M/S Fortune Grand Management Pvt. Ltd v. Delhi Tourism & Transport Development Corporation

RAJIV SAHAI ENDLAW, J. APRIL 25th, 2016 "gsr"

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th April, 2016 + M/S FORTUNE GRAND MANAGEMENT PVT. LTD. ..... Petitioner Through: Mr. P.S. Bindra, Adv. Versus DELHI TOURISM & TRANSPORT DEVELOPMENT CORPORATION ..... Respondent Through: Mr. R.K. Dhawan & Ms. Richa Dhawan, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition impugns the proceeding initiated by the respondent in Petition No.1/2016 titled Delhi Tourism and Transport Development Corporation Vs. M/s Fortune Grand Management Pvt. Ltd. before the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (PP Act) on the grounds i) that the Agreement dated 16th August, 2013 between the parties provide for resolution of all disputes by reference to Arbitral Tribunal comprising of three Arbitrators with the petitioner and the respondent appointing one Arbitrator each and the third Arbitrator being appointed by the two Arbitrators; ii) that the petitioner prior to initiation of proceedings under the PP Act had already initiated arbitral proceedings by instituting petitions in this Court under Section 9 and Section 11(6) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) and till the question whether the purported termination of the agreement by the respondent is legal or not, the possession of the petitioner of the premises cannot be said to be unauthorized and two parallel proceedings cannot simultaneously go on; and, iii) that Sh. Piyush Agarwal Estate Officer who has issued the notice is biased / prejudiced having already acted on behalf of the respondent in the dispute with the petitioner by filing a caveat in this Court. 2. The petition came up first for consideration on 27th January, 2016 when the counsel for the respondent appearing on advance notice relied upon International Amusement Ltd. Vs. India Trade Promotion Organization AIR 2015 SC 749. However on a prima facie consideration of the said judgment, the same appeared to be in the context of arbitration clause subject matter of agreement therein and which was found to be materially different from the arbitration clause in the agreement between the parties hereto. Accordingly, the matter was listed for further consideration on 29th January, 2016. On 29th January, 2016, the counsels were heard further on the aspect whether the PP Act would prevail over the arbitration agreement and finding the issue to be a legal one, need for counter affidavit was not felt and judgment was reserved. The petitioner thereafter applied for stay of proceedings before the Estate Officer and which application came up for consideration on 18th March, 2016 when notice of the same was issued though no stay granted. 3. The bid of the petitioner / its predecessor for renovation, operation, maintenance, marketing, management and transfer of Food Court and Shops in Dilli Haat, Pitampura was accepted and an Agreement dated 16th August, 2013 was signed between the parties and whereunder the respondent granted to the petitioner for a period of 10 years the exclusive right, authority, authorization to plan, operate, allocate, market, maintain and manage the food court, restaurant and shops at Dilli Haat, Pitampura. Clause 18 of the said agreement is as under: "18. Dispute Resolution 18.1. Dispute resolution 18.1.1. Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the "Dispute") shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 18.2. 18.1.2. The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged