Delhi District Court
M/S Indraprastha Travels Ltd vs M/S Delhi Tourism And Transportations on 26 September, 2024
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE-05,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
ARBTN 114/17
CNR No. DLSE01-000526-2017
M/S INDRAPRASTHA TRAVELS LTD.:
(Through its Managing Director)
Office at:
1515, Chandra Plaza Building,
B-13, Ground Floor,
Opposite Axis Bank, Defence Colony,
New Delhi .....Non-claimant
Versus
1. M/S DELHI TOURISM AND TRANSPORTATIONS
Development Corporation Ltd. [DTTDC]
18A, DDA SCO Complex,
Defence Colony, New Delhi
2. Shri C.M. Bassi,
Sole Arbitrator,
BD/3B, LIG Flats,
Shalimar Bagh West, New Delhi-110088 ....Respondent
Date of Institution : 23.01.2017
Final arguments concluded on : 21.09.2024
Date of Judgment : 26.09.2024
JUDGMENT
(1) The present petition filed by the non-claimant assails the award dated 07.03.2016 (hereinafter referred to as "the impugned judgment") ARBTN NO. 114/2017 Page no. 1 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:02:32 +0530 passed by Sh. C.M. Bassi, The Sole Arbitrator, in the Arbitration case No. (CT) 7862/93/DTTC/2004/Dt. 19.11.2009, titled as M/S Delhi Tourism & Transportation Development Corporation Ltd. [DTTDC] V/s M/s Indraprastha Travel Ltd. For the sake of convenience, parties will be referred by their original status.
(2) The factual matrix of the case is that claimant /respondent herein entered into an agreement dated 22.05.2006 with the non-claimant/non-
claimant herein. Parties are at loggerheads on the issue of nature of the agreement because as per non-claimant, it was composite trade agreement while as per claimant, it was license agreement. Initially there was no dispute and later on claimant terminated the agreement vide notice dated 13.10.2008 alleging the violation of agreement on part of non-claimant. Thereafter on 19.12.2008 non-claimant handed over the possession of premises to the claimant and on 29.06.2009 claimant appointed the sole arbitrator and presented its claim before him on 17.11.2019. The non- claimant(non-claimant herein) filed WS on 14.12.2009 and in the written statement the non-claimant disputed the agreement dated 13.10.2008 taking plea that it was a composite trade agreement or at maximum lease agreement in disguise of license agreement. The non-claimant had also raised the issue of non-compliance of terms and condition of the agreement on part of claimant and has also objected to the claim stating that non-claimant terminated the agreement vide letter dated 29.06.2007 which was not accepted by the claimant. The non-claimant had also raised the issue of no-arbitration agreement between the parties and also ARBTN NO. 114/2017 Page no. 2 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:02:38 +0530 objected to jurisdiction of Ld. Arbitrator. The claimant filed rejoinder on 03.03.2010. Thereafter, Ld. Arbitrator framed issues. Thereafter, evidence was recorded and award dated 07.03.2016, Ld. Arbitrator allowed the claim of claimant.
(3) The non-claimant had filed the present petition challenging the impugned award. The grounds on which the award has been challenged are as follows:
a) The impugned Award is illegal, unjustified, bad in law and suffer from grave error of law, apparent on the face of the record before the Ld. Sole Arbitrator. Ld. Sole Arbitrator has failed to take into consideration, and therefore has completely ignored and disregarded, the relevant material before him. On the contrary, he has taken into account completely irrelevant material.
b) The Ld. Sole Arbitrator has failed to appreciate the material on record. He has neither considered anything from the written/ oral pleadings of the parties before him, nor has he considered any document or witnesses' version(s). Ld. Sole Arbitrator has completely disregarded the cross-examinations of the Claimant's Witnesses, PW-1 to PW-4. On the contrary the cross examination of the Director of the non-claimant (DW-1), he has reproduced verbatim.
c) Ld. Sole Arbitrator has not returned any finding on any of the ARBTN NO. 114/2017 Page no. 3 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.09.26 17:02:44 +0530
issues framed by him. He has not decided any of the four (4) issues being framed by him.
