Delhi High Court - Orders
Dr Vipin Kumar Goel vs Nayati Healthcare And Research Pvt Ltd ... on 28 July, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 9/2022
DR VIPIN KUMAR GOEL ..... Petitioner
Through: Mr. Sandeep Kapoor, Advocate.
versus
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 an Arbitrator to adjudicate the disputes between the parties.
2. It is submitted in the petition that the petitioner has worked in respondent's Organization from 07th November, 2017 to 07th February, 2020 in the retainership position of Director Cardiac Anaesthesia and CTVS Critical Care within the terms of the Medical Services Agreement (hereinafter referred to as the "MSA") dated 07th December, 2017.
3. An Offer Letter dated 07th November, 2017 was given with the consideration of Rs. 7,00,000/- per month with family accommodation and other amenities. The petitioner was also assured monthly payments on or before the 10th of the next calendar month.
Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:114. The petitioner joined his duties on 07th December, 2017 and discharged his duties with diligence, dedication and hard work and the petitioner also took interest in teaching and training his team members and in the overall academic and research activities of the hospital.
5. The respondent vide its Letter dated 21st June, 2018 changed its name from M/s. Nayati Healthcare & Research Pvt. Ltd. to M/s. Nayati Healthcare & Research NCR Pvt. Ltd. A new MSA Agreement was executed on 01st April, 2019.
6. The petitioner has asserted that there was a trend of delayed disbursement of salaries of the doctors and staff, which made it difficult for him to keep up the motivation levels of his team members.
7. From September, 2019, the respondent stopped paying the salaries despite repeated requests. Because of the unbearable working conditions with no sign of improvement, the petitioner tendered his formal Resignation Letter vide E-mail dated 07th February, 2020. The petitioner also made a request for release of his outstanding salaries and dues. He also sought TDS Certificate or Form 16A for his tenure engagement. The Resignation Letter was accepted by the respondent and the Relieving Letter was issued on the same day, effective from 07th February, 2020. However, the petitioner's outstanding dues and salaries have not been released despite request.
8. The petitioner sent a Legal Notice dated 12th September, 2021 to the respondent for release of his salaries and dues, amounting to Rs. 31,63,425/- within 14 days or else to pay 18% interest on account of delay, which amounted to Rs. 11,68,246/-.
9. The petitioner then issued a Legal Notice dated 29th September, 2021 invoking Clause 8 of MSA for Arbitration. However, the Arbitrator has not Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 been appointed.
10. A prayer has, therefore, been made that an Arbitrator may be appointed.
11. The respondent in their reply has asserted that the petitioner has concealed material facts and has not approached this Court with clean hands. It is submitted that the Dispute Resolution Mechanism has been provided in Clause 8 of MSA. It is, however, claimed that the petitioner has not complied with the terms of the MSA dated 01st April, 2019 in letter and spirit. Moreover, the Invocation of Arbitration is premature as the entire procedure set up under MSA has not been complied and adhered to. The reliance has been placed by the respondent on United India Insurance Co. Ltd. vs. Hyundai Engg. and Construction Co. Ltd. (2018) 17 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 if 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.
12. On merits, it is asserted that the claims and the documents on which the reliance has been placed by the petitioner, are absolutely contradictory and misconceived.
13. It is further submitted that the petitioner was duly informed by the respondent No. 1 regarding the change of the Company and, therefore, the respondent No. 1 is not a necessary and proper party. It is claimed that the petition is liable to be dismissed.
Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:1114. Learned counsel 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.
15. Submissions heard.
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 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. In view of the submissions made, the petition is allowed and Mr. O.P. Signature Not Verified Signed By:NIRMLA TIWARI Signing Date:04.08.2022 16:55:11 Gupta, District Judge (Retd.), Mobile No. 9910384645, is hereby appointed as the Arbitrator to adjudicate the disputes between the parties.
18. 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.
19. Both the parties shall be free to raise their claims/counter-claims before the learned Arbitrator in accordance with law.
20. Both the parties have submitted that there is a possibility of settlement between the parties. 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.
21. 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