Today Homes & Infrastructure Pvt. Ltd v. Jds Apparels Ltd. & Anr

NAVIN CHAWLA, J OCTOBER 16, 2018/Arya

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. (COMM) 67/2017 Reserved on: 27.09.2018 Date of decision : 16.10.2018 TODAY HOMES & INFRASTRUCTURE PVT. LTD. ..... Petitioner Through: Mr.Rahul Sharma & Mr.Jitender Rath, Advs. versus JDS APPARELS LTD. & ANR. ..... Respondents Through: Mr.Pulkit Deora, Adv. for Official Liquidator. Mr.Ajay Kohli & Ms.Bhumika Kapur, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') challenging the Arbitral Award dated 03.06.2015 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the Lease Agreement dated 08.04.2009 executed between the parties for leasing out certain portion/area in the commercial complex and entertainment centre named as 'North-Orbit Plaza' as also the Memorandum of Understanding (MoU) dated 08.04.2009 executed between the parties with respect to extension of a loan of Rs. 1.50 crores by the petitioner to respondent no. 1. Page 2 2. The Petitioner, M/s. Today Homes and Infrastructure Private Ltd. had entered into a Development Agreement dated 27.03.2006 with respondent no. 2, M/s. M.N Securities Private Limited, the original lessee and owner of the land which was used to develop the abovementioned commercial complex. 3. The respondent no. 1 being interested in taking certain portion/area on lease in the said commercial complex, entered into the abovementioned Lease Agreement with respondent no. 2 as the 'lessor', respondent no. 1 as the 'lessee' and the petitioner as the 'confirming party'. The tenure of the lease was for a period of nine years commencing from 08.04.2009 and expiring on 08.04.2018, with the option given to the lessee to renew it for further two periods of nine years each. The area being given on lease had been sold to various allottees who had authorized the petitioner to lease out their respective unit to any retail/brand. 4. A Memorandum of Understanding dated 08.04.2009 was also entered into between the parties stating that the respondent no.1 had approached the petitioner for a loan of Rs. 1,50,00,000/- for carrying out 'fit-outs' in the leased premises and that the petitioner had agreed to extend the said loan on the terms contained in the MoU. 5. The MoU was followed by an Addendum dated 31.03.2010 recording that the petitioner had completed its scope of work as per Clauses 9 and 10 of the Agreement, which involved providing amenities like parking, landscaping, common area operations, security systems, etc., as also laid down the revised manner and mode of release of loan Page 3 amount. The Addendum also extended the Rent Commencement Date to 01.07.2010 from 01.10.2009 as had been stipulated in the Lease Deed. 6. Dispute arose between the parties with the Respondent no. 1 terminating the Lease Deed vide its notice dated 16.11.2011 and demanding the refund of the security deposit as also the damages, while the petitioner claimed that the termination of the Lease Deed was illegal and for extraneous reasons and therefore, the petitioner was entitled to refund of the loan amount as also damages from the respondent no.1. 7. The Sole Arbitrator by the Impugned Award dated 03.06.2015 has held the termination of the Lease Deed to be valid and has allowed certain claims of the respondent no. 1, while rejecting the counter claims of the petitioner. The operative portion of the Award with respect to the claims and counter claims is reproduced hereinunder: "Claim No.1- In respect of refund of security deposit Claimant is awarded a sum of Rs. 10,46,400/- (Rupees Ten Lakhs Forty six thousand four hundred only) against respondent no. 2 together with interest @12% from 16.11.2011 till realization. Claim no. 2- Claimant is awarded a sum of Rs. 24,30,072/- (Rupees Twenty Four Lakhs Thirty Thousand and Seventy Two only) spent by it on the fit outs etc. for the show room agai