Sunil Khanna and Another vs Vodafone Essar Moblie Services Ltd.

Learned Counsel for the respondent has entered appearance and thus, the caveat stands discharged.

CM No. 1328/2012(Exemption)

Allowed subject to just exceptions.

FAO(OS) No. 29/2012

The appellants appear to be going through a ritual of impugning the award dated 14.8.2011 before the learned single Judge and now before us completely ignoring the very premise for enacting the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ''said Act''). We may notice at the threshold that an arbitrator is a chosen judge by the parties and the court while examining objections u/s 34 of the said act must do so within the narrow window available and not as a court of appeal to re-appreciate the evidence. All that the has been urged in the present case by the Learned Counsel both before the learned single Judge and before us is and Endeavour to persuade us to re-appreciate the evidence. The dispute is in very narrow compass. The appellant let out their premised torn the respondent in pursuance of a lease deed dated 7.2.2008. The premised consisted of a shop bearing No. FF-03, First Floor, Commercial Complex,? The Metropolitan? At Commercial Plot No. A-2, Saket Palce, Saket, New Delhi-110017 (for short" the premises") at a monthly rent of 4,31,659.00 for a period of nine (9) Years, The Possession was handed over to the respondent on 1.2.2008, An interest free security equivalent to six (6) Month" Rent was paid by the respondent amounting to 25,89,954.00 a part from the maintenance security deposit of 1.00 lakh.

It is not dispute that the respondent had the right to terminate the lease during this period of nine (9) and it is pursuance of such right that he lease was terminated w.e.f. 16.1.2009 as per a notice dated 16.10.2008 of the respondent. All maintenance charges levied by the Mall Management up to the dated of vacation were to be settled by the tenant and a NO Due Certificate obtained while handing over the shop for the appellants to hand over the security amount to the respondent.

The controversy arose inter se the parties as according to the respondent the leased premises were restored to the appellant in the original condition on 15.1.2009 after clearing all dues towards maintenance charges to the Mall Management while on the other hand the appellants plead failure to hand over vacant and physical possession of the premises in question. As per the appellant the physical possession was handed over only when the keys of the premises were handed over during the pendency of the petition u/s 9 of the said Act by the appellants while the application filed by respondent u/s 11(6) of the said Act was also under consideration, In fact, the appellants had earlier filed a civil suit before the learned Additional District Judge in which an application was field by respondent u/s 8 of the said Act.

The principal issue, which is not disputed by Learned Counsel for the parties appearing before us, is as to the date the possession of the premises was handed over to the appellants. The arbitrator analyzed the evidence and found that the stand of the respondent was correct. The appellants sought to plead that they were ready with the demand draft for the security amount on 15.1.2009 but it is also undisputed before the arbitrator as well as in the Court proceeding including before us that no notice was sent by the appellants to the respondent stating this fact. It is only during the cross-examination of the witness of the appellants that this fact was disclosed. It is no doubt true that in the bargain the premises of the appellants remained vacant and were not earning any rent but then that was a making of the appellants themselves. The appellants in their anxiety to realize the continued rent form the respondent crated one hurdle or the other so as to give rise to a situation where it did not have to repay back the advance rent and security deposit. In fact, the plea of the respondent which has been believed is that this was the objective with which the matter was raked up.

The arbitrator as per impugned award dated 14.2.2011 in paragraphs 15 noticed the principal issue and answered the same in paragraphs 18. The evidence has been discussed in paragraph 19. The award is a well reasoned award analyzing the evidence. We do not consider it necessary to respondent the relevant paragraphs of the award but it would be suffice to reproduce all the following paragraphs:

21, In the issue case, weighing the probabilities, we have to see the attitude of the respondents. When the notice of termination was given by the claimant in the reply it is not stated that the respondents will be ready with the drafts on that date. In the letters dated 04.02.2009 and 27.2.2009, long after 15.1.2009, the respondents do not refer to the taking of the drafts on 14.1.2009 and being ready to hand over the same to the claimant. In the suit No. 463/2009 filed by the respondent for the recovery of 17,26,636/- nowhere it is mentioned that the respondents were ready with the drafts. In the reply to the claim statement, there is no mention about this fact. In the counter claim, separately filed, there is no mention about this. In the cross-examination of RW1, that this fact is disclosed. If really the respondents were Serious about taking possession on 15.01.2009, on their delivering the bank drafts to the claimant, the respondents would have certainly informed the claimant about this fact. Therefore, having regard to the situation and considering the probability, I have no hesitation in rejecting the case of the respondent.

