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2021 Supreme(Del) 2203
IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Narula, J.
M/s Rwl Healthworld Limited - Appellant
Versus
Escorts Heart Institute And Research Centre - Respondent
O.M.P. (Comm) No. 121 of 2021, 122 of 2021
Decided On : 16-03-2021
Gajender Giri, Advocate, L.K. Giri, Advocate, Khushboo Tomar, Advocate, Rajat Gupta, Advocate, Sanjeev Kumar, Advocate, Abhishek Kisku, Advocate
The appointment of the Arbitral Tribunal is an implied reference in terms of the Arbitration Agreement, and the court's jurisdiction under Section 34 of the Act is limited.
Headnote:
Delay in filing - Arbitration and Conciliation Act, 1996 - Section 34
Fact of the Case:
The petitioner sought condonation of delay in filing petitions under Section 34 of the Arbitration and Conciliation Act, 1996, challenging the common Arbitral Award. The petitions were filed within the time period excluded by the Supreme Court due to the lockdown enforced by the Government of India in 2020.
Finding of the Court:
The court disposed of the delay applications and decided both petitions by a common order due to the similarity in facts and grounds of challenge.
Issues: The challenge by the petitioner was confined to the award of counter claims in favor of the respondents. The parties had entered into agreements for running Out-Patient Department pharmacy stores at the hospitals managed by the respondents. The termination of the agreements led to arbitration proceedings and the filing of petitions under Section 9 and Section 11 of the Act.
Ratio Decidendi: The court held that the appointment of the Arbitral Tribunal was an implied reference in terms of the Arbitration Agreement and that the counter claims were within the scope of reference. The court also found that the payment agreement set up by the petitioner was baseless and dismissed the petitions.
Final Decision: The court dismissed the petitions and all pending applications.
JUDGMENT
Sanjeev Narula, J. - I.A. No. 3991/2021 (for delay in filing) in O.M.P. (COMM) 121/2021 & I.A. No. 3993/2021 (for delay in filing) in O.M.P. (COMM) 122/2021
1. By way of the applications noted above, the Petitioner seeks condonation of delay of 289 days in filing of the present petitions.
2. The learned counsel for the Petitioner states that the said period of three months expired during the lockdown enforced by Government of India in 2020. Supreme Court vide Order dated 8th March, 2021, has directed that the period from 15th March, 2020 till 14th March, 2021 shall stand excluded in computing the period of limitation. Thus, the present petitions are filed within time, and therefore, the afore-noted applications are infructuous. The learned counsel for the Respondents does not dispute this position.
3. In view of the above, the applications are disposed of.
O.M.P. (COMM) 121/2021 & O.M.P. (COMM) 122/2021 & I.A. Nos. 3990/2021 & 3992/2021 (for exemption)
4. The present petitions under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as the 'Act'] impugns the common Arbitral Award dated 22nd January, 2020 passed by the learned Sole Arbitrator in respect of arbitration proceedings arising out of two separate Arbitration Agreements, decided by way of a common impugned Arbitral Award.
5. Having regard to the similarity in facts and identical grounds of challenge, both the petitions are being decided by way of this common Order.
6. The challenge by the Petitioner, who was the Claimant before the Sole Arbitrator, is confined to the Award of the counter claims to the tune of INR 2,83,44,180/- [in O.M.P. (COMM) 121/2021] in favour of M/s Escorts Heart Institute and Research Centre Ltd. and INR 33,32,495/- [in O.M.P. (COMM) 122/2021] in favour of M/s Fortis Hospitals Ltd [both together referred to as the "Respondents"].
Brief Facts:
7. Briefly put, the Petitioner M/s RWL Healthworld Ltd. [hereinafter referred to as 'RWL'] is engaged in the business of running and operating pharmacy stores pan-India. The Respondents M/s Escorts Heart Institute and Research Centre Ltd. in O.M.P. (COMM) 121/2021 [hereinafter referred to as 'Escorts'] and M/s Fortis Hospitals Ltd. in O.M.P. (COMM) 122/2021 [hereinafter referred to as 'Fortis'] are engaged in the business of running and maintaining hospitals.
8. The parties entered into Agreements for running Out-Patient Department ['OPD'] pharmacy stores at the hospitals run and managed by the Respondents, under the following agreements:-
(a) Pharmacy Agreement dated 25th January, 2015 [in O.M.P. (COMM) 121/2021]; and
(b) Pharmacy Agreement dated 6th October, 2017 [in O.M.P. (COMM) 122/2021]. [hereinafter together referred to as the "Pharmacy Agreements"]
9. The Respondents issued Notices on 16th November, 2018 terminating the afore-noted Agreements. According to RWL, this termination was unjustified and contrary to the terms of the Agreements. Amicable resolution was attempted, but with no success. Consequently, RWL invoked arbitration and nominated an Arbitrator. Thereafter, RWL filed two separate petitions under Section 9 of the Act,(Being O.M.P. (I) (COMM.) 474 and 475 of 2018.) against Fortis and Escorts respectively. In the said petitions, RWL inter alia sought directions against the Respondents to not give effect to the Notices and dispossess them from the pharmacy stores. During the pendency of the petitions under Section 9, RWL also preferred two separate petitions under Section 11 of the Act seeking appointment of an Arbitral Tribunal.(Being ARB. P. 100 and 101 of 2019.)
10. The said petitions [ARB.P. 100 and 101 of 2019] were taken up for consideration by this Court on 13th February, 2019 along with the petitions filed under Section 9 of the Act. During the hearing, the counsel for the parties agreed that an Arbitration Agreement existed between the parties and an Arbitrator could be appointed in terms of the Arbitration Clause. Accordingly, this Court vide Order dat
