Shri Tikka Brijinder Singh Bedi & ... vs Metso Minerals (New Delhi) Pvt. ...
2010 Latest Caselaw 35 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                OMP No. 223/2005

                                         Reserved on :     November 30, 2009

                                      Pronounced on:       January 07, 2010

SHRI TIKKA BRIJINDER SINGH BEDI & ORS.                           ...Petitioners

                           Through:     Mr. D.S.Narula with Mr. Rajesh Kumar,
                                        Advocate.
              VERSUS

METSO MINERALS (NEW DELHI) PVT. LTD & ANR.                       .....Respondents

                           Through:     Mr. Ravi Gupta, Sr. Advocate with
                                        Ms. Meenakshi Arora, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the Digest?         Yes


    %                            JUDGMENT

VALMIKI J.MEHTA, J

1. By means of this petition under Section 34 of the Arbitration and

Conciliation Act, 1996, the petitioners, who are the landlords, are challenging

the Award dated 5.3.2005 of the sole Arbitrator.

2. Two suits were filed by the tenant M/s Mesco Private Limited, previously

known as Svedala Industries Pvt. Ltd., against the landlords, being suit Nos.

1565/2001 and 1566/2001. The first suit pertained to the rear portion (ground OMP-223/2005 Page 1 floor and basement) of the premises No. E-7/14, Vasant Vihar, New Delhi and

which was let out by the landlords, Mr. Tikka Bijender Singh Bedi and others.

The second suit pertained to the front portion (ground floor and basement) of

the same premises whose landlords were Sonali Bedi and others. These suits

were filed by the lessee, and who was the claimant in the arbitration

proceedings, for refund of the security deposit and other related disputes arising

pursuant to the lessee's vacation of the leased premises.

3. During the pendency of the suits, a common order dated 21.1.2003 was

passed in both the suits referring the disputes to the arbitration of the Sole

Arbitrator. The relevant portion of the order by which all the disputes between

the parties were referred to Arbitration reads as under:-

"After hearing the counsel for the parties, and considering the nature of the controversy between the parties, I am of the view that this can be best resolved by arbitration. Senior counsel Mr. Nayyar, on instructions, states that the plaintiff is willing to have the disputes, which are subject matter of the suits, resolved by reference to a sole arbitrator who may be appointed by this Court. Mr. Mahajan, on instructions, from Mr. Tikka BS Bedi and RHS Chopra, who are present in the Court, state that they are also willing to have the disputes referred to a sole arbitrator to be nominated and appointed by the Court. Accordingly, with the consent of the parties, I appoint Master Anup Kothari, partner of M/S Sathe & Kothari as the sole arbitrator to go into the disputes between the parties, which are subject matter of the suits as also the counter claims of the defendant that may be preferred relating to leasing of the premises in question to the plaintiff. It will be open to the parties to make their claims with regard to interest also.

Parties to appear before the Arbitrator on 15.2.2003 at 11 a.m. The Arbitrator shall give a reasoned award as expeditiously as possible. Fee of the Arbitrator is fixed at Rs.1,11,000/-(One lakh eleven thousand only) to

OMP-223/2005 Page 2 be shared by the parties equally subject to final directions, as may be given in the award.

Liberty granted."

(Emphasis added)

4. It is relevant to note that this order was a consolidated order with respect

to both the suits and certain I.As which were filed therein.

5. It is with respect to these aforesaid disputes relating to leasing of the

premises that this Award has been passed thereby adjudicating upon the

disputes which were referred to arbitration vide the order of this Court dated

21.1.2003.

6. Some relevant facts of the case are as under:-

By virtue of lease deeds and agreements for fittings and fixtures dated

9.5.1995, the landlords of the subject premises let out the two portions of the

premises to the present respondent No.1(hereinafter referred to as the

respondent). For the sake of convenience reference to the lease deeds

hereinafter will whenever the context so requires will include reference also to

the agreements of furniture and fixtures. Rent per flat was fixed at Rs. 39,000/-.

