ARVIND MEDICARE PRIVATE LIMITED Vs. NEERU MEHRA

JUDGEMENT

(1.) This appeal, under Section 13(1A) of the Commercial Courts Act, 2015 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC), impugns the order dated 23rd December, 2020 of the Commercial Court-02, Patiala House Court, New Delhi, of dismissal of application of the appellant / plaintiff under Order XXXIX Rules 1 and 2 of the CPC.

(2.) The appellant / plaintiff instituted the suit, from denial of interim relief wherein this appeal arises, pleading that (i) the appellant / plaintiff was engaged in the business of healthcare and medical facilities of the appellant / plaintiff were located at SCO - 1, 2 and 3, Sector 14, Gurugram and at SCO - 68-69, Sectors 55 and 56, Gurugram; (ii) the respondent / defendant approached the appellant / plaintiff and assured the appellant / plaintiff that she will provide reliable and interrupted professional healthcare and medical service, by serving at the appellant / plaintiff?s hospitals; (iii) the appellant / plaintiff, vide Service Contract dated 28th July, 2015, appointed / engaged the respondent / defendant, on case-to-case basis as a Visiting Consultant Obstetrics and Gynaecology , with effect from 17th August, 2015 and till 16th August, 2016; (iv) the Service Contract aforesaid between the parties was extended from time to time, upto 15th March, 2019; (v) the respondent / defendant approached the appellant / plaintiff to provide a long term and uninterrupted professional healthcare and medical service to the appellant / plaintiff and the appellant / plaintiff, vide Service Contract dated 9th March, 2019, appointed the respondent / defendant, on retainership basis , as a Visiting Consultant Obstetrics and Gynaecology at the hospitals of the appellant / plaintiff, with effect from 16th March, 2019 till 31st March, 2022; (vi) it was unconditionally undertaken by the respondent / defendant, that if the respondent / defendant, for any reason whatsoever chose to terminate the Service Contract prior to the expiry of term thereof, she will not serve at any facility/clinic/hospital within a radius of 5 kms. of the appellant / plaintiff?s facilities aforesaid at Gurugram, for a period of one year from the date of termination; (vii) the appellant / plaintiff performed all its obligations under the Service Contract dated 9th March, 2019; (viii) the respondent / defendant, suddenly and abruptly sent an e-mail dated 29th October, 2020 showing her desire to resign with effect from 30th October, 2020 and requested the appellant / plaintiff to accept her resignation; (ix) the appellant / plaintiff rejected the resignation of the respondent / defendant and reminded the respondent / defendant of her contractual obligations under the Service Contract dated 9th March, 2019; (x) the respondent / defendant however stopped coming to the hospitals of the appellant / plaintiff; (xi) the respondent / defendant, inspite of rejection of her resignation, did not terminate the Service Contract; (xii) thus, the Service Contract dated 9th March, 2019 between the parties is subsisting; (xiii) as per the said Service Contract, the respondent / defendant, upto 31st March, 2022 was required to perform her obligations thereunder and was not entitled to do any private practice anywhere, except at her residence-cumclinic at Gurugram and was not entitled to undertake any employment, fulltime or part-time, or to engage herself in any trade or business; and, (xiv) due to the respondent / defendant, with effect from 30th October, 2020 having stopped performing her obligations under the Service Contract dated 9 th March, 2019, the appellant / plaintiff was suffering irreparable loss and injury and loss of face owing to being unable to serve the patients visiting its hospitals. The appellant / plaintiff, thus in the suit from which this appeal arises, sought (a) a decree for permanent injunction restraining the respondent / defendant from undertaking any private practice anywhere except at her residence-cum-clinic in Gurugram and from undertaking any employment or engagement in any trade or business, till 31st March, 2022 and alternatively from practicing at any facility/clinic/hospital within a radius of 5 Kms. of the hospitals of the appellant / plaintiff, for a period of one year; and, (b) of recovery of damages in the sum of Rs.61,75,000/- with interest.

(3.) Needless to state, the suit aforesaid was accompanied with an application under Order XXXIX Rules 1 and 2 of the CPC, to restrain the respondent / defendant, during the pendency of the suit, from joining any facility/clinic/hospital within a radius of 5 Kms. from the hospitals of the appellant / plaintiff and from providing service therein.