The Branch Manager v. Manohar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION) WEDNESDAY, THE 19TH DAY OF JANUARY 2022 THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE Arb.O.P.No. 26 of 2021 In the matter of Sec 11(5) of Arbitration and Conciliation Act, 1996 And In the matter of Credit Facility Agreement dated 18.07.2019 entered into between M/s. Yoopha Healthtech Private Limited and Mr.Saravanakumar Chinavel and M/s.Croncrew Technologies Pvt. Ltd.
Mr. C. Saravanakumar, S/o. Chinnavel, Plot No.183/4, 2nd Floor, Door No.S2, Kolathur, Kovilambakkam, Chennai - 600 117.
... Petitioner -Vs1.
M/s. Yoopha Healthtech Pvt.Ltd., A Private Limited Company, Having its office at No.103, First Floor, Velacherry Main Road, Venkatapuram, Guindy, Chennai - 600 032.
2.
Mr. Arun Justin Robert, Director, M/s. Yoopha Healthtech Pvt. Ltd., No.3/127, Thilagar Street, M.A.(Mondiyamman) Nagar, Redhills, Padianallur, Thiruvallur - 600 052.
3.
Mrs. Rekha Mary, Ex-Director, M/s. Yoopha Healthtech Pvt. Ltd., No.3/217, Thilagar Street, M.A.(Mondiyamman) Nagar, Redhills, Padianallur, Thiruvallur - 600 052.
4.
M/s. Croncrew Technologies Pvt. Ltd., Door No.22, Plot No.29, Thirumalai Nagar Annexe, 1st Main Road, Perungudi, Chennai - 600 096.
5.
Mr. Jayakumar, S/o. Chinnavel, No.304, Silver Oak, Alliance Orchid Springs, Water Canal Road, Korattur - 600 080.
... Respondents Arbitration Original Petition praying that this Hon'ble Court be pleased to pass an order(s) ; (a) To appoint an independent Sole Arbitrator to resolve all the disputes arising out of the Agreement dated 18.07.2019 entered into between the First Respondent, the Petitioner and the Fourth Respondent. (b) To direct the Respondents to pay the costs of this petition.
This Original Petition coming on this day before this court for hearing in the presence of M/s.A.M.Amutha Ganesh, Advocate for the 1 to 3 Respondents herein and the Petitioner herein not appearing in person or by advocate and upon reading the Petition, filed herein and it is ordered as follows:- That Mr.T.Venkattakrishnan, Retired District Judge, residing at No.W903, Starwood Towers, Mambakkam Main road, Venkai Vasal, Madambakkam Post, Chennai - 600 126 (Mobile No : 94867 94409) be and is hereby appointed as an Arbitrator herein who shall decide the dispute between the parties arising out of the Credit Facility Agreement dated 18.07.2019 and Business Transfer Agreement dated 18.07.2019.
2) That the Arbitrator appointed herein, be and is hereby shall act upon the reference after giving notice to both the parties and fix the date of hearing and thereafter proceed with the arbitration and pass an Arbitral award on merits and in accordance with law by following the procedure contemplated in the Arbitration and Conciliation Act, 1996 and its Rules.
3) That the Arbitrator appointed herein shall fix his remuneration as per the provisions of the Arbitration and Conciliation Act, 1996 and its Rules.
WITNESS THE HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI, ACTING CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 19TH DAY OF JANUARY 2022. Sd/- ASSISTANT REGISTRAR (O.S.-II) //Certified to be true copy// Dated at Madras this the day of 2022. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.
ED 24.01.2022 Arb O.P.No. 26 of 2021
ORDER
DATED: 19.01.2022 THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE FOR APPROVAL: 24/01/2022 APPROVED ON : 24/01/2022 Copy to:
Mr.T.Venkattakrishnan, Retired District Judge, Arbitrator, No.W903, Starwood Towers, Mambakkam Main Road, Venkai Vasal, Madambakkam Post, Chennai - 600 126.
(Mobile No. 94867 94409)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE Arb.Original Petition No.26 of 2021 C.Saravanakumar ...
Petitioner
Versus
1.M/s Yoopha Healthteh Pvt Ltd., A Private Limited Company Having its Office at No.103, First Floor, Velacherry Main Road, Venkatapuram, Guindy, Chennai - 600 032.
2. Arun Justin Robert 3.Mrs.Rekha Mary 4.M/s Croncrew Technologies Pvt. Ltd., Door No.22, Plot No.29, Thirumalai Nagar Annexe, 1st Main Road, Perungudi, Chennai - 600 096 5.Jayakumar ... Respondents Petition filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 seeking to appoint Sole Arbitrator to adjudicate the differences and disputes between the petitioner and the respondent.
