Nuurrie Media Ltd. vs Indian Tourism Development Corp. ...
2009 Latest Caselaw 3712 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                Arb. P. No.131/2009

%                                  Date of decision:11.09.2009

NUURRIE MEDIA LTD.                                          ....Petitioner

                         Through: Mr. M.A. Khan, Advocate

                                Versus

INDIAN TOURISM DEVELOPMENT CORP. LTD. & ANR.. Respondents

                         Through: Dr. Kumar Jwala, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                 NO

2.    To be referred to the reporter or not?          NO

3.    Whether the judgment should be reported         NO
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. This petition has been preferred under Section 11 (6) of the

Arbitration Act, 1996.

2. The petitioner was a licensee with respect to certain rooms in

the Ashok Hotel, Chanakya Puri, New Delhi under the respondent.

The said License Deed contained an arbitration clause as under:-

"In respect where provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 can be invoked by the Licensor in respect of the licensed premises the provision of the said Act shall apply. In respect of any other dispute or difference relation to the terms of this license deed, the matter shall be referred to the sole arbitration of the Vice President (Hotels) or any other person appointed by him in his behalf. The award given by the arbitrator shall be binding upon the parties. It is specifically agreed by the Licensees that it will have no objection to any such appointment that the arbitrator so appointed shall have power to extend the time for making an award. Save as above, the said Arbitrator shall act under provisions of the Arbitration and Conciliation Act 1996. Subject to above, only Delhi Court will have jurisdiction."

3. It is the contention of the petitioner that it has claims against

the respondent for losses on account of the respondent having failed

to provide the services which the respondent had agreed to provide

under the License Deed and with respect to issuance of TDS

Certificates etc. The petition was preferred upon the Vice President

(Hotels) of the respondent, in spite of notice, failing to appoint the

arbitrator.

4. Since the arbitration clause itself provides that it is with

respect to the disputes not covered by the provisions of the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971, attention

of the counsel for the petitioner was invited to the definition of

"rent" in Section 2 (f) of the Said Act as including any charge on

account of any other service in connection with the occupation of the

premises. It is however the contention of the counsel for the

petitioner that the claims of the petitioner against the respondent

cannot be subject matter of the proceedings under the Public

Premises Act and the arbitrator be appointed for adjudication of the

said claims.

5. I may notice that this court also in M/s Exclusive Motors Pvt.

Ltd. Vs. ITDC in OMP No.1838/2008 decided on 4th April, 2008 and

in M/s Exclusive Motors Pvt. Ltd. Vs. ITDC MANU/DE/08/34/2009

and Harjit Singh Vs. DDA MANU/DE/0397/2009 has held that

there can be no arbitration with respect to the disputes covered

under the Public Premises Act.

6. The existence of the arbitration agreement and the petitioner

being party thereto and this court being the appropriate court to be

approached under Section 11 of the Act, being not disputed, the

petition is allowed. However, the question whether a particular

claim/dispute raised by the petitioner is arbitrable or not in the light

of the aforesaid is left open to be adjudicated by the Arbitrator.

7. The counsel for the petitioner has stated that his claim shall be

of over Rs.1.5 crores.

8. Accordingly, Mr. G.P. Thareja, Retired Additional District

Judge is appointed as the arbitrator. The consolidated fee of the

arbitrator is fixed at Rs.75,000/- to be borne initially by the petitioner

and subject to award as to costs and besides out of pocket expenses.

It is clarified that merely because an arbitrator has been appointed

will not be a ground for the petitioner to resist the claims of the

respondent under the Public Premises Act or otherwise and this

order or the pendency of the arbitration not to come in the way of

any remedies of the respondent against the petitioner or the

premises subject matter of agreement, under the Public Premises

Act or under any other law.

RAJIV SAHAI ENDLAW (JUDGE)

September 11th, 2009 PP