Fixtures etc. charges were Rs. 9,500/- and for which seven agreements per flat

were executed. The total of the rent including the charges for furniture and

fixtures for both the flats was fixed at Rs.2,11,000/- per month. A security

deposit totalling to Rs.34,20,000/- at the rate of Rs.17,10,000/- per flat was

paid by the lessee to the lessors. Identical lease deeds and identical agreements

for the furniture and fixtures were executed between the parties with respect to

OMP-223/2005 Page 3 the front portion and the rear portion of the premises E-7/14, Vasant Vihar, New

Delhi. The lessors of both the portions are closely related to each other. The

lease and the related agreements were signed by all the landlords. The lease

period was of three years from 9.5.1995 to 8.5.1998. After the expiry of the

lease period, fresh lease deeds and also agreements for fixtures and fittings was

entered into on 15.5.1998 for a fresh lease period of two years which on behalf

of the landlords was only signed by one of them namely Sh. RHS Chopra. The

total rent increased to Rs.56,000/- per month per flat. The hire charges for the

fixtures and fittings also increased and which became Rs.18,500/- per month

from Rs.9,500/- per month. The security deposit was increased by 30% i.e by

Rs.5,30,000/- and therefore the total amount of the security deposit with the

landlords for the two premises increased to Rs. 44,46,000/-. The

respondent/claimant vide its letter dated 15.10.1999 terminated the agreement

of 1998 and asked for the presence of the landlords at the premises on 15.4.2000

for handing over of the possession. By the same letter, the respondent also

asked that the landlords to bring the amount of security deposit of Rs.44.46 lacs,

which had to be paid simultaneous to the handing over of the vacant possession.

At this stage, without referring to other detailed facts, I may only state that

disputes arose with regard to the handing over of the possession on account of

the landlords claim of the obligation of the lessee to do certain repairs and

painting/polishing in the subject premises and possession therefore, remained

with the respondent/lessee inasmuch as the landlords neither came on 15.4.2000

OMP-223/2005 Page 4 to take possession and nor paid the security deposit. The basic and the main

dispute between the parties therefore revolves around the stand of the landlords

on one hand that the respondent did not bring the premises to its required state

as required under the lease agreements for the possession to be taken back and

whereas on the other hand the stand of the lessee was that the necessary works

were done, but, the landlords either not having the requisite moneys or probably

the inclination, did not take back possession or for the reason that they did not

want to refund the security deposit amount. Documents have been filed on

record which show that at this relevant time of handing over possession there

took place an exchange of draft agreements whereby the landlords had

suggested refund of the security deposit by payment of Rs.10 lacs upfront and

the balance thereafter in 24 equal instalments and to which a counter offer was

made by the lessee of the payment of amount by upfront payment of Rs.10 lacs

and the balance in four equal monthly instalments. The possession was

ultimately handed over/taken over on 22.3.2002 during the pendency of the

suits which were filed by the respondent in this court, namely the Suit Nos.

1565/2001 and 1566/2001.

7. By the impugned Award the Arbitrator has decided each issue separately

and has disallowed the claim of the landlords for rent during the period

16.4.2000 to 22.3.2002 ie. the period from the date of termination of tenancy,

to the date of the landlord's taking over of the possession. Similarly, the claim

of the landlords for loss of rental due to disconnection of electricity has been

OMP-223/2005 Page 5 disallowed. The Arbitrator has further ordered for the refund to the lessee of the

security deposit amount of Rs.44,46,000/- , but has disallowed the claim of the

lessee under Issue No.7 for alleged depreciation on furniture and fixtures.

Similarly, the claim of the respondent/lessee for security and maintenance

charges for the period from 16.4.2000 to 22.3.2002 has been disallowed. So far

as the electricity charges are concerned, the Arbitrator has allowed an amount of

Rs.5 lacs for the electricity consumption from 16.4.2000 till 22.3.2002. The

Arbitrator held that the rent agreements of 1998 were binding between the

parties and not the agreements of 1995.

8. The counsel for the objector has argued before this court, the following

objections:-

(i) The first objection was that the Award was beyond the terms of reference

as the Arbitrator dealt with the subject matters which were not the subject

matter of the suits and the order of reference;

(ii) The second objection was that the Arbitrator was bound to have passed

two separate Awards because there were two separate suits and the Arbitrator

has therefore committed an illegality in passing a single Award;

(iii) The third objection was that the Award was apprehended to have been

passed by a person other than the Arbitrator;

(iv) The fourth objection was that the Award is not supported by reasons and

also that the Arbitrator has committed an illegality in not taking any evidence

before deciding the issues, and fifthly

OMP-223/2005 Page 6

(v) The Arbitrator ought to have awarded charges for use and occupation of

the premises from 16.4.2000 to 22.3.2002 and the claim of the landlords for the

repairs and renovation charges at the higher amount of Rs.7.5 lacs for each flat

instead of a total amount of Rs. 3 lacs which has been ordered by the Arbitrator

towards restoration of subject premises.

