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Abbott Healthcare Private Limited vs Union Of India & Anr on 19 April, 2022

Author: Amit Bansal

Bench: Amit Bansal

                        $~18
                        *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +          CS(COMM) 225/2019 & I.A. 6248/2019 (u/O-XI R-12 & 14 of CPC)

                                   ABBOTT HEALTHCARE PRIVATE LIMITED ..... Plaintiff
                                               Through: Mr. Vivek Sharma, Ms. Mamta
                                                        Gautam and Mr. Vineet Sawhney,
                                                        Advocates.

                                                      versus

                                   UNION OF INDIA & ANR.                             ..... Defendants
                                                 Through:          Ms. Vidhisha Haritwal, Advocate.

                                   CORAM:
                                   HON'BLE MR. JUSTICE AMIT BANSAL

                                               ORDER

% 19.04.2022

1. On the basis of the pleadings of the parties, the following issues are framed in the suit:

(i) Whether the present suit is bad for misjoinder of causes of action?

OPD-1 & 2

(ii) Whether there is no cause of action for filing the present suit? OPD-1 &2

(iii) Whether the defendant No.2 was entitled to levy, deduct and appropriate, liquidated damages (Rs.3,25,76,118/-) against the plaintiff, without invoking the arbitration clause? OPD-1 & 2

(iv) Whether the plaintiff is entitled to receive and the defendant No.1 is liable to pay damages to the tune of Rs.3,25,76,118/- to the plaintiff on account of wrongful appropriation of liquidated damages? OPP Signature Not Verified Digitally Signed By:MAMTA ARYA Signing Date:20.04.2022 18:25:13

(v) Whether the plaintiff is entitled to receive and the defendant No.1 is liable to pay a sum of Rs.14,47,414/- on account of capital expenditure incurred by the plaintiff in the setting up of the Palghar kitting unit? OPP

(vi) Whether the defendants have resorted to improper contractual mechanism in their standard form contract to make the arbitration clause meaningless, if so, its effect and consequence? OPP

(vii) Whether the plaintiff is entitled to receive and the defendant No.2 is liable to pay a sum of Rs.20,41,545/- towards actual costs of arbitration? OPP

(viii) Whether the plaintiff is entitled to receive and the defendant No.1 is liable to pay, a sum of Rs.19,80,000/- against an equivalent sum paid by the plaintiff to Bharat Parenterals Limited? OPP

(ix) Whether the plaintiff is entitled to receive and the defendant No.1 is liable to pay pre-suit interest? OPP

(x) Whether the plaintiff is entitled to receive pendente lite and future interest on the decretal amount from the date of decree to the date of actual realization, if so, from which defendant and at what rate? OPP

(xi) Relief.

2. No other issue arises or is pressed for.

3. The parties shall file their list of witnesses within fifteen days from today. Evidence by way of affidavit be filed on behalf of the plaintiff within four weeks.

4. The counsel for the plaintiff submits that a Local Commissioner be appointed for recording of evidence and the plaintiff is ready to bear the cost of the Local Commissioner, subject to the outcome of the suit.

Signing Date:20.04.2022 18:25:13

5. The counsel for the defendants does not oppose the said request.

6. I have heard the counsels for the parties.

7. I am of the view that the appointment of a Local Commissioner to record evidence in the suit would facilitate expeditious disposal of the suit.

8. Accordingly, the following directions are passed:

I. Mr. P.K. Saxena, Additional District Judge (Retd.), (Mobile No. 9910384668), is appointed as the Local Commissioner for recording of evidence of the parties.

II. The fees of the Local Commissioner is initially fixed at Rs.1,00,000/-, plus out of pocket expenses, on the basis that the recording of evidence shall be concluded in eight sittings. Thereafter, the fees of the Local Commissioner shall be Rs.15,000/-, plus out of pocket expenses, per sitting.

III. The fees of the Local Commissioner for recording of the evidence shall be initially borne by the plaintiff, subject to the final outcome in the suit.

IV. In case, any adjournment is taken by one of the parties, the said party shall bear the costs of the said sitting. The Local Commissioner shall decide whether the adjournment is on account of party/parties. V. The evidence shall be recorded by the Local Commissioner within the High Court precinct.

VI. The Local Commissioner shall endeavour to conclude the recording of evidence within six months from today.

VII. The parties to approach the Local Commissioner within one week from today, for fixing the dates for recording of evidence and executing the present commission.

Signing Date:20.04.2022 18:25:13 VIII. The parties shall provide full assistance to the Local Commissioner for recording of evidence.

IX. In case of requirement of the Court file, the Registry shall make the arrangements to send the Court file for the sitting before the Local Commissioner and Rs.1,000/- is fixed towards the fees to be paid to the Court Staff to carry the Court file and the same shall be borne by the plaintiff.

9. List before the Joint Registrar on 27th October, 2022 for monitoring the evidence recorded by the Local Commissioner.

AMIT BANSAL, J.

APRIL 19, 2022 dk Signature Not Verified Digitally Signed By:MAMTA ARYA Signing Date:20.04.2022 18:25:13