d) Ld. Sole Arbitrator has not returned any finding as to how he adjudged/ decided the maintainability of the claim before him. Ld. Sole Arbitrator has not returned any finding as to how and from where he had acquired and assumed the jurisdiction which he had exercised while adjudicating the claim before him.
e) Ld. Sole Arbitrator has not returned any finding as to how the agreement dated 22.05.2006 was legally enforceable.
f) Ld. Sole Arbitrator has not returned any finding as to how the Claimant before him was/ is entitled to any relief. Ld. Sole Arbitrator has not returned any finding as to how the Claimant before him was/ is entitled to an interest on the amount claimed by it. There is nothing on the record to show as to how the rate of interest @ Rs.18% per annum was awarded by the Ld. Sole Arbitrator for the period prior to the filing of the claim by the Respondent and how the rate of interest @ Rs.10% per annum was awarded for the pendent-lite period, as also for the post Award period.
g) The Ld. Sole Arbitrator has clearly exceeded his jurisdiction by awarding damages and compensation to the tune of Rs 50,000/- and litigation expenses to the tune of Rs.25,000/-, no issues were framed with ARBTN NO. 114/2017 Page no. 4 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:02:50 +0530 regard to either damages and compensation or qua the entitlement of the litigation expenses.
h) Bare perusal of the impugned award would reveal that the Award is mechanical by its very nature, apparent on the face of it. The Ld. Sole Arbitrator has failed to appreciate that the Agreement dated 22.05.2006, from which the whole arbitration proceedings allegedly emanated, has in it absolutely unambiguous stipulations clearly showing and establishing that the agreement in question was not a License Agreement simplicitor. On the contrary, it was a "Composite Trade Agreement" being entered into between the Principal (The Respondent No. 1) and the GSA (the non-claimant), as maintained by the non-
claimant through and through before the Ld. Sole Arbitrator.
i) Ld. Sole Arbitrator has failed to appreciate that there was/ is an ample material on the record before him showing that the claimant had failed to perform its part of contact and, hence, has clearly defaulted the terms and conditions of the Agreement dated 22.05.2006.
j) Ld. Sole Arbitrator has failed to appreciate that the claimant failed to take possession of the premises in question in time despite the categoric requests for the same.
k) Ld. Sole Arbitrator has failed to appreciate that the non-claimant was entrapped by the claimant by making an utterly false representation ARBTN NO. 114/2017 Page no. 5 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:02:57 +0530 of facts. Ld. Sole Arbitrator has failed to appreciate that the Agreement dated 22.05.2006 bound the parties for a joint operation of the Information Counter in the demised premises. The Ld. Sole Arbitrator has failed to appreciate that if stipulations of the Agreement dated 22.05.2006 were read in conjunction with the cross examinations of the claimant witnesses i.e. PW-1 to PW-4, it would leave no iota of doubt in the mind of any one of reasonable prudence that it was the claimant alone which had defaulted qua the implementation of the Agreement dated 22.05.2006 and not the non-claimant.
l) The Ld. Sole Arbitrator has failed to appreciate that the Agreement dated 22.05.2006 could not be enforced, as the same was totally illegal in the eye of law.
(4) Opposition of the claimant/respondent herein
(a) Respondent contested the claim by filing detailed reply taking preliminary objections to the effect that the claim of the claimant is based on fraud and malafide; that it is expressly denied that the Agreement dated 22.05.2006 was a Composite-Trade-Agreement neither the said Agreement stated it to be a composite-trade-agreement nor the non-
claimant herein was able to prove this averment during the Arbitration Proceedings. The relation between the parties was based on the said Agreement, however, after one year itself non-claimant started asking for reversal of terms of agreement qua rent and abandoned the contract and as ARBTN NO. 114/2017 Page no. 6 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:03 +0530 large amount of rent/license fee became overdue, the claimant could not agree to this demand. When the non-claimant continued to breach the terms of the Agreement and continuously neglected the requests of the claimant to clear the outstanding dues, the claimant was compelled to terminate the Agreement vide letter dated 13. 10 2008, however, physical possession was not delivered until 19.12.2008.
