Allahabad High Court
State Of U.P. Thru. D.G. Medical & Health ... vs 102 Mother Child Services(U.P.)Survey ... on 15 October, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- MISC. SINGLE No. - 16475 of 2020 Petitioner :- State Of U.P. Thru. D.G. Medical & Health Services,Lko. &Anr Respondent :- 102 Mother Child Services(U.P.)Survey No.670 &671 Emri & Anr Counsel for Petitioner :- Gantavya,Kumar Abhishek,Mayur Narang,Meha Rashmi ALONG WITH : (1) Case :- MISC. SINGLE No. - 16477 of 2020 Petitioner :- State Of U.P. Thru. D.G. Medical & Health Services,Lko. &Anr Respondent :- 108 Medical Transport Ser.West(U.P)Survey 670&671 Emri & Anr Counsel for Petitioner :- Gantavya,Kumar Abhishek,Mayur Narang,Meha Rashmi (2) Case :- MISC. SINGLE No. - 16479 of 2020 Petitioner :- State Of U.P. Thru. D.G. Medical & Health Services,Lko. &Anr Respondent :- 108 Medical Transport Ser.East(U.P)Survey 670&671 Emri & Anr Counsel for Petitioner :- Gantavya,Kumar Abhishek,Mayur Narang,Meha Rashmi Hon'ble Mrs. Sangeeta Chandra,J.
Heard Sri Parag Tripathi, learned Senior Advocate assisted by Gantavya Kumar Abhishek, Mayur Narang and Meha Rashmi appearing for the petitioners and Sri J.N. Mathur, learned Senior Advocate assisted by Sri Gaurav Mehrotra for the respondents.
These three writ petitions have been filed with more or less same prayer i.e. to modify the order passed by the Commercial Court dated 22.9.2019 by which, it has while entertaining the application moved under Section 9 of the Arbitration Act fixed a long date of 25.11.2020 for filing of response and for hearing the matter of interim relief.
It has been submitted by Sri Parag Tripathi that the petitioners have engaged the respondents to run Ambulance Services for Mother and Child Care and other Health services through a contract. The terms of the contract were such that under Article 17 i.e. Arbitration Clause, the respondents had to carry out the services as contracted for till such time that the award of the Arbitrator was passed. In this case, the respondents have given them a notice invoking the Clause of Force Majeure and have requested the State of U.P. to release them from the obligations under the contract on grounds of COVID-19 pandemic, which has been declared a national calamity by the Central Government by a Notification of February, 2020.
It has been submitted by the petitioners' counsel that the Notification of February, 2020 had to be acted upon within 12 hours if the respondents wanted to invoke the Force Majeure. No such prayer was made within 12 hours, instead, a representation was made to the State Government on 21.3.2020 which has been read out to this Court. It has been submitted that because of Article 14 of the contract document and its various sub-clauses, the invoking of Force Majeure was also to be done under certain conditions which conditions were not met and, therefore, the State Government informed the respondents on 22.9.2020 that they could not invoke the clause of Force Majeure but had to continue with the contract and should not terminate it suddenly.
Sri J.N. Mathur appearing for the respondents has pointed out that the State Government had made it very difficult for the respondents to continue with their services by imposing various penalties upon them and even lodging F.I.R. against their Vice President for which, the Company had to approach this Court for stay of arrest. It has been submitted that because of the emergent situation of COVID-19, the Company had stretched its resources thinly all over the country and in all States in which it is running Ambulance Services, the State Governments have given various relaxations in the clauses of contract to enable the Company to give its Ambulance Services continuously. However, State of U.P. is very unkind and, therefore, the respondents do not wish to continue their services under the contract. It has also been submitted that in these three writ petitions the contract has not yet been terminated, and only a notice has been given praying that Article 14 be invoked i.e. the Article relating to Force Majeure and they be given certain relaxations in giving of services.
Additionally, Sri J.N. Mathur has argued that since the contract has not been terminated, Section 9 application has been filed by the petitioners only on an apprehension.
Be that as it may, this Court does not wish to go into the merits of the case as it has been agreed upon by the learned counsel for the parties that this Court may fix some early date before the Commercial Court for the matter to be thrashed out before that Court for grant of relief under Section 9 application.
Therefore, this Court disposes of all three writ petitions with a direction to the Commercial Court that Section 9 application moved by the petitioners may be heard at the earliest either on 20.10.2020 or within a short period thereafter, in any case, latest by 9.11.2020.
Taking into account the terms of the contract entered into between the parties and services being provided by the respondents, it is further directed that till disposal of the application under Section 9 of the Arbitration Act as moved by the petitioners, no abrupt termination of contract entered into between the parties shall be resorted to. The respondent under the terms of the contract, even under Article 14, is required to give fifteen days notice. The respondent shall adhere to the terms of the contract while contemplating termination.
Order Date :- 15.10.2020 Sachin