For Petitioner : No appearance For R.1 to R.3 : M/s.a.M.Amutha Ganesh
ORDER
This petition has been filed under Section 11 (5) of the Arbitration and Conciliation Act, 1996, seeking for appointment of an Arbitrator
2. The petitioner and the respondents have entered into the following agreements:- (i) Credit Facility Agreement dated 18.07.2019 (ii) Business Transfer Agreement dated 18.07.2019
3. There seems to be some dispute between the parties arising under the aforementioned agreements. Both the agreements contain arbitration clause, which are extracted hereunder:- Credit Facility Agreement dated 18.07.2019:
7. Subject to the above clause, if such controversy, conflict or dispute arising out of or in connection with the Agreement are not settled amicably, conflict or dispute of any nature arising out of or relating to or in connection with the provisions of this Agreement, shall be settled exclusively and finally by arbitration carried out in Chennai and conducted in the English language. The arbitration shall be conducted and finally settled by sole arbitrator in accordance with the [Rules and Conciliation and Arbitration as prescribed under the
Arbitration and Conciliation Act, 1996] in effect at the time of such arbitration. The seat and venue of the arbitration shall be in Chennai. The Parties agree, in connection with the enforcement of any arbitral award rendered pursuant to this Clause, to submit to the exclusive jurisdiction of the courts of Chennai.
Business Transfer Agreement dated 18.07.2019:- 8.2 Arbitration 8.2.1. Subject to Clause 8.1 above, if any controversy, conflict or dispute arising out of or in connection with the Agreement are not settled amicably, such conflict or dispute of any nature arising out of or relating to or in connection with the provisions of this Agreement, shall be settled exclusively and finally by arbitration carried out in Chennai and conducted in the English language. Judgment on the award may be entered by any court having jurisdiction. 8.2.2. The arbitration shall be conducted and finally settled by any arbitrator in accordance with the [Rules and Conciliation and Arbitration as prescribed under the Arbitration and Conciliation Act, 1996,] in effect the time of such arbitration. The seat and venue of the arbitration shall be in Chennai. The Parties agree, in connection with the enforcement of any arbitral award rendered pursuant to this Clause, to submit to the exclusive jurisdiction of the courts of Chennai.
8.2.3. Nothing contained hereinabove shall prejudice either Party's right to have recourse to any court having jurisdiction for the purpose of interim or interlocutory orders. 8.2.4. The sole arbitrator shall give a reasoned decision or
award, including as to the costs of the arbitration, which shall be final and binding on the Parties. The Parties agree that the arbitrator's award may be enforced against the Parties to the proceedings or their assets, wherever they may be found.
8.2.5. The Parties shall co-operate in good faith to expedite (to the maximum extent practicable) the conduct of any arbitral proceedings commenced under this Agreement. 8.2.6. The costs and expenses of the arbitration, including without limitation, the fees of the arbitration, shall be borne equally by the Parties and each Party shall bear and pay its own costs, expenses, fees, disbursements and other charges of its counsel, in connection with the arbitration proceedings except as may be otherwise determined by the arbitrators."
4. The existence of the arbitration agreement between the parties is also not disputed by the respondents. The petitioner has also sent a Notice dated 18.06.2021 to the respondents calling upon them to give their consent for appointment of Mr.John Azchariah, Advocate as an Arbitration, for which, the respondents through their lawyers have responded, but have not consented for the appointment of the named arbitrator.
5. Since there is an arbitration agreement in both the contracts, the parties will have to necessarily go for arbitration in accordance with the arbitration agreement.
6. Since the respondents have not given their consent for the named arbitrator, suggested by the petitioner, this Court is constrained to appoint an Arbitrator.
7. Accordingly, this Court appoints Mr.T.Venkattakrishnan, retired District Judge, residing at No.W903, Starwood Towers, Mambakkam Main Road, Venkai Vasal, Madambakkam Post, Chennai - 600 126 ( Mobile No: 94867 94409) as an Arbitrator, who shall decide the dispute between the parties arising out of the Credit Facility Agreement dated 18.07.2019 and Business Transfer Agreement dated 18.07.2019. The Arbitrator shall act upon the reference after giving notice to both the parties and fix the date of hearing and thereafter proceed with the arbitration and pass an Arbitral award on merits and in accordance with law by following the procedure contemplated in the Arbitration and Conciliation Act, 1996 and its Rules.
8. The Arbitrator shall fix his remuneration as per the provisions of the Arbitration and Conciliation Act, 1996 and its Rules. Sd./- A.Q.J., 19/01/2022 //Certified to be true copy// Dated at Madras this the day of 2022. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.