9. The counsel for the respondent has replied to each of the aforesaid

objections.

10. So far as the first objection is concerned, that the Award is beyond the

terms of reference, I find that this objection is wholly misconceived in as much

as the order of reference passed by this court on 21.1.2003 makes it more than

abundantly clear that all the disputes between the parties pertaining to the

leasing of the premises which were the subject matter of the suits as also of the

counter claims of the landlords and the claims of interest were referred to the

decision of the Arbitrator. Reference of the main disputes to arbitration will

also naturally include reference to all the incidental disputes necessary for

deciding the main disputes between the parties, more so because the order dated

21.1.2003 uses the language "relating to leasing of the premises in question".

The Arbitrator has decided the issues pertaining to the claims of rent, electricity

charges and repairs/renovation charges as claimed by the landlords and has

decided the claims of the respondent/lessee inter alia with respect to refund of

the security deposit and security charges for the period from 15.4.2000 to

22.3.2002 and other incidental disputes. All these disputes between the lessors

OMP-223/2005 Page 7 and the lessee were related to the leasing of the premises and were very much

referred to arbitration by the order dated 21.01.2003. I therefore fail to see as to

how the Award is beyond the terms of the reference. I have also reproduced the

relevant portion of the order passed by this Court dated 21.1.2003 above and

which makes it more than clear that all the disputes between the parties related

to leasing of the premises viz. arising out of the relationship of landlord and

tenant and including which were the subject matter of the suits, were referred to

Arbitration. Thus the disputes adjudicated by the Arbitrator are within the fold

of the order dated 21.01.2003. Therefore, this objection is misconceived and is

rejected.

11. The next objection of the objector was that two Awards should have been

passed and not one Award. Before dilating on this issue, I may state that as per

the provision of Order 2 Rule 7 of the CPC, the objection as to misjoinder of

causes of action is only a technical objection and which objection is capable of

being waived. The counsel for the Objector failed to point out to me as to any

application filed by him before the Arbitrator that two Awards should have been

passed and not one. In fact, it was not even open to the objector to move such

an application because this Court by its reference order dated 21.1.2003,

specifically directed the Arbitrator to pass "a reasoned Award", making it more

than clear that it was only a single Award which was to be passed. No objection

has been raised or challenge has been made to the Order of this Court dated

21.1.2003 and therefore, it does not lie in the mouth of the objector to say that

OMP-223/2005 Page 8 not one but two Awards should have been passed. I note that though the leases

of the two portions of the property were separate, however, all the terms and

conditions of both the lease agreements were identical. The landlords are also

closely related to each other and were in fact therefore, represented by a

common representative. The landlords are related to each other as father,

daughter, father-in-law, and daughter-in-law etc. and therefore, the order of this

Court dated 21.1.2003 and the Award also proceeds on the basis of the

requirement of passing a single Award. Importantly, what is the prejudice on

account of only one Award having been passed has not been argued and

therefore if there is no prejudice, it cannot be said that the Arbitrator has

committed an illegality, which in any case, he has not, in passing the impugned

Award, more so because as already stated that the objection of misjoinder is one

which is only technical in nature and is one capable of being waived.

12. The third objection was in fact not effectively pressed because nothing

could be shown as to on what basis was there an apprehension that the Award

has been passed by a person other than the Arbitrator. Therefore, I do not find

any basis to sustain this self serving pleading and argument, and, which is

accordingly rejected.

13. The counsel for the objector then contended that the Arbitrator has

committed an illegality in not calling for evidence before deciding the case.

