Delhi District Court
Satish Kumar Mishra vs Megha Singhproprietor Of Queens ... on 6 March, 2026
IN THE COURT OF MS NEELAM SINGH,
DISTRICT JUDGE (COMMERCIAL)-05, SOUTH-EAST
DISTRICT, SAKET COURTS, NEW DELHI
OMP (COMM) No.- 5/2021
In the matter of
Satish Kumar Mishra
S/o Sh. A.P. Mishra
R/o 506, 5th Floor, Zinnia Tower, Green Valley,
Omaxe RPS Colony, Sector 41-42,
Surajkund, Faridabad,
Haryana ....Petitioner
Vs.
Megha Singh
W/o Jai Krishna Singh
Prop. M/s Queens Fairmont Corbett,
Bhav Ambar Vilas Group,
531, GF, Kanishka Residency,
Sector-35, Ashoka Road,
Faridabad, Haryana ....Respondent
Date of Institution : 22.01.2021
Date of Final Arguments : 31.01.2026
Date of Judgment : 06.03.2026
Final Decision : Dismissed
Section 34 Arbitration and Conciliation Act, 1996
JUDGMENT
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 1 of 47
Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
1. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 has been filed on behalf of the petitioner seeking setting aside of the arbitral award dated 28.08.2020 passed by the learned Sole Arbitrator, Justice (Retd.) S. P. Garg, in the arbitration proceedings titled Satish Kumar Mishra vs. Megha Singh. The petitioner has challenged the arbitral award to the extent that the learned Arbitrator has awarded only a sum of Rs. 8,75,000/- towards consultancy charges for a limited period of three months along with interest @ 8% per annum from the date of filing of the arbitration petition till the passing of the award, whereas the petitioner had claimed recovery of Rs. 25,00,000/- towards consultancy fees/charges for the period from 01.02.2011 to 30.11.2011, along with interest of Rs. 31,50,000/- calculated @ 18% per annum from November 2011 till 20.12.2018. The petitioner has further questioned the findings of the learned Arbitrator in respect of the amount awarded in favour of the respondent towards the hospitality services provided by it to the guests of the Petitioner, visiting the respondent's resort. The petitioner has, therefore, sought the setting aside of the impugned arbitral award on the grounds detailed hereinafter.
Case of the petitioner
2. In brief, the case arises out of a commercial arrangement between the parties wherein The respondent had established a resort known as Queen's Fair Mont. For the purpose of promoting OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 2 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group and marketing the said resort, the petitioner was engaged to provide consultancy and marketing services in terms of the agreement dated 19.01.2011, under which the petitioner was to undertake marketing activities and generate business for the resort. However, shortly thereafter, the respondent sold the said resort in November 2011 to third parties, namely Mr. Mandeep Singh Gandhi and Mr. Amardeep Singh Gandhi, which ultimately led to disputes between the parties regarding payment of consultancy charges and other financial claims and passing of the arbitral award dated 28.08.2020.
3. The petitioner submitted that under the agreement dated 19.01.2011, the petitioner was entitled to consultancy charges of Rs. 2.5 lakhs per month for marketing the respondent's resort. It is submitted that the respondent had informed the petitioner that the resort would be ready for marketing within ten days of the execution of the agreement, however, the respondent allegedly failed to complete the resort as per the standards represented to the petitioner for sales, marketing, and promotion.
4. It is further submitted that the petitioner had hired experienced staff and commenced marketing activities for the resort from his Delhi office on the belief that the resort would be ready in all respects. However, according to the petitioner, the respondent initially provided only twelve rooms of the resort in the second week of February 2011 for marketing purposes, and OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 3 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group thereafter sixteen additional rooms, instead of the forty rooms as agreed between the parties.
5. The petitioner further asserted that he sent several emails to the respondent, pointing out the non-availability of forty rooms, the conference hall, swimming pool, and other facilities and amenities, and also informing the respondent of complaints received from customers who stayed at the resort. However, it is submitted that the respondent failed to respond to such emails, reminders, and queries.
6. The petitioner submitted that despite the non-availability of forty rooms in a saleable condition, he continued to provide marketing services as contemplated under the agreement dated 19.01.2011 and raised invoices from time to time towards consultancy charges.
7. It is further stated that in November-December 2011, the petitioner came to know that the respondent had sold the resort to Mr. Mandeep Singh Gandhi and Mr. Amardeep Singh Gandhi. According to the petitioner, the agreement contained a lock-in period of three years, and in the event of breach of the contract, the defaulting party was liable to pay the entire consultancy amount for the three-year period calculated at Rs. 2,50,000/- per month.
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 4 of 47Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
8. The petitioner contends that despite raising invoices from time to time, the respondent failed to clear the consultancy charges from February 2011 until the sale of the resort. It is further submitted that the respondent made no effort after the sale of the resort to realize the outstanding amounts from the market. The petitioner further states that he attempted to recover the outstanding amount from the tour operator M/s Sachin Travels, and obtained a cheque of Rs. 10,30,000/-, which was dishonoured. Consequently, the petitioner instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881, before the learned Metropolitan Magistrate at Saket Courts, New Delhi. However, the proceedings were transferred to Mumbai in view of the judgment of the Hon'ble Supreme Court in Dashrath Roop Singh Rathore v. State of Maharashtra, and subsequently, the accused Sachin Jagatdar expired, due to which the proceedings could not continue.
9. The petitioner further submits that he issued a legal notice dated 13.08.2012 demanding payment of consultancy charges and invoking the arbitration clause of the agreement dated 19.01.2011. It is alleged that the respondent gave a false and frivolous reply to the said legal notice on 08.09.2012, and subsequently lodged a false and bogus FIR being FIR No. 08/2013 under Section 406 IPC at Police Station Kalkaji against the petitioner.
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 5 of 47Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
10. The petitioner further states that he filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 before the Hon'ble High Court of Delhi for appointment of an arbitrator, being Arbitration Petition No. 34 of 2013, which was contested by the respondent on the ground that the agreement dated 19.01.2011 was forged. The agreement was thereafter sent for forensic examination and, upon receipt of the CFSL report, the Hon'ble High Court appointed Justice (Retd.) S. P. Garg as the Sole Arbitrator vide order dated 25.09.2018, holding that the signatures of the respondent with respect to the arbitration agreement were valid and genuine.
