Judgment:
$~19 * + IN THE HIGH COURT OF DELHI AT NEW DELHI O.M.P. (I) (COMM) 117/2017 & IA31562017 PHILIPS INDIA LTD. .....
... PetitionerThrough: Mr. N. Mahabir and Mr P.C. Arya, Advocate versus CHIKITSABROTI UDYOG (SANJIVAN HOSPITAL) & ORS ..... Respondent Through: Mr Pijush Biswas, Mr Jayanta Sengupta and Mr Mirza Kayesh Begg, Advocates CORAM: JUSTICE S. MURALIDHAR ORDER2303.2017 % 1. This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 („the Act‟) by Philips India Ltd. seeking certain interim reliefs against the Chikitsabroti Udyog (Sanjiban Hospital) [Respondent No.1]., Dr Subhasish Mitra and Dr Dalia Mitra (Respondent Nos. 2 & 3), who are the President and office bearer respectively of the Respondent No.1 and TM Technique Pvt. Ltd. (Respondent No.4), which stood as guarantor for obligations of the Respondent No.1 society. Background facts 2. The facts relevant to filing of the present petition are that, the Respondent No.1 was desirous of purchasing healthcare equipment from the
... Petitioner. It also sought services of the
... Petitionerfor servicing of some of the healthcare equipment lying at its premises. OMP (I) (COMM.) 117/2017 Page 1 of 19 3. It is stated that the following agreements were entered between the
... Petitionerand the
... RESPONDENTSfor sale and service of the medical equipments: (i) A Deferred cum Hypothecation Agreement dated 17th September 2012 was executed for the purchase of Cathlab Machine bearing the name "AlluraXper FD10Cathlab system" (hereinafter referred as "Cathlab Machine"). (ii) Annual Maintenance Agreement dated 18th November 2013 was executed for services of machine during the period 1st October 2013 to 30th October 2014. (iii) Annual Maintenance Agreement dated 28th April 2014 was executed for services of machine during the period 1st April 2014 to 31 March 2015.
4. Pursuant to the above agreements, the
... Petitionerdelivered possession of the Cathlab machine to the Respondent No.1. On account of the inability of the
... RESPONDENTSto make payment for the said credit facility under the Deferred cum Hypothecation Agreement, a Supplementary Agreement (SA) dated 18th February, 2014 was executed. Under the terms of the SA, the terms and conditions of the Deferred cum Hypothecation Agreement were reiterated. The credit facilities were restructured to enable the
... RESPONDENTSto repay the
... Petitioner.
5. The Deferred cum Hypothecation Agreement dated 17th September, 2012 OMP (I) (COMM.) 117/2017 Page 2 of 19 contained the following clauses: “15. Governing law and jurisdiction The rights and obligations of the Parties under this Agreement shall be governed by the laws of India, without giving effect to principles of conflict of laws thereof, and shall be subject to the exclusive jurisdiction of courts at Gurgaon, Haryana.
16. Arbitration lf any dispute arises between the Parties out of or in connection with this Agreement whether in the nature of interpretation or meaning of any term hereof or as to any claim by one against the other, or otherwise the same shall be referred to sole arbitrator to be appointed by Philips and the arbitration shall be governed by the Arbitration and Conciliation Act, 1996. The seat or legal place of arbitration shall be New Delhi. The language to be used in the arbitral proceedings shall be English. The award given by the arbitrator upon such references shall be final and binding upon the parties, and each party shall bear its own expenses in relation to such arbitration. Unless otherwise awarded by the arbitrator, the arbitration fees shall be shared equally by the Parties.” 6. In other words, the parties agreed on the exclusive jurisdiction of the Courts at Gurgaon, Haryana; they also agreed on the seat or „legal place of arbitration‟ in New Delhi. Incidentally, the aforesaid Deferred cum Hypothecation Agreement was executed at Gurgaon, Haryana.