Apparently, the respondents though that there were large dues form the claimant to the mall and the mall may make claims against the respondents and through that getting the NoC would absolve their responsibility to the mall. That was no justification for the respondent not to place on record the delivery of possession on 15.01.2009 by the claimant. The respondents also have not given any explanation when the claimant had issued the notice on 16.10.2008 why they did not approach the mall about the quantum payable by the claimant to the mall towards charges and even on 15.01.2009 nothing on record to show that the respondents approached the mall for ascertaining the exact quantum payable by the clamant to the mall.

From the above facts it is clear that the claimant issued notice on 16.10.2008 pursuant to which delivery of possession was given in 15.01.2009 and the respondents had taken delivery and with ulterior motives had kept that fact to themselves and started claiming the rents as if the claimant had not delivered possession basing themselves on clause 27 of the lease. The submission of the id. Counsel for the claimant that such ulterior motives were rooted in the fact that the respondents were not able to get a new tenant for the same rent and had consequently conceived this theory, is not without any basis, I am quite clear that respondent Nos. 1 and 2 as RW1 and 2 have not come forward to tell the truth. Therefore, I hold that the respondent insisted on a condition which was not at all necessary or agreed upon. I further hold that possession was delivered on 15.01.2009 by the claimant to the respondents. The theory of the respondent that they took possession only on 17.08.2009 pursuant to the order passed by the Hon''ble High Court of Delhi is a myth just for the purpose of making a counter claim. Therefore on the claimant delivering possession to the respondents, the respondent are bound to return the sum of 25,89,954/- and 1,00,000/- to the claimant. Accordingly, I hold that the claimant is entitled to the sum of 25, 89, 954/- and 1,00,000/-

The learned single Judge while considering the objections u/s 34 of the said Act in the impugned order dated 28.11.2011 has given his conclusions in paragraphs 12 as under:

The above submissions have been considered. The key issue in the present case concerns the handing over of the possession of the premises in question by VEMSL to the petitioners. It is correct that neither in the suit filed in the Civil Court nor in the reply to the claims of VEMSL before the learned arbitrator or in their own counter claims before the learned Arbitrator or in their own counter claims before the learned Arbitrator did the petitioners make any mention of their having kept ready three demand drafts for the security deposit amount on 15th January 2009 itself. For the first time in the present proceedings he petitioners have enclosed photocopies of the said demand drafts. This justifies the interference drawn by the learned arbitrator that the drafts dated 14 the January 2009 were retained by the petitioners in order to make VEMSL first furnish to the petitioners a no due certificate. If the petitioners hardbound doubts that maintenance charges were owed to the mall management they could easily have made enquiries. The Petitioners? Letter dated 4th, 17th and 27th February 2009 do not make any mention of the drafts supports the conclusion of the learned Arbitrator. As regards the payment of maintenance and electricity charges, it does appear that the ledger account in question was maintained by the mall management. There is nothing to show that the entries evidencing payment after 15th January 2009 were on account of payment made by VESML to the mall management. The gate pass is but one document that supports the plea of VMSL that it removed its belongings and vacated the premises in question on 15th January 2009. There is noting to show that they used the premises in question thereafter. Cumulatively considered in light of the depositions of the witnesses it cannot be said that the conclusion of the learned Arbitrator was erroneous or suffered from any "patent" illegality.

We are complete agreement with the aforesaid conclusion and see no reason why this Court should proceed to re-appraise the evidence placed before the arbitrator.

We are of the view that Courts must discourage frivolous litigation which are filed as a ritual to challenge the award merely by reciting "opposed to public policy of India" as a mantra.

The aforesaid being the only plea urged before us, we dismiss the appeal as merit less with costs quantified at 40,000,00 to be paid to the respondents.

CM No. 1327/2012(Stay)

In view of the dismissal of the appeal, no directions are called for on this application and the same stand disposed of.