11. The petitioner further submits that he was discharged in FIR No. 08/2013 by the learned Metropolitan Magistrate, Saket Courts, New Delhi, vide order dated 17.12.2016, and the respondent's challenge to the said order was dismissed up to the Hon'ble Supreme Court.
12. It is also stated that the respondent filed a review petition against the order dated 25.09.2018 before the Hon'ble High Court, which was disposed of with the observation that the purpose of examining the documents was limited to determining the existence of the arbitration agreement. The respondent thereafter filed a Special Leave Petition before the Hon'ble Supreme Court, which was dismissed on 03.01.2019.
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 6 of 47Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
13. The petitioner further states that he filed his claim before the learned Arbitrator in December 2018 for recovery of Rs. 25,00,000/- along with interest of Rs. 31,50,000 from November 2011 till the date of filing of the claim, after which the respondent filed her written statement and counter-claim, and the parties led their evidence, culminating in the passing of the arbitral award dated 28.08.2020.
14. The petitioner has prayed for setting aside of the arbitral award dated 28.08.2020 on several grounds. It is contended that the learned Sole Arbitrator illegally deducted the revenue of the petitioner while adjusting the recovery amount of the respondent. The petitioner further contends that it is an admitted case before the Hon'ble High Court that the respondent was entitled to recover a sum of Rs. 10,30,000/- from M/s Sachin Travels and had even instituted a suit being CS(OS) No. 3019/2014 for the said recovery. However, despite the same, the liability has been imposed upon the petitioner through the impugned award. It is contended that the learned Arbitrator failed to appreciate that the petitioner was effectively restrained from pursuing proceedings under Section 138 of the Negotiable Instruments Act against M/s Sachin Travels on account of the FIR lodged by the respondent against him. The petitioner has further submitted that the learned Arbitrator ignored the effect of the judgment of the Hon'ble Supreme Court in Dashrath Roop Singh Rathore v. State of Maharashtra, pursuant to which the proceedings under Section OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 7 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group 138 of the Negotiable Instruments Act were transferred to Mumbai, and that the subsequent demise of Sachin Jagatdar resulted in the recovery proceedings being stalled. It is also contended that the learned Arbitrator failed to appreciate that the business arrangement between the parties was such that the petitioner was handling the operational aspects, whereas the invoices were raised by the respondent in the name of Sachin Jagatdar, and in the absence of support from the respondent the petitioner could not effectively pursue recovery proceedings against him. It is further contended that the learned Arbitrator failed to consider that the respondent did not take effective steps in the suit being CS(OS) No. 3019/2014 to serve notice upon M/s Sachin Travels.
15. The petitioner has further challenged the award on the ground that the learned Arbitrator failed to properly appreciate the factual position regarding the availability and condition of the resort facilities. It is submitted that the construction of the resort continued even after execution of the agreement dated 19.01.2011, and the respondent had failed to provide forty rooms in saleable and fully functional condition as agreed. According to the petitioner, the learned Arbitrator erred in observing that the required rooms were available despite the admitted position that only a limited number of rooms were operational. It is also contended that the learned Arbitrator failed to consider the emails sent by the petitioner to the respondent raising complaints OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 8 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group regarding the non-availability of forty rooms, conference hall, swimming pool and other amenities, and also informing the respondent about grievances received from customers. It is submitted that without considering the said documents the Ld. Arbitrator made his observation that the petitioner had failed adduce any evidence related to customer complaints. It is further submitted that the learned Arbitrator failed to appreciate that the petitioner had performed his obligations by marketing and promoting the resort and generating business despite the resort not being fully operational.
16. The petitioner has further submitted that the learned Arbitrator failed to appreciate the contractual stipulation regarding the lock-in period of three years contained in the agreement dated 19.01.2011. According to the petitioner, the agreement envisaged a minimum lock-in period of three years and in the event of breach the defaulting party was liable to pay consultancy charges for the entire period. The petitioner further submits that the learned Arbitrator ignored the admissions allegedly made by the respondent during cross-examination to the effect that consultancy charges from February 2011 to November 2011 had not been cleared and that the respondent had no grievance against the petitioner until the sale of the resort.
17. It is also contended that the learned Arbitrator failed to appreciate the deposition of the respondent's husband, who OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 9 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group allegedly admitted that no action had been taken against the petitioner until receipt of the legal notice dated 13.08.2012.
18. The petitioner has also contended that the learned Arbitrator failed to appreciate the petitioner's evidence that apart from bookings routed through M/s Sachin Travels, several other guests including individuals and groups had visited the resort through the petitioner's marketing efforts. According to the petitioner, these guests (Free Individual Tourists) had made payments directly to the respondent while others had made payments through the petitioner, which were subsequently transferred to the respondent. It is further contended that the learned Arbitrator failed to consider that the petitioner had no liability in respect of FIT guests as the payments received from such guests had been duly remitted to the respondent. The petitioner has thus disputed the basis of the awarded sum for amounts payable towards hospitality services and FIT guests.
Case of the respondent
19. At the outset, the respondent submits that the present objection petition has been filed beyond the statutory period prescribed under Section 34 of the Arbitration and Conciliation Act, 1996. It is contended that the petition has been filed after the expiry of the permissible period of three months and even beyond OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 10 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group the additional period of thirty days within which delay may be condoned by the Court. Accordingly, it is submitted that the present petition is barred by limitation and is not maintainable.
20. It is further submitted that the present objection petition has been filed only after notice was issued by this Court in the respondent's own petition under Section 34 of the Act challenging certain parts of the arbitral award. According to the respondent, the present petition is therefore a mala fide counterblast to the proceedings initiated by the respondent and is not maintainable under law.
21. The respondent asserts that it was the petitioner who had initially approached the respondent through her husband for providing marketing services for the respondent's resort. It is further alleged that the agreement relied upon by the petitioner is a forged and fabricated document containing forged signatures of the respondent and her husband, and that the document is merely a tempered photocopy version of an email dated 30 November 2010. The respondent disputes the genuineness of the alleged agreement relied upon by the petitioner. It is contended that the alleged agreement bears forged signatures of the respondent and her husband and that this aspect has not been properly considered by the arbitral tribunal.
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 11 of 47Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
22. It is further submitted that the alleged agreement relied upon by the petitioner is only a photocopy and has been disputed by the respondent as well as by her husband, who is shown as a witness to the document. According to the respondent, the authenticity of the said document is therefore doubtful, particularly when no independent witness has been produced by the petitioner to prove it.
