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2010 Supreme(AP) 1122
2011 (2) ALT 440
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE V. ESWARAIAH & THE HONOURABLE MR. JUSTICE NOUSHAD ALI
M/s. Wockhardt Hospitals Limited, Rep. by its authorized signatory, Ullhas Kelkar
Versus
M/s. Kamineni Hospitals Limited, Rep. by its Director, Dr. Shashidar Kamineni
Civil Miscellaneous Appeal Nos.490, 491 & 492 of 2010
Decided On: 12-11-2010
Headnote:A) ARBITRATION AND CONCILIATION ACT, 1996, Sections 9 and 37 - Civil Procedure Code, 1908, Order 43 Rule 1 and Order 40 Rule 1 - Specific Relief Act, 1963, Section 14 – Petitioner and respondent entering into management agreement wherein the petitioner is given the right to manage cardiac center for a perod of 10 years with a lock of 5 years. Appellant filed a petition under section 9 of the Arbitration and Conciliation Act, 1996. On dismissal of the petition, the present appeals were filed. Held this petition is premature in so far as this provision can be invoked only for the purpose of preserving the property while the arbitration is going on. In the present litigation, it is with regard to enforcement of mutual obligations, which arbitrator alone can take an action under Section 14. The present petitioner has also not alleged that the respondent will not solvent to pay any compensation that might be directed to be paid to him. Also held that the contract cannot be specifically enforced. Hence the petition is dismissed. (Para 35)
Common Order: (V. Eswaraiah, J.)
1. These three Civil Miscellaneous Appeals are filed by the same Appellant under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) R/w Order 43 Rule 1 of C.P.C., against the same Respondent, aggrieved by the orders dated 13-04-2010 in O.P. NO.s 169 of 2010, O.P. No. 155 of 2010 and O.P. No. 2417 of 2009 respectively, on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad.
2. The Appellant-Wockhardt Hospitals Limited (For short, ‘Wockhardt’) filed the aforesaid three O.P.s against the Respondent-M/s. Kamineni Health Services and Kamineni Hospitals (For short, ‘Kamineni’) under Section 9 of the Act. O.P. 169 of 2010 against which C.M.A. 490 of 2010 is preferred, was filed under Section 9 of the Act by the appellant against the respondent for the following reliefs :
a) Direct the Respondent, its men, employees etc., from interfering in conducting, management and operation of the Wockhardt Kamineni Hospital by the Appellant ;
b) Restrain the Respondent, its agents, employees, representative or any person claiming through Respondent from creating any rights or interest in favour of any third party in respect of the Schedule property by way of entering into any agreement/deeds etc., including by way of charges, mortgage, encumbrance etc.;
c) Restrain the Respondent, its men, agents, employees etc., from using/utilizing/interfering with the movable properties, as detailed in Document No.12, lying in the Schedule Property belonging to and absolutely owned by the Appellant including but not limited to causing damage and/or moving/shifting the same from its original locations
d) Appoint an Advocate Commissioner to take inventory and possession of the movable and other valuable properties belonging to and absolutely owned by the Appellant, as detailed in Document No.12, lying in the Schedule Property in the presence of the Appellant ;
e) Appoint the Appellant Company as a Receiver to take control of the administration of the Wockhardt Center including handling of income and expenditure ;
f) Pass such other necessary and appropriate orders under Section 9 of the Arbitration and Conciliation Act, 1996.
3. O.P. 155 of 2010 and O.P. 2417 of 2009 against which C.M.A. 491 of 2010 and C.M.A. 492 of 2010 are preferred, were filed under Section 9 of the Act by the appellant against the respondent for the following reliefs :
a) Direct the Respondent, its men, employees etc., from interfering in conducting, management and operation of the Wockhardt Kamineni Hospital by the Appellant ;
b) Restrain the Respondent, its agents, employees, representative or any person claiming through Respondent from creating any rights or interest in favour of any third party in respect of the Schedule property by way of entering into any agreement/deeds etc., including by way of charges, mortgage, encumbrance etc.;
c) Restrain the Respondent, its men, agents, employees etc., from using/utilizing/interfering with the movable properties, as detailed in Document No.13, lying in the Schedule Property belonging to and absolutely owned by the Appellant including but not limited to causing damage and/or moving/shifting the same from its original locations;
d) Appoint an Advocate Commissioner to take inventory and possession of the movable and other valuable properties belonging to and absolutely owned by the Appellant, as detailed in Document No.13, lying in the Schedule Property in the presence of the Appellant ;
e) Appoint the Appellant as a interim receiver to take control of the administration of the Wockhardt Center including handling of income and expenditure ;
f) Pass such other necessary and appropriate orders under Section 9 of the Arbitration and Conciliation Act, 1996.
4. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the trial Court.
5. It is the case of the petitioner that C.M.A.s 491 and 492 of 2010, the subject