7. The address of the Respondent No.1 was in Howrah in West Bengal. The Sanjivan Hospital is also being run there. The Cathlab equipment was delivered to the Respondent No.1 there. Therefore, part of cause of action arose at Gurgaon where the agreement was executed and a part thereof arose in Howrah, West Bengal where the agreement was performed. OMP (I) (COMM.) 117/2017 Page 3 of 19 8. It may be noticed at this stage that in terms of the decision of the Supreme Court in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC32 followed in State of West Bengal v. Associated Contractors (2015) 1 SCC32 the parties can validly recognize the exclusive jurisdiction of one of the two Courts where a part of the cause of action arises. In the present case, inasmuch as some part of cause of action did arise in Gurgaon the recognition by the parties of the exclusive jurisdiction of the Court there is valid. The parties agreed on the seat of arbitration being in New Delhi. In fact the arbitration took place at New Delhi. Consequently, the jurisdiction of this Court is also recognized as has been pointed out by the Constitution Bench of the Supreme Court in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (2012) 9 SCC552(hereafter Balco).
9. Mr. N. Mahabir, learned counsel appearing for the
... Petitioner, submitted that even after they are agreed to reschedule the payment due under the above agreement, the
... RESPONDENTSfailed to make payment as was agreed. The
... Petitionereven filed criminal complaints against the
... RESPONDENTSunder Section 138 of the Negotiable Instrument Act 1881.
10. In terms of Clause 16 of the Deferred cum Hypothecation Agreement and Clause 9 of the service agreements the disputes between the parties were referred to a Sole Arbitrator appointed by the
... Petitionerby its letter dated 12th March 2015. Before the Sole Arbitrator, the
... Petitionerfiled 3 claim petitions on under each of the three agreements. An application was filed by the
... Petitionerbefore the learned Arbitrator under Section 17 of the Act for directions to the
... RESPONDENTSto hand over to the
... Petitionerpossession of OMP (I) (COMM.) 117/2017 Page 4 of 19 Cathlab Machine. The Settlement and Interim Award 11. During the pendency of the above application, the parties on 31st May, 2015 filed a joint settlement application before the learned Arbitrator. In the said settlement application, it was inter alia stated as under: “1. That the disputes between the Claimant and
... RESPONDENTSare pending in the present Arbitration proceedings at Delhi. That the Respondent 1 to 4 owe dues of INR2 36, 58, 313 /- (Rupees Two Crore Thirty Six Lakhs Forty Fifty Eight Thousand Three Hundred and Thirteen) as on 31st May 2015 under the Deferred cum Hypothecation Agreement dated 17 September 2012 to the Claimant and have defaulted in making payments to the Claimant. The Respondent 5 owe dues of INR6669, 156/(Rupees Sixty Six Lakh Sixty Nine Thousand One Hundred Fifty Six) as on 31st May '2015 under the Service Agreements as stated in the Claim petition.
2. That after service of the claim petition, the Claimant and
... RESPONDENTSdesire to have the Arbitration proceedings be disposed of in terms of the present understanding and in the manner stated in the present application. The
... RESPONDENTSdoes not wish to file any reply) to the claim petitions or any counter- claim against the Claimant without prejudice.” 12. It was prayed: “4. That in terms of the present agreement, the parties pray that the Ld. Arbitrator may be pleased to pass an interim order whereby: (i) The Claimant shall service the Cathlab and CT Machine lying at the
... RESPONDENTSpremises within a period of I5days from the date of the interim order. OMP (I) (COMM.) 117/2017 Page 5 of 19 (ii) The Claimant shall hand over a Notarized copy of the title deed of immovable. True copy of the interim order. to enable it to sell the above stated property. It is further agreed that the
... RESPONDENTSshall provide all necessary assistance, as and when required in selling the property (iii) The sales proceeds from the sale of immovable property bearing No.143 C, Sarat Base Road, Kolkatta - 700 029 (also identified in Deed of conveyance No.13635/09) shall be adjusted against the total overdues as on the date of sale of property.
