Jeet Corporation and Another v. M/S Oyo Apartments Investment (Llp)

Judgment reserved on: .07.2025

Judgment delivered on: .08.2025

+

FAO (COM) 175/2024, CM APL. 52685/2024 (Stay) & CM APL. 4943/2025 (Delay of 13 days in filing the reply to apeal)

JITENDER PAL SINGH HUF

.Apelant

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

versus

M/S OYO APARTMENTS INVESTMENTS (LP)

.Respondent

Through:

Mr. Ashish Mohan, Sr . Adv . along with Mr . Diptiman Acharya &

Mr. S agar Pradhan, Advs .

+

FAO (COM) 193/2024, CM APL. 56310/2024 (Stay) & CM APL. 4180/2025 (Delay of 13 days in filing the reply to the apeal)

JUVELO HOMES PVT. LTD.

.Apelant

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

versus

M/S OYO APARTMENTS INVESTMENT (LP)

.Respondent

Through:

Mr. Ashish Mohan, Sr . Adv . along with Mr. Diptiman Acharya &

Mr.Sagar Pradhan, Advs.

+

FAO (COM) 194/2024, C M APL. 56909/2024 (Stay) & CM APL. 4940/2025 (Delay of 13 days in filing the reply to the apeal)

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VIBRUS HOMES PVT. LTD.

.Apelant

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

versus

M/S O YO APARTMENTS INVESTMENTS (LP) .Respondent

Through:

Mr. Ashish Mohan, Sr . Adv . along with Mr. Diptiman Acharya &

Mr.Sagar Pradhan, Advs.

+

FAO (COM) 19/2024, CM APL. 57915/2024 (Stay) & CM APL. 4945/2025 (Delay of 13 days in filing the reply to apeal)

RAUNAK INTERNATIONAL

.Apelant

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

versus

M/S OYO APARTMENTS INVESTMENTS (LP)

.Respondent

Through:

Mr. Ashish Mohan, Sr Adv along with Mr. Diptiman Acharya &

Mr.Sagar Pradhan, Advs.

+

FAO (COM) 203/2024, CM APL. 59614/2024 (Stay) & CM APL. 494/2025 (Delay of 13 days in filing the reply to apeal)

CONVEST BUILDCON PVT. LTD

.Apelant

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

v ersus

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M/S OYO APARTMENTS INVESTMENTS(LP) .Respondent

Through:

Mr. Ashish Mohan, Sr . Adv . along with Mr. Diptiman Acharya &

Mr.Sagar Pradhan, Advs.

+

FAO (COM) 252/2024 & CM APL. 840/2025 (restoration of main case)

CONVEST OVERSEAS PVT. LTD.

.Apelant

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

versus

M/S OYO APARTMENTS INVESTMENT (LP) .Respondent

Through:

Mr. Ashish Mohan, Sr . Adv . along with Mr. Diptiman Acharya &

Mr.Sagar Pradhan, Advs.

+

FAO (COM) 67/2025 & CM APL. 1370/2025 (Interim relief)

JET CORPORATION AND ANOTHER

.Apelants

Through:

Mr. Pawanjit Singh Bindra, Senior Advocate with Mr. Udit Gupta and Mr. T.S. Sawhney, Advocates.

versus

M/S OYO APARTMENTS INVESTMENT (LP) .Respondent

Through:

Mr. Ashish Mohan, Sr Adv along with Mr. Diptiman Achary a &

Mr.Sagar Pradhan, Advs.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR

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JUDGEMENT

HARISH VAIDYANATHAN SHANKAR J.

¶1These apeals under Section 37 of the Arbitration and Conciliation Act, 196 1 , have ben filed against separate orders, al dated 07.06.2024, pased by the learned District Judge (Comercial Court - 10), Central, Tis Hazari Courts, Delhi 2 , in petitions filed by the apelants under Section 34 of the A&C Act, whereby the learned Judge

dismised the said petitions and consequently upheld the separate arbitral awards, al dated 25.01.2023, pased by the learned Arbitrator.

¶2Before delving into the legal submisions, it is important to note certain excerpts from the Arbitral Award dated 25 .01.2023, which set out the relevant and analogous background to the present apeals. The folowing paragraphs from the Arbitral Award, rendered in one of the conected maters [ FAO (COM) 175/2024 ], are particularly ilustrative: - —2. The Claimant entered into a Management Services Agrement dated 2.7.2019 with the Respondent, in respect of a property owned by the Respondent in Malka Ganj, Delhi, whereunder the Claimant was to pay 70% of the revenue share to the Respondent for the fir st thre months, folowed by the same share of the revenue, with a minimum guarante stipulated in the Agrement, in the remaining term of the Agrement. The net revenue was to be derived by excluding, from the payments colected from the ocupants, the sa le proceds of the fod and beverages sold at the property. The term of the Agrement was agred at two years with a Lock - in - Period of 1 months. Some payments in terms of the said Agrement were made by the Claimant to the Respondent. The claimant made an Interest Fre Refundable Security Deposit of Rs. 6,20,0/ (Six Lacs Twenty Thousand Only) with the respondent.

1 A&C Act

2 District Court

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¶3As many as seven identical Agrements were executed by the Claimant, with seven diferent entities. Al the seven entities were represented by the same person as their Authorised Representative and by the same counsel. The properties subject mater of these seven Agrements were being managed by a comon person, who apeared in the witnes box as their Authorised Representative .

¶4On 1.9.202 , it was agred that for the purpose of recording the cros - examination of the witneses, al the seven maters may be consolidated so that the cros - examination pertaining to al the seven cases was recorded in one case and read and considered for the pur pose of al the seven cases. One witnes namely Ms. Ankita Munjal was examined by the Claimant. A comon Authorised Representative was examined on behalf of al the seven Respondents .

¶5The Agrement betwen the parties is titled as "Management Services A grement". The Claimant is described as the Service Provider / Party of the First Party, whereas the Respondent is described as the Owner/Party of the Second Part, in the Agrement. It is recorded in the preamble that "The Owner is desirous of engaging a S ervice Provider for providing the services in the premises on an exclusive basis and on the terms and conditions as more specificaly agred hereunder."

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¶7Vide an email dated 28.1.2019, the Claimant asked the Respondent to provide the documents spec ified therein and informed that the said documents are mandatorily required to run its operations. It was also stated in the email that further payment to the Respondent would be put on hold til the said documents were provided. The documents so sought by the Claimant were not provided to it.

¶8On 1 March, 2020, an advisory on Social Distancing Measures was isued by Government of India, Ministry of Health and Family Welfare, in the wake of breakout of the pandemic COVID - 19. The case of the Claimant is t hat to adres the situation created by the pandemic throughout countries, lockdowns were imposed and non - esential travel was curbed. As a result, bokings in the Hotels were canceled and travel plans were shelved. The Claimant, vide its email dated Marc h 30, 2020, refering to the situation created by the spread of COVID - 19, sought to re - visit the Agrement it had executed with the Respondent and as an interim measure, proposed a revised revenue sharing model with efect from 12.3.2020. It was also state d in the said email that because of the situation created by the pandemic COVID - 19, the Claimant was left with no option but to invoke Force Majeure and suspend payment of the monthly rent and/or any other amount payable to the Respondent under the Agreme nt. It was further stated that though the Claimant was wel within its right to terminate the

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Agrement, it was refraining from taking such a drastic step while reserving its right to do so should the circumstances continue to deteriorate. However, the Res pondent did not respond to the proposed revenue sharing model.

