Dr. Anjana Singh vs M/S Metropolis Healthecare ...
2016 Latest Caselaw 2844 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                               
                   ARBITRATION PETITION NO.1353 OF 2015




                                                       
    Dr.Anjana Singh                           )
    Proprietress of Central Diagnostic,       )
    1st Floor, Sumbha Complex,                )




                                                      
    West Boring Canal Road,                   )
    Patna - 800 01.                           )   ..    Petitioner




                                             
                    Versus
                                   
    M/s.Metropolis Healthcare Limited )
    formerly known as                         )
                                  
    Metropolis Health Sevices India Ltd. )
    A company incorporated under the          )
    provisions of the Companies Act,1956)
        


    Having its registered office at           )
     



    250,D.Udyog Bhavan,                       )
    Hind Cycle Lane, Worli,                   )





    Mumbai - 400 025.                         )
    Represented through Mr.Gajendra           )
    Mewara, its authorised representative. )      ..    Respondent
                    ---





    Mr.Sanjay Jain i/by Mr.Karan Vyas for the petitioner.
    Mr.Rohan Cama a/w Mr.Ashraf Patel i/by M/s.K.Ashar & Co. for the
    respondent.
                ---
                            CORAM      : R.D. DHANUKA, J.

                            DATE        :  15th June 2016





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    Oral Judgment :-




                                                                               
    .               By this petition filed under Section 34 of the Arbitration




                                                       

and Conciliation Act, 1996 (for short "the Arbitration Act"), the petitioner has impugned the arbitral award dated 8 th April 2015 rendered by the arbitral tribunal allowing the claim made by the respondent and

dismissing the counter claim filed by the petitioner. The respondent has not impugned any part of the award rendered by the arbitral tribunal. Some of the relevant facts for the purpose of deciding this petition are

as under:-

2. On 19th July 2008, the parties recorded a Memorandum of

Understanding (MOU). Pursuant to the said MOU, the Joint Venture Company i.e. Metropolis Clinical Diagnostics (Bihar) Pvt. Ltd. came to be incorporated on the terms and conditions recorded therein.

3. On 7th November 2008, the petitioner as well as the respondent and the said joint venture company entered into a Business Transfer Agreement as contemplated under the terms of the MOU. Under

the said writing, the petitioner had agreed to pay various amounts to the respondent. The petitioner had agreed to pay a sum of Rs.1.04 crores directly to the respondent. The petitioner also undertook to pay a sum

of Rs. 18.11 lacs on behalf of the joint venture company to the respondent. It is the case of the respondent that pursuant to the said writing executed between the parties, the petitioner issued two cheques of Rs.50 lacs each in favour of the respondent which were dishonored. The dispute arose between the parties and was referred to arbitration.

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4. The respondent filed a statement of claim before the arbitral

tribunal which was resisted by the petitioner. On 8 th April 2015, learned arbitrator made an award directing the petitioner to pay various amounts

to the respondent. This award is impugned by the petitioner in this petition filed under Section 34 of the Arbitration Act.

5. Mr.Jain, learned counsel appearing for the petitioner submits that two cheques of Rs.50 lacs each which were issued by the petitioner were under pressure and coercion. He submits that the

signature of the petitioner on the Exit MOU was obtained by the

respondent under pressure. He submits that the petitioner had not signed the letter dated 28th August 2009 which was alleged to have been

forwarded by the petitioner along with two cheques of Rs.50 lacs each. He submits that though the signature of the petitioner was disputed on letter dated 28th August 2009 alleged to have been addressed by the

petitioner, the arbitral tribunal has proceeded on the premise that the

petitioner had not disputed the existence of the said letter dated 28 th August 2009. He submits that the Exit MOU was signed by the petitioner

made mistake of fact. He submits that in any event, the said agreement executed by the parties was in fact an inchoate document which did not record all the terms agreed upon between the parties.

6. It is submitted by the learned counsel that though the petitioner was acquitted by the Sessions Court in the revision filed the petitioner thereby challenging the order of conviction passed by the learned Metropolitan Magistrate, 7th Court in C.C. No.2305/SS/2010, the arbitral tribunal did not consider the said order passed by the learned Additional Session Judge in the impugned arbitral award. It is submitted

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that various correspondence exchanged between the parties were not

considered by the arbitral tribunal in the impugned award.

7. Mr.Cama, learned counsel appearing for the respondent, on the other hand, invited my attention to the findings recorded by the arbitral tribunal. He submits that the petitioner has admittedly not

disputed the signature on the Exit MOU. He submits that the petitioner has also not disputed issuance of two cheques of Rs.50 lacs each under the said Exit MOU.

8.

In so far as the submission of the learned counsel for the petitioner that the arbitral tribunal has proceeded only on the premise

that the letter dated 28th August 2009 was not disputed by the petitioner is concerned, it is submitted by the learned counsel for the respondent that the arbitral tribunal has independently considered the evidence led

by the respondent and has rendered findings of facts. He submits that

in any event, the petitioner had not disputed issuance of two cheques of Rs.50 lacs each under the said Exit MOU.

9. In so far as the allegations of fabrication, coercion or undue influence made against the respondent by the petitioner is concerned, it is submitted that admittedly the petitioner on whom the onus was to

prove such allegations did not enter the witness box and thus the arbitral tribunal has rightly rendered a finding that such allegations were not proved.

10. Learned counsel for the respondent invited my attention to the order passed by the Additional Sessions Judge allowing the revision

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application filed by the petitioner. He submits that since two cheques

issued by the petitioner were post dated cheques and were issued prior to the date of Exit MOU, learned Additional Sessions Judge took a

view that the proceeding under Section 138 of the Negotiable Instruments Act was not maintainable. He submits that in any event, the learned Additional Sessions Judge has recorded a finding that in so far as the

liability of the petitioner, if any, to the respondent under the agreement entered into between the parties is concerned, the same would be decided

by the arbitral tribunal. He submits that this finding of the learned Additional Sessions Judge was not impugned by the petitioner.