13. It was agreed in paragraphs 6 and 7 as under: “6. If the
... RESPONDENTSare unable to sell the aforesaid immovable property within the agreed period of 180 days from the date of interim order by the Arbitrator then the parties agreed that: (i) The
... RESPONDENTSshall immediately and peacefully handover the custody of the Cathlab machine to the Claimant. Claimant will be entitled to take custody of the Cathlab machine, remove it from the
... RESPONDENTSpremises and keep it in a premises of Claimants choice. The Claimants will be at liberty to sell the Cathlab machine and set off against the dues owned by the
... RESPONDENTSto the Claimant. (ii)The Claimant shall further again try and sell the aforesaid immovable property bearing No.143 C, Sarat Bose Road, Kolkatta - 700 029 (also identified in Deed of conveyance No.13635/09) and set off against the total overdues and further interests.
7. If either party is able to sell the aforesaid immovable property within the period of 180 days or before. but the sale price is less than the money being total overdues as on expiration of 180 days then: (i) The Ld. Arbitrator may pass final order as per the prayer in Page 6 of 19 OMP (I) (COMM.) 117/2017 the claim petitions. (ii) The Respondent shall pay the remaining balance amount of the total overdues in 12 equal instalments at the interest rate prevailing on the date. For the payment of this amount as stated in this clause the Respondent shall issue 12 PDC's to the Claimant. In the event of default, wherein at any point in time 3 EMJ's become overdue, Respondent shall immediately and peacefully handover the Cathlab back to Philips. For the sake of clarity, the
... RESPONDENTSstate that the Claimant will be entitled to take custody of the Cathlab machine, remove it from the
... RESPONDENTSpremises and keep it in a premises of Claimants choice. The Claimants will be at liberty to sell the machine and set off against the dues owned by the
... RESPONDENTSto the Claimant. After all debts owned by
... RESPONDENTSto the Claimant are satisfied, the remaining money shall be credited to the
... RESPONDENTS..” 14. The settlement agreement parties also envisaged as to what would happen if the events stated in paragraph 6 or 7 were to occur. This was spelt out in paragraph 8 as under: the removal of “8.The
... RESPONDENTSundertake if any of the events stated in paragraph 6 or 7 were to occur, the
... RESPONDENTSshall grant full and free access to the Claimants representatives to remove the Cathlab machine from its premises and shall fully co-operate by providing electricity and system passwords, whenever required, during the machines. The
... RESPONDENTSundertake that the Claimant shall be at liberty to break open the doors if the doors are locked when the Claimant desires to remove the machine. The
... RESPONDENTSagree and undertake that they shall fully cooperate in sale of the machines and immovable property and undertake to execute all documents for this purpose within 7 days, if required to be done by the Claimant.” OMP (I) (COMM.) 117/2017 Page 7 of 19 15. On 4th June 2015, the learned Arbitrator took the Terms of Settlement as set out in the above application on record and passed an interim Award in terms thereof, common to all three arbitrations. The parties were at liberty to take further steps towards the final Award. The proceedings were adjourned to 11th December 2015. It is not in dispute that the said interim Award was not challenged by the
... RESPONDENTSand has attained finality. The second and third applications before the Arbitrator 16. However, the
... RESPONDENTSdid not act in terms of the settlement recorded in the interim Award. Accordingly the
... Petitioneron 29th January 2016 filed another application before the learned Sole Arbitrator under Section 17 of the Act, where inter alia in para 6 it was averred:
"That in terms of the Settlement and Interim Order of this Hon'ble Tribunal, the Claimant had sent a notice dated 20 January 2016 asking the
... RESPONDENTSto hand over the physical possession of the machines on or before 27 January 2016. However, the
... RESPONDENTShave chosen not to reply to the said notice."
17. It was further pointed out that the
... RESPONDENTSwere "neither selling the aforesaid property nor are they allowing claimant to sell the same. In view of the aforesaid circumstances the claimant has no option to take physical possession of the Cathlab Machine from the
... RESPONDENTSpremises, remove it from the
... RESPONDENTSpremises, store it in a premises of the
... Petitioner's choice."