¶9Vide its notice dated 2.5.2020, purporting to be sent under Clause

10.3(a) of the Agrement, the Claimant, refering to its email dated

28.1.2019 requested the Respondent to provide al the necesary documents within 30 days of the notice and informed that not providing the said documents would vitiate the Agrement which shal stand terminated forthwith, if the documents were not provided within 30 days. It was also stated in the said notic e that the Claimant had received complaints from the ocupants informing that the Respondent was colecting the rom tarif directly from them. The Respondent was caled upon to render acounts of al such colections with efect from December, 2019. The A rbitration Clause contained in the Agrement was also invoked and an Arbitrator named in the Notice was proposed with a request to the Respondent to confirm his apointment as a Sole Arbitrator.

¶10The Respondent sent a Reply through its Advocate on 27.2. 2021 stating therein that al the necesary documents had already ben provided to the Claimant, the subject premises was already in its posesion and the busines was going on smothly. It was stated in para 6 of the Reply that "due to non - availability o f inhouse stay supervisor from your Client's side, residents deposited fe to my Client's Warden whose salary was agred to be borne by your Client." The Respondent sugested another Arbitrator to adjudicate the disputes betwen the parties.

¶1Disputes having arisen betwen the Claimant and al those seven entities, the Hon'ble High Court of Delhi was pleased to apoint me as the Arbitrator to adjudicate al those disputes. The nature of the disputes betwen the parties is identical though the reliefs cl aimed by the parties are not comon . ( Emphasis suplied )

¶3In the present apeals, the Apelants have raised a limited and comon isue, and with the consent of both parties, al apeals were heard together. For consistency and clarity, arguments and references during the hearing were made from the record of FAO

(COM) 175/2024 only. Acordingly, this judgment shal also refer to the contents of FAO (COM) 175/2024 , and for ease of reference, the Apelants wil

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hereinafter collectively be referred to as Apelant(s) " and the Respondent as — OYO ".

¶4The core submision advanced by the learned Senior Counsel for the Apelant, which was even duly recorded by this Court at the stage of isuing notice, is that the arbitral award dated 25.01.2023 sufers from patent perversity, as the learned Arbitrator failed to duly consider a critical aspect of the case. It is contended that the aleged breach atributed to the Apelant, namely , the failure to furnish ownership documents, stod impliedly waived or condoned on 30.03.2020, when OYO itself isued a comunication i nviting the Apelant to re - negotiate the financial terms under the Management Services Agrement dated

20.08.2019 3 .

¶5At this stage, it is aposite to set out the relevant background facts that form the basis of the present controversy, which are:

(a)

On 20.08. 2019, t he Apelant and OYO entered into a Management Services Agrementfor the operation and management of a property located at various locations in Delhi, which were primarily intended to serve as acomodation facilities. Prior to this, a draft version of the agrement was exchanged betwen the parties on 2.07.2019. The arangement under the said Agrement was structured on a revenue - sharing model, wherein OYO, acting as the service provider, was entitled to receive a Management Fe based on the net re venue generated from the said properties.

3 Agrement

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(b)

On 28.1.2019, OYO, by way of a formal email, raised a specific request caling upon the Apelant to provide esential regulatory and legal documents. These included, inter alia , a No - Objection Certificate from th e local Society or Resident Welfare Asociation as wel as clearances from the local Police authorities. OYO explicitly stated in the said comunication that the absence of these documents would amount to a material compliance lapse and further made it cle ar that al future payments would be put on hold until such documents were submited by the Apelant.

(c)

However, notwithstanding the aforesaid request, the Apelant did not provide the relevant documents, and by December 2019, the Apelant alegedly began colecting rom charges directly from the residents of the subject premises, which constituted a clear violation of the terms of the said Agrement. This act of direct collection of revenue sign operational and financial visibili ty with respect to the said property. Consequently, OYO was unable to acurately monitor or track the revenue generated from the premises from that point onward.

(d)

On 1.03.2020, the World Health Organization oficialy declared COVID - 19 as a global pandemic . In response, the Government of India invoked the provisions of the Epidemic Diseases Act, 1897 , on 12.03.2020 and implemented a series of nationwide lockdown measures, including severe restrictions on movement and

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busines operations. Domestic air travel was suspended starting from 25.03.2020. These unprecedented restrictions gravely impacted the hospitality and acomodation sectors acros the country, including OYO's operation

(e)

In light of the extraordinary and unforesen circu mstances arising from the COVID - 19 pandemic, OYO, vide comunication dated

30.03.2020, isued a Force Majeure Notice to the Apelant. In this notice, OYO stated that due to the closure of educational institutions and the mas departure of students, ocupa ncy levels at the subject premises had drasticaly declined. Consequently, OYO proposed a revised revenue - sharing arangement, reducing its share to 30% of the net revenue.

(f)

Thereafter, on 02.05.2020, OYO isued a formal Notice to the Apelant under Claus es 10.3(a) and 1.2 of the Agrement. In this Notice, OYO refered to its earlier email dated 28.1.2019 and once again requested the Apelant to furnish al the required documents within a period of 30 days. It was categoricaly stated that failure to pr ovide the said documents within the stipulated period would result in automatic termination of the Agrement . OYO also aleged that it had received several complaints from ocupants stating that the Apelant had ben colecting rom tarifs directly from them. Acordingly, the Apelant was caled upon to disclose and render acounts of al such colections made from the residents with efect from December 2019 onwards. In the same notice, for the purpose of resolving the isues regarding

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the colection of rents, OYO also invoked the arbitration clause stipulated in the Agrement and proposed the name of an Arbitrator to be apointed as the Sole Arbitrator, seking consent from the Apelant for the same .

(g)

Despite the lapse of the stipulated time period, the Apelant tok no steps to comply with the said notice.

(h)

It is pertinent to note that even after termination, the Apelant remained silent for nearly nine months and responded only on

27.02.2021 through a Reply isued by its legal counsel. In this Reply, the Apelant contended that al necesary documents had already ben provided to OYO, that the subject premises continued to remain in its posesion, and that the busines was runing smothly. In paragraph 6 of the said Reply, the Apelant also stated that due to the non - availability of an in - house stay supervisor from OYO's side, the r deposit the rent with the Appella as per the agrement, to be borne by OYO. Thus, the Apelant admited that the colections were inded being made directly , to the Apelant, from the residents.

(i)

Subsequently, upon an aplication m ade by OYO, this Court apointed an Arbitrator to adjudicate the disputes arising out of the Agrement.

(j)

In the arbitration procedings , OYO filed its Statement of Claim seting out its alegations and claims against the Apelant. In response, the Apelant filed its Statement of Defence.

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Thereafter, OYO filed a Rejoinder. The Apelant also filed a Counter - Claim before the learned Arbit rator, seking certain reliefs against OYO in adition to its defence.

(k)

After considering the pleadings, evidence, and submisions made by both sides, the learned Arbitrator pased an Arbitral Award dated 25.01.2023. In the said Award, the learned Arbitrato r dismised the counter - claims raised by the Apelant and partialy alowed certain claims made by OYO.

