Civil Misc. No. 4786-CII & 4787-CII of 2009 and Arbitration Case No. 98 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 4786-CII & 4787-CII of 2009 and Arbitration Case No. 98 of 2009 Date of decision: 25th February, 2010 Kular Hospital .........Petitioner Versus Medsave Health Care Ltd. .........Respondent BEFORE: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice Present: Mr. P.S.Rana, Advocate, for the petitioner. Mr. Sameer Rathore, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Mukul Mudgal, CJ.(Oral) Civil Misc. No. 4786-CII of 2010 Allowed as prayed for. Learned counsel for the petitioner is permitted to file uncertified and photostat copies of Annexures R-1 to R-3(Colly). Civil Misc. No. 4787-CII of 2010 Allowed as prayed for. Reply to the application filed on behalf of the Civil Misc. No. 4786-CII & 4787-CII of 2009 and Arbitration Case No. 98 of 2009 -2- respondent is taken on record. Arbitration Case No.98 of 2009 This petition has been filed by the petitioner under Section 11(6) of the Arbitration & Conciliation Act, 1996(for short 'the Act'), for appointment of an independent Sole Arbitrator to adjudicate upon disputes that have arisen between the parties. Clause 14.1 and 14.2 of the agreement contains the Arbitration clause which reads as under:- “14.1 Any dispute, claim arising out of this agreement are subject to arbitration and jurisdiction of the courts of Chandigarh. Any amendments in the clauses of the Agreement can be effected as addendum, after the written approval from all the parties. 14.2 Any dispute, difference or question arising from this agreement shall be discussed between the parties and resolved amicably. If any amicable solution cannot be reached within 90 days either party shall have the right to have the said dispute settled by arbitration in accordance with the Indian Arbitration Act and the Venue of the Arbitration shall be Chandigarh.” It is admitted case that same disputes took place between the parties. In view of the Arbitration clause, the Civil Misc. No. 4786-CII & 4787-CII of 2009 and Arbitration Case No. 98 of 2009 -3- petitioner called upon vide its letter dated 02.09.2009 to the respondent to give consent/concurrence to the name of Justice S.K.Jain (Retd.), as sole Arbitrator to decide the disputes and differences between the parties. The respondent did not agree to the name and vide letter dated 10.09.2009, suggested the name of Mr. Sanjiv Aurora, to be appointed as sole Arbitrator, to adjudicate upon the matter, to which name the petitioner did not agree. Hence this petition. Upon notice, reply has been filed by the respondent. During the course of arguments, learned counsel for the respondent took an objection that the present petition is not maintainable due to non-joinder of National Insurance Company Limited and Bhai Ghanhya Trust as parties because they had appointed the respondent herein to execute the agreement on their behalf. The objection raised by the respondent is not maintainable because the Agreement dated 07.08.2008 (Annexure A-2) which is subject matter of the present litigation, was executed between M/s Medsave Health Care Ltd. as first party and the Kular Hospital as second party. The question of having the agreement entered into by the respondent on behalf of a third party is not relevant to the controversy being adjudicated upon by this Court under Section 11(6) of the Act. The plea of non-joinder of parties, at best, could be taken before the Arbitrator, so appointed, if permissible in law. No further Civil Misc. No. 4786-CII & 4787-CII of 2009 and Arbitration Case No. 98 of 2009 -4- objection has been raised. In view of the above, this petition is allowed and Justice R.K.Nehru, former Judge of Jammu and Kashmir, is appointed as sole Arbitrator to adjudicate upon the disputes between the parties. In the meanwhile, the parties will exchange the statement of claims and response thereof. The statement of claim be supplied to counsel for the respondents within four weeks and response to the statement of claims shall be supplied to the counsel for the petitioner within four weeks thereafter. The parties shall appear before the Arbitrator on 7.05.2010 or an agreed date convenient to the parties but not later than 15 days from the aforesaid date, after exchange of pleadings as directed aforesaid. The Arbitrator shall render the award not later than six months from the date of first appearance of the parties. With these directions, the petition stands disposed of. [MUKUL MUDGAL] CHIEF JUSTICE 25th February, 2010 Shivani Kaushik