Indian Kanoon - Search engine for Indian Law

2 Vide letter no. F(13)(29)/2005/ISBT/668 dated 19.12.2007, respondent no.1 was informed that the site in question would be handed over CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 2/42 to him on 24.12.2007 from the previous contractor Mr. Anil Kumar. Copy of handing over taking over is Annexure P-3. After about three months from the date of handing over, respondent no.1 wrote a letter dated 12.03.2008 in which he stated that the area of parking site was less and the license fee should be reduced in terms of Clause 22 of the agreement. Similar letter was sent by respondent no.1 dated 04.06.2008 and 11.06.2008. Copy of abovementioned three letters are Annexure P-4 (colly). Transport department vide letter no. F(13)(29)/2005/ISBT/414 dated 08.07.2008 intimated the respondent no.1 that allotment of parking site had been made on "as is where is basis" and therefore there was no reason for respondent no.1 to claim otherwise. In response, respondent no.1 vide letter dated 11.07.2008 once again made the same request as made earlier. In the meanwhile, due to renovation/reconstruction work to be carried at ISBT, Sarai Kale Khan, New Delhi on account of coming commonwealth games, respondent no.1 was directed to shift to another parking site vide letter no. F(13) (29)/2005/ISBT/449 dated 18.07.2008. But the respondent refused on one pretext or other. Ultimately, vide letter dated 18.08.2008, petitioner called upon respondent no.1 to shift to new site failing which agreement would be terminated in terms of clause 21 and 42K of the agreement. Copy of letter dated 18.07.2008 and 18.08.2008 are Annexure P-6 (Colly). Instead of complying, respondent no.1 filed OMP 429/2008 before Hon'ble Delhi High Court seeking restraint on his eviction. The same was disposed off with the direction that the petitioner/objector shall not dispossess respondent no.1 CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 3/42 from the parking site till 24.01.2008. Thereafter, respondent no.1 filed arbitration application bearing no. 306/2008 before Hon'ble High Court under Section 11 (6) of Arbitration and Conciliation Act for appointment of arbitrator. Respondent no.2 entered upon reference vide his letter dated 15.10.2008 and directed respondent no.1 to file his written statement of claim. Instead of filing statement of claim, respondent no.1 filed an application under Section 17 of Arbitration and Conciliation Act dated 06.11.2008 seeking restraint on his eviction from the parking site. The petitioner filed reply pointing out that period of contract has expired on 24.11.2008 and the arbitration proceedings may not be for extension of the contract. During the hearing of this application on 18.12.2008, respondent no.1 stated that he may be permitted to continue to operate the parking on payment of 10% over and above the contracted rate. Vide order dated 28.08.2009, Ld. Arbitrator directed the petitioner to inform the charges that are leveled upon a person whose contract period had expired. By virtue of the same order, the arbitrator directed that until further orders or until the award of the site to another contractor, claimant may remain in occupation subject to payment of all valid charges.

F. Ground F of the objection petition under reply is wrong, baseless and denied. It is specifically denied that Ld. Arbitrator did not appreciate the specific terms and conditions of the agreement between the parties or that agreement that the respondent and petitioner was valid till 24.11.2008. Even CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 18/42 during the period of 11 months of the agreement, grievance of the respondent was made known to the petitioner regarding the difference in the area and other mitigating factors but these grievances were not addressed. On the contrary, the respondent was issued a letter to shift his parking site to another place. But continuation of the agreement beyond 24.11.2008 was only under the order passed by Ld. Arbitrator on 28.08.2009. G. Ground G of the objection petition under reply is wrong, baseless and denied. It is specifically denied that the occupation of parking site by respondent no.1 from 24.11.2008 till 19.03.2010 was illegal or that payment made by respondent no.1 could be adjusted towards the damages. It is submitted that occupation of parking site by respondent no.1 till 19.03.2010 was only under the consent given by the petitioner because Ld. Arbitrator had specifically mentioned in his order dated 28.08.2009 that there was likeness of compromise between the parties and also that the respondent could continue the occupation of the parking site till it was allotted to another contractor. Even this order was not challenged by the petitioner. H. Ground H of the objection petition under reply is wrong, baseless and denied. It is specifically denied that respondent no.1 should be held liable to pay any damages after expiry of contract. Continuation of the possession of parking site was only in conformity of order dated 28.08.2009 which should be read as a whole to understand all the circumstances at that time. Order dated 28.08.2009 shows that both the parties at that time were trying to sort out the matter amicably. If the order of learned arbitrator to CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 19/42 allow the respondent no 1 to continue to remain in possession of the parking site was cannot be termed illegal then the possession of the parking site before the order also cannot be allowed to be called illegal. Moreover, it is the admitted case of the petitioner that the parking site was not allotted to any other person. Therefore, it would be against the public policy to allow the site to be remained vacant and untilised rather than let it be used for the facility and the convenience of the public. The parking sites exist for the benefit and use of the public and not to serve the petitioner. Ld. Arbitrator still observed in the said order that the occupation of the respondent no.1 could continue only upto such a point till when the parking site could be allotted to another contractor.

I. Ground I of the objection petition under reply is wrong, baseless and denied. It is specifically denied that order dated 28.08.2009 passed by Ld. Arbitrator was illegal in any manner. It is submitted that petitioner could not illicit any response from anyone for the said parking site even after getting published a notice.