(l)

Agrieved by the said Arbitral Award dated 25.01.2023, the Apelant filed a Petition under Section 34 of the A&C Act before the learned District Judge.

(m) After due consideration of the pleadings, material on record and contentions of the parties, the learned District Judge, vide

impugned Order dated 07.06.2024, dismised the said Petition filed by the Apelant, thereby afirming the Arbitral Award. On the same line, in other cases also, the learned District Judge dismised the Petitions.

(n)

It is against these dismisals that the p resent set of apeals has ben prefered by the Apelant

(s) under Section 37 of the A&C Act.

ANALYSIS :

¶6This Court has heard both parties at length and has undertaken a detailed consideration of the pleadings, Impugned Orders and Arbitral Awards .

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¶7At the o utset, it is necesary to reiterate that this Court is fuly conscious of the limited scope of apelate jurisdiction under Section 37 of the A&C Act . Judicial interference with arbitral awards is strictly circumscribed and may only be exercised on wel - se tled and narow grounds. As observed by the Hon'ble Punjab State Civil Suplies Corpn. Ltd. v. Sanman Rice Mils 4 , apelate courts must remain cautious not to sit as apelate forums over the reasoning or conclusions of the Arbitrator un les a finding is so perverse or unreasonable as to shock judicial conscience. The relevant paragraphs of the Punjab State Civil Suplies Corpn. Ltd (supra) that sumari ze s the law are as folows:

—1. Section 37 of the Act provides for a forum of apeal inter - alia against the order seting aside or refusing to set aside an arbitral award under Section 34 of the Act. The scope of apeal is naturaly akin to and limited to the grounds enumerated under Se ction 34 of the Act.

¶12It is pertinent to note that an arbitral award is not liable to be interfered with only on the ground that the award is ilegal or is eroneous in law that to upon reapraisal of the evidence aduced before the arbitral trial. Eve n an award which may not be reasonable or is non - speaking to some extent canot ordinarily be interfered with by the courts. It is also wel setled that even if two views are posible there is no scope for the court to reapraise the evidence and to take the diferent view other than that has ben taken by the arbitrator. The view taken by the arbitrator is normaly aceptable and ought to be alowed to prevail.

¶13In paragraph 1 of Bharat Coking Coal Ltd. v. L.K. Ahuja , it has ben observed as under:

—1 . There are limitations upon the scope of interference in awards pased by an arbitrator. When the arbitrator has aplied his mind to the pleadings, the evidence aduced before him and the terms of the contract, there is no scope for the court to reaprai se the mater as if this were an apeal and even if two views are posible, the view taken by the arbitrator would prevail. So long as an award made by an

4 2024 SC OnLine SC 2632

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arbitrator can be said to be one by a reasonable person no interference is caled for. However, in ca ses where an arbitrator exceds the terms of the agrement or pases an award in the absence of any evidence, which is aparent on the face of the award, the same could

¶14It is equaly wel setled that the apelate power under Section 37

of the Act is not akin to the normal apelate jurisdiction vested in the civil courts for the reason that the scope of interference of the courts with arbitral procedings or award is very limited, confined to the ambit of Section 34 of the Act only and even that power canot be exercised in a casual and a cavalier maner .

¶15In Dyna Technology Private Limited v. Crompton Greaves Limited , the court observed as under:

—24. There is no dispute that Section limits a chalenge to an award only on the grounds provided therein or as interpreted by various courts. We ned to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier maner, unles the court comes to a conclusion that the pervers ity of the award goes to the rot of the mater without there being a posibility of alternative interpretation which may sustain the arbitral award. Section 34 is diferent in its aproach and canot be equated with a normal apelate jurisdiction. The ma ndate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course o n factual aspects, then the comercial wisdom behind opting for alternate dispute resolution would stand frustrated.

¶25Moreover, umpten number of judgments of this Court have categoricaly held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts ned to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unles such award portrays pervers ity unpardonable under Section 34 of the Arbitration Ac

¶16It is sen that the scope of interference in an apeal under Section 37 of the Act is restricted and subject to the same grounds on which an award can be chalenged under Section 34 of the Act. In other words, the powers under Section 37 vested in the court of apeal are not beyond the scope of interference provided under Section 34 of the Act.

¶17In paragraph 14 of MTC Limited v. Vedanta Limited , it has ben held as under:

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—14. As far as inte rference with an order made under Section 34, as per Section 37, is concerned, it canot be disputed that such interference under Section 37 canot travel beyond the restrictions laid down under Section 34. In other words, the court canot undertake an ind ependent asesment of the merits of the award, and must only ascertain that the exercise of power by the court under Section 34 has not exceded the scope of the provision. Thus, it is evident that in case an arbitral award has ben confirmed by the court under Section 34 and by the court in an apeal under Section 37, this Court must be extremely cautious and slow to disturb such concurrent findings."

¶18Recently a thre - Judge Bench in Konkan Railway Corporation Limited v. Chenab Bridge Project Undertaki ng refering to MTC Limited (supra) held that the scope of jurisdiction under Section 34 and Section 37 of the Act is not like a normal apelate jurisdiction and the courts should not interfere with the arbitral award lightly in a casual and a cavalier m aner. The mere posibility of an alternative view on facts or interpretation of the contract does not entitle the courts to reverse the findings of the arbitral tribunal.

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CONCLUSION : . In view of the above position in law on the subject, the scope of the intervention of the court in arbitral maters is virtualy prohibited, if not absolutely bared and that the interference is confined only to the extent envisaged under Section 34 of th e Act. The apelate power of Section 37 of the Act is limited within the domain of Section 34 of the Act. It is exercisable only to find out if the court, exercising power under Section 34 of the Act, has acted within its limits as prescribed thereunder o r has exceded or failed to exercise the power so confered. The Apelate Court has no authority of law to consider the mater in dispute before the arbitral tribunal on merits so as to find out as to whether the decision of the arbitral tribunal is right or wrong upon reapraisal of evidence as if it is siting in an ordinary court of apeal. It is only where the court exercising power under Section 34 has failed to exercise its jurisdiction vested in it by Section 34 or has traveled beyond its jurisdict ion that the apelate court can step in and set aside the order pased under Section 34 of the Act. Its power is more akin to that superintendence as is vested in civil courts while exercising revisionary powers. The arbitral award is not liable to be int erfered unles a case for interference as set out in the earlier part of the decision, is made out. It canot be disturbed only for the reason that instead of the view taken by the arbitral tribunal, the other view which is also a posible view is a beter view acording to the

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apelate court.

¶21It must also be remembered that procedings under Section 34 of the Act are sumary in nature and are not like a ful - fledged regular civil suit. Therefore, the scope of Section 37 of the Act is much more sumary in nature and not like an ordinary civil apeal. The award as such canot be touched unles it is contrary to the substantive provision of law; any provision of the Act or the terms of the agrement ."

( emph asis suplied )

¶8The principal argument of the Apelant is that the A rbitral A ward and Impugned Order are perverse , as the learned Arbitrator as wel as the learned District Judge failed to apreciate that the aleged breach by the Apelant in not furnishing documents st od condoned by OYO vide its comunication dated 30.03.2020 .