Accordingly the
... Petitionerprayed that the learned Arbitrator should: “(i) permit the claimant to take physical possession of the Cathlab Machine from the
... RESPONDENTSpremises, remove it from the
... RESPONDENTSpremises and store it in a premises of OMP (I) (COMM.) 117/2017 Page 8 of 19 Claimants choice; (ii) permit the claimant to sell the Cathlab Machine and set off the money received against the dues owned to the Claimant; (iii) permit the claimant to sell the security of the Respondent and set off the money received against the dues owned to the Claimant; (iv) pass a final award in terms of the prayers in the claim petition.” 18. On the above application, an order dated 22nd February, 2016 was passed by the Sole Arbitrator giving liberty to the
... Petitionerto remove the machines, sell them and file a status report. The representative of the
... Petitionerthen approached Police Station Howrah seeking removal of the machine. It is stated that the local police, however, sought specific directions to it to assist the
... Petitionerin removal of machine.
19. The
... Petitionerthen filed an application dated 13th July 2016 before the Learned Arbitrator seeking clarification/modification of order dated 22nd February 2016. By an order dated 17th August 2016, the learned Arbitrator clarified that the Superintendent of Police, Howrah (Rural) may provide assistance to the
... Petitionerto implement the interim award. Appeal in the District Court at Howrah 20. The Respondent filed an appeal under Section 37 of the Act before the District Court, Howrah, being Misc. Appeal No.191 of 2016 for setting set aside the order dated 22nd February 2016 of the Arbitrator. This was accompanied with an application under Section 5 of the Limitation Act OMP (I) (COMM.) 117/2017 Page 9 of 19 seeking condonation of delay in filing the appeal.
21. Since the District Court refused to grant an interim stay of the order of the Arbitrator, the Respondent filed a revision petition before the Calcutta High Court being C.O. 4060 of 2016. Initially, the Calcutta High Court by its order dated 26th October, 2016 granted an interim stay for a period of four weeks of the order dated 22nd February 2016 of the learned Arbitrator. However, by a subsequent order dated 3rd January 2017, the Calcutta High Court disposed of the revision petition with direction to the District Court to first consider the
... RESPONDENTS' application under Section 5 of the Limitation Act.
22. By an order dated 6th February 2017 the District Court allowed the
... RESPONDENTS' application for condonation of delay filed under Section 5 of the Limitation Act. It is stated that the appeal is now listed before the District Court on 7th April, 2017. Present petition 23. In the present petition the
... Petitionerstates that its representative approached the local police station on 8th February 2017 seeking assistance in terms of the orders dated 22nd February 2016 and 17th August 2016 of the Learned Arbitrator. On 9th February 2017, when the
... Petitioners representatives were near the
... RESPONDENTSpremises, the
... Petitioners representative contacted the police, which did not reach the spot and continued to be non-cooperative. A team of 6 officers of the
... Petitioner‟s then approach the Respondent premises at Uluberia, Howrah, for removal of the machines. There was large noise and sloganeering done by the around OMP (I) (COMM.) 117/2017 Page 10 of 19 100 people of the Respondent No.2.
... Petitioner's representative in order to save their lives left the premises and were unable to comply with the interim award, order dated 22nd February 2016 and 17th August 2016 to remove the Cathlab machine.
24. It is stated in the petition that a discussion was held between the Respondent No.2 who stated as follows: “(i) He shall pay the due amount as and when investment from other companies is made in the hospital. (ii) He shall not allow the Cathlab machine to be removed from his premises at any cost.” 25. The
... Petitionerfiled a Contempt Petition along with application under Order 26 Rule 9 of CPC seeking appointment of Local Commissioner bearing CONT. CAS (C) No.192/2017 in this Court. The contempt petition and the application were disposed of on 6th March 2017 with liberty to the petitioner to file a petition Section 9 of the Act.
