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Dr Naveen Agnihotri vs M/S Nayati Healthcare And Research Pvt ... on 28 July, 2022

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          $~3
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     ARB.P. 19/2022
                                DR NAVEEN AGNIHOTRI                                     ..... Petitioner
                                                   Through:     Mr.   Sandeep   Kapoor,    Advocate.
                                                   versus
                                M/S NAYATI HEALTHCARE AND RESEARCH PVT LTD AND
                                ANR                                                  ..... Respondents
                                                   Through:     Mr. Sumant De, Advocate.
                                CORAM:
                                HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                              ORDER

% 28.07.2022

1. The present petition has been filed under Section 11(6) read with Section 11(8) of the Arbitration and Conciliation Act, 1996 on behalf of the petitioner seeking appointment of a Sole Arbitrator to adjudicate the disputes between the parties.

2. It is submitted in the petition that the petitioner has worked in respondent's Organization in the retainership position of Senior Consultant & HoD, Blood Transfusion Medicine in respondent-hospital within the terms of the Medical Services Agreement (hereinafter referred to as the "MSA") dated 01st July, 2015.

3. A Letter of Intent dated 16th April, 2015 was given with the consideration of Rs. 4,00,000/- per month. The petitioner was also assured monthly payments on or before the 10th of the next calendar month.

4. The petitioner joined his duties on 01st July, 2015 and discharged his duties with diligence, dedication and hard work. After an appraisal, the monthly retainership fee of the petitioner was increased from Rs. 4,00,000/- to Rs. 4,80,000 vide Letter dated 14th February, 2018 issued by the respondent-hospital.

5. On 06th April, 2021, a Memorandum of Understanding (hereinafter referred to as the "MoU") was signed between the petitioner and the respondent, whereby the respondent's Executive Director, Mr. Sagar Tuteja proposed the petitioner to enter into the said MoU as vendor with Nayati Healthcare & Research Pvt. Ltd, independent of petitioner's assignments as Senior Consultant and HoD -Blood Transfusion and Medicine.

6. The petitioner has asserted that there was a trend of delayed disbursement of salaries from early 2018 and the soft requests made by the petitioner were responded by vague assurances.

7. When there was overall demotivation and outcry among the staff in September-October 2019, the CMD called a formal meeting and assured the staff that all outstanding payments will be made by 31.12.2019 and after that the salaries would be paid regularly. This timeline was not adhered to. Another timeline of 31st March, 2020 was promised but the same was again not adhered to.

8. It is further submitted by the petitioner that the respondent used the excuse of COVID-19 to ward off the requests for the outstanding salaries in the FY 2020-21. The respondent was required to do the billings of the Blood Bank and give 47 % of the revenue to the petitioner, as part of their obligation, which was not paid and the billing details were not shared with the petitioner. The petitioner vide E-mail dated 22nd June, 2021 sent to the Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 respondent asking about the payment of his vendor share, as per the MoU, amounting to nearly Rs.1,22,278/- to which there was no reply given by the respondent.

9. It is submitted by the petitioner that the respondent's indifference towards the petitioner in regard to continuation of his services as Senior Consultant and HoD, Blood Transfusion Medicine as well as the revenue share with the petitioner as Vendor under the MoU dated 06th April, 2021, led the petitioner into the dilemma with regard to initiating the process of termination of the MSA executed between the petitioner and the respondents.

10. The petitioner sent a Legal Demand Notice dated 04th August, 2021 to the respondent for release of his outstanding salaries and other payments, amount to Rs. 82,70,000/- as well as the revenue to the MoU w.e.f. 06th April, 2021, amounting to Rs. 1,21,278/- along with the compensation for the additional ICU duties performed during the Second Wave of COVID-19 within 14 days or else to pay interest @ 18% on account of delay.

11. The petitioner then issued a Legal Notice dated 30th August, 2021 invoking the Arbitration Clause of MSA for Arbitration. However, the Arbitrator has not been appointed.

12. A prayer has, therefore, been made that an Arbitrator may be appointed.

13. The respondent in its reply has asserted that the petitioner failed to comply with the said terms and conditions of the MSA and terminated the MSA without following the clause of suspension or termination of the MSA.

14. The reliance has been placed by the respondent on United India Insurance Co. Ltd. vs. Hyundai Engg. and Construction Co. Ltd. (2018) 17 Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 SCC 607 and ARB.P. No. 110/2022 titled M/s Raghav Engineers vs. Delhi Tourism and Transportation Development Corporation Ltd., date of decision 22nd February, 2022, wherein it has been held that if the pre-condition of the agreement is not satisfied the invocation shall not be permissible. Similar, observations have been made in ARB.P. No. 1097/2021 titled M/s Thermal Engineers and Insulators Pvt. Ltd. vs. Delhi Tourism and Transportation Development Corporation Ltd., date of decision 28th February, 2022.

15. On merits, it is denied that the respondent chose not to reply to the Legal Notice. It is submitted that no such Legal Notice was served on the respondent as alleged, it is asserted that the petition is liable to be dismissed.

16. The existence of arbitration Clause No. 8 in MSA has not been disputed by both the parties, which reads as under:

"8. DISPUTE RESOLUTON PROCESS:-

8.1 Disputes Generally - Subject to clause 8.2, any disputes between the parties or in connection with this Agreement may be dealt with under this Clause 8.

8.2 Clinical Matters - Any disputes in connection with a clinical conduct cannot be dealt with under this Clause 8, but will be subject and dealt with in accordance with the procedures in respect to clinical privileges, conduct and governance under the applicable laws and Hospital Policy, rules and regulations, etc. 8.3 Notification of Dispute - Either party may notify a dispute by written notice to the other party adequately identifying the issue the subject of the dispute.

8.4 Reasonable Efforts - The Consultant and the Company agree to use their reasonable efforts to negotiate in good faith in order to resolve any dispute.

8.5 Convening of Meeting - If the parties are unable to resolve their disputes within fourteen (14) days from the issue of a dispute Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 notice or as such time agreed by the parties in writing, a director of the Company shall as soon as practicable convene a meeting with the Consultant to resolve the disputes.

8.6 Arbitration - If seven (7) days from the convening of the meeting under Clause 8.5, the disputes remains unresolved, the disputes shall be decided in accordance with the arbitration provisions contained in clause 14.3 hereto."

17. Learned counsels for the respondent has submitted that without prejudice to their claims and defences, the matter may be referred to arbitration and an Arbitrator be appointed to adjudicate the disputes between the parties.

18. In view of the submissions made, the petition is allowed and Mr. O.P. Gupta, District Judge (Retd.), Mobile No. 9910384645, is hereby appointed as the Arbitrator to adjudicate the disputes between the parties.

19. The parties are directed to appear before the learned Arbitrator as and when notified. This is subject to the Arbitrator making necessary disclosure(s) under Section 12(1) of the A&C Act, 1996 and not being ineligible under Section 12(5) of the A&C Act, 1996.

20. It is clarified that the Court has not examined any of the claims of the parties and all rights and contentions on merits are left open. Both the parties shall be free to raise their claims/counter-claims before the learned Arbitrator in accordance with law.

21. Since both the parties have expressed that the matter may be amicably resolved through mediation, the Order of Appointment of the Arbitrator is kept in abeyance for a period of six weeks. In the meantime, if the parties resolve their disputes, an intimation to that effect shall be sent to the learned Arbitrator, failing which the arbitration proceedings shall commence.

22. The petition is disposed of in the above terms.

NEENA BANSAL KRISHNA, J JULY 28, 2022 S.Sharma Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11