Before proceeding to consider this objection I note that in terms of Section 19 of

the Arbitration and Conciliation Act, 1996, the Arbitral Tribunal is not bound

OMP-223/2005 Page 9 by the strict provisions of the Code of Civil Procedure, 1908 and the Evidence

Act, 1872. Keeping this provision in mind, and the fact that there was

otherwise considerable documentary evidence before the Arbitrator in the form

of correspondence, lease deeds, draft lease deeds and also various other

documents, it cannot be said that no evidence has been led before the Arbitrator

or considered by him. So far as the issue of leading oral evidence is concerned,

I do not find that any such application was moved before the Arbitrator.

Considering that in the present case, the main dispute centred around the issue

in a narrow compass, as to whether the respondent/lessee was bound to carry

out repairs and renovation in the premises before the same could be taken back

by the petitioners/landlords the parties appear to have chosen the course of not

leading oral evidence. It is not in dispute that if theoretically the lessee had

brought the subject premises to the condition it was in at the time of letting out

of the premises subject however to the natural wear and tear, then the

lessors/petitioners were bound to take possession of the leased premises on

15.4.2000 and also at that time refund the security deposit, and for deciding this

narrow issue evidence was filed and was available to the arbitrator. There is

also evidence on record with regard to the repairs and renovations carried out by

the respondent, besides the evidence with regard to the fact that correspondence

had been exchanged on the aspect of refund of the security deposit including

the issue that whether the same is to be refunded with Rs.10 lacs upfront and

four monthly instalments or 24 monthly instalments. Thus, looking at the issue

OMP-223/2005 Page 10 from any angle, either from the aspect of Section 19 or the fact that there was

otherwise enough evidence or that the issue was such as to not require

mandatory oral evidence or that no application was made by the petitioners for

leading of evidence before the Arbitrator, I am of the opinion that this objection

is not well merited. The objection therefore that no evidence has been led is

misconceived and rejected.

While considering the present objection I may also consider the incidental

issue and argument as to whether the parties are bound by the lease deeds of the

year 1995 or of the year 1998. The Arbitrator has taken the lease

deeds/agreements of furniture and fixtures of the year 1998, and not of 1995, to

be binding between the parties and has accordingly proceeded ahead. The

findings of the Arbitrator in this regard are indeed persuasive and categorical,

and instead of my encapsulating the same, I would prefer to reproduce the

relevant portion of the Award on this aspect and which is as under:-

"1. In regard to the issue of which Lease governs the Leasing relationship between the parties i.e. the Lease Deed of 1995 or the Lease Deed of 1998, I hold as follows:

a) It is not disputed that the Lease Deeds of 1995 was executed between the parties to the dispute.

             b)     It is furthers not disputed that:
             i)     One of the co-owners executed the Lease Deed of 1998 for

himself and purportedly on behalf of the remaining Co-owners.

ii) That each of the co-owner Respondent were aware of the execution of the Lease Deed of 1998 and did not raise any objections thereto until Dec. 01(after 43 months of signing the lease in 1998)

iii) That each of the co-owner Respondents acted pursuant to the Lease Deed of 1998 in so much as they accepted additional rent and

OMP-223/2005 Page 11 security deposit. Furthermore, the terms of rental payment were also altered as per the Lease Deed of 1998.

iv) That the Respondents neither insisted on a renewal of the Lease Deed of 1995 not acted pursuant thereto.

In view of the above, I am of the considered opinion that the tenancy in question between the disputing parties was governed by the Lease Deed of 1998."

There is absolutely no illegality in the above findings of the Arbitrator

nor is there any perversity. At the very best, it can be said that two views are

possible. It is however, settled law that merely because two views are possible,

this court will not interfere with the Award if the view which is taken by the

Arbitrator is one plausible view. This finding of the Arbitrator that the parties

are governed by the lease of 1998 is clearly justified and I reject the objection

that the parties should continue to be governed by the lease deeds of 1995.

14. So far as the objection that the Award is not a reasoned Award, in my

opinion, such objection is wholly without any basis. The Award is a detailed

Award running into 13 pages and of which the conclusions with additional

reasons are contained the last four pages of the Award. The Arbitrator has

taken each issue specifically and has given his findings thereon. The last four

pages of the Award are prefaced by the first nine pages of the Award portion i.e

before juxtapositioning of the issues, wherein is found discussion about the facts

of the case, the correspondence exchanged, the relevant dates with the events

related thereto and also the other facts and implicit findings and which factual

substratum has been subsequently considered by the Arbitrator to arrive at the

conclusion qua each issue. Once the Arbitrator in an earlier part of the Award

OMP-223/2005 Page 12 has given detailed facts and also some findings, it was not necessary for him to

reproduce those detailed facts and findings already given in the earlier part of

the Award while subsequently giving his additional findings and conclusion on

each issue. It is settled law that reasons do not have to be detailed like the

judgment of a court of law and nor is there any fixed format for an Award.