26. The
... Petitionerhas in the present application pointed out that the Cathlab machine is a medical device lying unused and locked by the
... RESPONDENTS; the value of the machine is being lost by each passing day. It is also pointed out that the
... Petitionerwill be put to great loss if the machine is damaged. Further the Respondent had not paid the consideration for this machine. It is submitted that in view of the non-cooperation and serious obstruction caused to the
... Petitionerin removal of the Cathlab machine on 9th February 2017 by
... RESPONDENTS, it had become impossible for the
... Petitioner's representatives to remove the Cathlab machine. In the circumstances, it is prayed that a Local OMP (I) (COMM.) 117/2017 Page 11 of 19 Commissioner (LC) or any other person may be appointed by the Court who, with the assistance of the
... Petitioners' representatives, may disassemble and remove the Cathlab machine from the premises of Respondent No.1 premises and hand it over to the
... Petitioner's representative.
27. The notice was issued in the present petition on 10th March, 2017 and was accepted by learned counsel for the
... RESPONDENTSwho sought time to take instructions. Submissions of counsel for the
... RESPONDENTS28. When the matter as taken up for hearing today, Mr Pijush Biswas, Mr Jayanta Sengupta, counsel appeared for the
... RESPONDENTSalong with and Mr Mirza Kayesh Begg, Advocate. A preliminary objection was raised by them as to the jurisdiction of this Court to entertain the present petition. It was submitted pointed out that no part of cause of action arose within the jurisdiction of this Court; the contract was substantially performed in Howrah, West Bengal. Therefore, the jurisdiction was only of that Court. In any event, that the exclusive jurisdiction being that of the Court in Gurgaon, the
... Petitionercould go either before the Gurgaon Court or to the Court at Howrah at Calcutta. Reliance in this regard is placed on the decision of the Supreme Court in Balco. Reliance is also placed on the decision in ABB India Limited v. Isolux Corsan India Engineering & Construction 2016 Arb LR388(Del).
29. It is further pointed out by the learned counsel for the
... RESPONDENTSthat in the reply to the application filed by the Respondent in the District Court at Howrah under Section 5 of the Limitation Act seeking condonation of delay OMP (I) (COMM.) 117/2017 Page 12 of 19 in filing the appeal, the
... Petitionerraised no objection as to the lack of jurisdiction of the Court. Relying on the decision in Moore v. Gamgee (LR) 25 QBD244 it is submitted that by accepting jurisdiction in the said proceedings, the
... Petitionershould be held to have waived off its right to object to the jurisdiction of the Court at Howrah.
30. It is further pointed out that only the Deferred cum Hypothecation Agreement contained the exclusive jurisdiction and arbitration clause. The settlement, however, was in respect of all three agreements and covered all the references. It is submitted that in any event, the Court in Delhi would not have jurisdiction. Reference is made to Section 42 of the Act to urge that the Court in Howrah having been already approached, further proceedings should be filed in that very Court. Submissions of counsel for the
... Petitioner31. Mr Mahabir, learned counsel for the
... Petitioner, at the outset pointed out that there is no stay of the proceedings granted of the order of learned Arbitrator dated 22nd February, 2016 permitting the
... Petitionerto remove the equipment in question with the help of LC. It is further pointed out that the interim Award passed in terms of the settlement agreement attained finality and there is no change to it even today. It is pointed out that even during the pendency of arbitration proceedings, and even after a Final Award, it is open to either party to invoke the jurisdiction of the Court under Section 9 of the Act to seek interim reliefs.
32. Reliance is placed by Mr Mahabir on the decision in Pandey & Co. Builders (P) Ltd. v. State of Bihar (2007) 1 SCC467to submit that an OMP (I) (COMM.) 117/2017 Page 13 of 19 appeal under Section 37 of the Act would not be covered by the expression „subsequent application‟ appearing in Section 42 of the Act. In other words, merely because an appeal is pending in the District Court in Howrah would not mean that all subsequent proceedings have to be filed only in that Court or that jurisdiction of this Court stood excluded.