23. It is further submitted that allegations of forgery relating to the alleged agreement and certain email communications have not been finally adjudicated and remain the subject matter of separate proceedings. The respondent submits that these issues have also been raised in her own petition under Section 34 of the Arbitration and Conciliation Act challenging certain parts of the arbitral award.
24. The respondent further contends that even if the alleged agreement is assumed to exist, the petitioner himself committed material breaches of its terms by failing to work exclusively for the respondent's resort, by diverting business to other resorts, and by collecting payments directly from guests and sponsors instead of ensuring that such payments were made to the resort. According to the respondent, these acts constitute breach of fiduciary duties and attract liability under various provisions of the Indian Contract Act, 1872. It is alleged that the petitioner failed to perform his obligations and failed to clear the outstanding dues of the OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 12 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group respondent's resort.
25. The respondent also alleges that the petitioner used to collect payments from guests, sponsors, and FIT customers directly into his personal accounts and thereafter remit amounts to the respondent's resort in instalments. It is submitted that this practice was contrary to the understanding between the parties that all payments would be made directly to the resort. The respondent further states that she was initially unaware of the petitioner's separate arrangement with Sachin Travels Ltd., and only later discovered that payments from such guests were being routed through the petitioner.
26. It is the respondent's case that the arbitral tribunal itself recorded findings that the petitioner had brought guests of his sponsor, Sachin Travels Ltd., to the respondent's resort and that the invoices were issued by the respondent in the name of Sachin Travels Ltd., which had no direct dealings with the respondent. According to the respondent, the tribunal further found that the petitioner collected the revenues of the resort directly and thereafter made payments to the respondent, which was contrary to the understanding between the parties. In this regard, the respondent also places reliance upon the charge-sheet filed in FIR No. 8 dated 10.01.2013 registered at Police Station Kalkaji, wherein it allegedly emerged that the petitioner had entered into a separate arrangement with his sponsor, Sachin Travels Ltd., under OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 13 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group which payments from guests and sponsors were to be received by the petitioner directly instead of being paid to the respondent's resort. The respondent submits that this arrangement was contrary to the understanding between the parties and even contrary to the terms of the alleged agreement relied upon by the petitioner.
27. The respondent also disputes the petitioner's reliance upon proceedings under Section 138 of the Negotiable Instruments Act against Sachin Travels Ltd. It is contended that the said proceedings were collusive in nature and were instituted in connivance with Sachin Jagatdar, one of the directors of Sachin Travels Ltd. The respondent submits that the petitioner collected the cheque in the name of his own company rather than in the name of the respondent's resort and later abandoned the proceedings after being discharged in the criminal case arising out of FIR No. 8 dated 10.01.2013.
28. It is submitted that on the basis of the material on record, the learned arbitrator directed the petitioner to pay to the respondent a sum of Rs. 10,59,231 along with interest at the rate of 8% per annum from the date of filing of the suit before the Hon'ble High Court. The respondent submits that the said finding demonstrates that the petitioner had retained monies belonging to the respondent's resort.
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 14 of 47Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
29. The respondent further relies upon the findings of the arbitral tribunal to contend that the petitioner had undertaken to bring business worth approximately ₹3 crores per annum for the resort and to provide a dedicated marketing team. However, according to the respondent, the petitioner failed to establish that he had provided any such dedicated team or that he had generated the promised business. The respondent further asserts that the petitioner had induced the respondent to engage him on the representation that he would work exclusively for promoting the respondent's resort through a dedicated marketing team and would bring business worth approximately ₹3 crores per annum. However, it is alleged that the petitioner was simultaneously engaged with several other resorts and had concealed such engagements from the respondent while entering into the arrangement. According to the respondent, the petitioner continued to work for other resorts while claiming exclusivity and thereby diverted business away from the respondent's resort.
30. It is further contended that the petitioner had undertaken to bring substantial business to the resort but failed to do so. According to the respondent, despite the availability of forty rooms and full operational facilities in the resort from January 2011, the petitioner did not bring even a fraction of the promised business. The respondent submits that the arbitral record itself shows that the business brought by the petitioner during the relevant period was extremely limited and far below the promised OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 15 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group target.
31. The respondent also disputes the petitioner's version regarding the readiness of the resort. It is asserted that the resort was fully operational with forty furnished rooms and necessary facilities such as a swimming pool and restaurant by January 2011. In support of this contention, the respondent relies upon documentary evidence as well as the testimony of several witnesses including engineers, contractors, and other service providers who deposed before the arbitral tribunal. According to the respondent, the documentary record including invoices, guest records, and the petitioner's own business schedule sent by email demonstrates that the petitioner was aware that the resort had more than thirty-five rooms available. It is further submitted that despite making commitments regarding business generation, the petitioner failed to deliver the promised business to the resort. The respondent further submits that the petitioner has taken contradictory stands regarding the availability of rooms in the respondent's resort. It is contended that while relying upon the alleged agreement which itself refers to "40 rooms in account" and "40 rooms facilities," the petitioner simultaneously alleges that the resort did not have the required number of rooms.
32. The respondent further alleges that the petitioner had forged certain email communications, including an email dated 27 July 2011, and that proceedings in relation to the said alleged forgery OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 16 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group have also been initiated before the competent court under Section 200 CrPC. It is contended that the alleged email dated 27 July 2011 is a forged document and that this fact has been endorsed by Yahoo as well as by the Cyber Cell, Crime Branch, Daryaganj, New Delhi. The respondent submits that proceedings under Section 200 CrPC are pending before the Court of the learned CMM, Patiala House Courts, New Delhi in relation to the said alleged forgery. It is further contended that the petitioner misled the arbitral tribunal by claiming to have filed a certificate under Section 65B of the Indian Evidence Act in support of the said email, whereas no such certificate was filed, despite the respondent having specifically pointed out this defect during the arbitral proceedings.
33. It is further the respondent's case that the petitioner never constituted or provided any dedicated marketing team for the resort. The respondent points out inconsistencies in the petitioner's own pleadings regarding the composition of the alleged team and submits that no records such as salary accounts, attendance registers, or performance records of such team were produced before the arbitral tribunal.
