Punjab-Haryana High Court
Privilege Health Care Services Pvt. Ltd vs Dlf Qutab Enclave Complex Medical ... on 24 September, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
F.A.O. No. 5230 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
F.A.O. No. 5230 of 2012 (O&M)
Date of decision : September 24, 2012
Privilege Health Care Services Pvt. Ltd.
....Appellant
versus
DLF Qutab Enclave Complex Medical Charitable Trust
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Arun Palli, Senior Advocate with
Mr. Tushar Sharma, Advocate and
Mr. Gaurav M. Libherhan, Advocate, for the appellant
Mr. Chetan Mittal, Senior Advocate with
Mr. Akshay Bhan, Advocate for the respondent-caveator
L.N. Mittal, J. (Oral)
CM No. 23609.CII of 2012 It is stated by learned senior counsel for the appellant that documents Annexures A/1 to A/11 are part of the lower court record whereas notice Annexure A/12 was issued just a day before the impugned judgment of the trial court and is not part of the record of the trial court. The application is allowed. Annexures A/1 to A/12 are taken on record F.A.O. No. 5230 of 2012 (O&M) -2- subject to all just exceptions.
FAO No. 5230 of 2012
In this first appeal, judgment dated 18.8.2012 passed by learned Additional District Judge, Gurgaon has been challenged. By the said judgment, petition filed by appellant under section 9 of the Arbitration and Conciliation Act, 1996 (in short, the Act) has been dismissed.
It is undisputed that respondent agreed to sell the disputed property to the appellant vide agreement dated 30.3.2010. Case of the appellant is that it has always been ready and willing to perform its part of the contract whereas case of the respondent is that the appellant has committed breach of the agreement.
By way of petition under section 9 of the Act, the appellant sought interim injunction restraining the respondent from alienating the disputed property in any manner to anybody else except the appellant.
The appellant alleged that there is arbitration clause no. 23 in the impugned agreement and therefore, the dispute is required to be referred to Arbitrator and in the meanwhile, the respondent be restrained from alienating the disputed property to anybody else.
The respondent, however, has terminated the impugned agreement vide notice dated 8.6.2012 and has forfeited the earnest money of ` 2 crores paid by the appellant to the respondent.
F.A.O. No. 5230 of 2012 (O&M) -3-
The respondent interalia pleaded that in view of clause 14 of the agreement, the dispute is not liable to be referred to Arbitrator and rather the appellant has to file suit for specific performance of the agreement. Averments made by the appellant were controverted and it was pleaded that the appellant itself committed breach of the agreement and therefore, the agreement has been rightly cancelled by the respondent and earnest money rightly forfeited.
Learned trial court vide impugned judgment dated 18.8.2012 has dismissed the petition filed under section 9 of the Act by the appellant, necessitating the filing of the instant first appeal.
I have heard learned counsel for the parties and perused the case file.
The appellant is already said to have served notice dated 17.8.2012, Annexure A/12 requiring the respondent to refer the dispute to Arbitrator failing which the appellant shall have to resort to section 11 of the Act.
In the interregnum, I am of the considered opinion that ends of justice would be met if it is directed that if the respondent alienates the disputed property, it shall specifically mention in the deed of alienation itself about the impugned agreement and the dispute that has been raised by the appellant including notice Annexure A/12 allegedly sent by the appellant F.A.O. No. 5230 of 2012 (O&M) -4- to respondent so that prospective alienee becomes aware of the dispute between the parties and may not take the plea of being bonafide transferee of the disputed property without notice or knowledge of the impugned agreement and dispute between the parties. In this manner, the interest of the appellant would be protected because the prospective alienee would be put on notice of the rights being claimed by the appellant. Interest of the respondent would also be safeguarded because it would not put undue restraint on it regarding alienation of the disputed property.
Accordingly, the instant first appeal is disposed of by directing that if respondent no. 1 alienates the disputed property, it shall specifically mention in the deed of alienation itself about the impugned agreement and the dispute that has been raised by the appellant including notice Annexure A/12 allegedly sent by the appellant to respondent and the petition under section 11 of the Act, if any is filed before such alienation. This interim direction shall remain operative for four months from today and if during the said period, the appellant files petition under section 11 of the Act, then this interim direction shall further continue till one month after the decision of the petition under section 11 of the Act and thereupon if Arbitrator is appointed, the appellant shall be at liberty to approach the Arbitrator for interim relief under section 17 of the Act. It is expressly made clear that nothing in this order or in impugned judgment of the trial court shall have F.A.O. No. 5230 of 2012 (O&M) -5- any bearing on petition if any that may be filed by the appellant under section 11 of the Act or on merits of rival claims of the parties to be adjudicated upon either by Arbitrator or by civil court. It goes without saying that respondent shall be at liberty to plead in petition under section 11 of the Act, if any that may be filed, that the dispute is not liable to be referred to the Arbitrator.
( L.N. Mittal )
September 24, 2012 Judge
'dalbir'