Allowed

Wellness Forever Medicare Ltd., v. Nirbaya Super Speciality Hospital and Research Centre

Karnataka HC10 Nov 2023CMP/444/2022

Case brief

AI extract

What is this about?

Petitioner sought appointment of a sole arbitrator for disputes arising from Leave and License and Business Sharing Agreements. Court allowed the petition, observing that limitation and privity issues belong to the arbitral tribunal, and appointed a retired District Judge as sole arbitrator.

What did the court decide?

Petition allowed; Sri I.S.Antin, Retd. District Judge, appointed as sole arbitrator to conduct proceedings.

Wellness Forever Medicare Ltd., Vs Nirbaya Super Speciality… — Arbitration | Karnataka HC (2023)

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD CIVIL MISC. PETITION NO. 444 OF 2022

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BETWEEN:

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WELLNESS FOREVER MEDICARE LTD., A LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT 2013 (DEEMED CONVERTED UNDER THE COMPANIES ACT 1956 HAVING REGISTERED OFFICE AT 7^TH FLOOR, WING A EMPIRE PLAZA, IT PARK LBS MARG, VIKHORLI WEST MUMBAI-40083 REPRESENTED BY AUTHORISED SIGNATORY MR ASHRAF BIRAN.

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…PETITIONER

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(BY SMT. ASMITA DESHPANDE, ADVOCATE)

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AND:

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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NIRBAYA SUPER SPECIALITY HOSPITAL AND RESEARCH CENTRE A PARTNERSHIP FIRM HAVING ITS OFFICE ADDRESS AT 6/7/8, 4^TH MAIN 18^TH CROSS ROAD MALLESHWARAM BANGALORE-460003 ALSO HAVING ADDRESS AT 124/198/131 BELLARY MAIN ROAD

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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NR. HEBBAL FLYOVER HEBBAL, BENGALURU-560024.

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DR GOPINATH R S/O RAMAIAH PARTNER OF NIRBAYA SUPER SPECIALITY HOSPITAL AND RESEARCH CENTRE AND ADULT, AGE NOT KNOWN HAVING HIS ADDRESS AT 6/7/8 4^TH MAIN, 18^TH CROSS ROAD MALLESHWARAM BANGALORE-460003.

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ALSO HAVING ADDRESS AT 34, MARAPPA GARDEN BENSON TOWN BENGALURU-560046.

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DR BALAJI RAO

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PARTNER OF NIRBAYA SUPER SPECIALITY HOSPITAL AND RESEARCH CENTRE AND ADULT HAVING HIS ADDRESS AT 6/7/8 4^TH MAIN, 18^TH CROSS ROAD MALLESHWARAM BANGALORE-460003.

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ALSO HAVING ADDRESS AT 169/1 BALAJI NILAYA 2^ND CROSS, MSR NORTH CITY BENGALURU-560077.

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MR ANAND B V PARTNER OF NIRBAYA SUPER SPECIALITY HOSPITAL AND RESEARCH CENTRE AND ADULT AGE NOT KNOWN

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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HAVING HIS ADDRESS AT 6/7/8 4^TH MAIN, 18^TH CROSS ROAD MALLESHWARAM BANGALORE-460003. ALSO HAVING ADDRESS AT 693 1^ST CROSS, KPR EXTENSION KOLAR-563101.

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MR NARAYANASWAMY V PARTNER OF NIRBAYA SUPER SPECIALITY HOSPITAL AND RESEARCH CENTRE AND ADULT HAVING HIS ADDRESS AT 6/7/8 4^TH MAIN, 18^TH CROSS ROAD MALLESHWARAM BANGALORE-460003

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ALSO HAVING ADDRESS AT 50/1, 1^ST FLOOR, 18^TH CROSS, MALLESHWARAM BENGALURU-560003.