34. The respondent also contends that the petitioner was simultaneously engaged with several other resorts, including Wood Castle & Spa, Solluna Resort, Manu Maharani Resort, Kufri Resort, Iris Resort, and Manali Resort. According to the OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 17 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group respondent, these engagements were deliberately concealed from her and were inconsistent with the petitioner's obligation to work exclusively for promoting the respondent's resort. It is therefore alleged that the petitioner had suppressed his prior and simultaneous engagements and had diverted business to other resorts. The respondent submits that such conduct constituted breach of the understanding between the parties and was contrary even to the provisions of the alleged agreement relied upon by the petitioner. The respondent also relies upon various documents forming part of the arbitral record including guest records, balance sheets, and other documentary evidence to contend that the petitioner had failed to bring the promised business to the resort and had diverted substantial business to other resorts while working simultaneously for them.
35. The respondent further states that the legal notice sent by the petitioner claiming consultancy fees is baseless and that no such fees were ever payable. According to the respondent, the petitioner was working on commission and had already deducted his commission in advance from the payments received from guests. The respondent disputes the petitioner's claim that he had raised consultancy bills or invoices for his alleged professional fees. It is submitted that no such bills were ever raised during the subsistence of the arrangement and that the alleged invoices were fabricated later after issuance of the legal notice. The respondent points out that during cross-examination the petitioner claimed OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 18 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group that the invoices had been sent through post and undertook to produce proof of dispatch, however no such proof was produced before the arbitral tribunal. According to the respondent, the evidence on record including guest register cards and invoices of the resort demonstrates that the petitioner used to deduct his commission in advance before remitting payments to the resort. It is further submitted that the learned arbitrator overlooked these documents while adjudicating the dispute.
36. The respondent submits that due to the petitioner's failure to generate the promised business and to make timely payments, the resort suffered serious financial losses and ultimately became a non-performing asset for the lending bank, Bank of India. It is stated that proceedings under the SARFAESI Act were initiated by the bank and the respondent was unable to meet the operational expenses of the resort including payment of salaries to employees and dues to vendors.
37. The respondent further states that the resort was ultimately sold to Mr. Amandeep Singh Gandhi and Mr. Amardeep Singh due to severe financial distress faced by the respondent. It is contended that the respondent had repeatedly requested the petitioner to clear the outstanding dues of the resort and had even given him an ultimatum to do so by 28 June 2011, failing which the resort would not entertain his guests on credit. However, after that date the petitioner allegedly stopped sending business to the resort and OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 19 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group gradually ceased communication with the respondent after making a payment of Rs. 1,47,000/- on 30 July 2011.
38. According to the respondent, the petitioner has deliberately misled the Court and has raised false and misleading grounds in the present objection petition. The respondent reiterates that the petitioner has failed to establish any valid ground under Section 34 of the Arbitration and Conciliation Act for setting aside the arbitral award. The respondent therefore prays that the present objection petition be dismissed.
Points of Consideration before the Court
39. The scope of judicial review under Section 34 of the Arbitration and Conciliation Act, 1996, is limited. Section 34 of the Arbitration and Conciliation Act, 1996 is reproduced as under:
"Section 34. Application for setting aside arbitral awards.
(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 1[establishes on the basis of the record of the arbitral tribunal 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 for the time being in force; or
(iii) the party making the application was not given proper OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 20 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group 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 decisions 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.
1[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 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.] [(2A) 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 reappreciation of evidence.] OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 21 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group (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. (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 the other party.]"
40. Before examining the objections raised by the petitioner, it is necessary to briefly note the statutory framework governing interference with an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996. Section 5 of the Arbitration and Conciliation Act, 1996 restricts judicial intervention in arbitral proceedings and provides that no judicial authority shall intervene except where so provided in Part I of the Act. Section 34 constitutes the statutory mechanism through OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 22 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group which a party may seek recourse against an arbitral award. Section 34(1) stipulates that recourse to a court against an arbitral award may be made only by an application for setting aside the award in accordance with Section 34(2) and Section 34(3) of the Act. Section 34(2)(a) enumerates limited grounds on which an arbitral award may be set aside. These include circumstances where a party was under incapacity, the arbitration agreement was not valid under the applicable law, the party was not given proper notice of appointment of the arbitrator or of the arbitral proceedings, the party was otherwise unable to present its case, the award deals with disputes beyond the scope of submission to arbitration, or the composition of the arbitral tribunal or arbitral procedure was not in accordance with the agreement between the parties.
41. Section 34(2)(b) further provides that an award may be set aside if the subject matter of the dispute is not capable of settlement by arbitration under the law or if the award is in conflict with the public policy of India. Explanation I to the provision clarifies that an award would be in conflict with public policy only if the making of the award was induced by fraud or corruption, or it contravenes the fundamental policy of Indian law, or is in conflict with the most basic notions of morality or justice. Explanation II makes it clear that no review on the merits of the dispute shall be undertaken while examining whether the award contravenes the fundamental policy of Indian law. Further, Section OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 23 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group 34(2-A) provides that in the case of domestic arbitrations, an award may be set aside if it is vitiated by patent illegality appearing on the face of the award. However, the proviso makes it explicit that an award shall not be set aside merely on the ground of an erroneous application of law or by reappreciation of evidence. Thus, the legislative scheme makes it clear that the jurisdiction of the Court under Section 34 is narrow and supervisory in nature. The Court does not sit in appeal over the arbitral award. It is well settled that the Court cannot re-evaluate the evidence or substitute its own view for that of the arbitrator merely because another view may be possible.
42. In the present case, the arbitral award under challenge is a detailed and well-reasoned award, in which the learned Arbitrator has examined the pleadings, documentary material and oral evidence of the parties before returning findings on each issue framed for adjudication. The objections raised by the petitioner in the present proceedings substantially seek a re-appreciation of the evidence and reconsideration of findings of fact, which is impermissible within the limited scope of Section 34 of the Act.
43. The scope of judicial review under Section 34 of the Arbitration and Conciliation Act, 1996, is circumscribed by specific and limited grounds. It is well-established that the court does not sit in appeal over the arbitral award and cannot re- appreciate the evidence or re-examine the merits of a dispute as OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 24 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group would ordinarily be done in a regular appeal, unless there are compelling reasons such as a breach of the fundamental policy of Indian law, is in conflict with the most basic notions of morality or justice, or a patent illegality appearing on the face of the award. The Apex Court has time and again held that the jurisdiction conferred on a Court under Section 34 is narrowly tailored.
