Delhi District Court
Delhi Transport Infrastructure vs Sh. Pankaj on 4 April, 2019
IN THE COURT OF MR. SUNIL BENIWAL ,
ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI
Case No. 619577/16
Delhi Transport Infrastructure
Development Corporation Limited
...........Petitioner/objectors
Versus
Sh. Pankaj, Proprietor,
M/s Pankaj Associates
.........Respondent
Date of Institution of Suit : 27.05.2011 Date of pronouncement of judgment : 04.04.2019 OBJECTION PETITION FILED BY THE PETITIONER UNDER SECTION 34 OF THE ARBITRATION & CONCILIATION ACT, 1996 By this order, I shall decide the petition filed under Section 34 of Arbitration and Conciliation Act 1996 filed by the petitioner Delhi Transport Infrastructure Development Corporation Ltd. Vs Pankaj, proprietor, M/s Pankaj Associates. Relevant facts for determination of the petition as stated in the petition are as follows:-
CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 1/42 1 That the petitioner, Transport department, Government of NCT of Delhi had invited tenders for running parking sites for cycle/scooter/car and motor vehicles for Veer Hakikat Rai, ISBT, Sarai Kale Khan, New Delhi. The notice inviting tender did not specify any particular area of the parking site. However, it is admitted case of respondent no.1 that before participating in the tender, he had visited the site in question in order to ascertain the outcome of vehicles in the hope that in addition to parking site being run by the parking contractor Mr. Anil Kumar, remaining place at other place or nearby also be given to the successful bidder by which he would be able to earn more from the parking. Respondent no.1 was highest and successful bidder. Vide letter no. F(13)(29)/2005/ISBT/642 dated 27.11.2007, respondent no.1 was allotted the parking site at monthly license fee of Rs.78,786/- per month inclusive of all applicable taxes for a period of 11 months under the terms and conditions mentioned in the said letter. Copy of letter dated 27.11.2007 is Annexure P-1. Respondent no.1 gave his consent vide letter dated 07.12.2007 and deposited the advance fees equivalent to four month's license fee and three month's license fee as security. Upon completion of all formalities, agreement dated 24.12.2007 was executed between the parties incorporating the terms and conditions for the operation of the parking site. Copy of this agreement dated 24.12.2007 is Annexure P-2.
2 Vide letter no. F(13)(29)/2005/ISBT/668 dated 19.12.2007, respondent no.1 was informed that the site in question would be handed over CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 2/42 to him on 24.12.2007 from the previous contractor Mr. Anil Kumar. Copy of handing over taking over is Annexure P-3. After about three months from the date of handing over, respondent no.1 wrote a letter dated 12.03.2008 in which he stated that the area of parking site was less and the license fee should be reduced in terms of Clause 22 of the agreement. Similar letter was sent by respondent no.1 dated 04.06.2008 and 11.06.2008. Copy of abovementioned three letters are Annexure P-4 (colly). Transport department vide letter no. F(13)(29)/2005/ISBT/414 dated 08.07.2008 intimated the respondent no.1 that allotment of parking site had been made on "as is where is basis" and therefore there was no reason for respondent no.1 to claim otherwise. In response, respondent no.1 vide letter dated 11.07.2008 once again made the same request as made earlier. In the meanwhile, due to renovation/reconstruction work to be carried at ISBT, Sarai Kale Khan, New Delhi on account of coming commonwealth games, respondent no.1 was directed to shift to another parking site vide letter no. F(13) (29)/2005/ISBT/449 dated 18.07.2008. But the respondent refused on one pretext or other. Ultimately, vide letter dated 18.08.2008, petitioner called upon respondent no.1 to shift to new site failing which agreement would be terminated in terms of clause 21 and 42K of the agreement. Copy of letter dated 18.07.2008 and 18.08.2008 are Annexure P-6 (Colly). Instead of complying, respondent no.1 filed OMP 429/2008 before Hon'ble Delhi High Court seeking restraint on his eviction. The same was disposed off with the direction that the petitioner/objector shall not dispossess respondent no.1 CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 3/42 from the parking site till 24.01.2008. Thereafter, respondent no.1 filed arbitration application bearing no. 306/2008 before Hon'ble High Court under Section 11 (6) of Arbitration and Conciliation Act for appointment of arbitrator. Respondent no.2 entered upon reference vide his letter dated 15.10.2008 and directed respondent no.1 to file his written statement of claim. Instead of filing statement of claim, respondent no.1 filed an application under Section 17 of Arbitration and Conciliation Act dated 06.11.2008 seeking restraint on his eviction from the parking site. The petitioner filed reply pointing out that period of contract has expired on 24.11.2008 and the arbitration proceedings may not be for extension of the contract. During the hearing of this application on 18.12.2008, respondent no.1 stated that he may be permitted to continue to operate the parking on payment of 10% over and above the contracted rate. Vide order dated 28.08.2009, Ld. Arbitrator directed the petitioner to inform the charges that are leveled upon a person whose contract period had expired. By virtue of the same order, the arbitrator directed that until further orders or until the award of the site to another contractor, claimant may remain in occupation subject to payment of all valid charges.
3 The petitioner vide its letter dated 16.09.2009 placed on record the charges payable by respondent no.1 after the expiry of term of the agreement on 24.11.2008. It was specifically pointed out that an amount of Rs.8,84,148/- was outstanding against respondent no.1 on this account as on 24.08.2009. Since the tenure of the allotment of parking site had expired on CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 4/42 24.11.2008, petitioner through letters dated 06.05.2009, 24.06.2009 and 20.07.2009 requested respondent no.1 to handover vacant possession of the parking site in view of the fact that due to construction of new ISBT at Sarai Kale Khan, the parking site has already been shifted and the place where respondent no.1 was running the parking was to be used for some other purpose. Under these circumstances, petitioner also filed an application dated 22.12.2009 before Ld. Arbitrator that the premises be got vacated from respondent no.1 and order dated 28.08.2009 be modified. During the pendency of the abovesaid application of the petitioner, respondent no.1 filed an application dated 24.02.2010 praying for inspection of site. Vide order dated 03.03.2010, Ld. Arbitrator allowed the application of petitioner and declined the request of respondent no.1 for site inspection as under:-
"7. ........The claimant cannot come in the way of the respondent in taking steps to get the site vacated once the period/tenure of parking site has come to an end....."
