Peniel Medical Imaging vs. Sanjeevani Multi Speciality Hospital
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUE AY, THE 16TH DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 OP(C) NO. 1078 OF 2021 AGAINST THE ORDER IN COMMERCIAL APPEAL 1/2021 OF DISTRICT & SESSIONS COURT, ALAPPUZHA, ALAPPUZHA PETITIONER/PETITIONER: 1 PENIEL MEDICAL IMAGING MATTACKAL BUILDING, GOVT. HOSPITAL JN, MANNAR, REPRESENTED BY ITS MANAGING PARTNER, SHIBI ABRAHAM, AGED 45 YEARS, S/O. LATE T.G. ABRAHAM, KODAKKERIL SHIBI COTTAGE, KURATTISSERIL VILLAGE, PAVUKKARA, MANNAR, ALAPPUZHA, THOUGH HIS POWER OF ATTORNEY HOLDER, SHAJI P. JOSEPH, AGED 52 YEARS, S/O. K.P. JOSEPH KADUVAKUZHI HOUSE, SH MOUNT P.O, NATTASSERY, KOTTAYAM. BY ADVS. SRI M.P.SREEKRISHNAN SRI A.MUHAMMED MUSTHAFA RESPONDENT/RESPONDENT: 1 SANJEEVANI MULTI SPECIALITY HOSPITAL KOLLAKKADAVU, MAVELIKKARA, ALAPPUZHA, REPRESENTED BY ANIL KAIMAL, DIRECTOR, ADMINISTRATION, SANJEEVANI MULTI SPECIALTY HOSPITAL, KOLLAKKADAVU-690509 BY ADV SRI T.S.HARIKUMAR SMT. UMMUL FIDA, ADVOCATE COMMISSIONER THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1078 OF 2021 2 JUDGMENT Dated this the 16th day of November, 2021 The Advocate Commissioner has filed a report stating that all the machineries and equipments have been removed from the site. It is stated that the Mammography machine and related equipments was cling wrapped and bubble wrapping was not done, the Gantry was not properly packed and proper arrangements were not made for moving and loading the equipments. According to the Advocate Commissioner, the work ought to have been done with the help of skilled labourers.
The learned Counsel for the respondent submitted that the respondent should not be found to be at fault for the damage, if any sustained to the machineries during the shifting process. Learned Counsel reiterated that the petitioner should be called upon to provide some guarantee for the amount due.
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The learned Counsel for the petitioner submitted that the responsibility for the damages if any sustained by the machineries, and the amounts allegedly due are all matters to be sorted out in the arbitration and any observation by this Court will have an impact on the proceedings of the arbitrator.
Having heard the learned Counsel on either side and having considered the report of the Advocate Commissioner, I find no reason to retain this Original Petition, in as much as the dispute, which was with respect to the attachment of machineries does not subsist now. The responisibility for the damages if any sustained to the machineries and the liability for paying the amount due as per the agreement, are matters to be decided by the arbitrator. Needless to say that all that has transpired during the pendency of this original petition, inlcuding removal of the machinery, will be subject to the final outcome of the arbitration proceedings.
I place on record my appreciation for the excellent work done by Adv. Ummul Fida in executing
OP(C) NO. 1078 OF 2021 4 the warrant of commission. She had to repeatedly visit the site to ensure removal of the machineries/equipments without major hassles. The Advocate Commissioner shall be paid Rs.20,000/- (Rupees Twenty thousand only) towards additional remuneration, which amount shall be shared equally by the parties. The Original Petition is accordingly closed. V.G.ARUN JUDGE NB/16-11
OP(C) NO. 1078 OF 2021 5 APPENDIX OF OP(C) 1078/2021 PETITIONER'S EXHIBITS: EXHIBIT P1 AOF THE AGREEMENT DATED 07.07.2018. EXHIBIT P2 TRUE COPIES OF THE REGISTRATION OBTAINED BY THE PETITIONER, DATED 07.05.2019. EXHIBIT P3 TRUE COPIES OF THE LICENSE OBTAINED BY THE PETITIONER DATED 07.06.2019. EXHIBIT P4 AOF THE LAWYER NOTICE, DATED 08.06.2020. EXHIBIT P5 AOF THE REPLY NOTICE, DATED 17.06.2020. EXHIBIT P6 AOF THE NOTICE, DATED 20.07.2020. EXHIBIT P7 AOF THE REPLY NOTICE, DATED 03.08.2020. EXHIBIT P8 AOF THE PLAINT IN OS 221 OF 2020. EXHIBIT P9 AOF THE APPLICATION FILED U/S. 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996. EXHIBIT P10 AOF THE REPORT OF THE ADVOCATE COMMISSIONER, DATED 15.10.2020. EXHIBIT P11 AOF THE JUDGMENT OP (ARB) NO.1/2020 ON THE FILES OF THE COMMERCIAL COURT, ALAPPUZHA. EXHIBIT P12 AOF THE JUDGMENT, DATED 08.04.2021 IN CA 1/2021. EXHIBIT P13 AOF THE DEMAND NOTICE , DATED 19.06.2021 SERVED THROUGH E MAIL BY M/S. SIEMENS FINANCIAL SERVICES, PVT. LTD. EXHIBIT P14 AOF THE LEGAL NOTICE FOR IMPOUNDING THE PASSPORT OF THE PETITIONER U/S. 10(3) OF THE PASSPORT ACT, 1967, SERVED THROUGH E MAIL. EXHIBIT P15 AOF THE GST INVOICE, DATED 14.08.2021
OP(C) NO. 1078 OF 2021 6 EXHIBIT P16 AOF THE CT SCAN REPORT, DATED 14.08.2021 EXHIBIT P17 AOF THE GST INVOICE, DATED 15.09.2021 EXHIBIT P18 AOF THE CT SCAN REPORT DATED 15.09.2021 RESPONDENT’ EXHIBITS: NILP.A TO JUDGE
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.