44. The learned Arbitrator has passed a reasoned award, analyzing each issue framed before him. The findings are based on evidence, supported by reasoning, and consistent with law. Merely because the Petitioner disagrees with the conclusions reached by the Arbitrator cannot be a ground for interference under Section
34. It is well established that the Court exercising jurisdiction under Section 34 cannot act as a second arbitral forum. The legislative intent under the 1996 Act is to minimize judicial interference and promote finality of arbitral awards.
45. Section 34 of the Arbitration and Conciliation Act, 1996 allows a party to challenge an arbitral award on limited grounds, such as if the award is in conflict with public policy, or if the tribunal acted in a manner that violated the principles of natural justice or if the award is otherwise in violation of the law. However, in the present case, the petitioner has failed to establish that the award is contrary to public policy or that the Sole Arbitrator's conduct in passing the award was flawed in any way.
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46. It is well-settled that arbitral tribunals enjoy a wide degree of autonomy and discretion in determining the facts, applying the law, and rendering awards. The role of the Courts in reviewing arbitral awards is extremely limited, and this Court can only interfere if the award is found to be patently illegal or against the public policy of India or if the award explicitly falls within the purview of the other grounds enumerated in Section 34 and as already discussed above. In this case, the petitioner has failed to demonstrate any such illegality or irregularity in the award passed by the Sole Arbitrator. The petitioner's objections seek a re- appreciation of the evidence and reconsideration of findings of fact, which do not meet the threshold required for setting aside the award under Section 34.
47. The Hon'ble Supreme Court in MMTC Limited v. Vedanta Limited, [Civil Appeal No. 1862 of 2014], held that the Court must not act as an appellate forum to re-appreciate evidence or interfere with the findings of the arbitral tribunal unless there is a patent illegality or a violation of the public policy of India. The relevant paragraphs of the judgment are reproduced as under:
"11. As far as Section 34 is concerned, the position is well−settled by now that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii), i.e. if the award is against the public policy of India. As per the legal position clarified through decisions of this Court prior to the amendments to the 1996 Act in 2015, a violation of OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 26 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group Indian public policy, in turn, includes a violation of the fundamental policy of Indian law, a violation of the interest of India, conflict with justice or morality, and the existence of patent illegality in the arbitral award. Additionally, the concept of the "fundamental policy of Indian law" would cover compliance with statutes and judicial precedents, adopting a judicial approach, compliance with the principles of natural justice, and Wednesbury reasonableness. Furthermore, "patent illegality" itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act, and contravention of the terms of the contract.
It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii), but such interference does not entail a review of the merits of the dispute, and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts. (See Associate Builders v. DDA, (2015) 3 SCC 49). Also see ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705; Hindustan Zinc Ltd. v.
Friends Coal Carbonisation, (2006) 4 SCC 445; and McDermott International v. Burn Standard Co. Ltd., (2006) 11 SCC 181).
It is relevant to note that after the 2015 amendments to Section 34, the above position stands somewhat modified. Pursuant to the insertion of Explanation 1 to Section 34(2), the scope of contravention of Indian public policy has been modified to the extent that it now means fraud or corruption in the making of the award, violation of Section 75 or Section 81 of the Act, contravention of the fundamental policy of Indian law, and conflict with the most basic notions of justice or morality. Additionally, sub−section (2A) OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 27 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group has been inserted in Section 34, which provides that in case of domestic arbitrations, violation of Indian public policy also includes patent illegality appearing on the face of the award. The proviso to the same states 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.
12. As far as interference with an order made under Section 34, as per Section 37, is concerned, it cannot be disputed that such interference under Section 37 cannot travel beyond the restrictions laid down under Section 34. In other words, the Court cannot undertake an independent assessment of the merits of the award, and must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision. Thus, it is evident that in case an arbitral award has been confirmed by the Court under Section 34 and by the Court in an appeal under Section 37, this Court must be extremely cautious and slow to disturb such concurrent findings.
13. Having noted the above grounds for interference with an arbitral award, it must now be noted that the instant question pertains to determining whether the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, this question has been addressed by the Courts in terms of the construction of the contract between the parties, and as such it can be safely said that a review of such a construction cannot be made in terms of re-assessment of the material on record, but only in terms of the principles governing interference with an award as discussed above."
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48. The principle laid down in Associate Builders v. Delhi Development Authority, [(2015) 3 SCC 49], also emphasizes that interference is warranted only in cases when the arbitral award is in conflict with the public policy of India, i.e. is against fundamental policy of Indian Law, interest of India, justice or morality or suffers from patent illegality. It was also held that construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do.
49. The grounds for setting aside an arbitral award under Section 34 are limited and specific. The petitioner has failed to establish any of these grounds. It is a settled position of law that the jurisdiction of this Court under Section 34 is supervisory and not appellate. The Court is not to sit in appeal over the findings of the Arbitrator. Re-appreciation of evidence or substitution of the Court's own view in place of that of the Arbitrator is impermissible. Interference is warranted only when the award is shown to be patently illegal, perverse, contrary to the fundamental policy of Indian law, or opposed to public policy.
50. The Hon'ble Supreme Court in Ssangyong Engineering & Construction Co. Ltd. v. National Highway Authority of India, [Civil Appeal No. 4779 of 2019], clarified that an award can be set OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 29 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group aside on public policy grounds only if it shocks the conscience of the Court. The arbitral award in this case does not meet this threshold. The Tribunal's findings are based on a careful consideration of the evidence and the contractual terms agreed upon by the parties. Below are the reproduced relevant paragraphs of the judgment:
"23. What is clear, therefore, is that the expression "public policy of India", whether contained in Section 34 or in Section 48, would now mean the "fundamental policy of Indian law" as explained in paragraphs 18 and 27 of Associate Builders (supra), i.e., the fundamental policy of Indian law would be relegated to the "Renusagar" understanding of this expression. This would necessarily mean that the Western Geco (supra) expansion has been done away with. In short, Western Geco (supra), as explained in paragraphs 28 and 29 of Associate Builders (supra), would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court's intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)
(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in paragraph 30 of Associate Builders (supra).
24. It is important to notice that the ground for interference insofar as it concerns "interest of India"
has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the "most basic notions of morality or justice". This again would be in line with paragraphs 36 to 39 of Associate Builders (supra), as it is only such arbitral OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 30 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group awards that shock the conscience of the court that can be set aside on this ground.
25. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paragraphs 18 and 27 of Associate Builders (supra), or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders (supra). Explanation 2 to Section 34(2)(b)
(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco (supra), as understood in Associate Builders (supra), and paragraphs 28 and 29 in particular, is now done away with.
26. Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within "the fundamental policy of Indian law", namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.
27. Secondly, it is also made clear that re-
appreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award.
28. To elucidate, paragraph 42.1 of Associate Builders (supra), namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Paragraph 42.2 of Associate Builders (supra), OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 31 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.
29. The change made in Section 28(3) by the Amendment Act really follows what is stated in paragraphs 42.3 to 45 in Associate Builders (supra), namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrator's view is not even a possible view to take.
Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2A).
30. What is important to note is that a decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders (supra), while no longer being a ground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.
Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse."
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51. The petitioner has contended that the learned Sole Arbitrator illegally deducted the revenue of the petitioner while adjusting the recovery amount of the respondent and wrongly imposed liability upon the petitioner in respect of the amount allegedly recoverable from M/s Sachin Travels Pvt. Ltd. It is the petitioner's case that the respondent had admitted before the Hon'ble High Court that a sum of Rs.10,30,000/- was recoverable from M/s Sachin Travels Pvt. Ltd. and had even instituted a civil suit being CS(OS) No.3019/2014 for recovery of the said amount. The petitioner has further contended that he was restrained from pursuing proceedings under Section 138 of the Negotiable Instruments Act against M/s Sachin Travels Pvt. Ltd. owing to subsequent events, including transfer of proceedings pursuant to the judgment in Dashrath Roop Singh Rathore v. State of Maharashtra and the demise of Sachin Jagatdar, which resulted in the recovery proceedings being stalled. It is also urged that the business arrangement between the parties was such that the petitioner handled the operational aspects while the invoices were raised by the respondent in the name of Sachin Jagatdar. It is therefore contended that the learned Arbitrator erred in holding the petitioner solely liable for the hospitality services provided by the respondent to the guests sent by the petitioner through his arrangement with M/s Sachin Travels Pvt. Ltd.
52. This Court finds that the said objection has been comprehensively considered and dealt with by the learned OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 33 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group Arbitrator while adjudicating Issue No. 6 i.e.-
"Whether the respondent/Counter-claimant is entitled to recover Rs.8.65,000/- from the claimant towards balance amount for hospitality provided to him and the guests sponsored by him for the period from 15.03.2011 to 28.06.2011? OPR"
53. The Tribunal has recorded a categorical finding that the claimant-Petitioner had an independent arrangement with M/s Sachin Travels Pvt. Ltd. and that the payments for the guests sent to the resort were received by the claimant-Petitioner himself. It has further been observed that the respondent had no privity of contract with M/s Sachin Travels Pvt. Ltd. and had merely provided hospitality services to the guests sent by the said entity at the request of the claimant-Petitioner. The Tribunal has specifically recorded that the respondent had never dealt directly with any representative of M/s Sachin Travels Pvt. Ltd. and had provided services only on the assurance of the claimant-Petitioner.
54. The Ld. Arbitrator further noted that it was an admitted position that the claimant-Petitioner had attempted to recover the outstanding amount from M/s Sachin Travels Pvt. Ltd. and had procured a cheque of Rs.10.30 lakhs from the said entity, which was subsequently dishonoured, leading to the institution of proceedings under Section 138 of the Negotiable Instruments Act. The Tribunal also recorded that the claimant-Petitioner himself OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 34 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group had admitted in the statement of claim that the said cheque amount included the liability payable towards the respondent. The learned Arbitrator further observed that even after the complaint case was transferred to Mumbai, no material was placed on record to demonstrate that the demise of Sachin Jagatdar had any legal impact on the continuation of the proceedings, particularly when the complaint had been instituted against the company and not merely against an individual.
55. Upon appreciation of the evidence on record, the learned Arbitrator concluded that the respondent had provided hospitality services to the guests sent through M/s Sachin Travels Pvt. Ltd. on credit basis and that the claimant-Petitioner used to collect the payments directly from the said tour operator. The Tribunal therefore held that it was the responsibility of the claimant- Petitioner to remit the payments to the respondent for the services rendered to such guests. The Tribunal further found that the respondent had no concern with the internal arrangement between the claimant-Petitioner and M/s Sachin Travels Pvt. Ltd., and that the claimant-Petitioner could not avoid his contractual liability to the respondent merely because he failed to recover the amount from the said tour operator. On the basis of these findings, the learned Arbitrator held the claimant-Petitioner liable to pay a sum of Rs.8.65 lakhs to the respondent towards the services provided to the guests sent through M/s Sachin Travels Pvt. Ltd.
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56. The above findings clearly demonstrate that the learned Arbitrator has examined the entire factual matrix and evidence in detail before arriving at the conclusion regarding the petitioner's liability. The reasoning adopted by the Tribunal is cogent and based upon appreciation of the contractual relationship between the parties as well as the evidence placed on record. The petitioner has failed to demonstrate that the said findings suffer from perversity, patent illegality, or violation of the fundamental policy of Indian law so as to attract interference under Section 34 of the Arbitration and Conciliation Act.
57. Since the learned Arbitrator has returned a well-reasoned and plausible finding after considering the evidence and the contractual arrangement between the parties, the objection raised by the petitioner in respect of the liability arising from transactions with M/s Sachin Travels Pvt. Ltd. does not warrant interference, as no grounds enumerated under Section 34 of the Act are attracted. Accordingly, the said objection deserves to be outrightly rejected.
58. The petitioner has further challenged the award to the extent that the Ld. Arbitrator has directed payment of Rs. Rs.1,94,231/- towards the expenses incurred by the respondent in providing hospitality services in respect of Free Individual Tourists (FITs)visiting the Respondent's resort. The petitioner contends that no such liability could have been fastened upon him as these guests (FITs) had made payments directly to the respondent, and OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 36 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group that the learned Arbitrator erred in awarding the said amount.
59. This Court finds that the said objection was duly examined by the learned Arbitrator while adjudicating Issue No. 7-
"Whether the respondent is entitled to recover balance amount of Rs.1,94,231/- from the claimant for hospitality provided to his guests (Free Individual Tourists) from the period from 15.03.2011 to 28.06.2011? OPR"
60. The Tribunal has returned detailed and reasoned findings based upon the evidence on record. The Tribunal noted that the respondent had specifically pleaded that apart from the guests of M/s Sachin Travels Pvt. Ltd., the claimant-Petitioner had also sent individual guests (FITs) to the resort and that the respondent had raised bills and invoices for the stay of such guests, including expenses incurred towards food, lodging, musical events, safari and allied services.
61. While examining the evidence, the learned Arbitrator observed that the claimant-Petitioner had taken contradictory and inconsistent stands regarding the FIT guests. It was specifically noted that the claimant-Petitioner had not denied that FITs were sent by him to the resort and that in his affidavit there was no categorical denial in this regard. The respondent, on the other hand, had furnished specific details regarding the dates of arrival of such FIT guests and the corresponding invoices raised for their OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 37 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group stay and services. The Tribunal further noted that the respondent had admitted receipt of a sum of Rs.88,819/- from the claimant- Petitioner towards part payment for such FIT guests, but the claimant-Petitioner had failed to explain the purpose for which the said payment was made if no liability existed.
62. The Ld. Arbitrator also recorded that in his cross- examination the claimant-Petitioner admitted that under the arrangement between the parties he was the sole person responsible for bringing business to the respondent's resort and further admitted that several guests, apart from those sent through M/s Sachin Travels Pvt. Ltd., had visited the resort as individual guests as well as in groups. As per the Ld. Arbitrator's findings the claimant-Petitioner also admitted that some of such guests used to make payment directly to the Respondent and some used to make payment to him. However, the claimant-Petitioner failed to specify the payments received by him from such individual guests who were sent by him to the resort.
63. The Tribunal further relied upon the testimony of the respondent (RW-7), who deposed that the claimant-Petitioner had sent both the guests of M/s Sachin Travels Pvt. Ltd. as well as individual FIT guests to the resort. She further deposed that the total business generated by the claimant-Petitioner up to 28 June 2011 was valued at Rs.23,06,050/-, which included Rs.20.23 lakhs through M/s Sachin Travels Pvt. Ltd. and Rs.2,83,050/- through 11 OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 38 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group FIT families sent by the claimant-Petitioner on his own. It was further deposed that invoices amounting to Rs.2,83,050/- had been raised for the stay of the said FIT guests, out of which a sum of Rs.88,819/- had been paid by the claimant-Petitioner, leaving a balance of Rs.1,94,231/- recoverable from him.
64. The Ld. Arbitrator also recorded that the testimony of the respondent on these material aspects remained unchallenged , as no suggestion was put to her during cross-examination denying that the claimant-Petitioner had sent FIT guests to the resort or disputing that the expenses incurred on such guests were payable by him. The Tribunal further noted that the claimant-Petitioner did not furnish any plausible explanation for non-payment of the outstanding amount nor was it his case that the FIT guests had made the payment directly to the respondent at the resort. The findings of the Ld. Arbitrator in this regard in the impugned award is reproduced as under-
"51. ................The respondent has not been cross-examined on these material facts and her testimony as remained unchallenged. No suggestion was put to the respondent in the cross-examination if the claimant had not sent any FIT to the resort or that no expenses incurred on them were payable by him. The claimant did not furnish any plausible explanation for not making the outstanding payment of Rs.1,94,231/- incurred by the respondent on the FITs sent by him to the resort. It is not the case of the claimant that the FITs had made the payment directly to the respondent at the counter."OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 39 of 47
Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group
65. On the basis of the above evidence, the learned Arbitrator held that the respondent had entertained the FIT guests only at the request of the claimant-Petitioner and that there existed no privity of contract between the respondent and such individual guests.
66. Consequently, the Tribunal concluded that the claimant- Petitioner was liable to pay the balance sum of Rs.1,94,231/- towards the expenses incurred by the respondent in providing hospitality services to the FITs sent by him, and accordingly decided Issue No. 7 in favour of the respondent.
67. This Court finds that the learned Arbitrator has returned a detailed and reasoned finding after appreciation of both oral and documentary evidence. The conclusion drawn by the Tribunal is based on the pleadings, admissions in cross-examination, and the unrebutted testimony of the respondent. The petitioner has failed to demonstrate that the said findings suffer from perversity, patent illegality, or are in conflict with the fundamental policy of Indian law so as to warrant interference under Section 34 of the Arbitration and Conciliation Act.
68. It is settled law that the scope of interference under Section 34 is extremely limited and does not permit re-appreciation of evidence or substitution of the Court's view in place of that of the arbitral tribunal. Since the findings of the learned Arbitrator on OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 40 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group Issue No. 7 are well-reasoned and based upon the evidence on record, the objection raised by the petitioner with regard to the award of amount towards FIT guests does not merit interference and is accordingly rejected.
69. The petitioner has further assailed the award on the ground that the learned Arbitrator failed to properly appreciate the factual position regarding the availability and condition of the resort facilities and erroneously observed that the required rooms were available despite the resort allegedly not being fully operational. It is also contended that the learned Arbitrator failed to consider the emails sent by the petitioner complaining about the non- availability of forty rooms, conference hall, swimming pool and other amenities, and the grievances allegedly raised by customers, while awarding the sums of Rs. 8,65,000 and Rs. 1,94,231 in favor of the Respondent in respect of the hospitality services provided by the respondent to the guests sponsored by the claimant- Petitioner and the FITs sent by him, respectively.
70. Alongside this, the petitioner has also challenged the award on the ground that the learned Arbitrator failed to appreciate the contractual stipulation regarding the lock-in period of three years contained in the agreement dated 19.01.2011 and that, in view of the said clause, the petitioner was entitled to consultancy charges for the entire period.
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71. This Court finds that the aforesaid objections were comprehensively examined and adjudicated by the learned Arbitrator while deciding Issue No. 1 and Issue No. 4 in the arbitral proceedings. The learned Arbitrator has returned detailed findings on the question of availability of facilities, performance of obligations by the parties, and the entitlement of the claimant- Petitioner to consultancy charges.
72. The relevant findings of the learned Arbitrator read as under:
"31. ... Needless to say, the claimant is entitled for the fee/remuneration for the services provided by him to the resort. It is relevant to note that during the period the resort remained in operation, the respondent had no grievance against the claimant on any account. The services of the claimant were never terminated.
