I.T.E India Pvt Ltd v. Delhi Tourism and Transportation Development Corporation

ORDER "/r

07.11.2012 l. The disputes leading to filing of these petitions rtnder Section 9 of Ar.bitr.ation and Conciliation Act, 1996 arise out of a contract dated 8'r' August, 2005 containing an albitration clause between the parties relating to a cornrnercial outlet in the Galden of Five Setrses located at Said-ul-ajaib,. Saket, New Delhi. The said conh'act was for a period of ten yeals.

¶2O.M.P. 72712011 was filed seeking interin'r measul'es restraining the respondent fi'orn encashing a bank guarantee fuinished by the petitioner in favour of the respondent in teuns of the said agreetrreltt. Vide ex parte order dated 26tr'September,20ll in the said O.M.P., subject to the petitioner renewing the bank guarantee, the respou"dent was restrained fi'orn encashing the sarne.

¶3O.M.P. 870/2011 has been filed, (i) to restrain the respondent fi'orn telninating the agleement in conh'avention of the tetrns thereof; (ii) to restrain the respondent fi'orn dispossessing the petitioner fi'orn the said cornrnercial outlet without following the due pl'ocess of law; and, (iii) to declar.e the letter dated 13tl'October,2011 of the respondeut of tennination I f'o v of the agreernent as null and void.

¶4Vide consent order dated 16tr' Decernber, 2OlI, the petitioner, without prejudice to its rights and contentions agreed to deposit a surn of Rs.15 lac with the respondent, which the respondent agreed to accept, again witlr.out prejudice to its riglrts and contentions; it r.vas further agreed that the bank guarantee subject rnatter of O.M.P. 7271201 1 shall be kept alive till fruther orders of this Court and the petitioner will contintte to pay the license fee to the respondent and the respondent will furnish the invoices for the service tax to the petitioner and upon which the petitioner will pay the service tax to the respondent; it was furflrer agreed that till the next date of hearing, no coercive actio.n will be taken by the respotldent against the petitioner; the TDS certificates were also handed over by the petitioner to the respondent in Court on the date of the order. The said interirn arrangement has continued till now.

¶5Senior counsel for the respondent has today contended that in spite of tfte petitions under Section t having been filed rllore than one year ago, 11o steps towalds the artitlation proceedings have been taken till now. Relying on Sunrluram Finance LtrJ. vs. NEPC India I'td., (1999) 2 SCC 479, rt is contended that the petitions under Section 9 ale liable to be dismissed because the petitioner has failed to initiate albitration. Leatned senior counsel fuither, under instructions, states that the respondent will talce proceedings under the Public Premises Eviction and Unauthorized Documents Act, 1971 for dispossession of the petitioner fi'om the said cornrnercial outlet and shall not dispossess the petitiorrer otherwise. It is fuither stated that subject to the petitioner keeping the bank gualantee subject rnatter of O.M.P. 72712011 alive, the resporrdent will not encash th"e a t,l 'a sarne till liability is finally detennined in accordartce with law. It is yet fuither contelded that no restrairrt of terrnitration catr be gra.rr.ted in Section 9 proceedings and in any case, as is obvious fi'om the prayer paragraphs in OMP No.870/2011, the tennination had already been effected prior to the filing of the .petition and the question whether the tennination is in accordance with the agreemeut and law cannot be decided in these proceedings.

¶6The counsel for the petitionel states tlrat an application under Section l l of the Albitlation and Conciliation Act, I 996 has already been filed and though was atternpted to be got listed for today ottly, has not been listed. The counsel states that for the sake of expediting, this Court rnay appoint the Arbitrator also today itself.

¶7Senior counsel for the respondent opposes the olal pfayer for appointrnent of Albitrator.

¶8On the staternent of the counsel for the petitioner that an application under Section 11 has been filed though not listed and though there is indeed considerable delay in filing the sarne, but in the entirety of facts, it is not deemed expedient to reject these petitions on the said ground. g. These petitions are disposed of, accepting the staternents aforesaid on behalf of the respondent, i.e., .not to dispossess the petitioner fi'orn the cornrnercial outlet save by follorving the due process of law and not to encash the bank guarantee till acljudication of liabilities in accordance with law. The petitioner, in turn, is directed to keep the bank guarantee alive till adjudication of the commercial disputes between the parlies. The petitioner is fuither directed to continue to pay the license fee and other dues and selice tax to the respondent regularly and to also hand over TDS a a \, 't-I \\/ certificates fi'orn tirne to tirne when due. g. O.M.P. 72712011 and O.M.P. 87012011 are disposed of in tenns of the above.