11. Learned counsel appearing for the respondent invited my

attention to the grounds raised in the petition and would submit that none of the ground falls under Section 34 of the Arbitration Act and thus this petition is not maintainable. He submits that this Court cannot

interfere with the findings of facts rendered by the arbitral tribunal.

12. In so far as the submission of the learned counsel for the

petitioner that in so far as a sum of Rs.18.11 lacs mentioned in the Exit MOU is concerned, the said liability was not the liability of the petitioner but of the joint venture company is concerned, he submits that under the provisions of the said Exit MOU, the petitioner herein had undertaken

to pay a sum of Rs.18.11 lacs on behalf of the joint venture company to the respondent. The arbitral tribunal has dealt with all these submissions made by both the parties including the oral evidence and rendered findings of facts.

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13. Mr.Jain, learned counsel for the petitioner in rejoinder

invited my attention to paragraph 12 of the written statement filed by the petitioner before the arbitral tribunal and would submit that the

petitioner had disputed the existence of Exit MOU dated 30th November 2009.

14. A perusal of the evidence clearly indicates that the petitioner has not disputed the existence of Exit MOU. In the said MOU, the petitioner has agreed to pay various consideration to the respondent. The

petitioner has not disputed issuance of two cheques of Rs.50 lacs each

under the said Exit MOU which were admittedly dishonored on presentation by the respondent. The only plea raised before the arbitral

tribunal was that in so far as the payment of Rs.18.11 lacs mentioned in the said Exit MOU was concerned, the said liability was the liability of the joint venture company and not the petitioner.

15. A perusal of the records clearly indicates that though the petitioner had alleged fabrication, coercion and undue influence against the respondent and though the onus was on the petitioner to prove such

allegations, the petitioner herself did not enter the witness box. The arbitral tribunal has considered this crucial aspect and rendered a finding of fact that in absence of oral evidence led by the petitioner, the

allegations of fabrication, coercion and undue influence were not proved by the petitioner.

16. In so far as the submission of the learned counsel for the petitioner that the petitioner personally was not liable to make any payment in so far as the payment of Rs.18.11 lacs mentioned in the

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said Exit MOU is concerned, Mr.Cama, learned counsel for the

respondent has rightly invited my attention to the provision of the said Exit MOU which clearly indicates that the petitioner has not only agreed

to pay a consideration of Rs.1.04 crores to the respondent but also had undertaken to pay a sum of Rs.18.11 lacs to the respondent on behalf of the joint venture company. There is thus no substance in this submission

of the learned counsel for the petitioner.

17. In so far as the submission of the learned counsel for the

petitioner that though the petitioner had disputed the existence of letter

dated 28th August 2009, the arbitral tribunal has proceeded on the premise that the said document was not disputed by the petitioner is

concerned, a perusal of the records clearly indicates that there was no dispute that the petitioner had issued two cheques of Rs.50 lacs each in favour of the respondent under the said Exit MOU. Even if the covering

letter alleged to have been addressed by the petitioner is disputed, the

fact remains that the consideration payable under the said Exit MOU was not disputed. The said Exit MOU in fact was acted upon by both

the parties. Be that as it may, a perusal of the records indicates that the learned arbitrator has recorded a finding on execution of the Exit MOU and on the said letter dated 28th August 2009 based on the oral evidence led by the witness examined by the respondent. In my view, there is

thus no substance in this submission of the learned counsel for the petitioner.

18. In so far as the submission of the learned counsel for the petitioner that various documents filed by the petitioner in the arbitral proceedings were not considered by the arbitral tribunal is concerned, a

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perusal of the arbitral award indicates that the arbitral tribunal has

considered various documents and also the oral evidence led by both the parties and has rendered various findings of facts which, in my view,

are not perverse and thus cannot be interfered with under Section 34 of the Arbitration Act.

19. In so far as the submission of the learned counsel for the petitioner that the arbitral tribunal has not considered the order passed by the learned Additional Sessions Judge thereby acquitting the petitioner is

concerned, a perusal of the said order brought to my notice by Mr.Cama,

learned counsel for the respondent clearly indicates that the learned Additional Sessions Judge has rendered a finding on execution of the

Exit MOU entered into between the parties which finding was not challenged by the petitioner. It is also held in the said order that in so far as the consideration payable under the said agreement is concerned,

the same would be decided by the arbitral tribunal. In my view, the

observations made by the learned Additional Sessions Judge in the said order would assist the case of the respondent and not assist the case of

the petitioner.

20. In so far as the submission of the learned counsel for the petitioner that the petitioner had disputed the existence of Exit MOU

dated 30th November 2009 in the written statement is concerned, a perusal of paragraph 12 of the written statement indicates that it was pleaded by the petitioner that the alleged Exit MOU dated 30 th November 2009 was an invalid document and is voidable and void. No plea was raised that the said document was an inchoate document. The petitioner has not disputed her signature on the Exit MOU dated

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30th November 2009. The arbitral tribunal has considered the oral

evidence as well as the documentary evidence on this issue and rendered a finding of fact that the said Exit MOU dated 30th November 2009 was

executed by the parties and was acted upon. There is thus no merit in this submission of the learned counsel for the petitioner.

21. A perusal of the impugned award clearly indicates that the arbitral tribunal has considered all the documents and also the oral evidence led by the parties and has rendered various findings of facts

which, in my view, are not perverse and thus cannot be interfered with

under Section 34 of the Arbitration Act. Petition is devoid of merits and is accordingly dismissed. No order as to costs.

R.D. DHANUKA, J.