32. As per the 'agreement' dated 19.01.2011, the claimant was entitled to Rs.2.5 lacs per month as consultancy fee from 19.01.2011. Under the agreement, the claimant was expected to generate business for the resort to the tune of Rs.3 crores. However, the claimant failed to procure the required business. The first batch of guests were sent to the respondent's resort only on 16.03.2011; no business was provided by the claimant to the respondent after 28.06.2011. This Tribunal finds no substance in the contention of the claimant that the requisite business could not be provided as the respondent had failed to make available 40 rooms in the resort. The 'agreement' dated 19.01.2011 itself records availability of 40 rooms to the claimant, so he cannot urge that at no stage 40 rooms in the resort were not in operation. In the 'agreement' there is no provision/condition that the respondent would provide OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 42 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group Conference Hall or Swimming Pool. It has also come on record that during this period, the claimant used to provide business to other resorts i.e. Solluna Resort, Wood Castle, Maharani Resort, Irish Resort etc. There was no complaint by the guests regarding the services provided by the respondent. The claimant has not placed on record any such complaint by any guest. Contrary to that, the respondent has produced witnesses who had stayed at the resort and had appreciated the services rendered by the resort. Under the 'agreement', the claimant was expected to dedicate an exclusive team of professionals. However, the claimant has not produced on record any clinching evidence if any dedicated team of professionals was exclusively deputed to generate the business for the respondent.
33.Considering the peculiar circumstances, this Tribunal is of the view that to do justice and equity to both the parties, the claimant would be entitled to the consultancy charges only for the period during which he provided services to the respondent i.e. 16.03.2011 to 28.06.2011. The claimant had not sent any guests to the resort during the period prior to 15.03.2011. The claimant cannot be permitted to receive the consultancy charges as unjust enrichment. This Tribunal is of the view that the claimant shall be entitled to consultancy charges/remuneration @ Rs.2.5 lacs per month as agreed to in the 'agreement' only for the period he effectively worked for the resort to provide business under the 'agreement'. In the e-mail dated 30.11.2010 sent by the claimant to the respondent's husband J.K. Singh, the final terms and conditions were sent for approval after meeting. The receipt of this e-mail has not been denied. This email also incorporates that the claimant would be entitled to Rs.2.5 lacs per month as consultancy fee for marketing of the resort of the respondent. It lends credence to the claimant's contention that the was entitled to receive Rs. 2.5/- lacs per month as consultancy fee.
34.In view of the above discussion, the Tribunal is of the view that the claimant shall be entitled to Rs.2.5 lacs per OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 43 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group month as consultancy fee for the period from 16.03.2011 to 28.06.2011 during which he provided business to the respondent."
73. A perusal of the above findings makes it evident that the Ld. Arbitrator has duly considered the objections raised by the petitioner regarding the availability of rooms and other facilities and has specifically recorded that the agreement itself acknowledged the availability of forty rooms and did not stipulate any requirement regarding conference hall or swimming pool. The Tribunal also noted that no documentary evidence was produced by the petitioner to substantiate the alleged complaints from guests regarding the condition of the resort.
74. Similarly, the learned Arbitrator has also examined the contractual arrangement between the parties, including the agreed consultancy fee and the performance expected from the claimant- Petitioner. Upon appreciation of the evidence, the Tribunal concluded that although the agreement contemplated consultancy charges of Rs.2.5 lakhs per month, the claimant-Petitioner could not be permitted to claim such charges for the entire period in the absence of actual services rendered. In order to balance the equities between the parties, the learned Arbitrator awarded consultancy charges only for the limited period during which the claimant-Petitioner had actually generated business for the resort.
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75. Thus, the learned Arbitrator has already dealt with the issues relating to the availability of facilities, the performance of contractual obligations, and the entitlement of consultancy charges in a detailed and reasoned manner.
76. In Associate Builders v. Delhi Development Authority, [(2015) 3 SCC 49], the Hon'ble Supreme Court observed that an Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do. In the present case, the petitioner has failed to demonstrate that the findings recorded by the learned Arbitrator on these issues suffer from any such infirmity. On the contrary, the award reflects a careful and reasoned consideration of the pleadings and evidence of both parties.
77. It is well settled that the jurisdiction of this Court under Section 34 of the Arbitration and Conciliation Act, 1996 is supervisory in nature and does not permit re-appreciation of evidence or substitution of the Court's view in place of that taken by the arbitral tribunal. In the guise of a petition under Section 34, the petitioner cannot be permitted to reopen or re-argue issues OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 45 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group which have already been examined and adjudicated by the learned Arbitrator after appreciation of the material on record, unless the findings suffer from patent illegality, perversity, or conflict with the public policy of India.
78. The finality of arbitral decisions is a cornerstone of arbitration. The petitioner's challenge to the award lacks substantive merit and does not meet the high threshold for setting aside an arbitral award. The Tribunal provided both parties with adequate opportunity to present their cases. The Tribunal's adherence to due process and fair hearing principles ensures that the award is not vitiated by procedural irregularities.
79. In the circumstances, I find no ground to hold that the award suffers from patent illegality or perversity. The objections are founded on re-agitation of factual disputes already adjudicated upon by the Arbitrator. This Court cannot reappreciate such findings under the limited ambit of Section 34.
CONCLUSION
80. In view of the foregoing discussion, this Court finds that the objections raised by the petitioner do not fall within the limited scope of interference contemplated under Section 34 of the Arbitration and Conciliation Act, 1996. The grounds urged by the OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 46 of 47 Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group petitioner essentially seek a re-appreciation of evidence and a reconsideration of findings already returned by the learned Arbitral Tribunal. The arbitral award reflects due consideration of the pleadings, evidence and submissions of the parties, and the findings recorded therein are reasoned and based on the material available on record. None of the objections raised disclose any patent illegality appearing on the face of the award or any violation of the fundamental policy of Indian law or public policy so as to warrant interference by this Court. All the concerns raised in the present petition have already been dealt with in detail in the arbitral award. Accordingly, the present petition seeking setting aside of the arbitral award is devoid of merit and is hereby dismissed. File be consigned to record room after due compliance.
Announced & dictated
in the open Court on this
Neelam Digitally signed
by Neelam singh
6th day of March, 2026 singh Date: 2026.03.06
16:21:18 +0530
(NEELAM SINGH)
District Judge
(Commercial Court-05)
South-East District, Saket Courts,
New Delhi
OMP(COMM) 5/2021 Satish Kumar Mishra Vs. Megha Singh Page 47 of 47
Proprietor of Queens Fairmont Corbett Bhav Ambar Vilas Group