on the merits of the controversy.
19. Accordingly, the present Petition, along with pending
Application(s), if any, stands disposed of in the aforesaid terms.



HARISH VAIDYANATHAN SHANKAR, J.
APRIL 20, 2026/tk/va/kv

Signature Not Verified
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By:NEERU
Signing Date:22.04.2026
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