Once reasons are given at different places in the Award and the reasons are such

which have a necessary nexus to the conclusions arrived at, the requirement of

the Award being a reasoned Award stands complied with. When I refer to the

conclusions in the last four pages of the Award, from paragraphs 1 to 10, along

with the factual narration and findings given in the earlier pages, it is quite clear

that there are sufficient reasons as required in law. If such a detailed Award

giving factual findings, reasons and conclusions exists then I cannot appreciate

the argument that the Award is not a reasoned Award. The contention therefore

of the counsel for the petitioners that the Award is not a reasoned Award and

therefore the Award must fail, does not have any substance and is accordingly

rejected.

15. The final objection, and which really is the crux of the issue, is with

regard to the liability of respective parties for the period from 16.4.2000 to

22.3.2002 : the period during which the premises remained vacant and for

which period whereas the landlords are claiming rent and other incidental

charges, and the tenant is disputing the liability for such period. I must at this

OMP-223/2005 Page 13 stage, advert to certain clauses of the 1998 lease deed between the parties and

which are as under:-

"4. The lessee shall keep in deposit with the lessor before the execution of these presents a sum of Rs.22,23,000/- (Rupees twenty two lacs twenty three thousand only) by way of security without carrying any interest to be refunded simultaneously at the time of vacating the demised premises on the expiry of the agreed period under this lease or its earlier termination as provided herein."

"12. That the premises have been painted and polished. On termination of the lease period/extended lease period, the lessee shall hand over the premises duly painted, polished, repaired, alterations restored and floors rubbed and polished. In case the Lessee wants the Lessor(s) to get this work done, the lessee shall pay for the costs at the prevailing market rate and time taken to perform the work."

"17. That the expiry of the lease period/extended lease period, the Lessee shall hand over vacant possession of the premises including servant quarters failing which the Lessor(s) shall be entitled to move the appropriate court for eviction orders. Further, it is explicitly agreed between the parties that in this event, the lessee shall pay double the last paid rent."

"19. That the lessee may at any time vacate the demised flat by giving the lessor a notice of 6(six) months. The lessor shall upon such notice and simultaneously with handing over of the vacant possession of the demised premises refund to the Lessee the security deposit along with advance rent, if any, for the unexpired portion of the lease."

"20. On expiry of the term of the present lease, the lessor shall refund the security deposit to the lessee simultaneously with handing over of the possession of the demised premises by the lessee."

16. A conjoint reading of the aforesaid clauses show that the handing over

vacant possession is simultaneous to the refund of the security deposit.

However, the refund of the security deposit, by its very nature, is to be made

after adjusting the claims of the landlords for the dues of the lessee with respect

to the leased premises and there is no contrary intention or clause is the lease

OMP-223/2005 Page 14 deed. In terms of para 12 of the lease deed which has been reproduced above,

the landlords have a right of renovation of the leased premises. This right is of

getting the premises painted/polished/repaired/alteration restored and floors

rubbed and polished.

17. I may note that before the Arbitrator, on this subject, various documents

including the letters exchanged between the parties were filed. Some of the

documents which are relevant in this regard are the letters of the respondent to

the petitioners dated 3.3.2000, letter of the petitioners to the respondent dated

18.4.2000, letter of the respondent to the petitioners dated 24.4.2000, letter

dated 5.5.2000 of the respondent to the petitioners, letter dated 12.6.2000 of the

respondent to the petitioners , legal notice dated 14.8.2000 of the respondent to

the petitioners, the reply to the legal notice dated 20.10.2000 by the petitioners

to the respondent, a draft agreement of February, 2001 with respect to refund of

the security deposit as proposed by the petitioners to the respondent for refund

by making upfront payment of Rs.10 lacs and balance in 24 equal monthly

instalments, letter dated 26.3.2001 of respondent to the petitioners responding to

the aforesaid draft agreement with its own draft agreement reducing the number

of instalments from 24 to 4, and lastly the letter dated 1.6.2000 from the

petitioners to the respondent.

