Delhi High Court
Cfs Netralaya Private Limited & ... vs Dr. Roop & Ors. on 1 October, 2021
$~24(Original Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 331/2021 & I.A. 12867/2021
CFS NETRALAYA PRIVATE LIMITED & ANR.
..... Petitioners
Through: Mr. Anil Sapra, Senior
Advocate with Mr. Ajay
Bhargava, Mr. Arvind Kumar
Ray & Mr. Karan Gupta,
Advocates
versus
DR. ROOP & ORS. ..... Respondents
Through: Mr. Saurabh Kirpal, Sr.
Advocate with Mr. Monish
Panda, and Ms. Priyamwada
Sinha, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 01.10.2021
1. The prayer clause in this petition, under Section 9 of the
Arbitration & Conciliation Act, 1996 ("the 1996 Act"), reads thus:
"In the above noted facts and circumstances, it is most
humblyprayed before, this Hon'ble Court may be pleased to:-
a) Appoint a Local Commissioner to inspect the entire
Demised Premises bearing no. 334, E.K. Road, Meerut for
preparing a list of all assets, equipment, fixtures, fittings,
belongings, medical records, etc. ofthe Petitioner No. l,
including the list of assets mentioned in Annexure - A to the
Petition which are at the Demised Premises but have not been
handed over to the Petitioner No. l till date; and
b) Pass appropriate orders directing the State Police to
provide adequate assistance to the Local Commissioner for
ensuring inspection of the entire Demised Premises, in the
event of any hindrance/obstruction being caused by the
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Respondents in carrying out the said inspection; and
c) Pass an ad-interim ex-parte order directing the
Respondents to immediately hand over all the assets,
equipment, fixtures, fittings, belongings, patient medical
records and other properties of the Petitioner No. 1 at the
Demised Premises, including all the assets, equipment,
fixtures, fittings, belongings, etc. as stated in Annexure - A to
the present petition; and
d) Permit the Petitioners to remove the Femtosecond Laser
Cataract machine· by temporarily removing hinges of doors,
dismantling of the grills and removing front facade glass
portion of the Demised Premises as may be required for doing
the needful, with directions as the Petitioner would refix the
same at its own cost and expense, immediately on the removal
of the said machine; and
e) Pass an order for cost of this Petition in accordance with
Section 31A of the Arbitration and Conciliation Act, 1996; And
f) Permit the Petitioner No. I to show to the Local
Commissioner the proof of ownership of the assets, equipment,
fixtures, fittings, belongings, etc. of the Petitioner No. I which
are the Demised Premises; and
g) Pass any other order/orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case."
2. This petition is actually a fallout of an earlier order which was
passed by a coordinate Bench of this Court on 9th July, 2021, in OMP
(I) (COMM) 127/2021. On the said date, in a similar Section 9 petition,
learned Counsel for the petitioners had agreed to withdraw the petition
with liberty to urge all issues in controversy before the arbitral tribunal,
as and when constituted. However, the Court acceded to the request of
the petitioner, for appointment of a Local Commissioner to visit the
premises at Roop Netralaya, 334, E.K. Road, Meerut, (hereinafter "the
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premises in dispute"), and inventorise the goods contained therein.
Paras 5,6,8 of the said order read thus:
"5. He further requests that a Local Commissioner be
appointed to visit the premises, Roop Netralaya, 334, E.K.
Road, Meerut, and make an inventory of the assets belonging
to the CFS Netralaya Private Limited in the presence of the
representatives of the parties. He prays that the Local
Commissioner shall also note whether such machines and other
equipments are in working order. The learned counsel
appearing for the respondents has no objection to the Local
Commissioner being appointed for the aforesaid purposes.
6. In view of the above, Mr. Ankit Banati, Advocate
(Mobile No. 9811428913) is appointed as the Local
Commissioner to visit the premises in question (Roop
Netralaya, 334, E.K. Road, Meerut) after informing thelearned
counsel for the parties. He shall make an inventory of all the
assetswhich admittedly belong to CFS Netralaya Private
Limited at the saidpremises. He shall also note whether the
machines are in working order or not. In the event there is
controversy regarding whether a particular machine is owned
by the CFS Netralaya Private Limited or whether it is in
working condition, he shall make a note of it in his report. He
shall file his report within a period of one week after executing
the commission. A copy of the report will also be furnished to
the learned counsels for the parties.