8. It is also not for me to determine the extent of penalty of additional charges that the claimant is liable to pay for use of the site. Whether the license fee or damages for use and occupation sought by the respondent is excessive or not has to be decided in proper proceedings and can be challenged before the appropriate forum. The subject matter of the present arbitration is restricted to the claims raised by the claimant."
CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 5/42 4 Pursuant to the abovesaid order, respondent no.1 filed a suit for permanent injunction suit no. 38/2010 before the Court of Senior Civil Judge, (North) Delhi praying for stay of order dated 03.03.2010. The petitioner filed an application under Section 8 of Arbitration and Conciliation Act which was allowed and the suit was dismissed vide order dated 15.04.2010. Ultimately, in terms of order dated 03.03.2010, possession of parking site was taken over by the petitioner on 19.03.2010. In the meanwhile, pleadings of arbitration were complete and vide order dated 29.09.2010, following issues were framed:-
1. Which of the claims and to what extent the claimant is entitled?
2. Relief.
5 Copy of statement of claim is Annexure P-20. Copy of reply is Annexure P-21. Copy of rejoinder is Annexure P-22. Respondent no.2 published an award dated 09.03.2011 in which he awarded a total sum of Rs.20,96,820/- in favour of respondent no.1 by allowing claim no.1 in the sum of Rs.18,18,362/- holding that the claimant is entitled to seek proportionate deduction in the amount of license fee to pay only 1/3rd of the monthly license fee for the period he remained in possession of the site and is entitled to the refund of amount paid by him as under:-
" 20. This claimant has so far paid Rs.25,27,004/- including security deposit of Rs.1 lac as per details given in calculation sheet prepared by respondents senior account officer. Claimant is CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 6/42 liable to pay 1/3rd of the monthly license fee amounting to Rs.26,246/- for the period 24.12.2007 to 19.03.2010 say 27 months. The license fees liability comes to Rs.7,08,642/-.
21. The Ld. Counsel for the respondents however submitted that the claimant is liable to pay damages and not license fee beyond the period of 11 months as the claimant became trespasser on the land after the period of the contract and is therefore liable to pay 100% damages charges of the license fee.......... The claimant is only liable to pay 1/3rd of the license fee upto the date of his occupation i.e. 19.03.2010. After deducting liability of Rs.7,08,642/- from Rs.25,27,004/- paid by the claimant is entitled to refund of Rs.18,18,362/-."
6 Arbitrator further allowed claim no.9 and awarded litigation expenses of Rs.40,000/- and claim no. 11 for the refund of security deposit of Rs.2,36,358/-. The Ld. Arbitrator further awarded interest @ 9% from the date of award till realization of the amount. It is submitted that the award dated 09.03.2011 is liable to be set aside on following grounds:-
A. Because the Ld. Arbitrator did not appreciate that there was no factual or documentary evidence to accept the bald contention of the respondent no.1 that the area of the parking site was 30% less. B. Because the Ld. Arbitrator completely ignored the statement of the respondent no.1 himself that prior to giving his bid he had visited the CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 7/42 parking site in question and had apprised himself of the same. C. Because the Ld. Arbitrator did not appreciate that on the one hand the respondent no.1 claimed to be suffering a loss due to the alleged reduced area of the parking site but on the other hand continued to hold on to the parking site on one pretext or the other despite notices issued by the petitioner/objector from time to time.
D. Because the respondent no.1 had continued to remain on the parking site after the expiry of the term of the agreement between the parties by virtue of the order dated 28.08.2009 passed by the Ld. Arbitrator till the vacation thereof vide order dated 03.03.2011 and hence no liability for the same could have been imposed upon the petitioner/objector. E. Because the Ld. Arbitrator while passing the Award dated 09.03.2011 completely ignored his previous order dated 03.03.2009 wherein it has categorically held as under:-
"7. ........The claimant cannot come in the way of the respondent in taking steps to get the site vacated once the period/tenure of parking site has come to an end....."
8. It is also not for me to determine the extent of penalty of additional charges that the claimant is liable to pay for use of the site. Whether the license fee or damages for use and occupation sought by the respondent is excessive or not has to be decided in proper proceedings and can be challenged before the appropriate forum. The subject matter of the present arbitration is restricted to CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 8/42 the claims raised by the claimant."
F. Because the Ld. Arbitrator did not appreciate the specific terms and conditions of the Agreement between the parties that stipulated that the period of the agreement was only for 11 months and that the agreement with the respondent no.1 was valid and subsisting only till 24.11.2008. G. Because the Ld. Arbitrator did not appreciate that the occupation of the parking site by the respondent no.1 w.e.f. 24.11.2008 till the 19.03.2010 was illegal and any payment made by the respondent no.1 was adjusted towards the damages for the use and occupation of the parking site.
H. Because the Ld. Arbitrator did not appreciate that the act of the respondent no.1 holding onto the suit property after the expiry of the contract without paying the damages to the petitioner was illegal. I. Because the Ld. Arbitrator passed the illegal order dated 28.08.2009 which continued to operate in favour of the respondent no.1 without payment of damages to the petitioner/objector. J. Because the Ld. Arbitrator travelled beyond the scope of Agreement and order of reference dated 20.08.2008 by awarding a total sum of Rs.20,96,820/- in favour of the respondent no.1 by allowing claims no.1 in the sum of Rs.18,18,361/-, holding that the claimant is entitled to seek proportionate reduction in the amount of license fee to pay only 1/3rd of the monthly license fee for the period he remained in possession of the site and is entitled to the refund of the amount paid by him. The arbitrator further CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 9/42 erred in allowing claim no.9 by awarding litigation expenses of Rs.40,000/- and claims no.11 for the refund of the security deposit of Rs.2,36,358/- and the learned arbitrator further erred in awarding interest @ 9% from the date of the award till realization of the amount, without dealing with the contention of the petitioner/objector that all amounts paid by the respondent no.1 after 24.11.2008 were adjusted towards the damages for the use and occupation of the parking site by the respondent no.1.
K. Because the arbitral award is liable to be set aside since the arbitrator was never competent to award any proportionate reduction in the amount of license fee to pay only 1/3rd of the monthly license fee for a period of more than 11 months, whereas respondent remained in possession of the site till 19.03.2010.