¶9This contention, however, fails at the very outset. It was never part ofthe Appellant's reply dated 27.02.2021

02.05.2020, nor was it raised before the learned Arbitrator, either in the Statement of Defence or in the Counter - Claim.

10.

The argument that the comunication dated 30.03.2020 amounted to condon ation of any prior breach was made for the first time before the learned District Judge during procedings under Section 34, and that to only in the course of oral arguments. Such a belated plea apears to be nothing more than an afterthought or improvisa tion by the arguing counsel. Up to that point, the Appell that no such documents were required under the Agrement or that al necesary documents had already ben furnished during the course of the

execution of the Ag rement .

1.

A perusal of the record reveals that the Apelant 's submisions, before the learned Arbitrator, were entirely silent on any claim that OYO

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had expresly or impliedly waived its earlier demand dated 28.1.2019 for documents. The relevant paragraph s pertaining to the contentions raised by the Apelant in its Statement of Defence would demonstrate the same and are as folows : —18. Para no. 18 of the Statement of Claim is categoricaly denied. It is submited that the notice dated 30.03.2020 was prem ature as the clause

10.4 of the Agrement clearly states that —if the premises are rendered unfit….., for a period exciding 3 months then this unfit Agrement may be terminated ….. . ". It is pertinent to mention that the lockdown declared by the Central Government was w.e.f. 25th March, 2020 to 31st May, 2020 and thereafter the State Government continued the lockdown til June, 2020. After the said period the various lockdowns were lifted and things became normal. Therefore, it canot be ascertained that the subject property was lying vacant. The notice dated 30.03.2020 sems to be vague and based presumption and asumptions. The remaining contents of the answering paragraph are mater of record.

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¶27That para no.27 of the Statement of Claim is wrong and denied. As per clause 10.4 of the Management Services Agrement, if the premises rendered unfit, in whole or part or use and ocupation or the aces thereof is hindered by any event such as tempest, flod, earthquake or any iresistible force or act o f God not ocasioned by negligence on the part of the service provider or his servant and agents, for a period exceding 3 months, then in such event, the service provider may terminate this agrement by giving to the owner a writen notice of One month, w hereas the claimant served the notice on 30.03.2020 and didn't adhered to the terms of agrement. It is pertinent to mention here that without waiting for period for 3 months, the claimant sent the notice within 7 days of imposing day of lockdown anounced by central government."

12.

The same omission is evident even C ounter - C laim filed before the learned Arbitrator, where the narative remained consistent with the initial pleadings and did not introduce any asertion that the communication dated 30.03.20 position regarding the requirements of the documents.

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13.

The learned Arbitrator framed specific isues for determination and, after conducting a reasoned and detailed analysis, rendered findings on each; among the principal isues examined were whether the

Appellant's failure to provide the s requested by OYO in its email dated 28.1.2019 constituted a material breach, and whether the Appellant's the residents violated the terms of the Ag rement. Both of which were answered against the Apelant and in favour of OYO.

14.

While delivering the Arbitral Award, the learned Arbitrator concluded that the Apelant had violated Clauses 6.1(h), 6.2(b), and

6.2(j) of the Agrement, holding that the bre aches were not confined to the failure to furnish documents but also extended to the unauthorized collection of rent, which significan operational entitlements, thereby justifying the termination of the Agrement under Cla use 10.3. The relevant portion of the Arbitral Award is produced hereinbelow:

—ISUES/POINTS NO. 1 & 2

¶18The Claimant had two main grievances against the Respondent, the first grievance being that the Respondent, despite receiving the email dated 28.1. 2019 from the Claimant, did not provide the documents specified therein, the second grievance being that the Respondent had colected rom tarif directly from the residents, though it had no authority to colect the said tarif and such an act on the part of the Respondent amounted to a material breach of the terms of the Agrement. Clause 6.2 (b) mandated the Respondent to ensure availability and validity of the documents such as Sale Ded, Power of Atorney, electricity and water bils. The documents req uired by the Claimant, vide its email dated 28.1.2019 inter alja included the registered title ded in favour of the Owner, registered and irevocable Power of Atorney for entering into Lease Ded on behalf of the Owner, if any and latest electricity bil l and water bil in the name of the Owner. Other documents included the completion certificate,

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ocupancy certificate and police NOC for renting the premises to the Claimant for co - living purposes. The case of the Respondent is that the Claimant having mad e its due diligence before executing Agrement with the Respondent, and having satisfied itself in al respects, it was not entitled to sek the documents specified in the said email dated

28.1.2019. In view of the specific obligation agred by the Respon dent in Clause 6.2 (b) of the Agrement, it would be dificult to say that it was not contractualy bound to provide the copy of the Sale Ded of the subject Property, the electricity and water bils and the Power of Atorney / authorization for executing the Agrement with the Claimant. Clause 6.2(b) does not contain an exhaustive list of the documents required to be kept available and valid by the respondent. The use of the word 'such as' in the said Clause indicates that there could be other documents re lated to the property which would be necesary for the purpose of permiting the Claimant to rent the property for co - living purposes. The ocupancy certificate would be one such document since a building canot be legaly ocupied without isuance of an o cupancy certificate by the concerned Local Authority. It has come in para 4 of the legal notice dated 2 May, 2020 sent by the Claimant to the Respondent that the aforesaid documents were demanded by the Auditors of the Claimant during internal audit and k nown provisioning of the said documents amounted to material breach of the terms of the Agrement.Despite receiving the legal notice, the Respondent did not provide the documents demanded vide email dated 28.1.2019. It was also stated in the legal notice dated 2 May, 2020 that the Claimant as a policy did not provide services in the premises which do not fulfil the legal compliance and necesary requirements under the aplicable laws. Vide para 7 of the legal notice, the Respondent was informed that in ca se the said documents were not provided within 30 days from the date of the notice, the Agrement shal stand terminated. Clause 10.3 of the Agrement entitled the Claimant to terminate the Agrement at any time including within the Lock - in - Period, in case there was a material breach of the said Agrement by the Respondent .

¶19As regards the second grievance of the Claimant, though the submision of the Respondent during the course of argument was that no rent was colected by it from the ocupants during the curency of the Agrement, the said submision is contrary to the pleadings and documents of the Respondent.

Para 6 of the legal notice dated 2.5.2020 reads as under:

"Our Clients have received complaints from the residents who are staying at the subject premises (residents) that you are colecting the rom tarif directly from the residents. It is pertinent to mention that you have no authority to colect

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rom tarif f rom the residents directly and such an act amounts to material breach of the terms of the Agrement. You are therefore also being caled upon to render acounts of al the colections done directly by you from December, 2019 til date."

Para 6 of the Re ply sent by the Respondent through counsel on

27.2.2021 reads as under:

". Due to non - availability of in - house stay Supervisor from your client's side, residents deposited fe to my clients warden whose salary was agred to be borne by your client."

It w ould thus be sen that the colection of rent by the Respondent from the residents / ocupants of the subject Property through the Supervisor apointed by it was admited in the Reply sent to the legal notice of the Claimant. This was not the plea taken in the Reply that the Respondent was entitled to colect the rom rent directly from the residents/ocupants or that the said rom rent was colected by the Respondent with the consent of the Claimant. This is also not the case of the respondent that though some rent was colected by it, the amount so colected was paid to the claimant.