33. Mr Mahabir also submitted that the submission was factually incorrect that the
... Petitionerhad not raised an objection to the jurisdiction of the District Court, Howrah. He submitted that after the delay in fling the appeal was condoned by that Court, and before the appeal could be taken up for hearing, the
... Petitionerdid file an application raising objection to the jurisdiction of that Court. Therefore, there was no waiver of the
... Petitioner‟s right to object to the jurisdiction of the Howrah Court.
34. Mr Mahabir further submitted that on merits there was no justification with the Respondent to continue to be in default to part with the equipment as long as the hypothecation is in favour of the
... Petitioner. According to him, the servicing was done of the equipments of the Respondent. While at the time of settlement the amount due was identified as Rs.2.36 crores, on account of the subsequent servicing activities of the various equipments, the total outstanding was more than Rs. 4 crores as of date. Jurisdiction 35. The above submissions have been considered, the Court would first like to deal with the issue of jurisdiction. From the arbitration clause as well as exclusive jurisdiction clause what is clear is that the seat of arbitration is Delhi and the parties have also agreed on the exclusive jurisdiction of the OMP (I) (COMM.) 117/2017 Page 14 of 19 Court at Gurgaon. A part of the cause of action having arisen at Gurgaon, it was open to the parties, in terms of the law explained by the Supreme Court in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (supra), and State of West Bengal v. Associated Contractors (supra) to choose the Court at Gurgaon as having exclusive jurisdiction notwithstanding the fact that the contract itself was performed at Howrah. Therefore, as far as jurisdiction based on cause of action is concerned, the Court proceeds on the basis that both parties voluntarily opted for the exclusive jurisdiction of the Court at Gurgaon.
36. However, the jurisdiction of this Court is not also excluded. After the decision of the Constitution Bench of the Supreme Court in Balco (supra), the Court within whose jurisdiction the arbitration takes place will also have jurisdiction. From that point of view, with no other Court having been approached earlier with a Section 9 petition, the Court sees no impediment to the present petition being preferred in this Court.
37. The decision in Moore v. Gamgee (supra) is not relevant to the facts of the present case. Even before the appeal preferred by the
... RESPONDENTSunder Section 37 of the Act could be heard on merits by the District Court in Howrah, the
... Petitionerfiled an application questioning the jurisdiction of that Court. Therefore, there was no waiver by the
... Petitionerof its right to question the jurisdiction of that Court.
38. The mere pendency of the appeal under Section 37 in the Howrah Court would not require all subsequent applications to be filed only in that Court. This legal position has been explained in Pandey & Co. Builders (P) Ltd. v. OMP (I) (COMM.) 117/2017 Page 15 of 19 State of Bihar (supra).
39. The interim Award passed by the learned Arbitrator taking the terms of the settlement arrived at between the parties on record has attained finality. It is at the stage of implementation and enforcement. Pending the enforcement of the interim Award, and before the passing of the final Award, it is open to the
... Petitionerto seek appropriate interim reliefs under Section 9 of the Act. That is what has been done in the present petition.
40. To sum up, in terms of the clauses of the hypothecation agreement, the seat of arbitration is Delhi. The arbitration took place in Delhi. Therefore, the jurisdiction of this Court is not ousted. The
... Petitioneris not prevented from approaching this Court for interim relief under Section 9 of the Act. The Court accordingly negates the objections raised by the
... RESPONDENTSto the jurisdiction of this Court. On merits 41. On merits, it is seen that the
... RESPONDENTSare unable to deny that they owed a sum of Rs.2.34 crores even on the date of the settlement. It was submitted on behalf of the
... RESPONDENTSthat the
... Petitionerwas in default of its obligations to service the every equipment. Further, the Cathlab machine was defective and unable to be operated by the Respondent No.1 till recently. This of course is disputed by learned counsel for the
... Petitionerwho submits that as a result of the services rendered the total amount owed to the
... Petitionerby the
... RESPONDENTSis in excess of Rs.4 crores.
42. The Court enquired from the
... RESPONDENTSwhether they would be willing OMP (I) (COMM.) 117/2017 Page 16 of 19 to make payment of a substantial part of the outstanding amount in a time bound manner in which event the equipment would not be taken over by the
... Petitioner. However, learned counsel for the
... RESPONDENTSwere unable to commit the
... RESPONDENTSto making payment. While they wanted time to take instructions, they submitted that the hospital in question is serving the needs of several underprivileged classes and sufficient time may be granted for making some payment.