The Arbitrator on considering the evidence as available before him has

arrived at his finding by ordering the refund of the security deposit. The

conclusion of the Arbitrator in this regard cannot be said to be unjustified or

OMP-223/2005 Page 15 illegal or perverse. While observing so, I must note that, the Arbitrator was not

a legal man, but a technical man, being an architect. One cannot expect such a

non legal person to write and give a judgment like a Civil Court. I have already

stated that the Arbitrator has given certain factual findings and narration in the

first 9 pages of the Award. These 9 pages also contain the relevant implicit and

explicit conclusions. It is thus possible that it is for this reason that the

Arbitrator has not again reproduced those findings and factual aspects when he

has giving his conclusions on each issue. The Arbitrator in substance has held

that the respondent cannot be said to be guilty in failing to handover the

possession on 15.4.2000, inter-alia, firstly because there appeared to be

discussions with regard to the petitioners wanting to take over the furniture and

fixtures in the premises and secondly because of the disinclination of the

landlords to refund the security deposit, especially at one go. Taking a

conspectus of the entire factual narration in the Award along with the findings,

it is clear that the Arbitrator's conclusions that the landlords defaulted by failing

to take over possession on 15.4.2000, is one plausible view. After all, the

respondent gained nothing by letting the possession of the premises remain

with it, because, the respondent had already shifted from the subject premises in

April 2000 itself. A premises was taken by them on rent and documents with

respect thereto have been filed. It is also an admitted fact which is on record

that the subject premises was vacant during the disputed period 16.4.2000 to

22.3.2002 and which becomes clear from the nominal electricity consumed

OMP-223/2005 Page 16 during this period. Also, and admittedly, the respondent had vacated the other

floors of the same building in April, 2000 itself after carrying out the required

restoration and taking back the security deposits from the landlords of the other

floors. Thus, the aforesaid facts show that there was no benefit to the

respondent in continuing possession and the findings of the Arbitrator, and who

is a final fact finding authority, cannot be set aside by this Court while hearing

objections as per the scope and the legal parameters of Section 34 of the

Arbitration and Conciliation Act, 1996. With the aforesaid facts, it is also to be

additionally noted that the petitioners had been dillydallying in refund of the

security deposit by seeking to repay the security deposit amount in instalments

whereas the security deposit amount has to be repaid in one lump sum (and not

in instalments) at the time of handing over of the vacant possession. Further, a

reference to the reply filed by the petitioners in the Arbitration proceeding do

not show specific details as to what repairs the respondents did not carry out in

the premises and how could not the leased premises be said to have been in a

proper state for taking back its possession. Reference to para (h) at page 6 of

the reply filed by the present petitioners before the Arbitrator shows that the

petitioners are delightfully vague as to what was the work which was not carried

out by the respondent. This aspect of the matter is indeed relevant because the

respondent had written its letter dated 5.5.2000 in which it was stated that the

premises were ready for being handed over and the same was after carrying out

the work as per the stand of the respondent, and which work the respondent

OMP-223/2005 Page 17 claimed was done pursuant to the requirements contained in the letter dated

18.4.2000 sent by the petitioners to the respondent. Without affecting the

finality of what I have observed above, I note that in the record there appears to

be a letter dated 26.4.2000 of the respondent to a contractor for carrying out

various works at the subject premises and also the subsequent letter dated

19.5.2000 of the contractor showing that certain work has been done at the

subject premises and for which the subject contractor has received payment.

Lastly, I feel that there appears to be a ring of truth in the stand of the

respondent, because, if the petitioners were sincere or genuine, and that

assuming that requisite work was not done by the respondent towards repair and

restoration, surely it was open to the petitioners to retain such amount as it

thought fit out of the total security deposit of Rs.44,46,000/-and refund the

balance amount on 15.4.2000 when premises were sought to be handed over by

the respondent to the petitioner. Admittedly, this was not done by the

petitioners though such a course of action was open to them if they wanted to

act bonafidely. I may in this regard also refer to Clause 12 of the 1998 lease

deed which envisages the position that the lessor in fact can be asked to do the

work of repairs and renovation of the premises, subject of course to payment of

costs by the lessees and meaning thereby that it is not that the lessee only had to

carry out the repair work, and the same could well have been done by the

petitioners/landlords by retaining a part of the security deposit. Therefore, it

becomes quite clear that the petitioners were refusing to part with the possession

OMP-223/2005 Page 18 of the monies which they had in the form of security deposit of Rs.44,46,000/-.