¶20In para 21 of the Statement of Claim, the Claimant has inter alia stated that "The act of the Respondent in colecting the tarif/ charges/fe / rent directly from residen ts, which apart from being in direct breach of the Agrement had also compounded the viability of the arangement."

In para 21 of the Statement of Defence, the Respondent has inter alia stated that "It is submited that no oficial of the Claimant was pres ent at the subject Property and, therefore, the residents paid the due amount to the employe/caretaker of the Respondent."

In para 15 of the Statement of Defence, it is stated that "Without any rhyme and reason, the Claimant had abandoned the premises and the Respondent was forced to lok after/manage the day to day busines."

¶21It is thus evident that colection of rent/tarif from the ocupants residents of the subject Property has ben admited not only in reply to the legal notice but also in the Sta tement of Defence filed by the Respondent.

¶2In its email dated 28.1.2020 sent to the Claimant, the Respondent inter alia stated that " Acording to. rent colected by the Owner is Rs. 2,92,809/ - whereas actual amount colected by me is only Rs. 1,57,097. " It was submited by the learned counsel for the Respondent that the above refered extract of the email pertained to the amount which the Claimant had taken from the ocupants as security deposit and which

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the Respondent was compeled to adjust at the time the ocupants left the acomodation. However, the said submision is contrary to the stand taken in the reply to the legal notice and the Statement of Defence filed by the Respondent. Therefore, the submision made by the learned counsel for the Resp ondent is nothing but an afterthought.

¶23The case of the Claimant is that the Respondent had circulated a pamphlet amongst the ocupants/residents of seven properties including the subject Property, asking them to deposit the rent directly in its bank ac count. The said pamphlet purports to request the residents to make rent payment only to the Owner and his Authorised Representatives whose names and mobile numbers were given in the pamphlet. The Bank name, IFS Code and beneficiary name as wel as the aco unt number were also given in the pamphlet, in case payment was sought to be made through bank transfer. It was sugested to CW - 1, in her cros - examination, that the pamphlet had ben isued only to the ocupants of the property subject mater of the Agre ment with JHPL. It would be pertinent to note here that the property subject mater of this Agrement was being managed by the same person who was managing the property subject mater of the Agrement with JHPL. This very person has apeared as a comon wi tnes in al the seven maters.

¶24In the mater of JHPL, the Respondent in that mater has placed on record a bank statement isued by HDFC Bank in respect of the acount maintained by it with the said Bank. The statement of acount pertains to the perio d from 1.8.2019 to 31.7.2020. There are several credit entries in the said statement which show transfer of rent/tarif directly to the Acount Holder. On 7.9.2019, there is a transfer of Rs. 16,0/ - by one Ratan Kumar described as "Bipasha PG Fes". The re is a credit entry on 6.9.2019 describing the transfer of Rs. 2,0/ - as 'September rent'. There is a credit of Rs. 13,0/ - on 29.8.2019 described as 'rent'. There is a credit entry of Rs. 9,0/ - on 14.12.2019 described as 'Charu Mital rent'. On 10.12 .20219 there is a credit entry of Rs. 15,0/ - described as 'Sankalp rent'. On 27.1.2020 there is a credit entry of Rs. 9,0/ - described as 'Sudhanshu rent' and another entry of Rs. 4,50/ - described as 'rent'. On 13.1.2020 there is a credit entry of Rs. 9 0/ - as 'rent'. On 1.1.2020 there is a credit entry of Rs. 16,0/ - described as 'rent'.

It is evident from the admision contained in the reply to the legal notice as wel as the Statement of Defence, that the Respondent had ben colecting rent/tarif from the residents / ocupants of the subject Property.

Though it was submited by the learned counsel for the respondent that the aforesaid entries in the bank acount of JHPL pertained to other properties or that portion of the property which was retaine d by the

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respondent, the said submision is not backed either by the pleadings or by any documentary evidence and therefore canot be acepted.

¶25Clause 10.3 of the Agrement entitled the Respondent to terminate the Agrement even within Lock - in - Period i n case the Claimant failed to pay the share of the Claimant for one month despite being in operation and the said breach on the part of the Claimant was not remedied within 30 days of Notification of the said breach to the Claimant. Therefore, even if the Claimant had failed to pay the share of the Respondent in the net revenue subject to the stipulated minimum guarante to it, the Respondent could not have started colecting rent directly from the ocupants/residents though it could have terminated the Agr ement executed betwen the parties.

¶26The next question which arises for consideration is as to whether the colection of rent/tarif by the Respondent directly from the ocupants/residents amounts to a material breach of the terms of the Agrement or n ot. The Agrement betwen the parties was esentialy a Revenue Sharing Agrement under which the net revenue colected by the Respondent by renting/licensing acomodations in the subject Property was to be shared betwen the Claimant and the Respondent. The Respondent was to receive 70% of the net revenue whereas the remaining 30% was to be retained by the Claimant. If 70% of the net revenue came to les than the amount of minimum Guarante given by the Claimant to the Respondent and incorporated in Sched ule I of the Agrement, the respondent was entitled to the said amount irespective of the net revenue colected by the claimant. After a period specified in the Agrement, if 70% of the net revenue was higher than the amount of the minimum Guarante, the Respondent was entitled to the said higher amount. Such an arangement necesarily required colection of the rent solely and exclusively by the Claimant. If both the parties were to colect rent/tarif from the residents/ocupants, it would not have ben posible to determine the total rent colected from the ocupants. The Agrement betwen the parties did not envisage colection of rent/tarif by both the parties. This is more than evident from the terms of the Agrement including Clause 2.3, which requi red the Respondent to execute an Irevocable Power of Atorney in favour of the Claimant authorizing it to colect rent / licence fe from guests and take action in the event they did not pay the rent, Clause 6.2 (j) required the Respondent not to interfer e in the day to day operations of the Claimant including with the ocupation of any sub - licence/sub - lese except for partial inventory (the portion of the building which had not ben given to the Claimant for management).

In any case, the colection of rent/tarif solely by the Service Provider is inherent in such an Agrement. It is not posible for the Service Provider to determine the exact net revenue recovered from the

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ocupants/residents if rent/tarif is colected by the Owner as wel as by the Service Provider. In such a situation, the amount payable to the Owner in terms of the Agrement canot be corectly determined. In any case, the Agrement betwen the parties did not permit both the sides to recover the rent/t arif from the ocupants/residents. It would be pertinent to note here that neither in reply to the legal notice nor in its Statement of Defence, the Respondent has claimed that under the terms of the Agrement, both the parties were entitled to colect re nt from the ocupants/residents of the subject Property.

¶27Though the term 'material breach' has not ben defined in the Agrement executed betwen the parties, it would be dificult to dispute that breach of a fundamental term of the Agrement would ce rtainly constitute its material breach. The colection of rent/tarif by the Claimant alone, in my opinion was a fundamental term of an Agrement of this nature since the Agrement could not have ben sucesfuly implemented if the rent/tarif is colecte d by both the parties. As rightly contended by learned counsel for the Claimant, a breach which makes the comercial performance of an Agrement imposible and unviable would amount to a material breach. The whole concept of revenue sharing becomes meaning les, if the revenue is colected by both the parties.