¶10conternpt by the respondetrt Nos.l to 5 (in the ccP), being officials of respondent DTTDC, of order dated 16tl' Decernber, 2011 in O'M'P' 870/20L1 is alleged. It is argued by the seuior cottnsel for the Relator that notwithstanding the consent ol'der dated 16'r'Decetnber,20ll in the said O.M.p. whereunder the respondent was restrained fi'om taking any coercive steps against the petitioner, letters dated 12tl'.Januaty,2012,2"d April, 2OI2 (e-rnail), 18tr'May, 2012, lltl'May, 20L2 ltave beeu addressed by the respondents to the petitioner and to the sub-licensees of the petitioner in the cornrnercial outlet licensed by the respondent to the petitioner and the respondent ultirnately vide notice dated l Bth/lg'l' Jruly,2012 affixed outside the prernises also reshained one of the said sub-licerlsees fi'orn parting with possession and occupying the prelnises uttless it paid the occupation charges within a period of 24 holrs of the saicl affixatiol.

¶11Notice of the CCP was issued and reply affidavits have been filed by the respondents therein. IZ. As far as the letters, save the last one, are rnentioned, I arn of the considered opinion that the satne cannot fall in the category of coercive action which had been restained. Vide the said letters, detnands were made by the respondents on the petitioner 01' ort the sub-licensees of the petitioner of the atnounts, which, according to the respondents, wete due f1orn the petitioner. No coercive steps for t'ecovery of the arnount was taken. Merely rnaking a dernand would not fall within the words "coel'cive action". However, as far as the notice dated 18th/19th July, 2012 ts \) concelned, the satne, no doubt by plohibiting use and occupation, was a coercive step.

¶13However the senior counsel for the alleged contemnors, fi'orn the replies filed by the respondents shorvs that th.e sarne was done on the advice obtained by the respondents. The senior counsel for the respondents, explains that the said notice was issued in pursuarce to the letter dated 19tr' May, 20L2 received fi'orn the Relator itself. The petitioner vide the said letter infonned the respondents of the tennination by the petitioner of the sub-license of the said sub-licensee and objected to the respondents approaching the sub-licensee directly. It is the contention of the senior counsel that the said letter of the Relator was construed by the respondents as enabling the respondents to tal<e steps for preventing the said sub-licensee whose sub-licence had been tenninated by the Relator fi'om occupying the prernises inasmuch as the respondents alone had the said power and the respondents intended to, upon so evicting the said sub-licensee, restore possession of the said portion to the petitioner only.

¶14Though the aforesaid explanation is conh'overted by the senior counsel for the Relator but considering that the petitioner/Relator is still irr possession of the corunercial outlet and in the OMPs, a staternent has been made by the respondents not to distutb possession of the petitioner/Relator save by due process of law, it is rrot deerned expedient to proceed with this contempt any finther and to give berlefit of doubt to the respondent. The conternpt petition starrds clisposed of. No costs. NOVEMBER 07,20t2lkrn { I

RAJIV SAHAI ENDLAW, J.

I I-22 and23 *INTHEHIGHCOURToFDELHIATNEwDELHI o.M.P. 72712011 I.T.E INDIA PVT LTD ..'.' Petitioner Through: Mr. Sandeep Setlti, Sr. Advocate with Ms. Neeru Sharrna and Mr. Deepak Vij, Advocates VETSUS DELHI TOURISM AND TRANSPOK|ATION DEVELOPMENT CORPORATION LTD AND OTHERS ..... Respondents f Through: Mr. Vikas Singh, Sr' Advocate with Mr. Rajeert Shatrua, \": Mr. sahil Bhalaik and Mr. Uddyanr Mukhetjee, Advocates + o.M.P. 87012011 LT.E INDIA PVT LTD ..... Petitioner Ttu'ough: Mr. Sarrdeep Sethi, Sr'. Advocate with N4s. Neeru Sharrna arr.d Mr. Deepak Vij, Advocates VEISUS DELHI TOURISM AND TRANSPOI{TA'|IO N D EVELOPMENT CORPORATION ..... ResPondent Through: Mr. Vikas Sirrgh, Sr. Advocate with Mr. Rajeev Sltanna, Mr. Sahil Bhalail< arrd H,Y"11J:'" Murcrrerj e e' lt + CCP 7612012 in O.M.P. 87012011 I.T.E INDIA PVT LTD ..... II.EIAIOT Ttn'ough: lVIr. Sandeep Sethi, Sr. Advocate with Ms. Neeru Shanna and Mr. Deepak Vij, Adrioeates .4, VETSUS MR. G.G. SAXENA AND ORS. ..... Alleged Contemnor Thlough: Mr. Vikas Singh, Sr. Advocate with Mr. Rajeev Sltatrna, Mr. Sahil Bhalaik and Mr. Uddyarn Mukhetjee, Advocates CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW