Uttarakhand High Court
Ombir Singh vs Ms Mdda Ramky Isbt Ltd on 15 September, 2016
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No.466 of 2016
Ombir Singh
.... Appellant
Versus
M/s MDDA Ramky ISBT Ltd.
.... Respondent
Mr. Neeraj Garg, Advocate, for the appellant.
Mr. Pooran Singh Rawat, Advocate, for the respondent.
Hon'ble Servesh Kumar Gupta, J.
Having heard the rival contentions, it transpires that a vast area of land near Inter-State Bus Terminal (ISBT) was given by Mussoorie Dehradun Development Authority (MDDA) to a Hyderabad based Company, known as RAMKY, for developing a Complex having as many as -63- shops including a Food Court. That food court, sprawling in the area of 12121 square feet, including a structured shop, was given to the appellant Ombir Singh, either under a sub-lease or a licence (the nature whereof to be determined later). Appellant further spent a huge amount to the tune of Rs.1.75 crores to develop the same in order to make it functional. An agreement dated 2.8.2011 was also entered into between the appellant and the respondent to this effect wherein it was stipulated that a sum of Rs.3.63 lakh per month shall be payable by Ombir Singh to the respondent in lieu of taking possession over such food court.
2Unfortunately, that complex could not attract other persons to enter and run rest of 62 shops or most of the shops, whatever, so, as a natural consequence, it could not be a place for the crowd so that the business of the appellant could have run smoothly and roaringly. The ultimate result was that Ombir Singh became defaulter and he could not pay such a huge monthly amount to the respondent.
An application, under Section 9 of the Arbitration & Conciliation Act, was moved on 11.7.2014 by Mr. Ombir Singh, wherein, the direction was issued that the respondent will restore the water/ electricity connection in the food court of the appellant, and the latter will make regular payment of Rs.3.60 lakh per month as Licence Fee including the arrears of electricity and water dues.
M/s MDDA Ramky ISBT Ltd. moved an Arbitration Application No.39 of 2014 in the High Court, wherein, a co-ordinate Bench of this Court, vide order dated 19.3.2015, referred the matter for arbitration and a retired District Judge, Uttarakhand was appointed to conduct the arbitral proceedings.
A claim petition was filed by M/s MDDA Ramky ISBT Ltd. with the prayer that Mr. Ombir Singh be directed to pay Rs.2,19,00,740/- (Rupees two crore nineteen lakh seven hundred and forty only) as arrears of the licence fee and a further prayer to evict him from the premises, in question, was also made.
At the same time, counterclaim was also raised by Ombir Singh.
3While the arbitral proceedings were still pending adjudication, in between, M/s MDDA Ramky ISBT Ltd. moved an application on 11.8.2015 under Order XII Rule 6 r/w Section 151 CPC, wherein, an interim award has been made by the Arbitrator on 5.12.2015, whereby and under, appellant has been directed to vacate the disputed property within two months.
Thereafter, another application was moved by M/s MDDA Ramky ISBT Ltd., under the selfsame provisions of the Code, with the prayer that the appellant should also be made to pay the arrears of licence fee. However, such application was rejected by the Arbitrator vide his order dated 11.6.2016.
Subsequent thereto, against the interim award dated 5.12.2015 passed by the Arbitrator, appellant filed objections under Section 34 of the Arbitration Act, which have been rejected by learned District Judge, Dehradun vide the impugned order dated 8.8.2016.
Having considered the pros and cons of the merits of the case, this Court is of the opinion that the monthly payment of Rs.3.63 lakh or Rs.3.60 lakh, whatsoever may be, although was stipulated under the Agreement dated 2.8.2011, but it was under the ideal/ normal circumstances, anticipating that all the sixty three shops will be occupied by the tenants/licensees and a huge crowd will be attracted in that complex. It could not be foreseen that none of the stakeholders will come forward to run rest of the shops. So, it will be quite harsh to force the appellant-Ombir Singh to pay 4 the same amount, as agreed, either in the form of lease or the licence fee.
It is further difficult to understand that even before the claims and counterclaims could be adjudicated on merits after rendering the opportunity of hearing to the parties to produce their respective evidence, learned Arbitrator was pleased enough to pass the interim award on 5.12.2015, asking the appellant to vacate the premises, in question, within two months, because in my opinion, no such urgency was warranted to frustrate the entire arbitral proceedings, had such an interim award been not passed.
So, in view of what has been set forth above, I set aside the impugned interim award dated 5.12.2015 passed by the Arbitrator as well as the impugned order dated 8.8.2016 passed by the District Judge, Dehradun.
However, I direct the appellant to pay a sum of rupees fifty thousand per month to the respondent w.e.f. 11.7.2014 regularly by the 10th of each English calendar month. The arrears, so fallen due on him since 11.7.2014, till date, shall be paid by him in four equal installments, each having time gap of at least two months.
Rest of the amount of arrears, if determined by the arbitral award, shall be the subject of controversy, to be settled by the Arbitrator.
5In no case, the appellant shall henceforth be asked to vacate the premises, in question, till the matter is finally adjudicated.
In addition to the above, appellant shall not be subjected to any coercive measures even, like disconnection of water and electricity supply at his shop. However, whatever the charges of electricity and water consumption become due, he shall pay the same to the concerned authorities and not to the respondent.
If the electricity/water connection is lying disconnected, that shall be restored by the respondent or all concerned forthwith without any delay.
Subject to above directions, the appeal stands finally disposed of.
(Servesh Kumar Gupta, J.) 15.09.2016 Rdang