(b) The award passed by the Ld. Arbitrator is legal and justified. The award has been passed by the Ld. Arbitrator by perusing all the material placed on record by both the parties, all the pleadings have been reproduced in the award and have been given due regard by the Ld. Arbitrator. The non-claimant is trying to mislead this Court by making false allegations. No error of law has been committed by the Arbitrator in passing of award. The non-claimant has failed to state any ground envisaged under Section 34(2), Arbitration & Conciliation Act, 1996 on the basis of which the setting aside of award is prayed. The non-claimant has failed to state or show in its Petition as to how the award is contrary to the material on record before the Ld. Sole Arbitrator.
(c) The Ld. Sole Arbitrator has taken into consideration all the material placed before him by both the parties including communication exchanged between the parties inter alia vide letters, perusal of which clearly shows that the non-claimant had, since the beginning, no intention of fulfilling the terms of the Agreement. The non-claimant has not filed any document during the Arbitration proceeding to support its defense.
ARBTN NO. 114/2017 Page no. 7 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:09 +0530 The Ld. Sole Arbitrator has considered all the pleadings of the parties before him, same is evident from the fact that the Ld. Arbitrator has reproduced every pleading of both the parties in the award dated 07.03.2016. The non-claimant did not file any document with his pleadings during the arbitration and all the documents including the letters exchanged between the parties were filed by the claimant. The non-
claimant did not even file written synopsis.
(d) The Ld. Arbitrator has reproduced the cross- examination of DW-1 in the award to bring forth the inability of the non-claimant to corroborate the averments made by its witness in its defense during the arbitration proceedings. It has been expressly mentioned in para 17 of the award that the cross-examination of DW-1 was relevant for the Ld. Arbitrator to arrive at a conclusion of the matter as it, instead of proving its defense proved the case of claimant. It is submitted that the cross examinations of the PW-1 to PW-4 sufficiently proved and reaffirmed whatever had been stated in their evidence affidavits and there were no contradictions, by reason of which the Ld. Arbitrator has not find it necessary to reproduce. The Ld. Arbitrator has specifically stated in para 12 of the award that it has gone through the pleadings, documents and affidavits as well as cross examination and written synopsis Moreover, it is a settled law that the supervisory role of the courts for the review of arbitral award is limited. The Hon'ble Supreme Court in re P.R. Shah Shares & stock Brothers Vs. M/s BHH Securities (P) Ltd. ((2012) 1 SCC 594) has stated that "a court does not sit in appeal over the award of an arbitral tribunal by re assessing ARBTN NO. 114/2017 Page no. 8 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:16 +0530 or re approaching the evidence".
(e) It has been further stated that in para 17 of the Award dated 07.03.2016 the Ld. Arbitrator has clearly stated that "the non-claimant had not only failed to discharge the onus of proving the issues framed at its instance, in fact the cross-examination of the claimant's witness has proved the case of the claimant. The claimant has also proved the issues which it was required to do so". Therefore, it is apparently wrong that the Ld Sole Arbitrator has not returned any finding on any of the issues framed by him. Ld. Arbitrator has reproduced the cross examination Shri JN Deld in order to show as to how the non-claimant failed to discharge the onus of proving the issues.
(f) The Ld Arbitrator has clearly stated that the Claimant, through various affidavit of witnesses proved inter alia the agreement, letters of request by non claimant, reminder letters of payment, letter of intended abandonment, letter of termination conditions at the time of execution of the contract and the intent of the same in addition to the documents whereas the non-claimant did not even file any document and gave oral evidence that was contradictory to its case. It is further submitted that the Ld Arbitrator was appointed in terms of clause 33 of the Agreement dated 22.05.2000, signed by both the parties. The non-claimant has failed to show as to how the claim was not maintainable, arbitrator did not have jurisdiction or Agreement dated 22.05.2000 was not enforceable.