43. The Court is of the view that the
... Petitionercannot be both deprived of the money due to it and also the equipment hypothecated to it. Significantly, the
... RESPONDENTShave till date neither denied or resiled from the settlement agreement nor challenged the interim Award passed by the learned Arbitrator in terms thereof. They have only challenged the interim order passed by the Arbitrator on 22nd February 2016 giving effect to the interim Award by permitting the
... Petitionerto take over the equipment in the hospital. Further, there is no stay granted even of that interim order of the Arbitrator.
44. The
... Petitionerhas a prima facie case in its favour therefore cannot be denied the benefit of the interim Award indefinitely. The balance of convenience in passing an interim order as prayed for is also in its favour particularly since the value of the Cathlab equipment, which is expensive, is likely to depreciate. The Court is also satisfied that the
... Petitionerwill be subjected to hardship unless the interim order as prayed for is not passed.
45. Accordingly the Court directs that the
... RESPONDENTSshould pay to the
... Petitionera sum of not less than Rs.2 crores on or before 10th April 2017, OMP (I) (COMM.) 117/2017 Page 17 of 19 failing which it will be open to the
... Petitionerto proceed to take possession of the Cathlab equipment hypothecated to it and which is in possession of Respondent No.1 with the help of LC.
46. Considering the apprehension expressed by the
... Petitionerabout the difficulty in taking possession of the equipment in the event that the
... RESPONDENTSdo not make payment as aforesaid, the Court in the circumstances appoints Mr Deepak Kumar Dutta, Retired ACP of Kolkatta Police (Mobile number 9830241871) to go along with the two of the
... Petitioner‟s representatives and also request the Superintendent of Police (SP) of Howrah to ensure that they are provided adequate police protection to ensure that the Cathlab equipment is removed from the possession of Respondent No.1 and handed over to the
... Petitioner. It is clarified that it is only where the
... RESPONDENTSare unable to make payment of the sum of Rs.2 crores to the
... Petitioneron or before 10th April, 2017 that the above steps and more at para 48 will be taken.
47. The fees of the LC is fixed at Rs. 1 lakh which will be paid to him either at the time of commission or soon thereafter. This is independent of any transport, other allowances and out of pocket expenses which will be paid to the LC forthwith.
48. A direction is issued to the SP, Howrah to personally ensure that sufficient number of police personnel are deployed to accompany the LC and the
... Petitioner‟s representatives to the premises where the Cathlab equipment is located. The
... RESPONDENTSshall immediately and peacefully handover the custody of the Cathlab machine to the
... Petitioner's OMP (I) (COMM.) 117/2017 Page 18 of 19 representatives in the presence of the LC. The
... RESPONDENTSshall fully co- operate by providing electricity and system passwords, whenever required, during the removal of the machines. Where the
... RESPONDENTSfail to cooperate, the LC will be at liberty to break open the doors if the doors are locked. After the Cathlab machine in the above manner is handed over to it, the
... Petitionerwill be at liberty to keep the machine at a premises of its choice till its sale. The
... Petitionerwill be at liberty to sell the Cathlab machine and set off the sale proceeds against the dues owned by the
... RESPONDENTSto the
... Petitioner. The
... RESPONDENTSshall fully cooperate in sale of the machine and execute the necessary documents for that purpose.
49. It is made clear that the obligation to comply with this order is joint and several on
... RESPONDENTS1 to 4 and any attempt by any of them directly or indirectly to frustrate it will invite legal consequences.
50. With the above directions, the petition and the applications are disposed of. A certified copy of this order be sent, through approved courier, to the SP Howrah for compliance.
51. Dasti under the signatures of the Court Master. S. MURALIDHAR, J MARCH23 2017 rd OMP (I) (COMM.) 117/2017 Page 19 of 19