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…RESPONDENTS

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(BY SRI.PRUTHVI WODEYAR., ADVOCATE FOR R2;

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SRI. SANKEERTH VITTAL, ADVOCATE FOR R3; SRI. N. DEVARAJ, ADVOCATE FOR R4; SRI. M. SHIVAPRAKASH & SRI SRIDHAR B.R., ADVOCATES FOR R5)

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THIS CIVIL MISC. PETITION IS FILED UNDER SEC.11(5) AND (6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT A SOLE ARBITRATOR TO ADJUDICATE AND DECIDE UPON THE DISPUTES AND DIFFERENCES BETWEEN THE PARTIES HEREIN, IN ACCORDANCE TO CLAUSE 17 OF THE SAID

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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REGISTERED LEAVE AND LICENSE AGREEMENT DATED 18/12/2015 AT ANNEXURE-A AND CLAUSE 25 OF THE SAID BUSINESS SHARING AGREEMENT DATED 18/12/2015 AT ANNEXURE-B.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed for appointment of a sole Arbitrator relying upon the agreement for arbitration in the contemporaneous and simultaneous Leave and License Agreement and Business Sharing Agreement both dated 18.12.2015. If the agreement for arbitration in Leave and License Agreement is for arbitration by a panel of three arbitrators, the agreement for arbitration in the Business Sharing Agreement is by a sole Arbitrator.

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The learned counsel for the petitioner submits that the present dispute is confined to the petitioner’s claim for refund of security deposit paid when it was permitted to occupy the subject premises under the Leave and License Agreement. The learned

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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counsel for the petitioner and the learned counsel for the respondents are heard in the light of this submission. The petitioner contends that with the aforesaid agreements, it entered possession of the subject property and commenced the business but for no reason, and without any prior termination, the petitioner was dispossessed in the month of January 2016 and the amount paid as refundable security deposit has not been refunded despite repeated requests and exchange of communication in this regard in the month of November 2019.

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The learned counsel for the respondents submits that this Court must opine that the petitioner’s claim for refund, even if tenable, is time barred inasmuch as no action is taken from the month of January 2016 until the date of the present legal notice dated 14.08.2020. The learned counsel also submits that the second respondent could not have executed either the Leave and License

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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Agreement or the Business Sharing Agreement and if the second respondent is not authorized, there cannot be any liability in the first respondent or the other partners of the firm.

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The records are perused, and the petitioner is categorical in the legal notice dated 14.08.2020, which is preceded by the

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Communication dated 20.11.2019 for return of the security deposit, that there is repeated demands for refund only to be informed vide the Reply dated 27.11.2019 that the second respondent’s authority to execute the subject agreements is contested by other partners of the first respondent. This assertion could be material in deciding on the question of limitation.

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In the circumstances of the case, this Court is not persuaded to opine that the claim is ex - facie time barred to reject the application filed for appointment of arbitrator, and the question of limitation, along with the other questions [including

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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the question of privity of contract], must be examined in the arbitral proceedings. The petitioner and the first respondent under the aforesaid agreements have agreed for arbitration by a panel of three Arbitrators and the sole Arbitrator, but in the circumstances of the present dispute, this Court is of the considered view that a retired District Judge must be appointed as a sole Arbitrator. Hence the following:

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ORDER

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(i) The petition is allowed, and Sri I.S.Antin, a retired District Judge, is appointed as the sole arbitrator to enter reference of the dispute between the petitioners and respondents and conduct the proceeding at the Arbitration and

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Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the Arbitration and Conciliation Centre (Domestic and

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International), Bengaluru.

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NC: 2023:KHC:40358 CMP No. 444 of 2022

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(ii) The Registry is directed to communicate this order [even by email] to the Arbitration and Conciliation Centre (Domestic and International), Bengaluru and Sri I.S.Antin, a retired District Judge, Address: No.23, ‘Basava’, Venkatappa Road, Taskar Town, Off.Queens Road, Bengaluru – 560 051 [email: [email protected]] as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.

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Sd/JUDGE

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AN/-

Wellness Forever Medicare Ltd., v. Nirbaya Super Speciality Hospital and Research Centre

Case brief

What is this about?

What did the court decide?

Wellness Forever Medicare Ltd., v. Nirbaya Super Speciality Hospital and Research Centre

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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