Food Plaza Restaurant vs India Trade Promotion ...
2009 Latest Caselaw 3572 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Reserve: July 28, 2009
                                            Date of Order: September 04, 2009
+OMP 247/2009
%                                                                 04.09.2009
    Food Plaza Restaurant                                  ...Petitioner
    Through: Mr. P.S Bindra, Advocate

       Versus

       India Trade Promotion Organization                 ...Respondent
       Through: Mr. Parag P. Tripathi, Sr. Adv. with Mr. Rishi Maheshwari, Mr.
       Akhil Anand and Mr. Amey Nargolkar, Advocates

AND

+OMP 248/2009
%
    M/s Singla Cuisine                                     ...Petitioner
    Through: Mr. P.S Bindra, Advocate

       Versus

       India Trade Promotion Organization                 ...Respondent
       Through: Mr. Parag P. Tripathi, Sr. Adv. with Mr. Rishi Maheshwari, Mr.
       Akhil Anand and Mr. Amey Nargolkar, Advocates


       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       JUDGMENT

1. By these petitions under Section 9 of the Arbitration & Conciliation Act,

1996 ("the Act" for short) the petitioners made a prayer that the respondent

should be restrained from creating any hindrance or obstructing entry/ exit of

petitioners' customers, visitors, guests, servants etc. in any manner to the

licensed premises between 11 am to 11 pm from Gate 1 and 7 of the Pragati

Maidan and interfering with the conduct of business of petitioners.

2. Brief facts relevant for the purpose of deciding these petitions are that

OMP Nos. 247 & 248 of 2009 Page 1 Of 6 the petitioners are running Food and Beverage outlets in Pragati Maidan

under license from respondent. The license is valid for a period of 10 years

and is currently valid. It is the contention of petitioners that the working hours

of the outlets are from 11 am to 11 pm in terms of license agreement

between the parties. In February, 2008, respondent passed an order

prohibiting the entry to the petitioners' outlets after 8 pm with the result that

a petition was filed by the petitioners before this Court and ultimately the

matter was referred to the arbitrator and the arbitrator by consent of parties

passed an award to the following effect:

"The Claimants, their representatives, guests, servants and assigns etc., shall be permitted entry/ exit through Gates No.1 and 7 of Pragati Maidan, New Delhi till 11 pm on all days subject to the terms and conditions of the License Agreement signed between the parties during the subsistence of the License Agreement signed between the Parties."

3. It is submitted that after this award was made, the entry of vehicles of

the guests/clients of the petitioner was being allowed from Gate No.1 and 7

upto the petitioners' outlets. However, in March, 2009, a new Security Officer

Mr. Vivek Sehgal came up to be appointed and he sought to obstruct the

entry/ exit of the vehicles of the petitioners and their guests/ customers upto

the licensed premises without any justification. A notice was sent to

respondent to this effect. Finding that there was an arbitral award in favour of

petitioners, a joint meeting of petitioners' and respondent's official was held

on 1st April, 2009. Since then though the vehicles of petitioners are permitted

to go through gate no.1 & 7 but are not permitted to go upto the concerned

outlet but are required to be parked at the parking lot at gate no.7 between

Hall No.14 and Defence Pavilion. It is submitted by petitioners that since the

OMP Nos. 247 & 248 of 2009 Page 2 Of 6 gate no.7 is locked most of the times, the guests are directed entry only

through gate no.1. There was no justification for not permitting the vehicles

right upto the licensed premises as was being allowed in past. It is stated that

not permitting the vehicles right up to the petitioners' outlets would make the

guests and visitors including children and aged persons and sometime

persons who are handicapped walk upto one/ one and a half kilometer to

reach the outlet and if the vehicles are not permitted till the licensed

premises people would not like to book the parties and would go to other

destinations.

4. In response to this petition, it is submitted by respondent that the

terms and conditions of the license agreement were being adhered by

respondent in this case. The licensor /respondent has absolute discretion to

earmark the parking areas and not to permit the parking of the vehicles

belonging to employees/ visitors of the petitioners at places not earmarked.

The respondent was responsible for overall security of the area and visiting

public and was within its right to allow parking only at an earmarked area. No

parking could be allowed at places other than the areas specifically

earmarked in Pragati Maidan.

