Cfs Pharma And Opticals Private ... vs Dr. Roop & Anr.
2022 Latest Caselaw 521 Del

$~9, 10 & 18
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Date of decision: 18.02.2022
+     ARB.P. 111/2022
      CFS NETRALAYA PRIVATE LIMITED                       ..... Petitioner
                             versus

      DR. ROOP & ORS.                                     .... Respondents

+     ARB.P. 112/2022
      CFS NETRALAYA PRIVATE LIMITED                        ..... Petitioner
                             versus

      DR. ROOP & ANR.                                     .... Respondent


+     ARB.P. 203/2022 & I.A. 2791/2022
      CFS PHARMA AND OPTICALS PRIVATE
      LIMITED                                             ..... Petitioner
                             versus

      DR. ROOP & ANR.                                     .... Respondents


              Present:       Mr. Anil Sapra, Senior Advocate with Mr. Ajay
                             Bhargava, Mr. Arvind Kumar Ray and Mr. Karan
                             Gupta, Advocates for petitioner

                             Mr. Rajshekhar Rao, Senior Advocate with Mr.
                             Monish Panda, Mr. Mrinal Bharat Ram and Mr.
                             Prabjot Hora, Advocates for respondent




ARB.P. 111/2022 & connected petitions                         Page 1 of 7
       CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                             J U D G M E N T (oral)

1. The above captioned three petitions have been filed under the

provisions of Section 11 of the Arbitration and Conciliation Act, 1996

seeking appointment of sole Arbitrator.

2. Pertinently, parties to these petitions are common and the subject

matter of these petitions is also common, therefore, with the consent of

learned Senior Counsel for the parties, these petitions have been heard

together and are being disposed of vide this common judgment.

3. Learned Senior Counsel for petitioner submits that petitioner in the

above captioned petitions [ARB.P. 111/2022 & ARB.P. 112/2022] is a joint

venture company between New Delhi Centre for Sight ("NDCFS") and

respondent Nos.1 and 2, incorporated under provisions of the Companies

Act 1956. NDCFS is a company founded by Dr. Mahipal S Sachdev, an

eminent ophthalmologist, and Padma Shri awardee, as a leading eye care

provider in India.

4. Petitioner in (ARB.P. 203/2022) is a wholly owned subsidiary of New

Delhi Centre for Sight ("NDCFS") and is engaged in the business of

providing pharma, optical and other related products at the eye care centres

owned/run by NDCFS. The said petitioner also provides pharma, optical and

other related products at the eye centre operated by CFS Netralaya Private

Limited ("CFSNPL") i.e., a joint venture entity of NDCFS and the

respondents.

5. Further, petition (ARB.P. 111/2022) has been preferred on behalf of

the petitioner seeking appointment of Sole Arbitrator for adjudication of the

disputes and differences which have arisen under the Lease Deed dated 02nd

March 2013 ("Lease Deed"), read with the Memorandum of Understanding

dated 26th April 2019 ("2019 Agreement") executed between the petitioner

and the respondents. Clause 15.2 of the Lease Deed provides for settlement

of disputes through arbitration & the Lease Deed and the 2019 Agreement

are binding on the parties. The Lease Deed has been signed by the petitioner

and all the respondents, while the 2019 Agreement has been executed by the

petitioner along with respondent Nos.1 and 2 (on their behalf as well as on

behalf of the Respondent Nos. 3 and 4).

6. Petition (ARB.P. 112/2022) has been preferred on behalf of the

petitioner seeking appointment of Sole Arbitrator for adjudication of the

disputes and differences which have arisen under the Consultancy Services

Agreements dated 10th March, 2011 (as amended) executed by the

respondents ("Consultancy Services Agreements") read with the

Memorandum of Understanding dated 26thApril, 2019 ("2019 Agreement")

executed between the petitioner, NDCFS and the respondents. Clause 11 of

the Consultancy Services Agreements provides for settlement of disputes

through arbitration & the Consultancy Services Agreements and the 2019

Agreement are binding on the parties. The Consultancy Services

Agreements and the 2019 Agreement have been signed by the petitioner and

the respondents.

7. It is submitted that petition (ARB.P. 203/2022) has been preferred on

behalf of the petitioner seeking appointment of Sole Arbitrator for

adjudication of the disputes and differences which have arisen under the

Joint Venture Agreement dated 10th March, 2011 ("Joint Venture

Agreement") as amended by and read with First Amendment Agreement

dated 14th August, 2012 to Joint Venture Agreement ("First Amendment

Agreement to the Joint Venture Agreement") and the Memorandum of

Understanding dated 26th April, 2019 ("2019 Agreement"). Clause 22 of the

Joint Venture Agreement provides for settlement of disputes through

arbitration & the arbitration clause in the Joint Venture Agreements stands

incorporated in the First Amendment Agreement to the Joint Venture

Agreement.

8. Learned Senior Counsel for petitioner further submits that in light of

disputes and differences that arose between the petitioner and the

respondents, the petitioner in (ARB.P. 111/2022) vide Notice of Arbitration

dated 22ndApril 2021 invoked arbitration in accordance with Clause 15.2 of

the Lease Deed read with the 2019 Agreement & the petitioner in ARB.P.

112/2022 vide Notice dated 02ndJune 2021 invoked arbitration in accordance

with Clause 11 of the Consultancy Service Agreement read with the 2019

Agreement. Arbitration was also invoked by the petitioner in (ARB.P.

203/2022) vide Notice of Arbitration dated 07th February 2022 ("Arbitration

Notice) in accordance with Clause 22 of the Joint Venture Agreement read

with the First Amendment Agreement to the Joint Venture Agreement and

the 2019 Agreement.

9. Meanwhile, due to the respondents' continued breaches, the petitioner

filed a petition (ARB. P. No.559/2021) under Section 11 of the Act for

appointment of Sole Arbitrator and vide order dated 12th October 2021, this

Court appointed Mr. Justice Deepak Gupta (retired) as Sole Arbitrator to

adjudicate the disputes between the parties.

10. Learned Senior Counsel for the petitioner submitted that since the

disputes raised by NDCFS and CFSNPL against the respondents relate to the

same composite transaction, the disputes between the petitioner and the

respondents ought to be heard by the same Arbitrator in order to avoid any

conflicting findings in resolution of the disputes between the parties.

11. During the course of hearing, learned Senior Counsel appearing on

behalf of respondent has raised objections that there is no consolidation,

however, he has no objection if Mr. Justice (Retd.) Deepak Gupta,

former Judge of the Supreme Court of India is appointed as Sole

Arbitrator to adjudicate the dispute between the parties subject to all issues

including consolidation and maintainability of claims remain open before

the learned Arbitrator.

12. Accordingly, Mr. Justice Deepak Gupta (Retd.) [Mobile No.+91

9816533333] is appointed sole Arbitrator to adjudicate the dispute between

the parties. All issues including consolidation and maintainability of claims

as well as non-arbitrability of the disputes shall remain open before the

learned Arbitrator.

13. The fee of the learned Arbitrator shall be governed by the Fourth

Schedule of the Arbitration and Conciliation Act, 1996.

14. The learned Arbitrator shall ensure compliance of Section 12 of

Arbitration and Conciliation Act, 1996 before commencing the arbitration.

15. The present petitions and pending applications, if any, stand disposed

of accordingly.

16. A copy of this order be sent to the learned Arbitrator for information.

(SURESH KUMAR KAIT) JUDGE FEBRUARY 18, 2022/rk