Jai Prakash Singh vs Ravi Prakash Singh

The Court :- This is an application under Section 9 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016 filed for the petitioner

by his wife as his next friend praying for, inter alia, appointment of a Receiver and an order of injunction against the respondent. Before pressing for

the said main relief, a direction has been sought for from this Court for holding an enquiry if, the applicant is presently suffering from any mental

infirmity rendering himself to be incapable of protecting his interest in this application and if, the applicant is required to be represented in this

application by his wife as the next friend.

It appears that the disputes between the petitioner and the respondent arose out of their partnership business, namely Anand Lock & Co. and such

disputes are alleged to be covered by an arbitration agreement. In the application a case has been made out that the petitioner was participating in the

affairs of the aforementioned partnership firm, but after suffering Left Middle Cerebral Artery Occlusion in June, 2015 he has become a person

unable to comprehend what is going on around him or to make up his mind independently. It is claimed that the petitioner is no more in control of his

faculties and consequently, he has become incapable to protect his interest. Thus, a prayer has been made for examination of the petitioner by this

Court to ascertain if, he is suffering from any mental infirmity and requires his interest in this application to be protected by his next friend.

Appearing in support of the application and pressing for a direction for examination of the petitioner to ascertain if he ought to be represented in this

application by his next friend, Mr. Samrat Sen, learned Senior Advocate referred to the provisions contained in order XXXII Rule 15 of the Code of

Civil Procedure (in short “the Codeâ€). He also relied on a decision dated July 07, 2017 of the Division Bench of this Court passed in G.A. No.

2507 of 2016, A.P.O.T. No. 295 of 2016 (Mahendra Kumar Karnani â€"vs.-Radha Devi Karnani) published in 2017 SCC Online Cal 8741.

In the said case, after considering the provisions contained in Order XXXII Rule 15 of the Code, the Division Bench of this Court held that where the

suit is filed on behalf of a person who is mentally infirm, it is the bounden duty of the Court to assess whether he/she is capable of protecting his/her

own interest when suing or being sued and only after such an enquiry is completed the plaint be admitted. The Division Bench further held that when

the suit is filed on behalf of the person who has not yet been adjudged as a person of unsound mind, before admission of the plaint and issuance on the

process on the defendant, the Court is required to give a finding with regard to the mental infirmity or otherwise of the plaintiff and at that stage the

defendant does not have any say.

A copy of the application has been served upon the respondent and he is represented by Mr. Dipak Ranjan Mukherjee, learned Advocate. Mr.

Mukherjee, however, submitted that the respondent does not have any objection if the petitioner is examined by any doctor for ascertaining whether he

is suffering from any mental infirmity and is unable to protect his interest in suing or sued.

In view of the Division Bench decision of this Court in the case of Mahendra Kumar Karnani (supra) the prayer for medical examination of the

petitioner by a doctor is allowed. With consent of the parties, I request Dr. Debashis Chakraborty, M.D. a Consultant attached to the Department of

Neurology, Fortis Hospital, Anandapur, Kolkata to examine the petitioner namely, Jai Prakash Singh residing at 17B, Burdwan Road, Block - B, P.S.

Alipore, Kolkata- 700027 and to ascertain whether, he is suffering from any mental infirmity rendering himself incapable of protecting his interest

when suing or being sued. Needless to mention that if necessary, the petitioner may be required by the doctor to undergo any clinical test.

Dr. Chakraborty will file his report before this Court, in a sealed cover, through his own agent on the next date of hearing of this application.

Alternatively, he may make over his report, in a sealed cover, to the Special Officer named hereinafter for filing the same before this Court. In order

to obviate the involvement of any of the parties or their representatives during the examination of the petitioner by the doctor, I appoint Ms. Urmila

Chakraborty, Advocate of NCLT Bar Association, Kolkata as the Special Officer, who shall communicate this order to Dr. Debashis Chakraborty,

obtain an appointment with him at Fortis Hospital, Anandapur, Kolkata and shall also accompany the petitioner to the said doctor for his examination.

It is, however, made clear that the Special Officer shall not interfere with the process of examination of the petitioner by the doctor. The Special

Officer shall also file her own report and report of the doctor if, the same is made over to herself, before this Court on or before the next date of

hearing.

The fees of the doctor and the initial remuneration of the Special Officer of 1000 GMs. shall be paid by the petitioner. Let this application appear,

under the same heading, on June 27,2018. Urgent certified website copies of this order, if applied for, be made available to the parties subject to

compliance with all requisite formalities.