L. Because the Ld. Arbitrator has ignored the terms and conditions of the agreement and travelled beyond the agreement and adjudicated the dispute not contemplated in the agreement and passed the award against the objector.
7 That this court has jurisdiction to entertain the present petition as the parties reside and work for gain in Delhi. The arbitrator has awarded a total sum of Rs.20,96,820/- in favour of respondent no.1 and hence this court has the pecuniary jurisdiction to entertain the present petition. 8 It is therefore prayed that this court be pleased to
(a) set aside the award dated 09.03.2011 passed by respondent no.2 in the arbitration case titled "Sh. Pankaj, Proprietor M/s Pankaj Associates V/s CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 10/42 Commissioner (Transport)";
(b) Direct the respondent no.2 to file the original record of Arbitration proceeding in the matter of "Sh. Pankaj, Proprietor M/s Pankaj Associates V/s Commissioner (Transport)"; and
(c) pass such other and further orders which this court may deem fit and just in the facts and circumstances of the case.
9 Clause 2 of the agreement Annexure P-2 states that no interest shall be paid by the licensor for the amount deposited by the licensee as security money. Entire amount of security money would be liable to be forfeited in case of failure of the licensee to abide by any of the terms and conditions of the tender/license deed or for not commencing the work from the date from which the use of cycle/motorcycle/scooter/car is allowed by the government of NCT of Delhi. The security money will be releasable only on successful completion of license and after use of cycle/motorcycle/scooter/car and two wheeler motor vehicles parking sites is stopped on expiry of the license or its earlier termination. In case, any amount is due to ISBT, Govt. of NCT Delhi under the terms and conditions of the agreement (license deed), in case the dues outstanding against the licensee are found to be more than the amount of security money, then same shall be realizable as arrears of land revenue.
Clause 21. In case the site is required by government of NCT of Delhi prior to expiry of period of license, licensee shall have to hand over the CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 11/42 vacant possession of the site at once. However, the proportionate balance amount of license money if any, lying with the government of NCT of Delhi for the said unexpired period would be refundable to him. In case, the site is required for any particular period by the government or the parking site remains closed on account of some reasons beyond their control during the period of their contract, a proportionate amount for the vacancy period will not be charged.
Clause 22. That the licensor reserves the right to increase or decrease the area of cycle/motorcycle/scooter/car and two wheeler motor vehicles parking sites at ISBT, Delhi in public interest and the license fee shall be increased or decreased by proportionate amount and shall be payable by the licensee.
Clause 42K. The licensor shall have right to terminate the license without any notice.
k. If the licensee shall commit any breach of any terms and conditions of this license.
Clause 3 of the undertaking annexed alongwith agreement P-2 states as follows:-
I will vacate and hand over the peaceful possession of the cycle/motorcycle/scooter/car parking site of ISBT Sarai Kale Khan, Delhi and as and when it is required by the Govt. of NCT of Delhi (Transport Department) ISBT Kashmere Gate, Delhi.
10 Respondent no.1 gave reply to the objections to the petition CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 12/42 under Section 34 of Arbitration and Conciliation Act 1996. Facts stated in reply are as follows:-
11 It is submitted that re-appraisal of the evidence by the court under Section 34 of the Act is not permissible. It is not open to the court to deduce reasons in the award and proceed to examine whether those reasons are right or erroneous. The arbitrator is the sole judge of the quality and quantity of the evidence and it is not for the court to take upon itself the task of being a judge of the evidence before the arbitrator. It is not open to this court to reason the evidence or to decide the question of adequacy of evidence. It is submitted that under the garb of objections under reply, the petitioner intends for this court to re-apprise the evidence and give a finding thereon. Therefore, objections are liable to be dismissed. That the power of the court to set aside the award is restricted to the grounds set out in Section 34 of the Act. The arbitrator has rightly observed in para 21 of the award "that vide order dated 28.08.2009, claimant/respondent was permitted to remain at the site until the same was allotted to another contractor. The site was not allotted to any other contractor. There is no basis to grant damages! 100% or at any rate". It is also matter of record that petitioner had failed to establish as to how it was entitled to claim damages at 100%.
Reply on merits:-
12 It is specifically denied that particular area of the parking site had not been mentioned. It is submitted that the respondent had responded to CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 13/42 public notice of the petitioner by way of bid after which respondent was required to sign the terms and conditions for the tender accompanied by an annexure. That true copy of both of which is Annexure R-1. It is important to mention that Annexure A contains the area of the site which is the subject matter of the bid. During the course of arguments, it was submitted by Ld. Counsel for respondent no. 1 that this Annexure A was part of the arbitral award proceedings listed at page no. 96 and was part of Ex.CW1/3 which was the agreement executed between both the parties for the license of the parking site. The said agreement is listed at page 88 of the arbitral record. It is further submitted by Ld. Counsel for respondent no.1 that this Annexure A listed at page no. 96 was part of the record filed by the petitioner when they went in appeal against the order and judgment of Ld. Predecessor of this Court who also had dismissed the objections and the petition filed under Section 34 of the Arbitration and Conciliation Act. So, at this stage, the petitioners cannot be permitted to deny this document as the abovementioned Annexure A was filed by the petitioner itself in appeal before the Hon'ble High Court. The same is signed by respondent number 1 and shows the area of the parking site with 2800 m². It is page number 179.
It is denied that respondent had visited the site in the alleged hope that in addition to parking site of earlier contractor, remaining space be given to the successful bidder. It is submitted that the area of proposed site found a mention in the abovementioned terms and conditions in response to which only the tender was made by the respondent. It is denied that it was only CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 14/42 after three months that the respondent raised objections. Even at the time of handing over the site, respondent no.1 requested the concerned officer of the petitioner to measure the area but he was advised to take possession and later on measure it himself. Later on, the actual area handed over to the respondent was measured by him and after finding that the same is less than the proposed area, objection was raised by the respondent by way of several letters. It is submitted that once the terms and conditions had been finalized between the parties, they could not be changed without written consent of the respondent. The words "as is where is basis" did not find any mention either in the terms and conditions or the agreement executed between the petitioner and the respondent. On the contrary, para 22 of the agreement executed between the parties provided for increase or decrease of the area and proportionate change in the license fee payable by the respondent. The averments of the petitioner in the letter dated 08.07.2008 that the allotment was "as is where is basis" and that too after receiving the letter from the respondent with the request to change the license fee in accordance with Clause 22 of the agreement is unwarranted.