This could have been because the petitioners did not have the entire/requisite

funds or that they had just about enough funds but were deliberately delaying or

were acting malafidely. However, this court is not sitting as an appellate court

but is in fact hearing objections under Section 34 and the challenge to an Award

is permissible under Section 34 only if there is an apparent illegality or gross

perversity shown in the Award. The detailed facts narrated by me above, as

also the reasoning given in the Award shows that it cannot be said that there is

any apparent illegality or gross perversity in this regard to entitle this Court to

interfere with the findings of the Arbitrator in a petition under Section 34.

18. Accordingly, the objection to the findings of the Arbitrator with regard to

refund of the security deposit or disentitlement of the landlords/petitioners for

rent for the period 16.4.2000 to 22.3.2002 is not such that it can be sustained

under Section 34. At the cost of repetition I may state that merely because two

views are possible this court will not adopt a different view as canvassed by the

objector, as long as the view taken by the Arbitrator is one other possible view.

Accordingly, objection in this regard to the Award is rejected. At this stage, I

take on record the statement of the counsel for the respondent, made during the

course of hearing of the present objections, where he has very clearly stated that

whatever are the electricity dues which are payable, till 22.3.2002, the

respondent undertakes to pay the same. If that be so, even on the aspect of the

dues of electricity till 22.3.2002 does not survive for determination by this

OMP-223/2005 Page 19 court. This statement of the counsel for the respondent is taken on record and

will bind the respondent.

19. The counsel for the objector referred to a Division Bench decision of this

Court reported as Tamil Nadu Handloom Weaver's Co-operative Society vs.

Harbans Lal Gupta 2009 (107) DRJ 418 and para 24 thereof to contend that

the respondent is liable to pay charges for use and occupation till 22.3.2002. I

do not find that the said judgment will apply to the facts of the case because in

the said judgment there was a finding of fact that the tenant refused to offer

possession, whereas in the present case there is a finding of fact that the

respondent/tenant offered to handover the possession but the

landlords/petitioners did not take back possession.

20. The last issue which has been urged by the counsel for the objectors is

that the amount of damages granted towards restoration of premises of Rs. 3

lacs as per the finding of issue no.8 is inadequate. I have already noted that the

arbitrator is a technical person. Both the parties agreed to his appointment. It is

settled law that when the Arbitrator is a technical person, he is entitled to import

his technical & practical knowledge while dealing with the case. To such a

technical person, a certain lee-way is permitted in arriving at findings of facts

and the amounts towards certain claims. In the present case, the Arbitrator is an

Architect and he as per his experience and judgment, has granted a particular

amount for restoration, and, it is not that such a finding is wholly illegal or

perverse that the same can be interfered with it by this court while hearing

OMP-223/2005 Page 20 objections 34. I do not therefore find any reason to set aside this finding by

allowing the objection that instead of Rs.3 lacs, the Arbitrator ought to have

Awarded a sum of Rs.7.5 lacs per flat. While so holding on this issue, it is also

relevant to keep in mind the aspect with regard to the stand of the respondent

that certain repairs were carried out by the respondent. I have already noted

above that the record shows payment made to a contractor by the respondent

and also the fact that there is complete vagueness in the stand of the petitioner

before the Arbitrator as to what were the repairs/renovations which the

respondent was required to do, but it did not do. An overall reading therefore of

the facts of the case and the law as applicable does not entitle this court to

decide afresh this finding of the grant of damages of Rs.3 lacs granted towards

painting and polishing with minor repairs.

21. In view of the aforesaid observations, the objection petition is without

any merit and the same is therefore dismissed, leaving the parties to bear their

own costs.

                                                       VALMIKI J.MEHTA, J


January 07, 2010
ib




OMP-223/2005                                                              Page 21