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3. The aforesaid order of the learned Single Judge has dealt with the issue as under:

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Reasons & Conclusions
25. The disputes between the parties essentially stem from the existence of water leakage from the roof of the Premises licenced by ITDC to BMEL. There is no dispute that in March, 2015, there was an incident of water leakage from the roof of the Premises. BMEL claimed that it had placed buckets at various places inside the Premises to collect the water from the leaking roof so as to protect the equipment, furniture and other fixtures. It was suggested by ITDC that the description was exaggerated; however, there is no serious dispute that there was water leakage in March, 2015. It is also not disputed that there were heavy rains during the period 10.07.2015 to 12.07.2015. BMEL claimed that the roof of the premises almost caved in and there was continuous water pouring from the roof. This completely destroyed the equipment as well as the décor of the Premises in question. There is ample material on record to show that water had leaked from the roof damaging the interiors and rendering the Premises unfit for being used for the purpose for which it was licenced. The Arbitral Tribunal had examined the material on record and had found that the assertions made by BMEL in this regard were correct.
26. It is seen that ITDC had not seriously contested that there was leakage of water in the Premises from 10.07.2015 to 12.07.2015. ITDC‟s defence largely rested on two assertions. First, that it had licenced the premises on an „as is where is basis‟ and therefore, was not responsible for the upkeep or repairs of the Premises. And Second, that BMEL was required to carry out the repairs of the Premises for its purpose.
27. The Arbitral Tribunal rejected the aforesaid contentions. The Arbitral Tribunal accepted BMEL‟s assertion that the roof of the Premises over the main area was a tin roof, which was covered by a thin layer of cement. The Arbitral Tribunal was of the view that handing over of the Premises on „as is where is basis‟ did not absolve ITDC of its obligation to ensure that the Premises were fit for the purpose for which the same were licenced. There was no dispute that the Premises were licenced to run a high-end International Cuisine Restaurant cum Night Club; the Premises are within the precincts of a Five Star Hotel; and the Licence Fee payable to ITDC was substantial. The Arbitral Tribunal was of the view that considering these facts it was incumbent upon ITDC to at least ensure that the Premises were structurally sound for the purpose for which the same were licenced.

29. Concededly, BMEL was not entitled to carry out any additions or alterations to the Premises except with the express permission of ITDC.

30. The question whether handing over the Premises on „as is where is basis‟ absolves ITDC from making sufficient disclosure regarding the condition of the Premises, is a contentious issue. The Arbitral Tribunal had accepted the view that stipulating such condition (as is where is basis) did not absolve ITDC from disclosing that the Premises had a temporary roof (which was otherwise not evident on a visual inspection). Clearly, this view cannot be stated to be one which is not plausible and/or one, that no reasonable person could accept. There is ample authority for the proposition that stipulating the condition - „as is where is‟, does not absolve the contracting parties to make a minimal disclosure.