13 It is specifically denied that the petitioner had any right to shift the parking site during its tenure. It is specifically denied that the respondent was bound to comply with any alleged requisition of the petitioner. Petition bearing OMP No. 429/2008 and the order passed thereon dated 12.09.2008 are a matter of record. Application under Section 17 of the Arbitration and Conciliation Act was necessitated because of the fact that the respondent had CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 15/42 made huge investment for smooth running of parking site but he had not been allowed to work there peacefully and also because of the fact that the petitioner had not considered the request of the respondent to provide him more area as per the terms and conditions of the tender. Moreover, the respondent no.1 had also not been allowed to function smoothly even during the period of agreement by the petitioner, therefore, the said application was moved for restraining the petitioner to take possession of the parking site during the arbitration proceedings.
14 It is denied that the petitioner was within his rights to claim 100% of the license fee as damages. The continuation of the respondent at the parking site was in interest of stopping any loss to the public exchequer.
Groundwise reply to objections :-
A. Ground A of the petition under reply is wrong, baseless and emphatically denied. It is specifically denied that there was no factual or documentary evidence in respect of the area or parking site and in support of the contention of the respondent that the area of parking site was only 30% than what had been promised/agreed. The respondent had responded to public notice of petitioner by way of a bid after which respondent was required to sign the terms and conditions for the tender accompanied by annexure. It is important to mention that the said annexure contains the area of the site subject matter of the bid. The exact area which had been mentioned in Annexure A of the terms and conditions was 2800 sq. mts CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 16/42 whereas the actual area handed over to the respondent was only 800 sq. meters which has been admitted by the petitioner also. Therefore, the contention of the petitioner that there was no factual or documentary to accept the contention of respondent no.1 is baseless. B. That ground B of objection petition under reply is wrong and denied. It is specifically denied that the Ld. Arbitrator ignored the statement of respondent no.1. It is submitted that the actual area handed over to respondent no.1 came to his knowledge only when it was handed over i.e. on 24.12.2007.
C. Ground C of objection petition under reply is wrong and denied. It is specifically denied that Ld. Arbitrator did not appreciate the facts as alleged. Matter was pending before Ld. Arbitrator in respect of all the issues and respondent only wanted to retain possession of parking site till conclusion of proceedings.
D. Ground D of objection petition under reply is wrong, baseless and denied. It is specifically denied that no liability for the period after the expiry of terms of agreement could have been imposed upon the petitioner/objector. It is submitted that in order dated 28.08.2009, Ld. Arbitrator specifically mentioned that there was a possibility of compromise between the parties. Respondent was allowed to continue to remain in possession until the site was awarded to another contractor. Even in the award dated 09.03.2011, Ld. Arbitrator has specifically mentioned in para 21 that the contention of counsel for petitioner that respondent became CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 17/42 trespasser on the land after expiry of contract period and was therefore liable to pay 100% damage charges was not correct. Ld. Arbitrator has further observed that vide order dated 28.08.2009, respondent was permitted to remain at the site until the same was allotted to another contractor and the site was never allotted to another contractor. It is a matter of fact that respondent no.1 was paying the agreed license fee though the same had been fixed for an area of 2800 sq. meters whereas the actual area handed over was only 800 sq. meters.
E. Ground E of the objection petition under reply is wrong, baseless and denied. It is specifically denied that Ld. Arbitrator ignored his order dated 03.03.2009 while passing the award dated 09.03.2011. In the award, Ld. Arbitrator has observed in para 21 that possession of respondent no. 1 of the parking site in pursuance or order dated 28.08.2009 could not be said to be unauthorized and illegal nor he could be called a trespasser as in order dated 28.08.2009, respondent no.1 was permitted to remain at the site until the same was allotted to another contractor and the site was not allotted to any other contractor. Ld. Arbitrator refused to grant damages @ 100% of the license fee as he did not find any basis for that. Therefore, it cannot be said that Ld. Arbitrator ignored such a thing.
F. Ground F of the objection petition under reply is wrong, baseless and denied. It is specifically denied that Ld. Arbitrator did not appreciate the specific terms and conditions of the agreement between the parties or that agreement that the respondent and petitioner was valid till 24.11.2008. Even CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 18/42 during the period of 11 months of the agreement, grievance of the respondent was made known to the petitioner regarding the difference in the area and other mitigating factors but these grievances were not addressed. On the contrary, the respondent was issued a letter to shift his parking site to another place. But continuation of the agreement beyond 24.11.2008 was only under the order passed by Ld. Arbitrator on 28.08.2009. G. Ground G of the objection petition under reply is wrong, baseless and denied. It is specifically denied that the occupation of parking site by respondent no.1 from 24.11.2008 till 19.03.2010 was illegal or that payment made by respondent no.1 could be adjusted towards the damages. It is submitted that occupation of parking site by respondent no.1 till 19.03.2010 was only under the consent given by the petitioner because Ld. Arbitrator had specifically mentioned in his order dated 28.08.2009 that there was likeness of compromise between the parties and also that the respondent could continue the occupation of the parking site till it was allotted to another contractor. Even this order was not challenged by the petitioner. H. Ground H of the objection petition under reply is wrong, baseless and denied. It is specifically denied that respondent no.1 should be held liable to pay any damages after expiry of contract. Continuation of the possession of parking site was only in conformity of order dated 28.08.2009 which should be read as a whole to understand all the circumstances at that time. Order dated 28.08.2009 shows that both the parties at that time were trying to sort out the matter amicably. If the order of learned arbitrator to CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 19/42 allow the respondent no 1 to continue to remain in possession of the parking site was cannot be termed illegal then the possession of the parking site before the order also cannot be allowed to be called illegal. Moreover, it is the admitted case of the petitioner that the parking site was not allotted to any other person. Therefore, it would be against the public policy to allow the site to be remained vacant and untilised rather than let it be used for the facility and the convenience of the public. The parking sites exist for the benefit and use of the public and not to serve the petitioner. Ld. Arbitrator still observed in the said order that the occupation of the respondent no.1 could continue only upto such a point till when the parking site could be allotted to another contractor.
