Delhi High Court
Mgrm Medicare Ltd vs Narang Surgicals & Ors on 30 October, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1642/2016, IA No.1844/2017 & IA No.1883/2017 (both
u/O XXXVII R-3 CPC), IA No.3640/2017 & IA No.3663/2017 (both
u/O XXXVII R-3(5) CPC) & IA No.3639/2017 & IA No.3662/2017
(both under Section 8 of the Arbitration & Conciliation Act, 1996)
MGRM MEDICARE LTD ..... Plaintiff
Through: Mr. Rajesh Yadav & Mr. Samit
Khosla, Advs.
Versus
NARANG SURGICALS & ORS ..... Defendants
Through: Mr. Dushyant Swaroop, Adv. for D-1
& 3.
Mr. Manish Sharma, Adv. for D-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 30.10.2018
1. The plaintiff has instituted this suit under Order XXXVII of the CPC
for recovery of Rs.2,91,52,237/- along with interest jointly and severally
from the three defendants viz. (i) Narang Surgicals, (ii) Ajay Narang, and,
(iii) Dharamvir Narang, pleading that (a) the defendant no.1 Narang Surgical
is the sole proprietary of defendant no.3 Dharamvir Narang who is the father
of defendant no.2 Ajay Narang; (b) the three defendants are in connivance
with each other and as part of the said conspiracy, the defendant no.2 Ajay
Narang posing to be partner of defendant no.1 Narang Surgical signed
Memorandum of Understanding (MOU) dated 27th October, 2014 with the
plaintiff; (c) the plaintiff, on the basis of representations made to it, rendered
financial assistance to the tune of Rs.1,95,00,000/- to the defendants to meet
the working capital requirements of the defendants; (d) the defendants
handed over four cheques for a total sum of Rs.2,39,75,000/- towards refund
of the said amount with an agreed interest; (e) all the said cheques were
dishonoured; and, (f) the plaintiff has lodged complaints of offence
committed by the defendants and in pursuance to which an FIR has been
registered against the defendants. The counsel for the plaintiff states that
charge sheet has also been filed.
2. Summons for appearance were issued to the defendants and upon the
defendants entering appearance, summons for judgment were issued and in
response whereto the defendants no.1 and 3 and the defendant no.2 have
filed applications for leave to defend and the defendants no.1 and 3 have
also filed IA No.3639/2017 and the defendant no.2 has separately filed IA
No.3662/2017, both under Section 8 of the Arbitration & Conciliation Act,
1996.
3. The counsels have first been heard on the applications under Section 8
of the Arbitration Act.
4. The counsel for the defendants no.1 and 3 draws attention to the
photocopy of MOU dated 27th October, 2014 aforesaid filed by the plaintiff
along with the plaint and Clause 7.1 whereof is as under:
"7.1 In case of any disputes or differences of claims arising out of this
agreement shall be resolved by an Arbitration conducted in
accordance with ICC Rules of Arbitration. The venue of Arbitration
shall be at Delhi / Hyderabad, India."
5. I have enquired from the counsel for the defendants no.1 and 3 as to
what are the ICIC Rules of arbitration to which the clause aforesaid refers.
6. The counsel for the defendants no.1 and 3 states that he does not
know but the defendants no.1 and 3 are agreeable to arbitration of a sole
arbitrator as may be deemed appropriate.
7. The counsel for the defendant no.2 Ajay Narang supports the
aforesaid arguments of the counsel for the defendants no.1 and 3.
8. The counsel for the plaintiff has opposed the application contending
that (i) the defendant no.2 Ajay Narang, at one place in the MOU dated 27th
October, 2014 described himself as partner of defendant no.1 Narang
Surgical and at another place described himself as Director of defendant
no.1 Narang Surgical; it has however transpired that it is the defendant no.3
Dharamvir Narang who is the sole proprietor of defendant no.1 Narang
Surgical; (ii) the arbitration clause is contained in the MOU of the plaintiff
with defendant no.1 but signed by the defendant no.2 Ajay Narang who is
not the proprietor of defendant no.1 Narang Surgical; and, (iii) suit claim is
also against non-parties to the MOU. Reliance is placed on Sukanya
Holdings Pvt. Ltd. Vs. Vs. Jayesh H. Pandya (2003) 5 SCC 531.
9. Attention of the counsel for the plaintiff is drawn to the dicta of the
Supreme Court in Ameet Lalchand Shah Vs. Rishabh Enterprises 2018
SCC OnLine SC 487 setting aside my judgment and the judgment of the
Division Bench of this Court relying on Sukanya Holdings Pvt. Ltd. supra
and holding that where averments in the plaint, of single transaction with
parties as well as non-parties to agreement have been made, as have been
made in the present case, the parties are to be referred to arbitration.
10. The counsel for the defendant no.1 and 3 and the counsel for the
defendant no.2 on enquiry state that neither of the said defendants, in the
event of the joint and monetary claim being made by the plaintiff in
arbitration against them, will take the plea of either of the said defendants
being not bound by the arbitration clause aforesaid or being not subject to arbitration.
11. The aforesaid allays fear aforesaid in the mind of the plaintiff.
12. The counsel for the plaintiff has then contended that the plaintiff has
instituted the suit under Order XXXVII and leave to defend filed by the
defendants does not entitle the defendants to leave and the plaintiff would be
entitled to a decree forthwith.
13. Section 8 is mandatory and no argument of invalidity of arbitration
agreement has been urged and the contention as made cannot be a ground
for not following the mandate thereof.
14. IA No.3639/2017 & IA No.3662/2017, both under Section 8 of the
Arbitration & Conciliation Act are thus allowed and disposed of.
15. The suit is disposed of by referring the parties to the sole arbitration
of Mr. B.B. Chaudhary, Additional District Judge (Retd.), Mobile No.
9910384611.
16. The counsels are agreeable to the same and state that the Arbitrator be
left to fix his own fee and other terms.
17. A certificate entitling the plaintiff to refund of the court fees paid on
the plaint less Rs.20,000/- be issued in favour of the plaintiff and be handed
over to the counsel for the plaintiff.
Dasti.
RAJIV SAHAI ENDLAW, J.
OCTOBER 30, 2018
„gsr‟..