ARBTN NO. 114/2017 Page no. 9 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.09.26 17:03:22 +0530
(g) It has been further argued that a finding as to how and from where the Arbitrator had acquired his jurisdiction cannot be asked for, in a case wherein the non-claimant has already given his unconditional consent to his appointment and jurisdiction by signing the Agreement containing the Arbitration Clause, Le Clause 33 of the Agreement dated 22.05.2006. The non-claimant expressly gave its consent to the adjudication of the dispute and differences arising out of any way touching and concerning the said agreement by the Ld Sole Arbitrator in any event, the non-claimant had not taken any legal recourse to challenge the jurisdiction or adjudication by the Ld. Arbitrator during the pendency of proceedings, therefore, the non-claimant is estopped from challenging the same in any manner at this stage. In the case of Raipur Development Authority vs. M/s Chokhamal Contractors & ors. (1990 AIR 1426) the Hon'ble Supreme Court has observed that the Arbitrator's adjudication is considered binding between the parties, as he is a tribunal selected by the parties themselves.
(h) It has been further argued that the Agreement dated 22.05.2006 is a legally valid agreement by virtue of it being voluntarily signed by both the parties. The non-claimant in its cross-examination during the arbitration proceedings admitted to have signed the said agreement, which part of cross examination has been reproduced by the Ld. Arbitrator in the impugned award. The position of law in this regard is that any agreement consisting of an offer and consideration towards the offer, willfully without any coercion or undue influence signed by the parties is a legally enforceable document. The non-claimant has even acted upon this ARBTN NO. 114/2017 Page no. 10 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:28 +0530 agreement when he took the possession of the premises under license, operated the site and paid the rent for initial months, however, when things turned unfavorable and did not go as per its will, it is challenging the enforceability. Moreover, the non-claimant has failed to state any ground in the present Petition which proves that the said Agreement is not legally enforceable.
(i) It has been further argued that the Ld. Arbitrator is entitled to adjudicate all the disputes including interest due to delay in payment between the parties pertaining to the said Agreement under Clause 33 of the Agreement dated 22.05.2006. Apart from this, Clause 32 of the said Agreement expressly prescribes a rate of interest @18% p.a. for delayed payment. Also an Arbitrator is empowered under Section 31 (7a), Arbitration & Conciliation Act, 1995 to award the interest at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which cause of action arose and the date on which the award is made. Moreover, no explanation can be sought for the rate of interest awarded by the Ld. Sole Arbitrator as it is a discretionary power. The non-claimant has not stated any ground or provision of law on which basis it is questioning the interest part of the award.
(j) It has been further argued that there was no prescribed limit for the jurisdiction of the Ld Arbitrator and adjudication of all the matters, direct of incidental to the disputes and differences arising out of the said ARBTN NO. 114/2017 Page no. 11 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:38 +0530 agreement were within his jurisdiction. An issue namely issue no 4 was framed regarding the entitlement of the Claimant to the relief/claim as per the Statement of Claim and it is under this issue that the Ld Arbitrator has awarded the claimant the compensation and cost of litigation as these were the part of claimant's claim. It is evident from the records that the claimant has suffered loss due to non fulfillment of the terms of Agreement by the non-claimant, therefore, the damages/compensation and cost of litigation awarded are reasonable Moreover, the non-claimant has failed to produce any authority which states that Arbitrator does not have power to award damages, compensation and cost of litigation.
(k) It has been further argued that the Ld. Arbitrator has given clear findings on the basis of the material placed on record by both the parties, oral as well as documentary. Further, merely stating that award is allegedly mechanical could not be a ground for setting aside it unless it is proved by sufficient proofs. In re Bharat Coking Coal Ltd., ((2004) 5SCC
109) the Hon'ble Supreme Court observed that "when the Arbitrator has applied its mind to the pleadings, the evidence adduced before him and the terms of contract, there is no scope for the court to reappraise the matter as if this were an appeal and even if two views are possible, the view taken by the arbitrator would prevail.
(l) It has been further argued that the Agreement dated 22.05.2006 was not the composite trade agreement, instead it was the license agreement The Agreement itself nowhere slates it to be the composite trade ARBTN NO. 114/2017 Page no. 12 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:45 +0530 agreement in fad during the arbitration also the same averment was made by the non-claimant, however, it miserably failed to prove it either by any document of by witness it is submitted that the terms and language of the Agreement are matter of record and it is not clear as to what benefit the non-claimant would derive by changing the nature of the agreement In fact, the the of the Agreement itself states it to be a License Agreement therefore there is no question of ascertaining the agreement to be Composite Trade Agreement. The Agreement was purely license agreement and not for the purpose of joint trade.
