Delhi High Court
M/S Shree Aditya Medicard. Com vs M/S Tata1Mg Technologies Pvt. ... on 17 December, 2021
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17.12.2021
+ ARB.P. 1130/2021
M/S SHREE ADITYA MEDICARD.COM ..... Petitioner
Through Mr. Nagendra Kumar, Adv.
versus
M/S TATA1MG TECHNOLOGIES PVT. LTD.
(EARLIER K NOWN AS 1 MG TECHNOLOGIES
PVT. LTD.) ....Respondents
Through Ms. Simran Tandon, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
1. The present petition has been filed under Section 11 (6) of the
Arbitration and Conciliation Act, 1996 seeking appointment of Sole
Arbitrator to adjudicate the disputes with respondents.
2. As per the averments made in the present petition, petitioner is a
proprietorship firm engaged in the business of stocking, marketing,
distribution, dispensation and sale of various pharmaceutical, healthcare and
personal care products, including drugs as defined under the Drugs Act
which can be sold against a valid prescription issued by a registered medical
practitioner.
3. It is further averred in the petition that in January, 2017, respondents
approached the petitioner representing that the respondent is operating two
internet based web-portals namely www.lmg.com and www.1mgayush.com
and for the said purpose, it was looking for a vendor partner in NOIDA
having requisite capabilities and infrastructure, from where the respondents
can source the medicines against the orders procured by it through its
aforesaid websites invoice (in the name of the customer as contained in the
order placed by the respondents) to the logistic team of the respondents as
per order placed by the respondents. Respondents were to take the order
from customers, collect payment from the customers, deliver the medicines
to the customers and interact with the customers and the petitioner had
nothing to do with the customer.
4. At the hearing, learned counsel for petitioner has submitted that based
on the said representations and assurances, the respondents claimed that
since all the work like taking orders, delivering medicines, collection of
payments, interaction with the customers etc. were being undertaken by it, it
would deduct upfront margin on all sales @ 18.5% in case of prescribed
drugs and 8% - 18.5% in case of OTC drugs. Since the payment was to be
collected by the respondents, they claimed to deduct its margin of
commission in advance and pay the balance to the petitioner.
5. Further, it is submitted that based on the said oral understanding, the
respondent commenced placing orders upon the petitioner and started taking
medicines w.e.f. 01.02.2017. Subsequently, a Facilitation agreement dated
08.02.2017 was executed between the parties and the said facilitation
agreement dated 08.02.2017 was further extended vide its letter dated
31.01.2018 for a further period of two years beginning from 01.02.2018 to
31.01.2020 and once again at the insistence of the respondents, the petitioner
created additional facilities and infrastructure. Thereafter, in July, 2018, the
respondents commenced withholding sales recoverable of the petitioner. On
14.10.2019, respondents terminated the Facilitation Agreement prematurely.
Thereafter, disputes arose between the parties.
6. Learned counsel for petitioner submits that petitioner issued Legal
Notice of Demand dated 26.12.2019 recalling its entire dues. Thereafter, on
22.10.2020, petitioner filed its commercial suit for recovery of its dues
before the learned District Judge (Commercial Courts) New Delhi being CS
(COMM) No. 492 of 2020.
7. On 07.01.2021, respondents filed their written statement and
application under Order VII Rule 11 CPC invoking arbitration clause in
facilitation agreement. On 23.08.2021, learned District Judge (Commercial
Courts) New Delhi passed its order referring the parties to arbitration in
accordance with Section 8 (1) of Arbitration and Conciliation Act, 1996.
8. Subsequently, on 26.08.2021, petitioner through counsel issued
letter/notice to the respondents and their counsel seeking their consent to
appoint Justice Brijesh Sethi (Retd.) the sole Arbitrator. In reply to the said
notice, respondents denying their consent and proposed another name, i.e.
Mr. Narendra Kalra, Advocate, the sole Arbitrator. Since the parties could
not arrive at mutual consensus upon name of sole arbitrator, Hence, the
present petition has been filed.
9. During the course of hearing, learned counsel appearing for parties
pressed that this Court may appoint Sole Arbitrator to adjudicate the dispute
between the parties.
10. In view of the above and with the consent of parties, the present
petition is allowed. Accordingly, Mr. Charan Singh Verma, Advocate
(Mobile: 9871573637) is appointed sole Arbitrator in this petition to
adjudicate the dispute between the parties.
11. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
12. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
13. The present petition stands disposed of accordingly.
14. A copy of this order be sent to the learned Arbitrator for information.
(SURESH KUMAR KAIT)
JUDGE
DECEMBER 17, 2021
rk