*****
8. The learned counsel appearing for the respondents also
state that the respondents have no objection if the equipments
are removed after the Local Commissioner has prepared the
inventory. The respondents are bound down to the said
statement and the respondents shall not create any impediment
in removal of the machinery and other equipment."
3. Alleging that the exercise, as permitted by the order dated 9th
July, 2021, could not be completed owing to obstructions on the part of
the respondent, the petitioner has re-approached this Court for issuance
of fresh directions for appointment of a Local Commissioner and
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inventorisation of assets etc., and in accordance with the prayer clause
already reproduced hereinabove.
4. Mr. Saurabh Kirpal, learned Senior Counsel for the respondent,
fairly submits that respondent has no objection to the grant of the
prayers in the petition, with the following caveats:
(i) Qua prayer 'c', as was directed by the coordinate Bench in
OMP (I) (COMM) 127/2021, the assets, equipment, fixtures,
fittings and belongings contained in the premises in dispute, be
directed to be returned to the petitioner to the extent the right of
ownership of the petitioner in the said properties are admitted
by the respondent and,
(ii) Insofar as the patient medical records are concerned, while
the respondent has no objection to the handing over of the said
records to the petitioner, the petitioner should be directed to
make the said records available to the respondent, in the event,
the respondent is in need thereof, inter alia, in connection with
any medico-legal case etc. or for any other reason,
(iii) Qua prayer 'd', the petitioner may be permitted to remove
the Femtosecond Laser Cataract machine from the premises in
dispute by temporary removal of the hinges of the doors,
dismantling of the grills and front facade glass portion, but
should be directed to restore the premises to the condition in
which they were before the equipment was removed from the
premises on the same day, as it is functioning fully.
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5. Mr. Sapra, learned Senior Counsel for the petitioner, on
instructions, has no objection to these suggestions as conveyed by Mr.
Kirpal.
6. Accordingly, this Court disposes of the present petition with the
following directions:
(i) Mr. Anish Dewan, Advocate (Mobile Number: +91
9999571081, email id: [email protected]) is
appointed as the Local Commissioner to visit the premises in
dispute at Roop Netralaya, 334, E.K. Road, Meerut, on 10th
October, 2021, at 9:00 a.m. The Local Commissioner shall
inventorise and prepare a list of all assets, equipment, fixtures,
fittings, belongings and medical records of Petitioner No. 1,
CFS Netralaya Private Limited, including the assets which are
present in the premises in dispute.
(ii) The permission to secure the assistance of the local police
authorities, if need be, is granted, though Mr. Kirpalassures that
this would not be required.
(iii) In the event, the requirement of police assistance arises,
this order shall be treated as a direction to the police authorities
in that regard.
(iv) Under supervision of the Local Commissioner, the
respondents would also hand over, to the petitioner, all assets,
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equipment, fixtures, fittings, belongings and medical records or
other properties which are admitted by the respondent to belong
to Petitioner No. 1. A separate inventory of the properties thus
handed over would also be prepared by the Local
Commissioner.
(v) Handing over of the medical records to Petitioner No. 1
would be subject to Petitioner No. 1 making the said records
available to the respondents should the respondents require the
same for any reason, such as demand by the patient concerned
or, any medico-legal case etc.
(vi) Under supervision of the Local Commissioner, the
respondent is also permitted to remove the Femtosecond Laser
Cataract machine by temporarily removing hinges of the doors,
dismantling of the grills and front facade glass portion of the
premises in dispute. The undertaking of Mr. Sapra, to the effect
that the premises would be restored into the condition in which
they were before removal of the machine on the same day, is
recorded and the respondent shall remain bound thereby.
(vii) The fees of the Local Commissioner and other expenses
would be same as directed by the coordinate Bench in its order
dated 9th July, 2021, passed in OMP(I)(COMM) 127/2021.
(viii) The fees would be payable prior to execution of the
commission.
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7. This petition stands disposed of in the aforesaid terms.
8. Order be provided dasti to learned Counsel for both parties.
C. HARI SHANKAR, J.
OCTOBER 1, 2021
ss
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