¶28The Agrement betwen the parties is based on and comprises reciprocal rights and obligations. The right of the respondent to receive the agred share in the net revenue caried with it, an obligat ion not to interfere in the management of the subject property by the respondent, including inducting ocupants/residents therein and recovering rent/tarif from them. If a party to the Agrement comits breach of one or more of its material terms and ther eby deprives the other party of its rights under the said Agrement, the party in breach can not compel the other party to perform the obligations of that party under the said Agrement, Logicaly also, such an Agrement canot be performed, if both the pa rties colect rent/tarif from the tenants/ocupants. The share of the respondent canot be quantified in money terms, without first ascertaining the total revenue generated from the property. If the rent from the ocupants is colected not only by the cla imant but also by the respondent, the claimant canot be sure of the total revenue generated from the property, even if the respondent were to ofer to disclose the total rent colected by it. In any case, here no such ofer has ben made by the respondent . The stand taken during the arguments was that no rent/tarif from the residents/ocupants of the subject property was colected by the respondent. By colecting rent /tarif from the residents/ocupants, the respondent forfeited its right to receive any share in the net revenue generated from the property, irespective of the extent of such

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colection. A party who himself is in breach of an Agrement can not compel the other party to perform his obligations, ignoring the breach comited by him. I therefo re hold that the respondent is not entitled to the any share in the revenue colected by the Claimant.

¶29As noted earlier, in terms of clause 6.2(b) of the Agrement, the respondent was required to kep available and valid, the documents relating to the property subject mater of the Agrement and the documents specificaly mentioned therein canot be said to be the only documents required to be kept available and valid by the respondent. The use of the words 'al the documents related to the property suc h as 'clearly indicates that al the documents which could be genuinely required by the claimant were required to be kept available and valid. Of course, the claimant could not have sought irelevant documents from the respondent. But, it can be hardly dis puted that the documents such as title ded, Sanctioned Building Plans and the Ocupancy Certificate would be genuinely required by the person entrusted with the management of the property. This is more so, when the policy of the service provider is to man age only those properties which are legaly compliant. The respondent did not ofer the copies of even these core property documents to the claimant. The case of the claimant is that the documents were necesary for carying out an audit of the subject pro perty, which was also envisaged in the Agrement. By failing to provide these core property documents to the claimant comited breach of yet another material term of the Agrement, thereby giving a right to the claimant to terminate the Agrement.

¶30It is contended by the learned counsel for the Respondent that the Agrement betwen the parties was a Lease Agrement and, therefore, the Claimant was bound to pay the share of the Respondent in the net revenue subject to the minimum guarante agred betwen the parties, as the lease money. I however, find myself unable to acept the contention. Though the words "lease" and "lese" have ben ocasionaly used in the Agrement as wel as in the Statement of Claim, in pith and substance the Agrement betwen t he parties is a management Service Agrement. As noted earlier, the Agrement is described as Management Service Agrement, the Claimant is described as Service Provider and the Respondent as Owner, in the preamble to the Agrement. It is also recorded tha t the Owner was desirous of engaging the Service Provider for providing the services on an exclusive basis. As per Clause 2.1 of the Agrement, the Respondent had apointed the Claimant for providing services in the premises on the terms and conditions con tained therein and had undertaken to execute an Irevocable Power of Atorney in its favour, authorizing it interalia to colect rent / licence fe from the guests. The

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most important feature of the Agrement is that as per Clause 2.4, the posesion of th e premises was to remain with the Owner. In a lease, the posesion is transfered to the Lese and does not remain with the Lesor. Therefore, it would not be corect to say that the Agrement betwen the parties was a Lease Agrement. In any case, it wo uld be imaterial whether the Agrement betwen the parties was a Lease or a Management Agrement, the relevant fact being breach of the material terms of the said Agrement. I therefore hold that the respondent had comited breach of clause 6.1(h), 6.2(b ) and (j) of the Agrement. The claimant therefore, was entitled to terminate the Agreement in terms of clause 10.3 thereo

15.

Significantly, from the above analyses by the learned Arbitrator , it is clear that the findings of breach are not predicated sole ly on the Appellant's failure to furnish docum rent colection, which was found to be a distinct and substantive violation. Therefore, even asuming, arguendo, that there was a subsequent waiver of the document requirement , which, as discused later, is not borne out from the record, it would stil not absolve the Apelant of the second and independent ground of breach.

16.

It further apears from the Impugned Order of the learned District Judge that the Apelant, for the fir st time, sought to characterize the comunication dated

30.03.2020 as amounting to condonation /waiver of the breach for non - compliance with the email dated 28.1.2019 . The learned District Judge, however, after a thorough examination of the scope of review under Section 34 and the arbitral record, declined to interfere with the arbitral award.

17.

A plain reading of the comunication dated

30.03.2020 leaves no rom for any inference, either expres or implied, that OYO had waived or condoned the requirement of the documents. The tenor and content of

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the email clearly show s that it was writen in the context of the emerging COVID - 19 crisis, and merely propose d a revision of the revenue - sharing arangement due to the significant disruption in operations. There is no indication in the said comunication that OYO had abandoned its earlier demands or that it was wiling to forego the contractual compliance on ese ntial legal and regulatory obligations. For the sake of absolute clarity, the entire comunication dated 30.03.2020 is produced hereinbelow:

—Dear Business Partner,

At the outset, we would like to expres our sincere gratitude for the faith that you have reposed in OYO Apartment Investments LP ("OYO") by partnering with us. The overwhelming suport you have provided to us as a valued aset partner in our goal of providing safe, afordable, secure and reliable quality living spaces to milions of our value d customers is apreciated wholeheartedly.

As you are aware, the widespread and severity of the Novel Coronavirus (COVID - 19) pandemic has exponentialy increased in the last weks, both in India and over hundred fifty countries around the world. On March 1 1, 2020, the World Health Organization declared that COVID - 19 is a "pandemic". To combat this pandemic, many governments around the world have declared lockdown in their respective countries until the virus is contained.

In India, State Governments and Un ion Teritories have invoked the provisions of the Epidemic Diseases Act, 1897 from March 12, 2020 as a measure to arest growth in the number of cases of COVID -

¶19The State Governments have isued notifications declaring COVID - 19 as an epidemic and order ed a complete lockdown of their respective states with severe restrictions on movement of the people, including sealing of borders. On March 1, 2020, the Ministry of Health and Family Welfare Has isued an advisory on Social Distancing Measures where they have advised everyone to avoid non - esential travel and use video conferencing facilities to avoid face to face metings. Due to these situations, the Ministry of Railways canceled al train services to help contain the spread of the pandemic. Domestic a ir travel to has ben suspended w.e.f. March 25, 2020.

On top of that, the Hon'ble Prime Minister Narendra Modi adresed the nation on March 19, 2020 advising the general public to stay indors, folowed by a "Janta Curfew on March 2, 2020 and given tha t the pandemic is spreading so fast and uncontroled, on

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March 24, 2020 he gave directions that the entire country wil be on lockdown, with exception of certain esential services, starting March 25, 2020 12:0 AM until April 15, 2020.

