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2021 Supreme(Pat) 1151
IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, J.
Bapu Jan Kalyan Sansthan Hospital, Rep. through its Secretary Gufran Khan, S/o. Subhan Khan - Petitioner
Versus
E. Meditek (T.P.A) Service Limited and Ors. - Respondents
Request Case No.2 of 2021
Decided On : 18-08-2021
For the Petitioner: Mr. Bipin Bihari.
For the Respondents: Mr. Durgesh Kumar Singh.
The legality and validity of the agreement, the existence of the arbitration clause, and the disputes arising from it are crucial in determining the appointment of an arbitrator and the conduct of arbitration proceedings.
Headnote:
Arbitration - Appointment of Arbitrator - Arbitration and Conciliation Act, 1996, Section 11(6)
Fact of the Case:
The petitioner sought appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. Respondent No. 1 refused to accept notices and was proceeded ex parte. The court considered the agreement between the parties, the existence of an arbitration clause, and the disputes arising from it.
Finding of the Court:
The court allowed the petition and appointed an arbitrator, emphasizing the legality and validity of the agreement, the existence of the arbitration clause, and the disputes. The court also directed expedited proceedings and digital mode hearings during the pandemic.
Issues: Appointment of arbitrator, refusal of notices by Respondent No. 1, legality and validity of the agreement, existence of arbitration clause, disputes arising from the agreement
Ratio Decidendi: The court's decision was influenced by the legality and validity of the agreement, the existence of the arbitration clause, and the disputes arising from it, leading to the appointment of an arbitrator and direction for expedited proceedings and digital mode hearings.
Final Decision: The court appointed an arbitrator and directed expedited proceedings and digital mode hearings, disposing of the request petition and any interlocutory applications.
JUDGMENT :
1. This application has been moved seeking appointment of an Arbitrator invoking the powers of this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996.
2. With the objection raised by Shri Durgesh Kumar Singh, Advocate, of maintainability of the petition against Respondent No. 2 namely M/s Cholamandalam MS General Insurance Company, Dare House, 2nd Floor, No.-234, NSC Bose Road, Chennai-600001; Respondent No. 3 namely M/s ICICI Lombard General Insurance Company Ltd., 2nd Floor, Uma Complex, Dr. C.P. Thakur Building, Fraser Road, Patna800001, and Respondent No. 4 namely M/s United India Insurance Company Ltd., Divisional Office-1, 2nd Floor, Laxmi Apartment, Fraser Road, Patna-800001, Shri Bipin Bihari, learned counsel for the petitioner prays for deleting the said respondents from the array of parties.
3. Prayer accepted and allowed.
4. Accordingly, name of Respondent No. 2 namely M/s Cholamandalam MS General Insurance Company, Dare House, 2nd Floor, No.-234, NSC Bose Road, Chennai-600001; Respondent No. 3 namely M/s ICICI Lombard General Insurance Company Ltd., 2nd Floor, Uma Complex, Dr. C.P. Thakur Building, Fraser Road, Patna-800001, and Respondent No. 4 namely M/s United India Insurance Company Ltd., Divisional Office-1, 2nd Floor, Laxmi Apartment, Fraser Road, Patna- 800001, be deleted from the array of parties.
5. Registry to make necessary correction in the cause title, both on the digital as also the physical file.
6. In so far as Respondent No.1, namely, E.Meditek (T.P.A.) Service Limited, Plot No.-577, Udyog Vihar, Phase-5, Gurgaon, Haryana, India-122002 now known as E-Meditek Insurance Ltd. at Plot Shop no. 06, Khasra no. 1273, Pradhan Market, Old Delhi Gurgaon Road, Kapashera, Delhi-110037 is concerned, from the service-report it is clear that Respondent No. 1 refused to accept the notices sent through the process serving agency. Also, notices sent through Registered Cover with A/D stand returned unserved. As such, Respondent No. 1 is proceeded ex parte.
7. Learned counsel invites attention of this Court to Article 15 of the Agreement dated 4.4.2011 (Annexure-1) entered into between the petitioner and Private Respondent No. 1, namely, E.Meditek (T.P.A.) Service Limited, Plot No.-577, Udyog Vihar, Phase-5, Gurgaon, Haryana, India-122002 now known as E-Meditek Insurance Ltd. at Plot Shop no. 06, Khasra no. 1273, Pradhan Market, Old Delhi Gurgaon Road, Kapashera, Delhi-110037. Notice invoking the arbitration clause with respect to the disputes arisen out of the said agreement was also issued to Respondent No. 1 which was not only duly received but also responded through a counsel. Such notice (undated) (Annexure-2) was responded to vide response dated 3rd of October, 2019, to which petitioner through his counsel vide legal notice dated 28th of November, 2019 (Annexure-3) again responded, seeking initiation of process of settlement within 15 days. As per the averments made in the petition, despite the same, this process was not initiated. Also Arbitrator was not appointed.
8. As such, there is no legal impediment for this Court in entertaining the present petition and allowing the same.
9. There is no dispute about-(a) the legality, validity and binding effect of the agreement dated 4th of April, 2011 entered into between the parties to the lis; (b) the existence of arbitration clause contained in the written agreement;(c) the existence of dispute(s) arising there from; (d) the petitioner having put the party to notice of its intent seeking arbitration under the agreement.
10. Hence, this Court is inclined to allow the petition by appointing an arbitrator.
11. As such, as jointly prayed for, Shri Manoj Shankar (District & Sessions Judge, Retired) is appointed as learned Arbitrator to adjudicate all disputes arising out of agreement dated 4th of April, 2011 entered into between the parties to the lis.
12. All pleas and issues raised, on merits, are left open to be considered and decided
