Aaic Building Solutions Ltd v. Archaeological Survey of India

NAVIN CHAWLA, J MARCH 06, 2019 RN

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P. (COMM) 511/2016 Reserved on: 01.02.2019 Date of decision : 06.03.2019 AAIC BUILDING SOLUTIONS LTD. ..... Petitioner Through: Mr.Akhil Sibal, Sr. Adv. with Mr.Pradeep Chhindra, Ms.Shriambhra, Advs. versus ARCHAEOLOGICAL SURVEY OF INDIA ..... Respondent Through: Mr.Jayant Tripathi, Mr.Dinesh Dahiya, Ms.Nayantara Roy, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner challenging the Arbitral Award dated 15.03.2015 passed by the Sole Arbitrator directing the petitioner to pay to the respondent a sum of Rs.1,26,63,692/- (Rupees One Crore Twenty Six Lac Sixty Three Thousand Six Hundred and Ninty Two only) along with interest @12% per annum from the date the application was filed before this Court for appointment of an Arbitrator till the final payment. 2. In the year 2010, the respondent issued a tender notice inviting bids for operating the premium parking facility on the south side of Red Fort. The tender was for a period of two years and had the following important terms: Page 2 "1. The contract shall be for two years from the date of award of contract. 2. The charges for parking of different category of vehicle shall be as under:- a. Car Rs.40/- per vehicle for two hours. b. Mini Coach Rs.75/- per vehicle for two hours. c. Bus Rs.100/- per vehicle for two hours. d. Large Buses Rs.125/- per vehicle for two hours. e. Three wheeler /Auto Rs.30/- per vehicle for two hours. f. Motor-Cycle & Scooter parking Rs.10/- per vehicle for two hours. g. For Clock Room Rs.5/- per luggage for two hours. Note: The above rates of parking of vehicle is only for 2 hrs. The above said rates shall double up one time after two hours in a day. 3. The reserved price for one year contract by the govt. is 65.00 lacs. xxxxx 20. No fee would be charged from Hop On and Hop Off Buses or vehicles that are taking tourists from Delhi Gate to Lahori Gate and Vice-versa." 3. Along with the above tender conditions, the respondent provided an assessment of revenue collection which was the basis of setting the reserve price. The said revenue assessment was based on the parking rate fixed by UP Tourism Department for Taj Mahal / Fatehpur Sikri parking at Agra for tourist parking. The said assessment is relevant as the Award is based thereon and is therefore, reproduced hereinbelow: "Parking area at South (T-5) Red Fort An assessment of revenue collections Page 3 Parking capacity for bus 30 nos. @ Rs.100/- 3000 Parking capacity for car 300 nos. @ Rs.40/- 12000 Parking capacity for scooter motorcycle 100 nos. @ Rs.10/- 1000 Parking capacity for auto/three wheeler 20 nos. @ Rs.30/- Car on monthly basis 20 nos. @ Rs.20/- Total Rs. 17000 This capacity may be used 1.5 times a day 1.5 x 17000 = 26250/- Clock Room 500 pkts @ Rs.5/- = 2500/- Total for one day = 28750 Calculated working days Non working days ID celebration 07 days Other emergency occasion 06 days Weekly off 52 days Total 65 days 365-65 = 300 days @ Rs.28750/- Rs.8625000/- Deduction for collection charge Infrastructures by contractor, contractor's Profit and taxes etc. Taken as 25% (-) 2156250/- Net Rs.6468750/- Say 6500000/- Page 4 = The rates based on the parking rate fixed by UP Tourism Department for Taj Mahal/Fatehpur Sikri parking at Agra for tourist-Parking." 4. The petitioner submitted a bid of Rs.1,03,00,000/- (One Crore Three Lacs only), which being the highest bid, was accepted by the respondent. 5. The learned senior counsel for the petitioner submits that the petitioner started providing the parking services with effect from 19.10.2010. 6. The petitioner, however, stopped making the payment of the agreed licence fee with effect from July, 2011 claiming that the respondent was in breach of the Agreement as it had failed to provide to and fro shuttle service between the parking lot and Lahori Gate en