Even globaly, the hospitality and acomodation industry is facing one of the most chalenging times in its history, as people acros the globe are forced to change their normal routine way of work including but not limited to working from home, cancelation of any travel p lans in deference to or in compliance with advisories or regulations from their respective governments against traveling, public gatherings, visiting workplaces, and similar activities. Ministry of Health and Family Welfare has isued a consolidated trave l advisory for COVID - 19 on March 1, 2020 puting the prohibition of travel from China, Italy, Iran and some countries of EU to India and an aditional travel advisory on March 19, 2020 prohibiting scheduled international comercial pasenger aircrafts to enter into India from March 2, 2020.

These and many such circulars and notifications isued by the Central and State Governments mandating, cancelations of travels, lockdowns, curfews etc. as a consequence of the COVID - 19 pandemic are available on the w ebsite of several ministries of Government of India and as responsible citizen, we must abide by these and help contain this COVID - 19 pandemic and save precious lives.

While we hope that circumstances wil improve and force majeure situation would improve, given the experience in other jurisdictions as is available in the public domain, it is likely that the situation wil continue for a litle while longer.

In this backdrop, the bigest chalenge that we are facing today is that as the companies and educat ional institutes are closed down, most of our residents have either left for their hometown or are in proces of leaving On our part, we are taking every measure posible to ensure that the safety and security - of our residents remain our highest priority a nd that we should do everything posible to ensure their wel - being as wel as that of our employes and partners amidst the COVID - 19 outbreak. To deal with this - COVID - 19 situation at property level, we have taken several steps such as:

Governmental Guidelines: Actively monitoring the situation and folowing guidance from the Centers for Disease Control and Prevention (CDC), World Health Organization (WHO)

and "local/national health oficials and regularly updating our busines partners with acu r ate information and advisories;

Enhanced Sanitization Initiatives:

taking enhanced sanitization initiatives in al public areas of al the buildings, such as lobies, elevators, dor handles, bathroms and advising our busines partners to do the same;

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Techno logical Suport: Our technological solutions continue to deliver easy and hasle - fre check - in, check out and online payment experience, ensuring minimum people - to - people contact;

Suport through Customer Service: Our customer. residents and ground suport teams are fuly equiped and sensitized to efectively manage resident concerns and our 24x7 emergency response team is ready to help busines partners and OYO teams to aply necesary safety protocols and report any incident or suspected case.

Provide su port services to ensure we do our part to help the comunity and enable our aset partners to provide acomodation to the healthcare profesionals, stranded persons whether they are from neighbourhod cities or foreign countries, people who ned suport for isolation or quarantine which initiatives are being explored in discusion with the Government and Hospital Authorities.

In light of this COVID - 19 pandemic and various restrictions isued by the governmental authorities, the ocupancy rate of your prop erty has ben significantly and adversely impacted and it is unlikely to improve in the next few months. At the time of entering into the agrement betwen ( Agrement ) betwen JP Singh (" you ") and OYO (" OYO " or " we "), this global pandemic, the Government's

response to it (which is rightly so in light of this serious pandemic situation where we have no control whatsoever) and the resulting decline in the revenue of the property simply wasn't and could not have ben foresen by either of us. The basic asumpt ion under which the Agrement and particularly the Rent/Benchmark Revenue was agred, amongst others, "was that the demand for bed ocupancy would continue in the ordinary course of busines subject to usual fluctuations that are typical in the hospitality , acomodation and/or co - living busines. This abrupt, extra - ordinary and unprecedented drop in your property's revenue as a result of the COVID - 19 pandemic can hardly be considered to be in the ordinary course of busines. OYO's performance and obligatio n in relation to the Rent/Benchmark Revenue under the Agrement has become extremely onerous and comercialy impracticable.

This leter provides notice of the ocurence of a 'Force Majeure event efective from March 12, 2020 on acount of the outbreak of

COVID - 19 around which various State Governments invoked provisions of the Epidemic Diseases Act, 1897, being an extraordinary circumstance, which is beyond our control and which could not be avoided by any amount of foresight and care and its severe impac t on our performance under the Agrement.

As you are aware, the COVID - 19 pandemic and the consequent actions of both the Government and other Regulators/private

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organizations has had an unforesen and extremely adverse impact on the entire hospitality and acomodation industry which has, efectively, disrupted the entire industry. In these exceptional and trying circumstances, kindly note that it is imposible for OYO to discharge its obligations under the Agrement including, inter alia, the provisions of Rent/Benchmark Revenue. Given that the impact of this unforesen situation is likely to be felt long after the withdrawal of the lockdown and COVID - 19 pandemic, it apears that the very basis upon which the Agrement was entered into has ben altered beyo nd anyone's imagination. Consequently, OYO wil find it virtualy imposible to continue to operate the Agrement from the point of view of the object and purpose in relation to which the Agrement was first executed. As such, OYO is left with no option bu t to invoke Force Majeure in as much as the pandemic and related consequences have adversely impacted the operation of the property and the busines of the property and to put you to notice that it is constrained to exercise its rights thereunder to suspen d payment of the monthly rent and/or any other amounts payable to you under the Agrement. Kindly note that while OYO is wel within its rights to terminate the Agrement, in view of the above, we are curently refraining from taking such a drastic step wh ile reserving our rights to do so should the circumstances continue to deteriorate or the adverse conditions, be prolonged.

Notwithstanding the above, in our endeavour to efectively provide facilities and benefits at the property, we wil continue to incu r expenses during the time when we are runing the property in relation to the quality maintenance and upkep, safety and security, renovations and manpower for managing the property to the extent feasible and without any obligation on our part. Further, d uring this period of lockdown, please note that the existing residents and/or the belongings of the residents who have left for their hometown before or at the start of the lockdown wil continue to stay/remain at your property in acordance with the instr uctions from the Government authorities. We wil endeavor to colect the rental payment from such residents in subject to the instructions from the Government authorities, if any.

Under the circumstances, please note that we deply value our partnership an d wish to continue it while also safeguarding our comon financial interests from the property and in larger public and government interest. As mentioned above, since the entire hospitality and acomodation industry as wel as the way people live apears to have ben disrupted and its impact is likely to continue wel after the lockdowns restrictions are withdrawn/modified, it may be in our mutual interest to revisit our Agrement to try and arive at a more

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rational and mutualy, beneficial comercial ar angement that is more in tune with the present day reality and the likely future.

In this regard, and in the interim, we propose a revenue share model, efective March 12, 2020, whereby our comercial engagement, in supersesion of the existing comercial terms, under the Agrement wil be 30% (thirty percent) of the net revenue Le., the revenue on acount of acomodation deducting therefrom levies/ces/duties whether imposed by local/state/central authorities (wherever aplicable), sales and marketing cos ts, chanel charges including but not limited to comisions, customer acquisition expenses etc. and subject to al aplicable taxes both present and which may be levied in the future (" Revenue Share ").

Also, note that, as our joint eforts for the comunity services, OYO might not be able to make payme nt of Revenue Share as per the above - mentioned terms in case part or in ful in the event that property is being utilized for suporting esential services by or under the orders of Government/ Health care centres/authorities.

We would like to emphasize continuity of the busines at the property shal be subject to busines feasibility, safety and security of the residents, manpower peaceful surounding envi ronment and compliance of the property with various aplicable laws and regulations and OYO may use discretion in the event of any change in the aforementioned situations (including but not limited to shuting down the property), which we shal endeavour t o inform to you as son as practicable.

