Dismissed

Hiremath Hospitals Private Limited v. Healthcare Global Enterprises Limited

Karnataka HC8 Sept 2021WP/14375/2021

Case brief

AI extract

What is this about?

This writ petition challenged an order rejecting an application to lead affidavit evidence to challenge an arbitration award. Relying on Canara Nidhi Ltd., the court held that cross-examination/swearing affidavits are not permissible unless absolutely necessary and dismissed the petition.

What did the court decide?

The writ petition was dismissed as it failed.

Hiremath Hospitals Private Limited Vs Healthcare Global… — Arbitration | Karnataka HC (2021)

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W.P No.14375/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

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WRIT PETITION No.14375 OF 2021 (GM-RES)

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BETWEEN :

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HIREMATH HOSPITALS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.79, CHBS LAYOUT VIJAYANAGAR, BENGALURU-560 040 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR DR. VISHWANATH HIREMATH ... PETITIONER

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(BY SHRI. S. VIVEKANANDA, ADVOCATE)

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AND :

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HEALTHCARE GLOBAL ENTERPRISES LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT: HCG TOWERS, NO.8 KALLINGARAO ROAD SAMPANGI RAM NAGAR BENGALURU-560 027 REPRESENTED BY ITS CHAIRMAN AND CEO DR. B.S. AJAIKUMAR

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HON'BLE SOLE ARBITRATOR ARBITRATION AND CONCILIATION CENTRE BENGALURU (DOMESTIC AND INTERNATIONAL) 3^RD FLOOR, KHANIJA BHAVAN

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W.P No.14375/2021

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RACE COURSE ROAD BENGALURU-560 001 ... RESPONDENTS

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(BY SMT. B. RAJASHREE, ADVOCATE FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS, IF NECESSARY AND SET ASIDE THE ORDER DATED 28.06.2021, PASSED BY THE HONBLE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-22), MAYO HALL, BENGALURU IN ARBITRATION SUIT BEARING A.S.NO.25005/2018 AT ANNEXURE-A ON INTERLOCUTORY APPLICATION U/S 151 OF THE CODE OF CIVIL PROCEDURE, 1908 AND CONSEQUENTLY ALLOW THE APPLICATION BEARING I.A.NO.3/2019 PERMITTING THE PETITIONER TO LEAD EVIDENCE IN SUPPORT OF HIS CONTENTIONS IN A.S.NO.25005/2018.

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THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.08.2021, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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ORDER

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Petitioner's case is, it entered into an agreement to run first respondent's hospital. In the Memorandum of Understanding dated 16.06.2014, first respondent had agreed to provide infrastructure such as building, management softwares, medical equipments, etc. The first respondent did not make available the infrastructure. It terminated the contract without giving any time as contemplated in the MOU. First respondent sent away the doctors and other staff.

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Petitioner, availing the arbitration clause,

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claimed Rs.7.12 Crores with interest. The first respondent filed the counter claim. The learned Arbitrator, vide order dated 20.08.2018, has held that petitioner is entitled to receive Rs.14,68,822 with 18% interest p.a., from 18.11.2016 and respondent is entitled for Rs.42,40,044/with 18% interest p.a. from 27.01.2017. Thus, in substance, the learned Arbitrator has allowed the counter claim. Petitioner has challenged the award in arbitration suit registered as A.S No.25005/2018 on the file of 13^th Additional City Civil and Sessions Judge, Bengaluru. In the said proceedings, petitioner has filed an application under Section 151 CPC to permit to file affidavit evidence in support of the ground urged in the suit and the same has been rejected by the impugned order. Hence, this writ petition.

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Shri Vivekananda, learned Advocate for the petitioner placing reliance on Govardhan M Vs. State of

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W.P No.14375/2021

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Karnataka & Others¹ submitted that petitioner is entitled to

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file an affidavit in support of the grounds urged in the suit.

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Smt. Rajashree, learned Advocate for first respondent relying on Canara Nidhi Limited Vs. M. Shashikala and Others² submitted that petitioner's application before the learned trial judge is not

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maintainable.

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I have carefully considered rival contentions and perused the records.

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Section 34 has been amended with effect from 23.10.2015. The authority relied upon by petitioner is of the year 2013. In Canara Nidhi Ltd ., the Apex Court has summarized the law on the point and held as follows;

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"18(a)……………

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(b)………… (c)……

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(d). The legal position is thus clarified that Section 34 application will not ordinarily require anything beyond the record that was before the arbitrator and that cross-examination of persons

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1 2013 (1) Kar.LJ 437 2 (2019) 9 SCC 462

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W.P No.14375/2021

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swearing in to the affidavits should not be allowed unless absolutely necessary."

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Learned Trial Judge has noted in Para 11 of the impugned order that in arbitration proceedings on behalf of the claimant, C.W.1 to C.W.3 were examined and Ex.P1 to P183 were marked. On behalf of the respondent, R.W.1 and R.W.2 were examined and Ex.R1 to R29 were marked. Learned Trial Judge has rightly held that plaintiff has to address arguments on the suit to demonstrate as to how the award is liable to be set-aside and it is not proper to permit the plaintiff to lead evidence by allowing the application.

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In view of the amended provision and the law laid down by the Apex Court in Canara Nidhi Ltd., no exception can be taken to the order passed by the learned Trial Judge. Resultantly, this writ petition fails and it is accordingly dismissed .

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No costs.

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Sd/JUDGE

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Hiremath Hospitals Private Limited v. Healthcare Global Enterprises Limited

Case brief

What is this about?

What did the court decide?

Hiremath Hospitals Private Limited v. Healthcare Global Enterprises Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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