Delhi High Court - Orders
Kayo Enterprises Pvt. Ltd vs Indian Tourism Development ... on 22 December, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~4 (2021)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 1110/2021
KAYO ENTERPRISES PVT. LTD. ..... Petitioner
Through: Ms Avnish Ahlawat, Advocate.
versus
INDIAN TOURISM DEVELOPMENT CORPORATION
LTD ..... Respondent
Through: Mr Anish Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 22.12.2021
1. The petitioner has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter the 'A&C Act') praying that an arbitrator be appointed to adjudicate the disputes between the parties.
2. On 16.01.2017, the respondent had issued a Notice Inviting Tenders (NIT) for giving on license the operation of an International Cuisine Restaurant and Bar/Lounge Bar with Discotheque/Night Club in its unit, Hotel Samrat.
3. The petitioner had submitted a bid pursuant to the said NIT and was declared successful.
4. The respondent issued a Letter of Intent (LOI) dated 05.10.2017, in favour of the petitioner and called upon the petitioner to submit the security deposit equivalent to six months minimum guaranteed amount - partly in Signature Not Verified Digitally Signed By:DUSHYANT RAWAL cash and partly by a bank guarantee.
5. The petitioner states that it had deposited a sum of ₹2,01,67,380/- in cash being three months minimum guarantee amount. It had also furnished a bank guarantee for an equivalent amount.
6. On 06.01.2018, the parties entered into a License Deed and possession of the demised premises (area admeasuring 1584.35 sq. meters) was handed over by the respondent to the petitioner. This included a shed area of 230 sq. meters. The petitioner claims that due to various actions taken by NDMC, it was unable to operationalise the club in the said hotel. The petitioner also states that certain other disputes have arisen between the parties in connection with the said License Deed.
7. On 17.06.2021, the petitioner issued a notice invoking the Arbitration Clause as embodied in Clause (V)(2) of the License Deed. The said Clause is set out below:
"(V)2. In respect of any other dispute or difference relating to the terms of his License Deed, the matter shall be referred to the Chairman & Managing Director of ITDC for appointment of an Arbitrator as per the provisions of Arbitration and Conciliation Act, 1996. The said Arbitrator shall act under provisions of the Arbitration and Conciliation Act, 1996 as amended from time to time. Except as above, only Delhi Courts will have jurisdiction."
8. However, the parties have been unable to concur on the appointment of an arbitrator.
9. The learned counsel appearing for the respondent states that there is Signature Not Verified Digitally Signed By:DUSHYANT RAWAL no objection if an arbitrator is appointed. He, however, states that this would be without prejudice to the respondent's right to pursue the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
10. The scope of examination under Section 11 of the A&C Act is limited. In the present case, there is no dispute as to the existence of an arbitration agreement. It is also apparent that the petitioner had invoked that agreement to refer the disputes to arbitration. In this view, this Court considers it apposite to allow the present petition.
11. Accordingly, Justice (Retired) Badar Durrez Ahmed, a former Chief Justice of Jammu and Kashmir High Court (Mobile No. 7042205786) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties as falling within the scope of the Arbitration Clause as set out above. This is subject to the learned Arbitrator making the necessary declaration under Section 12(1) of the A&C Act and not being ineligible under Section 12(5) of the A&C Act. The parties are at liberty to approach the learned Arbitrator for further proceedings.
12. It is clarified that all rights and contentions of the parties are reserved.
VIBHU BAKHRU, J DECEMBER 22, 2021 RK Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:DUSHYANT RAWAL