I. Ground I of the objection petition under reply is wrong, baseless and denied. It is specifically denied that order dated 28.08.2009 passed by Ld. Arbitrator was illegal in any manner. It is submitted that petitioner could not illicit any response from anyone for the said parking site even after getting published a notice.
J. Ground J of the objection petition under reply is wrong, baseless and denied. It is specifically denied that the Ld. Arbitrator travelled beyond the scope of agreement or order of reference dated 20.08.2008 in any manner. It is denied that Ld. Arbitrator erred in allowing claim no.9 or claim no. 11 or any awarding interest @ 9% or that the Arbitrator had not dealt with the contention of the petitioner/objector or that the amounts paid by respondent no.1 could be adjusted towards the damages for use and CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 20/42 occupation by the respondent. It is submitted that amount of Rs.20,96,820/- has been rightly awarded in favour of the respondent as claim of Rs.18,18,362/- had been awarded in favour of respondent towards the excess amount received by the petitioner from the respondent; an amount of Rs.40,000/- had been awarded towards cost of the litigation and amount of Rs.2,36,358/- towards security amount deposited by respondent himself. It is respectfully submitted that admittedly the area of parking site allotted to respondent was 2800 sq. meters and the actual area handed over was just 800 sq. meters. Ld. Arbitrator has calculated refund on the basis of 2/3rd of the license fee paid by the respondent was liable to be refunded to him, therefore, the order of Ld. Arbitrator cannot be said to be wrong in any manner. Even, the rate of interest @ 9% per annum as awarded cannot be said to be illegal. The security deposited by respondent at the time of entering into the contract is also liable to be refunded. K. Ground K of the objection petition under reply is wrong, baseless and denied. It is specifically denied that arbitral award is liable to be set aside or that the arbitrator was not competent to award the proportionate deduction in the amount of license fee for the period of 11 months. The order of Ld. Arbitrator passed on 28.08.2009 to allow respondent to continue in possession of the parking site till it was allotted to another contractor is a matter of record. Had the Ld. Arbitrator not passed such order dated 28.08.2009, petitioner would not have received even a penny for the said parking site till 19.03.2010 as petitioner had failed to allot the said parking CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 21/42 to any contractor despite trying its best.
L. Ground L of the objection petition under reply is wrong, baseless and denied. It is specifically denied that Ld. Arbitrator has ignored any term or condition of agreement or travelled beyond the agreement or adjudicated the dispute not contemplated in the agreement. Allegation of petitioner/objector is false or baseless.
III-IV. That para 3 & 4 of objection petition are matter of record and need no comments. It is therefore prayed that prayer clause of the petitioner is also wrong, baseless and emphatically denied as petitioner/objector is not entitled to get any equitable relief from this court by way of present petition. It is therefore, prayed that the court be pleased to dismiss the petition with exemplary cost.
15 Annexure A of government of NCT of Delhi, Transport Department which shows that the parking site at Veer Hakikat Rai, ISBT reflects the area of 2800 sq. meter is on record. The same is annexed alongwith the petition. So, it cannot be said that there was no documentary evidence or reasonable basis for the Ld. Arbitrator to presume that the actual area of parking site that was awarded was 2800 sq. meters. This document has not been controverted or denied by the petitioner. Ld. Counsel for the petitioner has simply stated that this document Annexure A has not been filed by them.
16 It is argued by the petitioner that the award passed by Ld. Arbitrator is based on no evidence. It is submitted that fundamental issue is CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 22/42 whether respondent no.1 produced any evidence on record of the arbitrator to support the contention that respondent no.1 was handed over only 800 sq. meters of the parking site based upon which arbitrator has given his finding that the claimant is entitled to remission of license fees to the extent of 30%. It is submitted that before participating for the tender, respondent no.1 was satisfied with regard to the space which was offered for parking under the tender. It is submitted that the allotment letter dated 27.11.2007 whereby respondent no.1 was granted the parking site at monthly license fee of Rs. 78,786/- per month for a period of 11 months has not stated the area of parking site. The license agreement dated 24.12.2007 which incorporated the terms and conditions of grant of license stipulating the period of license for 11 months from 24.12.2007 to 23.11.2008 does not state the area of parking site. The undertaking given by respondent no.1 does not state the area of parking site and obliges the respondent no.1 to :-
"3. that I shall vacate and handover the peaceful possession of the cycle/motor cycle/scooter/car parking site of ISBT Sarai Kale Khan, Government of NCT of Delhi, ISBT, Kashmere Gate, Delhi". That affidavit submitted by respondent no.1 to use the allotted site does not state the area of parking site. The letter of handing over/taking over of the site does not state the area of parking site.
17 That respondent no.1 raised the issue of alleged discrepancy in the area after lapse of three months after the allotment. Onus was upon respondent no.1 to prove his contention as to what was the area of land CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 23/42 handed over to him. Apart from bare statement, no documentary evidence has been produced by respondent no.1 that he was handed over only 30% of the parking site. Respondent no.1 does not have any documentary evidence in support of his contention. Respondent no.1 has failed to discharge the burden of proof. Ld. Arbitrator without any evidence has blindly accepted the contention of respondent no.1 that 30% of the parking site was handed over to respondent no.1 and has proceeded to award 30% remission in the license fee to the claimant. The court can set aside the award if it is apparent that there was no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous. It is submitted that the arbitral tribunal has travelled beyond the stipulated terms agreed between the parties. The arbitral tribunal has proceeded upon the assumption that license was granted on 24.12.2007 to 19.03.2010 for a period of 27 months. It is submitted that Section 52 of the Indian Easements Act defines license as under:-
"Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
Section 62 (c) of Easements Act provides as under:-
"A license is deemed to be revoked-
(c) where it has been granted for a limited period, or acquired on CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 24/42 condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled."
18 That Section 28 of the Arbitration and Conciliation Act 1996 provides as under:-
"28. Rules applicable to substance of dispute.-
(1) Where the place of arbitration is situated in India,-
(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India."
Section 28(3) of Arbitration and Conciliation Act provides as under:-
"28. Rules applicable to substance of dispute- (3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usage of the trade applicable to the transaction."