(m) It has been further argued that the claimant being a govt body invited the applications by way of advertisement and it was the non-
claimant which willfully applied for granting of the license vide its letter dated 10.11.2005, the same fact is stated in the Agreement also. No false representations were made by the claimant, on the contrary it appears that the non-claimant never had any intention of honoring the Agreement's terms and had presumed that they would be able to get away by paying a lower rate, upon being unable to achieve this ulterior motive they abandoned the contract. The non-claimant, during its evidence also failed to point out as to what false representations were allegedly made by the claimant.
(n) It has been further argued that during the cross examination of CW- 2 Sh. SK Pandey, he stated that one staff of the claimant was always there in the premises in question while the non-claimant operated from it, ARBTN NO. 114/2017 Page no. 13 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:51 +0530 therefore, it is wrong to say that the claimant did not comply with the term of the Agreement dated 22.05.2006. The Ld. Arbitrator has duly considered this evidence by the claimant.
(o) It has been further argued that the claimant had deployed one staff member at the premises and the same was proved during the oral evidence of the claimant. The Ld. Arbitrator has considered the cross- examination of the claimant's witnesses before arriving at a conclusion. The evidences clearly supported the case of the Claimant and proved that they complied with the terms of the agreement. Moreover, in the case of ONGC Vs. Saw Pipes Ltd., ((2003) 5 SCC 705) the Supreme Court has observed that "a possible view by the Arbitrator on facts has to necessarily passed muster as the Arbitrator is the ultimate master of the quality and quantity of the evidence to be relied upon when he delivers his arbitral award. Thus, an award based on little evidence or on evidence which does not measure up in quality to trained legal mind would not be held to be invalid on this score."
(p) It has been further argued that no question can be raised about the enforceability of the contract as the Agreement dated 22.05.2006 is a valid contract as per the provisions of Indian Contract Act, 1872. The non-
claimant has admitted during the Arbitration proceedings, to its signing e influence.
(q) It has been further argued that the present Petition is not ARBTN NO. 114/2017 Page no. 14 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:03:58 +0530 maintainable as does not invoke any of the grounds stipulated under clause 243 of Section 34, Arbitration & Conciliation Act, 1996. The Arbitration proceedings were conducted under a valid Arbitration Agreement signed willfully and unconditionally by the non-claimant. The Ld. Arbitrator has taken into account all the submissions made by both the parties, oral or documentary. while passing the award. In the case of Associate Builders vs. DDA (2014 SCC OnLine SC 937), the Hon'ble Apex Court held that "unless there is a patent illegality or perversity or violation of Principle of natural justice, the award cannot be interfered with." In the case of Utpal Dass Gupta Vs. Mrinal Kanti Sinha & Ors., (APO 345 of 2016) the Hon'ble Calcutta High Court held that "when the Arbitrator has considered all aspects of the matter and appreciated the evidence before passing an award the Court cannot reappraise or re- appreciate the evidence as if acting as in Appellate authority in scrutinizing the award."
(r) The claimant/respondent herein has relied upon the judgments which are as follows:
