Delhi Metro Rail Corporation Ltd. vs Ms. Poonam & Ors
2011 Latest Caselaw 5311 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   R.P.No.643/2011 in C.M.(M) No. 1327/2010


%                                                   November 02, 2011


DELHI METRO RAIL CORPORATION LTD.     ..... Petitioner
                    Through:  Mr. Ankur Gupta, Adv.

                    versus


MS. POONAM & ORS                                    ..... Respondents

                           Through:     Mr. R.K.Saini, Adv. for
                                        R-1/Review petitioner
                                        Mr. B.V.Niren, Adv. for R-2.



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?

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

VALMIKI J. MEHTA, J (ORAL)

CM No.19988/2011(for condonation of delay)

1. Delay in filing the review petition is condoned. CM stands

disposed of.

R.P.No.643/2011

2. By this review petition, the respondent no.1/review petitioner

seeks review/recall of the order dated 18.5.2011. The order dated 18.5.2011

is a consent order and which reads as under:-

"% 18.05.2011 Present: Mr. Ankur Gupta, Advocate for the Petitioner.

Mr. S.S.Jain, Advocate for the Respondents.

+CM (M) No. 876/2010 & CM (M) No.1327/2010

It is agreed between the counsel for the parties that all the disputes/differences/issues/claims/counter-claims arising out of or in any manner related to the contractual relationship of the respondents taking a kiosk from the petitioner be referred to arbitration in the Delhi High Court Arbitration Centre. Ordinarily, as per the contract, it was the petitioner, who had to appoint the arbitrator but since the respondents have agreed to bear the complete costs of arbitration the petitioner has no objection if the disputes between the parties are referred to the arbitration of an Arbitrator of the Delhi High Court Arbitration Centre. I, therefore, appoint Smt. Kanwal Inder, Retired District and Sessions Judge, B-50B, Siddharth Extension, New Delhi (Tel. No.26344006) as an Arbitrator to enter upon the reference and to decide all disputes/differences/claims/counter-claims arising out of or in any manner related to the contractual relationship of the respondent taking a kiosk from the petitioner and also with respect to issues which are raised in the suits pending between the parties. Parties agree to be bound by the Rules of the Delhi High Court Arbitration Centre. Let a copy of the present order be sent to the Delhi High Court Arbitration Centre and also dasti be given to counsel for the parties so that they can approach the Delhi High Court Arbitration Centre.

With the aforesaid observations, the petition stands disposed of.

The suits also accordingly will stand referred to arbitration in terms of this order and disposed of."

3. The aforesaid consent order came to be passed in a petition

under Article 227 of the Constitution of India by the petitioner/Delhi Metro

Rail Corporation Ltd. against the impugned judgment of the Trial Court dated

11.8.2010 which had dismissed the application filed under Section 8 of the

Arbitration and Conciliation Act, 1996 for reference of the disputes in the suit

to arbitration as there was an Arbitration Clause in the license agreement

between the parties. The respondent no.1/plaintiff had taken licensed

stalls/kiosks at Kashmere Gate Metro Station, New Delhi from the petitioner

herein. The stalls allotted were stalls No. 43-49. A license agreement dated

2.6.2005 was duly executed between the petitioner/licensor and the

respondent no.1/licensee. Clause 22 of this license agreement contains an

Arbitration Clause.

4. The application under Section 8 of the Arbitration and

Conciliation Act, 1996 was filed by the petitioner in the suit filed by the

respondent no.1 before the Additional District Judge, New Delhi for

declaration, permanent injunction and recovery of Rs.14,78,500/- as disputes

and differences had arisen with respect to the licensed stalls. The petitioner

stated that the respondent no.1/plaintiff had failed to pay the license fee,

electricity charges and other administrative charges and yet failed to vacate

and hand over possession of the stalls/kiosks and therefore the petitioner

took possession of the stalls/kiosks from respondent no.1 in accordance with

the terms and conditions of the license agreement.

5. The main petition, as stated above was disposed of by the

consent order dated 18.5.2011.

6. Now by this review/recall petition, the respondent no.1/review

petitioner states that her Advocate gave consent to arbitration without

taking consent from her. It is also argued that the costs of arbitration of the

Delhi High Court Mediation and Conciliation Centre are prohibitive and the

respondent no.1/review petitioner cannot bear the same. Other averments

have also been made in the review petition on merits as to why the matter

cannot be referred to arbitration.

7. In my opinion, the review petition is misconceived inasmuch as it

is not disputed that the concerned Advocate who appeared for the

respondent no.1 was authorized by the respondent no.1 to appear in this

Court. To my best recollection, the counsel for the respondent no.1 was also

instructed/briefed by the brother of the respondent no.1, who is an Advocate.

In fact, this brother of the respondent no.1, who is an Advocate, is present in

Court even during the hearing of this review petition. It is not permissible for

a party to back out from a consent order merely because subsequently the

party has second thoughts. A consent order cannot be backed out from only

because a person has second thoughts subsequently. This is impermissible

in law. To test the credibility of the claim in the review petition that the

consent is being sought to be recalled because the Arbitration by the Delhi

High Court Mediation and Conciliation is costly, I put it to counsel for the

review petitioner that if that be so, there can be Arbitration by a retired

Additional District Judge who would take about Rs.55,000/- and complete the

Arbitration in a time-bound manner. However, counsel for the review

petitioner, after seeking passover of the matter for instructions, states that

the review petitioner is in fact not at all interested in arbitration. Quite

clearly, the conduct of the review petitioner and the counsel who appeared

for her leaves much to be desired.

8. Various other grounds which have been raised in this petition

are, in fact, grounds of merits in support of the impugned order dated

11.8.2010 and which grounds do not arise once it is found that the order

dated 18.5.2011 is a consent order.

9. In view of the above, there is no merit in the review petition

which is quite clearly an abuse of process of law by a litigant who is playing

fast and loose by seeking to be clever by half. Since the appellant has been

unnecessarily burdened with appearance in the present matter, the present

review petition is dismissed with costs of Rs.10,000/- and which shall be paid

within 2 weeks from today.

VALMIKI J. MEHTA,J NOVEMBER 02, 2011 ak