J. Ground J of the objection petition under reply is wrong, baseless and denied. It is specifically denied that the Ld. Arbitrator travelled beyond the scope of agreement or order of reference dated 20.08.2008 in any manner. It is denied that Ld. Arbitrator erred in allowing claim no.9 or claim no. 11 or any awarding interest @ 9% or that the Arbitrator had not dealt with the contention of the petitioner/objector or that the amounts paid by respondent no.1 could be adjusted towards the damages for use and CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 20/42 occupation by the respondent. It is submitted that amount of Rs.20,96,820/- has been rightly awarded in favour of the respondent as claim of Rs.18,18,362/- had been awarded in favour of respondent towards the excess amount received by the petitioner from the respondent; an amount of Rs.40,000/- had been awarded towards cost of the litigation and amount of Rs.2,36,358/- towards security amount deposited by respondent himself. It is respectfully submitted that admittedly the area of parking site allotted to respondent was 2800 sq. meters and the actual area handed over was just 800 sq. meters. Ld. Arbitrator has calculated refund on the basis of 2/3rd of the license fee paid by the respondent was liable to be refunded to him, therefore, the order of Ld. Arbitrator cannot be said to be wrong in any manner. Even, the rate of interest @ 9% per annum as awarded cannot be said to be illegal. The security deposited by respondent at the time of entering into the contract is also liable to be refunded. K. Ground K of the objection petition under reply is wrong, baseless and denied. It is specifically denied that arbitral award is liable to be set aside or that the arbitrator was not competent to award the proportionate deduction in the amount of license fee for the period of 11 months. The order of Ld. Arbitrator passed on 28.08.2009 to allow respondent to continue in possession of the parking site till it was allotted to another contractor is a matter of record. Had the Ld. Arbitrator not passed such order dated 28.08.2009, petitioner would not have received even a penny for the said parking site till 19.03.2010 as petitioner had failed to allot the said parking CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 21/42 to any contractor despite trying its best.

34 I have gone through arbitral award passed by the learned arbitrator. In the award it is mentioned that before participating in the tender, the claimant visited the site to ascertain the outcome of vehicles in the hope that in addition to the parking site being run by the parking contractor Mr Anil Kumar, remaining space at other place or nearby also be given to the successful bidder by which he would be able to fetch more earnings from the parking. Accordingly, the claimant offered his highest bid of ₹ 78786/- and was declared as a successful bidder. Agreement was executed containing the terms and conditions of the operation of the parking site. It is mentioned in the award that the claimant at the time of taking possession of the parking site, noticed that the tender was invited for 2800 m² area of the parking site and considering this point in mind, claimant had submitted its proposal of licence fee in his tender form and was declared as the highest bidder. But contrary to that, the petitioner handed over a small area of approximately 800 m² which is hardly 30% of the total area. Area measuring 2800 m² was to be allotted in terms of agreement and the same was pointed out to the official who was present at the time of handing over the possession of the site. It was mentioned that the petitioner had deliberately failed to grant CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 37/42 remission in the licence fee as provided in clause 22 of the agreement and also failed to provide balance area of about 2000 m². In para number 8 of the arbitral award, the learned arbitrator had mentioned the disputes/claims which had arisen between the parties which are covered within the purview of the arbitration clause and is liable to be adjudicated upon by the arbitrator. 35 When the claimant/respondent number 1 wrote letters to the petitioner regarding allotment of less than the promised area for the parking site along with other problems that were being faced by respondent number 1 at the parking site, the petitioner through its letter dated 8 July 2008 responded to the claimant by stating that the parking site was handed over to the contractor on "as is where is basis" and the monthly license fee cannot be altered midway of the contract as per the terms and conditions of the contract. To this the claimant/respondent number 1 replied through letter dated 11 July 2008 which is exhibit CW 1/6 in the award that the agreement does not find any clause mentioning that the parking site is being handed over on "as is where is basis". The learned arbitrator discussed all the relevant clauses of the agreement dated 25 May 2007 more specifically clauses number 21, 22 and 42 at length in the arbitral award. It was stated that clauses number 21 and 42 are of no avail to the respondents because these clauses do not deal with the situation where the respondents do not hand over the complete site to the contractor. There is no specific clause which deals with a situation where the respondents for any reasons do not hand over the complete site to the claimant. There is no such clause dealing CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 38/42 with "as is where is basis". However, clause number 22 has relevance to the present situation as it reads as under, "22. That the licensor reserves the right to increase or decrease the area of cycle/motorcycle/scooter/car and 2 wheeler motor vehicles parking sites at ISBT Delhi in public interest and the licence fee thereof shall be increased or decreased by proportionate amount and shall be payable by the licensee". 36 This clause entitles the licensor namely the petitioner to increase or decrease the area of the parking site and the licence fee by proportionate amount. Nowhere, the respondents have denied the claimant contentions that only one third of the site was actually handed over to the claimant though it is not so specifically mentioned in the handing over taking over note dated 24th of December 2007. The claimant had made a request to the official of the petitioner to measure the site handed over to him and repeated this fact in his letter dated 12 March 2008. However, the respondents never measured the site actually handed over to the claimant and took the plea of handing over the site on "as is where is basis" and refused to reduce the licence fee by taking the plea that the monthly license fee cannot be altered midway of the contract. The conclusion arrived at by the Ld. Arbitrator that the petitioner had failed to handover the complete area of the parking site to the respondent no 1 and had given only 800 sq mts instead of 2800 sq mts is correct. The decision of the arbitrator to grant remission to the tune of 70 % to respondent no 1 is also correct along with his decisions in claims no 9 and 11. Therefore it means that the respondent CS No. 619577/16 Delhi Transport Infrastructure Development Corp. Ltd. Vs Pankaj & Ors. 39/42 no 1 had already overpaid the licence fees upto 70% for the entire period in his possession.