19 Attention was brought to Clause 21, 22 and 47 of agreement dated 24.12.2007 and it was argued that the Arbitral Tribunal shall be bound to decide the dispute in accordance with terms of the contract and take into account the usage for trade applicable to the transaction. It is submitted that Arbitral Tribunal did not decide the dispute in accordance with the terms of contract and has therefore committed an error. It is submitted that the CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 25/42 Arbitrator has no power to extend the license of respondent no.1 or to create new terms and conditions and impose them upon the petitioner. The petitioner has relied upon the following citations:-
1. D.T.T.D.C Vs. D.R Mehra & Sons, AIR 1996 Delhi 351
2. Associated Engg. Co. v Govt. of A.P. (1991) 4 SCC 93
3. Bharat Coking Coal Ltd. v. Annapurna Construction (2003) 8 SCC 154
4. Steel Authority of India Ltd. v. J.C Budharaja, Government and Mining Contractor (1999) 8 SCC 122
5. Rajasthan State Mines & Minerals Limited v. Eastern Engineering Enterprises & Anr. (1999) 9 SCC 283.
20 It is therefore prayed and argued that the arbitral award should be set aside as per provisions of Section 34 of the Arbitration and Conciliation Act.
21 I have gone through the judgment of D.T.T.D.C v. D.R Mehra & Sons. This judgment is not applicable to the facts of present arbitration petition.
22 Judgment of Bharat Coking Coal Ltd. v. Annapurna Construction also does not squarely cover the case of the petitioner as the same is based upon principles of English Law as applicable to the arbitration proceedings. But page 4 of the judgment also says that "if the arbitrator has remained inside the parameters of contract, his award cannot be questioned CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 26/42 on the ground that it contains an error apparent on the face of the records." Page 11 of the judgment of Associated Engineering Co. v. Government of Andhra Pradesh & Anr. states "the arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract. His sole function is to arbitrate in terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled outside the bounds of the contract, he has acted without jurisdiction. But if he has remained inside the parameters of the contract and has construed the provisions of contract, his award cannot be interfered with unless he has given reasons for the award disclosing an error apparent on the face of it. An arbitrator who acts in manifest disregard of the contract acts without jurisdiction. His authority is derived from the contract and is governed by the Arbitration Act which embodies principles derived from specialized branch of law." But this judgment is of 1991 and the present award was delivered under the latest act of 1996.
23 The judgment of Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises & Anr. at page no. 19 states as follows:-
"the arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part but it may tantamount to malafide action".
24 Page 7 of the judgment of Steel Authority of India Ltd. v. J.C budharaja, Government and Mining Contractor says "it is to be reiterated CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 27/42 that to find out whether the arbitrator has travelled beyond his jurisdiction and acted beyond the terms of the agreement between the parties, agreement is required to be looked into. It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However, in cases where there is no question of interpretation of any term of the contract, but of solely reading the same as it is and still the arbitrator ignores it or awards the amount despite the prohibition in the agreement, the award would be arbitrary, capricious and without jurisdiction". 25 As against this, counsel for the respondent has argued that there is no legality or error apparent on the face of award of Ld. Arbitrator. Counsel has argued that the petitioner is simply beating around the bushes and is just trying to confuse the entire matter. Counsel has argued that the arbitration and conciliation Act 1996 clearly laid down the grounds upon which an application for setting aside an arbitral award can be made. Section 34 of the Arbitration and Conciliation Act is as follows:-
34. Application for setting aside arbitral award- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if-
(a) the party making the application furnishes proof that-
(i) a party was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 28/42 for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decision on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
[Explanation 1- For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-
(i) the making of the award was induced or affected by fraud or CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 29/42 corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] [(2-A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence.] (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 30/42 (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
[(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon other party.] 26 Counsel for respondent no 1 has argued that the petitioner has failed to prove and make out a case that petitioner was under any kind of incapacity during the arbitral proceedings. It is argued that petitioner has also failed to allege that the arbitration agreement is not valid under the law to which the parties are subjected or under the law for the time being. It is further argued that it is also not case of the petitioner that the party making the application was not given proper notice of the appointment of arbitrator or was otherwise unable to present his case. It is also argued that it is not the case of the petitioner that the arbitral award relates to the dispute not contemplated by or falling within the terms of arbitration or contains CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 31/42 decision on matters not under the scope of submissions to arbitration. It is argued that it is also not the case of petitioner that any part of the award has been proved to be illegal and that it can be separated from the other part of the award which may be termed as legal and therefore, not subjected to setting aside. It is also not the case of petitioner that composition of the arbitral tribunal was not in accordance with the agreement of the parties unless such agreement was in conflict with the provisions from which the parties may derogate. It is also not the case of the petitioner that the subject matter of the dispute of the present arbitration and the arbitral award was not capable of settlement by arbitration under the law for the time being in force. It is also not the case of petitioner that the arbitral award is in conflict with public policy of India. It is also not case of the petitioner that the award is in contravention with the fundamental policy of Indian Law or that conflict of basic notion or morality or justice. It is argued by counsel for the respondent that petitioner has also failed to prove and establish that the award is vitiated or that there is patent illegality appearing on the face of the award. Counsel for the respondent has argued that as per proviso of Sub Section 2 A of Section 34 of the Arbitration and Conciliation Act, award shall not be set aside merely on the ground of an erroneous application of law or by re- appreciation of evidence. It is argued that therefore as per proviso of Section 34 the petitioner has not been able to prove or establish any of the grounds mentioned in Section 34 which may entitle the petitioner to any relief whatsoever. It is argued that it is beyond the jurisdiction of this court to re-
CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 32/42 appreciate the evidence laid before the Arbitral Tribunal or to give a finding on appeal against the order of arbitral tribunal as the same is not contemplated by Section 34 of the Arbitration and Conciliation Act. 27 The respondent has relied upon the following judgments in support of his arguments:-
1. Delhi Development Authority v. R.S. Sharma & Co. cited as MANU/SC/3624/2008
2. Government of NCT of Delhi vs Khem Chand & Anr. AIR 2003 (Delhi) 314
3. Union of India vs. Ramesh Lalwani, AIR 1998 Delhi 249
4. Fiza Developers and Inter-Trade P. Ltd. vs. AMCI (I) Pvt. Ltd. & Ors. Cited as MANU/SC/1485/2009
5. Laxmi Mathur vs. The Chief General Manager, MTNL: 2000 (4) Bom. CR 89
6. Associate Builders vs. Delhi Development Authority:
MANU/SC/1076/2014
7. MMTC Ltd. vs. Vedanta Ltd. Cited as MANU/SC/0221/2019
28 In the judgment of Delhi Development Authority vs R.S Sharma and Company, Hon'ble Supreme Court has enunciated the principles under which an Arbitral award can be set aside.