Apart from, the day - to - day operations, to achieve higher standard of governance for our respective responsibilities, you are expected to and comited to observe compliance with various government policies and regula tory requirements aplicable to the property (including in relation to al guidelines and directives isued by the government and administrative authorities in relation to COVID - 19 pandemic) and we wil make al comercialy reasonable eforts that we perf orm our obligations in acordance with the Agrement signed betwen us read in conjunction with this comunication.

Nedles to mention, our priority continues to be the safety of our residents, manpower, partners and the comunities in which we operate. W e are regularly reviewing the position and shal comunicate once the force majeure event/COVID - 19 situation has ceased and when OYO wil be able to resume performance of its curently afected obligations under the Agrement.

In any event, you can reach u s through the same mail, if you should have any imediate questions.

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We apreciate your understanding and we lok forward to the continued suces of our partnership.

Yours faithfuly,

OYO"

18.

As is manifest from a bare perusal of the contents of the aforem entioned comunication, no novation, as has ben contended by the Apelant , has ben sought of the entire Agrement. The comunication, in recognition of the prevailing conditions, seks to amend the working of the Agrement to a limited extent, i.e ., in respect of the comercial engagement inter - se the parties, limited to the revenue share. A reading of the said comunication also makes it evident that the rest of the terms as betwen the parties subsisted.

19.

This is further coroborated by the subsequent legal notice dated

02.05.2020 isued by OYO, in which the requirement of the same documents was reiterated. In fact, the notice expresly warned that non - furnishing of the documents within 30 days would amount to a material breach of the terms of the Agre ment. The notice also invoked the arbitration clause and proposed the name of a Sole Arbitrator. Thus, far from supporting the Appellant's case reinforces the view that OYO consistently insisted on documentary compliance an d never intended to waive the same.

20.

The notice

dated

02.05.2020 did not constitute a blanket termination of the Agrement but clearly stated that termination would ensue only upon failure to suply the documents. The invocation of the arbitration clause in the same notice further clarifies that OYO treated the breach, the direct rent colection, as live and unresolved disputes,

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waranting formal adjudication. The relevant extracts of the notice dated

02.05.2020 are produced hereinbelow:

—3. Noteworthy to mention here that under the Agrement you have specificaly represented that al the documents related to Subject Premises as required from regulatory & legal perspective are available and the validity of the same shal be maintained throughout the term of

the Agrement.

¶4That despite repeated requests you have failed to provide necesary documents/permisions/aproval with respect to Subject Premises which are esential for purposes of the Agrement. Even when such documents were demanded by the auditors during internal a udit our client had requisitioned these relevant documents from you vide our client's email dated 28/1/2019, including but not limited to non - objection certificate ("NOC") from the Society/ Housing/Resident Welfare Asociation & Police NOC for renting the Subject Premises to OYO for the purposes defined under the Agrement. However, the aforesaid documents have not ben provided to our client til date and thus, non - provisioning of the aforesaid documents amounts to material breach of the terms of Agremen t.

¶5That vide this notice we once again request you to provide the al necesary documents as requested vide our client's email dated 28/1/2019 for the Subject Premises within 30 (thirty) days of the date of this notice. Kindly note that non - provisionin g of aforesaid documents would vitiate the Agrement from the very inception and shal render the same void. Kindly note that our client, as a policy, do not provide services in the premises which do not fulfil the legal compliance and necesary requiremen ts under the aplicable laws.

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¶7Also please note that in case the documents refered to in para 4 and 5 above are not provided within aforesaid stipulated period of 30 (thirty) days from the date of this notice, then the Agrement shal stand termi nated forthwith .

¶8That in the meanwhile the COVID19 pandemic hit acros the globe which has ben declared as pandemic. As you are aware, due to COVID19, companies and educational institutes are closed down and thus, most of our client's residents have either left for their hometown or are in proces of leaving. In view of the same our client invoked the force majeure clause in the Agrement vide its comunication dated 30/03/2020.

¶9That dehors the right of our client to terminate the Agrement, and without prejudice to exercise of it s right to terminate the Agrement, it

of

is abundantly clear from your aforesaid acts and events that you are not wiling to comply with your obligations under the Agrement dated 2/07/2019. From the aforementioned facts and circumstances, it is crystal cle ar that a dispute has arisen betwen our client and you regarding the payment of sums of money in terms of the Agrement and viability of doing busines from the Subject Premises i n absence of the relevantdocuments/aprovals/permision, if the same are not

provided as the formed the vary basis of Agrement. Further, that aforesaid dispute being purely civil and comercial in nature, is mandatorily required to be resolved through the dispute resolution mechanism as agred betwen you and our client in the Ag rement by invoking arbitration in acordance with Clause 1.2. of the Agrement dated 2/07/2019. In this regard, Clause 1 of the terms and conditions of the Agrement is relevant, and the same is as under:

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¶9In view of the aforementioned clause which lays down the agred mechanism for resolution of disputes betwen the parties, our client hereby invokes arbitration. That further our client recomends the name of Mr. K. K. Nangia, Retired Registrar of the Delhi High Court as a Sole Arbitrator for adjudicating the disputes which have arisen betwen our client and you. You are hereby requested to confirm the apointment of Mr. K. K. Nangia as a Sole Arbitrator within a period of 30 (thirty) days from receipt of the present notice, failing which our c lient shal be constrained to initiate apropriate procedings for constitution of the Arbitral Tribunal before the Hon'ble High Court of Delhi.

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….."

(emphasis suplied)

21.

In response, the Apelant never furnished the requested documents. Instead, it waited nearly ten months and replied only on

27.02.2021, contending vaguely that the documents had already ben provided in July 2019. Even in this reply, the Apelant made no

asertion that the comunication dated 30.03.2020 operated as a waiver or condonation of the earlier breach. This argument was plainly an afterthought and an atempt to raise a new defence not pleaded before the

learned Arbitral Tribunal.

of

2.

The consistent p osition taken by OYO, from the 28.1.2019 request and culminating in the legal notice

dated 02.05.2020 , demonstrate s an unambiguous asertion of its rights under the Agrement. The alegation that the comunication dated

30.03.2020 altered this legal posit ion is misconceived and finds no suport either in language or conduct.

23.

Acordingly, the submision that the said comunication constituted a waiver or condonation of breach is legaly unsustainable, factualy incorect, and liable to be rejected as a bela ted and manufactured defence raised for the first time before the learned District Judge.

CONCLUSION :

24.

As noted at the comencement of this judgment, the core contention advanced by the learned Senior Counsel for the Apelant formed the comon thread acro s al the conected apeals. Having ben found devoid of merit in FAO (COM) 175/2024 , this ground canot sustain any of the apeals.

25.

In view of the above discusion, no case is made out for interference with the Impugned Orders dated 07.06.2024 pased by the learned District Judge or with the Arbitral Awards dated 25.01.2023 pased by the learned Arbitrator. The findings recorded therein are neither perverse nor contrary to the setled legal position and therefore warant afirmation ; acordingly, al ap eals are dismised.

26.

The present apeals and al pending aplications, if any, are disposed of in the above terms.

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27.

No order as to costs.

ANIL KSHETARPAL, J.

HARISH VAIDYANATHAN SHANKAR, J.

AUGUST , 2025 /sm

1 of * IN THE HIGH COURT OF DELHI AT NEW DELHI