Karnataka High Court
Nova Medical Centers Pvt Ltd vs Smt Sowmya on 28 July, 2023
Bench: Anant Ramanath Hegde
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NC: 2023:KHC:26338
RFA No. 937 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 937 OF 2016 (INJ)
BETWEEN:
NOVA MEDICAL CENTERS PVT LTD.,
HAVING ITS REGISTERED OFFICE AT,
NO.128, 5TH FLOOR, GOLDEN TOWERS,
OLD AIRPORT ROAD,
BENGALURU -560 017,
REPRESENTED BY
TEJASVI K.V.
MANAGER-LEGAL.
...APPELLANT
(BY SRI GIRISH K V, ADVOCATE)
AND:
1. SMT SOWMYA,
W/O JAYAPRAKASH.M
AGED MAJOR,
Digitally
signed by 2. JAYAPRAKASH,
PRAMILA G V S/O MANCHEGOWDA,
Location: AGED ABOUT 33 YEARS
HIGH COURT BOTH RESIDING AT NO.1276/A
OF
KARNATAKA 6TH MAIN, 7TH CROSS,
5TH STAGE, BEML LAYOUT,
RAJA RAJESHWARI NAGAR,
BENGALURU - 560 098.
...RESPONDENTS
(BY SRI KIRAN S KASHYAP, ADVOCATE FOR
SRI N.C MOHAN, ADVOCATE)
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NC: 2023:KHC:26338
RFA No. 937 of 2016
RFA FILED UNDER ORDER XLI RULE 1 R/W SEC. 96 OF
CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED
02.03.2016 PASSED IN OS.NO.3344/2013 ON THE FILE OF THE
VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISPOSING THE SUIT FOR PERMANENT
INJUNCTION.IN TIMECF SUFFICIENT 1/16 FOR T IIA 1/16
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC., 1908.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S. No.3344/2013 on the file of the VIII
Additional City Civil Judge, Bengaluru is assailing the judgment
and decree dated 02.03.2016. The suit for injunction is
dismissed on the ground that the parties to the suit have to
invoke the provisions of the Arbitration and Conciliation Act,
1996 (hereinafter for short referred to as the 'Act of 1996').
2. The admitted fact is that the plaintiff is a Company
running a Hospital. Defendant No.2 was admitted as a patient
in the Hospital run by the plaintiff, to avail some treatment. It
is stated that second defendant was treated with due care and
was discharged. However, it appears that the second defendant
has developed Septicemia and takes treatment in another
hospital. It is also stated that Rs.40 lakhs were agreed to be
paid by the plaintiff-Company as compensation to the second
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RFA No. 937 of 2016
defendant towards the discharge of his claim for damages for
the alleged negligence while treating. The plaintiff has filed a
suit for injunction alleging interference by the defendants in
running the Hospital.
3. Defendants did not appear before the Trial Court
and they were placed exparte. Subsequently, the plaintiff led
evidence. Plaintiff has produced nine documents to substantiate
his claim. The trial Court dismissed the suit on the ground that
there is an Arbitration clause to resolve the dispute between
the plaintiff and the defendants. The trial court referred to an
agreement dated 05.01.2012, between the plaintiff and the
second defendant wherein the plaintiff agreed to pay Rs.40
lakhs towards the claim made by the second defendant. Clause
13 of the Agreement provides for Arbitration in the event of a
dispute relating to the terms and conditions specified in the
agreement dated 05.01.2012. By taking shelter under Clause
13, the Trial Court has dismissed the suit on the ground that
the suit is not maintainable because of Arbitration Clause.
4. Learned counsel for the appellant would submit that
objection relating to the jurisdiction of the Court to entertain
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RFA No. 937 of 2016
the suit in the light and binding Arbitration clause, if any,
between the parties must be raised at the first hearing. Since
such objection is not raised, the Trial Court erred in dismissing
the suit on the ground that the parties have to take recourse to
the provisions of the Act of 1996.
5.The point for consideration is whether the Trial Court is
justified in dismissing the suit on the premise that the dispute
is arbitrable though the defendants did not raise a defence of
jurisdiction of the Civil court based on the arbitration Clause.
6. It is a well-settled principle of law that the objection
to entertain the suit based on the arbitration Clause is to be
raised before the Court at the first appearance and not later. In
this case, the defendants have not entered appearance and
remained exparte. The conduct of the defendants would reveal
that the defendants have waived their objection relating to the
jurisdiction of the Court. The Court recorded the evidence. After
having recorded evidence, the Court could not have dismissed
the suit on the premise that the parties have to take recourse
to the provisions of the Act of 1996.
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RFA No. 937 of 2016
7. The Trial Court has not framed any points for
consideration relating to the lawful possession of the plaintiff
and alleged interference by the defendants. After having gone
through the plaint averments, as well as the evidence placed
before the Court, and considering the fact that the defendants
have not contested the matter, and there being no ambiguity in
the evidence led, this Court deems it appropriate to decide the
case on merits instead of remanding it.
8. The oral and documentary evidence which are not
disputed and which are tendered on oath reveal that the
plaintiff is in lawful possession of the property. The defendants
have no right and interest in the affairs of the plaintiff and they
cannot interfere in the hospital activities of the plaintiff -
Company.
9. Accordingly, this Court is of the view that the
plaintiff has made out a case for the grant of injunction as
prayed for.
10. Hence, the following:
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RFA No. 937 of 2016
ORDER
(i) The impugned judgment and decree
02.03.2016 passed in O.S. No.3344/2013
on the file of the VIII Additional City Civil
and Sessions Judge, Bengaluru are set
aside.
(ii) The suit of the plaintiff is decreed as prayed
for.
(iii) No Order as to Cost.
(iv) Accordingly, the appeal is allowed.
Sd/-
JUDGE
GVP