29 In the judgment of Government of NCT of Delhi vs. Khem Chand & Anr. In para 10, it is held by the Hon'ble High Court of Delhi "A CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 33/42 court should approach an award to support it, if that is reasonable, possible rather than to destroy it, by calling it illegal. Judgment of Santa Sila v. Dhirendranath, AIR 1963 SC 1677 has been relied upon by the Hon'ble High Court for this purpose. It is submitted that the law in this regard as it existed prior to enactment of Arbitration and Conciliation Act 1996 continues to hold the field.
30 In the judgment of Union of India vs. Ramesh Lalwani delivered by Hon'ble High Court of Delhi, it was held that "the law is well settled that an award made by the Arbitrator is conclusive and the court is only entitled to set aside the same if the arbitrator has misconducted himself and the scope in this regard is rather limited. In view of the settled position of law it will not be open for this court to reappraise evidence and arrive at contrary conclusions which have already been rendered by the Arbitrator on cogent grounds.
31 In the same judgment, it was also stated in para 14 that "scope of interference by the court is limited. Appraisement of evidence by the Arbitrator is ordinarily never a matter which the court questions and considers. The parties have selected their own forum and the deciding forum must be conceded the power of appraisement of evidence. The court has no jurisdiction to sit in appeal and examine the correctness of the award on merits. The arbitrator is the sole judge of the quality as well as quantity of the evidence and it is not for the Court to take upon itself the task of being a judge of the evidence before the Arbitrator. It may be possible that on the CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 34/42 same evidence the Court might arrive at different conclusions than the one arrived at by the Arbitrator but that by itself is no ground of setting aside the award of an Arbitrator where there is no violation of principles of natural justice nor there is any allegation of misconduct nor that the Arbitrator has not considered the material produced before him or has not heard the parties or has not given opportunity to lead evidence." Reliance was placed by the court on judgment of Municipal Corporation of Delhi vs. M/s Jagan Nath Ashok Kumar 1989 SC 2316 and judgment of Puri Contractor Pvt. Ltd. vs. Union of India cited as MANU/SC/0427/1989 AIR 1989 SC 777. In the judgment of Hon'ble High Court titled as Fiza Developers vs. AMCI Pvt. Ltd. And Ors., it was held in para 8 that "scope of proceedings under Section 34 of the Act is very limited and can only be in accordance with only Section 34 and the Court cannot travel beyond the same. In Sub para 9 of the judgment, it was held that the scheme and provisions of the Act disclose two significant aspects relating to courts vis-a-vis arbitration. The first is that there should be minimal interference by courts in matters relating to arbitration. Second is the sense of urgency shown with reference to arbitration matters brought to court, requiring promptness in disposal. 32 In para 11 of this judgment, it is held that "scope of inquiry in a proceeding under Section 34 is restricted to consideration whether any one of the grounds mentioned in Sub-Section (2) of Section 34 exists for setting aside the award.
33 Order dated 1 October 2008 of the honourable Delhi High Court CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 35/42 shows that arbitrator was appointed by the honourable High Court and it was stated that the award of the sole arbitrator shall be binding on all the parties and the cost of arbitration shall be borne equally by both the parties. A notice was issued by the respondent to Commissioner (transport), government of NCT of Delhi asking him to appoint an arbitrator to adjudicate the dispute between the parties but no reply was received to the said request. Under the circumstances, the honourable High Court appointed the arbitrator to adjudicate and decide disputes between the parties. It was also stated that the fees of the arbitrator shall be shared by both the parties and will be subject to final award with the maximum capping of ₹ 55,000. Order dated 28 August 2009 of the learned arbitrator shows that there was a possibility of compromise between the parties and counsel for the petitioner was directed to inform the charges that they level upon a person whose contract period has expired. It was stated that these charges may be intimated to the claimant/respondent number 1 also. It was ordered that till further orders or until the award of the site to another contractor, claimant may continue to remain in occupation subject to payment of all valid charges. Through order dated 23rd February 2010, the petitioner was directed to place on record any document that the site is urgently needed for zonal office of the transport department at Serai kale khan. Para number 5 of order dated 3 March 2010 passed by the learned arbitrator shows that the claimant/respondent number 1 had already paid license fee to the petitioner up to 24 August 2010. The claimant/respondent number 1 had also placed on record photographs and a CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 36/42 rough site plan to show the difficulty in approaching the new parking site. Respondent had also placed on record certain documents to show that government authorities charge 10% extra license fee after the expiry of the period of contract unlike hundred percent penalty demanded by the petitioner in the present case.