1. P.R. Shah Shares & Stocks Brother Vs. M/s BHH Securities (P) Ltd. 2012 1 SCC 594;
2. Raipur Development Authority Vs. M/s Chokhamal Contractors & Ors. (1990 AIR 1426)
3. In re Bharat Coking Coal Ltd. (2004) 5 SCC 109);
4. ONGC Vs. Saw Pipes Ltd. (2003) 5 SCC 705;
5. Utpal Dass Gupta Vs. Mrinal Kanti Sinha & Ors. (APO 346 of 2016;
6. Oil & Natural Gas Corporation Ltd. Vs. SAW Pipes Ltd.
7. McDermott International Inc. Vs. Burn Standard Co.
ARBTN NO. 114/2017 Page no. 15 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:04:04 +0530 Ltd. 2006 11 SCC 181 (Supreme Court of India);
8. National Highways Authority of India Vs. Gammon India Ltd. FMA 2536 of 2013 (Calcutta High Court);
9. CMDR S.P. Puri Vs. Alankit Assignments Ltd. 2008 (3) Arbitration Law Reporter, 465 (Delhi High Court);
10. State of Rajasthan Vs. Puri Const. Pvt. Ltd. (1994) 6 SCC 485 (Supreme Court of India);
11. Natwarlal Shamaldas & Co. Vs. Mineral and Metals Trading Corp. of India Ltd.
12. Easter and North East Frontier Railway Co-op Bank Ltd. Vs. B. Guha and Co.;
13. Associate Builders Vs. DDA (2014 SCC on Line SC
937);
14. MMTC Ltd. Vs. M/s Vedanta Ltd. (Civil Appeal No. 1862/2014) SC;
15. CMDR S.P. Pur Vs. Alankit Assignments Ltd. 2008 (3) Arbitration Law Reporter, 465 (Delhi High Court);
16. M/s Revechee & Co. Vs. UOI (Civil App. Nos.
5964-5965 of 2018);
17. M/s Ravechee & Co. Vs. UOI (Civil App. Nos. 5964-5965 of 2018;
18. Bharat Coking Coal Ltd. (2004) 5 SCC 109;
19. Fiza Developers & Inter Trade Pvt. Ltd. Vs. AMC(I) Pvt. Ltd. & Anr. (SLP © No. 16281 of 2009);
20. (5) Written submissions have been submitted by the claimant(respondent herein).
(6) I have heard Ld. Counsel for the parties and perused the record.
(7) It is settled principle that this Court in present jurisdiction cannot re-appreciate the evidence nor could look into merits of the case. The scope of interference under Section 34 of Arbitration and Conciliation Act with Arbitrator's award is very limited. The Court would not be justified in reappraising the material on record and substituting its own view in ARBTN NO. 114/2017 Page no. 16 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:04:11 +0530 place of the view taken by Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail as held by Hon'ble Supreme Court of India in various cases. The judgments relied upon by the claimant reiterated the same principles, therefore, Court cannot reevaluate the evidence advanced before Ld. Arbitrator.
(8) It is also settled principle that Ld. Arbitrator is master of his case and this Court in its capacity Section 34 of Arbitration and Conciliation Act does not sit in appeal over the arbitral award.
(9) Before analysis of the case, the extract of issues as well as findings of the award are reproduced as under:
Issue no. (1) : Whether the present claim is not maintainable? (OPR) Issue no. (2) : Whether the proceedings before the Arbitrator are without jurisdiction?(OPR) Issue no. (3) Whether the agreement dated 25.05.2006 is not legally enforceable before the Arbitrator?(OPR) Issue no. (4) Whether the claimant is entitled to claim/relief as per statement?(OPC) Issue no. (5) Whether the claim is entitled to any interest, if yes, to what an extent/rate?OPC.
(all the issues pertain to claim of the claimant) Findings:
The cross examination of Shri JN Behl is relevant in my opinion to come to any conclusion regarding the outcome of the matter. It is reproduced as under:
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2024.09.26 17:04:18 +0530 "I admit my signatures on the agreement dated 22.05.2006 including the handwritten note on the second page. "Yes"
Letter dated 8.6.2007.
"yes"
Did you write letters to dittc in the first year saying the that circulars /mailers were not being sent by DTTDC. "I DON'T REMEMBER"
did you ever write any letter to dttde saying the staff of the Claimant was not present on the premises "I don't know"
Did you ever write any letter regarding your signage on the premises "I have said verbally many times"
Did you ever write any letter to the Claimant that the scheme of marketing /promotion was not discussed between them and you "verbally I have said"
Did you ever write any letter to DTTDC saying they had not extended any help in setting up the business "I do not know. Verbally I have said many times" Were you under any coercion to sign the agreement "no"
Did you vacate the premises after your letter dated 29 June 2007 "how could I vacate the premises whenbody came to take the possession."