5. The counsel for respondent referred to the terms of license deed to

assert that the respondent was perfectly justified in not allowing the vehicles

to go right up to outlets of the petitioners and in asking for parking of vehicles

only on at the parking lots, for security reasons. It is also submitted that these

parking lots were hardly 300/400 meters away from the outlets of petitioners

and petitioners' contention that the guests/ customers would have to walk

one or one and a half kilometer was false. The right of the petitioner to park

the vehicles right near the food and beverage outlets was denied. The

OMP Nos. 247 & 248 of 2009 Page 3 Of 6 security officer Mr. Sehgal was doing his duty as a senior officer of ITPO to

ensure security of each and every person present in the premises and the

relief sought by the petitioners would amount to compromising with the

security of the persons visiting Pragati Maidan including the guests of

petitioners.

6. The relevant clause of the agreement between the parties reads as

under:

"B.20 The licensor reserves the right to prohibit the use of the specific areas of the licensed premises for security reasons.

Xxxxx C1. The Licensee shall abide by all the instructions /regulations issued by the Licensor with respect to entry and exit of the material / servants / representatives / visitors /customers and vehicles from time to time.

C2. The Licensee shall have the absolute discretion to permit or not to permit the entry and parking of vehicles belonging to employees and/ or visitors to the Licensed premises and without specific permission, no such entry shall be allowed."

7. Clause B.20 would not be applicable in this case because it is not the

case of petitioners that they were being prohibited from use of any part of the

licensed premises. Clause C1 is also not applicable in this case since the

dispute regarding timings of food and beverages outlets of the petitioners has

been already resolved through arbitration and a consent award has been

passed allowing use of Gates No.1 and 7 between 11 am and 11 pm by the

petitioners' guests, servants, customers etc.

OMP Nos. 247 & 248 of 2009 Page 4 Of 6

8. Clause C2 above is relied upon by the counsel for respondent to argue

that it is within the discretion of respondent to permit or not to permit the

parking of vehicles belonging to employees/ guests/ customers of the

petitioners near F&B and the petitioner has to park the vehicles only in the

parking lots earmarked for the petitioners' guests, customers etc.

9. I consider that the dispute regarding interpretation of this clause can

be resolved by way of arbitration. However, the agreement prima facie does

not prohibit taking of vehicles to the gate of the food and beverages outlets,

dropping the guests, customers there and then taking the vehicles back to

the parking lot. The agreement does not specify that the vehicles of guests of

petitioners would not be allowed upto the gate of food and beverages outlets.

If the agreement is interpreted prima facie in that manner, then the

petitioners would not be able to even bring the material, food items,

beverages etc to the outlets and all the delivery vehicles will have to stop at

the parking lots and the delivery will have to be lifted from the parking lot to

the food and beverage outlets either by hand or in carts. In my view, this

does not seem to be the intention of the parties to the agreement /license

deed. It is also a fact that even if the distance is 300/400 meters, in travelling

of this distance from parking lot to food outlets, a person with disability may

face difficulty. The guests do include aged and handicapped persons and if

they are dropped at the parking lots, may find it difficult to reach the food

outlets.

10. I consider that in terms of the agreement, respondent has a right to

regulate the parking of vehicles and can earmark the place where vehicles

are to be parked but prima facie this clause does not give a right to

respondent not to allow the vehicles to come up to the gate of food outlets for

OMP Nos. 247 & 248 of 2009 Page 5 Of 6 the purpose of dropping the guests/ customers and then taking the vehicles

to the parking lot.

11. In view of my foregoing discussions, this petition under Section 9 of the

Act is allowed to the extent that respondent may post its security officers at

gates No. 1 and 7 to check the vehicles entering for the food outlets of

petitioners for security purposes. The petitioners shall get parking facility of

the vehicles only at the earmarked parking space however, respondent shall

not stop the vehicles from reaching the food outlets for the purpose of

dropping the guests and then bringing the vehicles back to the parking lot.

Respondent is at liberty to place its security guards at the food outlets to

ensure that no vehicle stays parked at the food outlets and all vehicles, after

dropping the guests, go to the parking lot. The petitioners shall make

arrangement for parking vehicles only in parking lots and employ drivers to

see that owner driven vehicles are parked in the parking lot. The petitioners

shall also post its own guards to ensure that no vehicle remains static/ parked

near food outlets and all vehicles are taken to the parking site earmarked for

the petitioner's food outlets.

12. With above directions, both petitions stand disposed of. However,

petitioners, if already have not invoked the arbitration clause, shall invoke the

arbitration clause within 30 days from today.

September 04, 2009                              SHIV NARAYAN DHINGRA J.
rd




OMP Nos. 247 & 248 of 2009                                        Page 6 Of 6