34 I have gone through arbitral award passed by the learned arbitrator. In the award it is mentioned that before participating in the tender, the claimant visited the site to ascertain the outcome of vehicles in the hope that in addition to the parking site being run by the parking contractor Mr Anil Kumar, remaining space at other place or nearby also be given to the successful bidder by which he would be able to fetch more earnings from the parking. Accordingly, the claimant offered his highest bid of ₹ 78786/- and was declared as a successful bidder. Agreement was executed containing the terms and conditions of the operation of the parking site. It is mentioned in the award that the claimant at the time of taking possession of the parking site, noticed that the tender was invited for 2800 m² area of the parking site and considering this point in mind, claimant had submitted its proposal of licence fee in his tender form and was declared as the highest bidder. But contrary to that, the petitioner handed over a small area of approximately 800 m² which is hardly 30% of the total area. Area measuring 2800 m² was to be allotted in terms of agreement and the same was pointed out to the official who was present at the time of handing over the possession of the site. It was mentioned that the petitioner had deliberately failed to grant CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 37/42 remission in the licence fee as provided in clause 22 of the agreement and also failed to provide balance area of about 2000 m². In para number 8 of the arbitral award, the learned arbitrator had mentioned the disputes/claims which had arisen between the parties which are covered within the purview of the arbitration clause and is liable to be adjudicated upon by the arbitrator. 35 When the claimant/respondent number 1 wrote letters to the petitioner regarding allotment of less than the promised area for the parking site along with other problems that were being faced by respondent number 1 at the parking site, the petitioner through its letter dated 8 July 2008 responded to the claimant by stating that the parking site was handed over to the contractor on "as is where is basis" and the monthly license fee cannot be altered midway of the contract as per the terms and conditions of the contract. To this the claimant/respondent number 1 replied through letter dated 11 July 2008 which is exhibit CW 1/6 in the award that the agreement does not find any clause mentioning that the parking site is being handed over on "as is where is basis". The learned arbitrator discussed all the relevant clauses of the agreement dated 25 May 2007 more specifically clauses number 21, 22 and 42 at length in the arbitral award. It was stated that clauses number 21 and 42 are of no avail to the respondents because these clauses do not deal with the situation where the respondents do not hand over the complete site to the contractor. There is no specific clause which deals with a situation where the respondents for any reasons do not hand over the complete site to the claimant. There is no such clause dealing CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 38/42 with "as is where is basis". However, clause number 22 has relevance to the present situation as it reads as under, "22. That the licensor reserves the right to increase or decrease the area of cycle/motorcycle/scooter/car and 2 wheeler motor vehicles parking sites at ISBT Delhi in public interest and the licence fee thereof shall be increased or decreased by proportionate amount and shall be payable by the licensee". 36 This clause entitles the licensor namely the petitioner to increase or decrease the area of the parking site and the licence fee by proportionate amount. Nowhere, the respondents have denied the claimant contentions that only one third of the site was actually handed over to the claimant though it is not so specifically mentioned in the handing over taking over note dated 24th of December 2007. The claimant had made a request to the official of the petitioner to measure the site handed over to him and repeated this fact in his letter dated 12 March 2008. However, the respondents never measured the site actually handed over to the claimant and took the plea of handing over the site on "as is where is basis" and refused to reduce the licence fee by taking the plea that the monthly license fee cannot be altered midway of the contract. The conclusion arrived at by the Ld. Arbitrator that the petitioner had failed to handover the complete area of the parking site to the respondent no 1 and had given only 800 sq mts instead of 2800 sq mts is correct. The decision of the arbitrator to grant remission to the tune of 70 % to respondent no 1 is also correct along with his decisions in claims no 9 and 11. Therefore it means that the respondent CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 39/42 no 1 had already overpaid the licence fees upto 70% for the entire period in his possession.
37 The settled principles of law relating to arbitration and dealing with objections under section 34 of the arbitration and conciliation act have already been discussed above. Let's 1st discuss the contract executed between both the parties. The agreement executed between the parties has been annexed. The agreement does not talk about the actual area that was offered in the tender. Even the tender does not mention the area of the parking site. It is only for the 1st time that the petitioner through letter dated 8 July 2008 mentioned that the parking site was handed over on, "as is where is basis". Secondly, it is also not disputed that the respondent number 1 had requested the petitioner to appoint an arbitrator to resolve the issues as per the agreement but this request fell on deaf ears. During the pendency of the arbitration proceedings, the learned arbitrator through its order dated 28 August 2009 directed that the respondent will continue to remain in occupation until further orders or until the award of the site to another contractor subject to payment of all valid charges. The arbitrator has passed a detailed speaking award. Reliance has been placed upon clause number 22 of the agreement dated 25 May 2007. Even arbitrator has stated that there is no such clause dealing with "as is where is basis". Therefore, the arbitrator has correctly reduced the licence fee to 30% of what was tendered by the respondent number 1. The same was in accordance with clause 22 of the agreement. Record of the arbitrator also shows that the petitioner has been CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 40/42 regularly appearing before the arbitrator and was given all opportunities to present its case and the defence but despite that the petitioner had failed to disprove the claims of respondent number 1. The arbitrator has decided the claims under reference which are within his competency and within the 4 corners of the agreement entered into between the parties. There are no allegations of misconduct against arbitrator. The award is a reasoned award. It is also clear from the perusal of petition that the challenge to this award is on substantive questions of law which is not permissible. After going through the arbitral award, it is clear that the learned arbitrator has gone through all the pleadings, evidence and documents of both the parties and thereafter pronounced the award. Moreover, since the award has been passed in favour of respondent number 1 after giving sound reasons, it cannot be said that grant of litigation expenses and interest upon the award is illegal. The petitioner has failed to prove any of the grounds mentioned in the petition in accordance with section 34 of the arbitration and conciliation act. In the judgement of India tourism and development Corporation versus T P Sharma it was observed that "findings of the arbitrator on the factual matrix need not be interfered with as the court does not sit in appeal and the courts are also refrained from re-appreciating or re-evaluating the evidence or the material before the arbitrator unless perversity is writ large on the face of the award or the award suffers from the vice of jurisdictional error, sanctity of award should always be maintained...".
38 It is settled view that the arbitrator being sole and final judge of CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 41/42 fact and the court is bound by the findings of arbitrator and cannot review them unless unsupported by evidence or unless appears on the award itself that there was no evidence to support the findings.
39 Petitioner has not been able to prove that the arbitrator has traveled beyond the terms of the contract or the agreement executed between the parties. Petitioner has not been able to prove that the claims raised by respondent number 1 in the arbitration were not covered by the subject matter of the arbitration or that the arbitrator was not competent to give a finding on them. Petitioner has not been able to explain and has also not denied the document filed by the respondent number 1 which shows the area of the parking site to be 2800 m². Mere contention of the petitioner is that the document has not been filed by the petitioner. In short, the petitioner has not been able to prove any of the grounds mentioned in section 34 of the arbitration and conciliation act which may entitle the petitioner to grant of the relief claimed. Therefore, in view of the discussions held above and the judgements discussed above, the arbitration petition is disposed of as dismissed.
Parties to bear their own costs.
File be consigned to record room after due compliance.
Digitally signed by SUNIL SUNIL BENIWAL
Announced in the open Court on BENIWAL Date: 2019.04.06
16:31:08 +0530
4th day of April, 2019 (SUNIL BENIWAL)
ADJ-02, Central,THC/Delhi
CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 42/42