Did you take any action after your letter dated 21.11.2007 "verbally I said many times to make the bills payment" Did you take any action in terms of your letter 21.11.2007 and claimants letter 27.11.2007"I don't know" Did you vacate the premises with reference to your letter dated 6.11.2008 "I don't know"
When did you actually vacate the premises "I don't remember"
Did you ever make any police complaint or write any letter to DTTDC saying that you have been forced or misled into signing the ARBTN NO. 114/2017 Page no. 18 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:04:24 +0530 agreement "I don't know"
Was there any clause in the agreement that if you invested in the premises the licence fees would be lowered "I have to see the agreement he says it does not appear that there is any such clause after seeing the agreement"
Does the agreement anywhere say it is a composite trade agreement "I have to go through the agreement"
Were the premises handed over to you on a as is where is basis "yes"
Was any other document regarding the agreement signed between the parties "don't know"sid you act upon the agreement after signing it "yes I did"
Have you filed any counter claim "no I have not"
17. From a perusal of the above it is evident that the Respondent has not only failed to discharge the onus of proving the issues framed at its instance, the above cross examination of the only witness proves that the case of the Claimant, In any event the Claimant has also proved the issues which it was required to do.
I, therefore, in view of the foregoing discussion come to the following conclusion and make the following award.
(10) From the above mentioned record, it is clear that Ld. Arbitrator had not given findings on each and every issue. The Ld. Arbitrator had framed issues qua the maintainability of the claim, as to the jurisdiction of the Ld. Arbitrator as well as the issue as to enforceability of agreement dated 22.05.2006. However, Ld. Arbitrator had not decided these issues in detail with proper reasoning and only after reproduction of cross examination of DW-1, one para findings (which is highlight above) has been given ARBTN NO. 114/2017 Page no. 19 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:04:30 +0530 without giving any reasoning or any analysis of the cross examination of DW-1 and the same is not justified and it cannot be said to be a reasoned orders/judgment.
(11) The Court is not in agreement with the plea of claimant that once the non-claimant has participated in the arbitration proceedings, he cannot challenge the jurisdiction of Ld. Arbitrator. It is settled principle that non-
claimant has every right to challenge the jurisdiction of Ld. Arbitrator and merely because non-claimant has admitted the signing of agreement, it does not ipso facto grant jurisdiction to the Ld. Arbitrator. Moreover, once a specific issue with respect to jurisdiction of Ld. Arbitrator has been framed, Ld. Arbitrator was under the legal liability to decide the issue with proper reasoning.
(12) Thus, the perusal of impugned award shows that there are patent defects in the award and the defects are so apparent as to say that award is biased or perverse because Ld. Arbitrator had not given any specific findings upon each and every issue which is grave injustice on the face of the record. Therefore, in the opinion of this Court, there is patent illegality in the award and there is gross error of law making it against the public policy of India as it is settled principle that once an issue has been framed, there has to be specific and detailed reasoning /finding upon each and every issue.
(13) I have gone through the judgment relied upon by the claimant. The ARBTN NO. 114/2017 Page no. 20 of 21 Dated 26.09.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:04:36 +0530 judgments reiterated the well settled principles. However, apart from the well settled legal principles set in the judgments, those are not applicable to the facts in hand as in the present arbitral award there is patent illegality in the award as there is no reasoning or issue wise findings and only after reproduction of entire pleadings and issues, Ld. Arbitrator has reproduced the cross examination of DW-1 and has given the finding that in view of cross examination of DW-1, non-claimant has failed to prove his part of burden of proof, without appreciation of evidence.
CONCLUSION (14) Accordingly, the present petition Section 34 of Arbitration and Conciliation Act as pressed into service by the non-claimant is allowed and the impugned award passed by the Sole Arbitrator dated 07.03.2016 is hereby set aside. The petition stands disposed off accordingly. Parties to bear their own cost. File be consigned to record room after necessary compliance. Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.09.26 17:04:43 +0530 Typed to the direct dictation and (Prabh Deep Kaur) announced in the open court DJ-05, South East District on this 26th September 2024 Saket Courts, New Delhi ARBTN NO. 114/2017 Page no. 21 of 21 Dated 26.09.2024