Atul Berry & Anr vs Tata Teleservices Ltd & Anr
2014 Latest Caselaw 6338 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                              ARB.P. 289/2014

%                              Judgement pronounced on: 01.12.2014
       ATUL BERRY & ANR                                    ..... Petitioners
                               Through: Mr B.L. Chawla, Advocate

                               versus

    TATA TELESERVICES LTD & ANR              ..... Respondents
                  Through: Mr Azmat Amanullah, Advocate for
                  Respondent No. 1
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT (ORAL)

1. Learned counsel for the petitioner has submitted that he does not wish

to file any rejoinder.

2. The present petition has been filed under Section 11(6) of the

Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act')

against two respondents, namely, Tata Teleservices Limited and Vion

Network Limited.

3. It is contended by the petitioner that the petitioners are the owners of

built up property No.11747/4, Gali No. 5, Khasra No. 3624/688, Block U,

Basti Reghar, Sat Nagar, Karol Bagh, New Delhi-110005. A licence

agreement dated 31.08.2001 had entered into between the petitioner and

respondent No. 1 for using the terrace of the said premises for the purpose of

installing poles/towers mounted antennas, shelters, D.G. space and other

related equipment for a period of 240 months commencing from 14.02.2003

at the fee of Rs.12,000/- per month. As per clause 14 of the said agreement,

the respondent No.1 was entitled to assign, transfer in whole or a portion of

the site, antenna, the equipment, subject to prior consent in writing of the

petitioners and in such an event, the transferee or the assignee, as the case

may be, shall be bound by all the terms and conditions set out in the said

deed. Respondent No.1 assigned and transferred the terrace space to

respondent No.2 and since then respondent No.2 has been using the said

space and has been paying the agreed monthly fee to the petitioner. It is

submitted that respondent No.2 continued to use the said space without

obtaining the requisite permission from the concerned department. The

petitioners have let out other portions of the said building and upon falling

vacant, property dealers of the area were approached, but he could not let

out the portion of the vacant property since his property was included in the

list of booked properties by the North Delhi Municipal Corporation and was

also uploaded on its website for unauthorized use. It was booked under

Section 343/344 of DMC Act for erection of cell tower on the roof tower,

which was issued to respondent No.1 vide letter dated 08.12.2004 and a

notice dated 19.03.2012 was issued to respondent No.1 asking them for

renewal of the permission, but respondent No.1 did not complete the

formalities of renewal of licence. As a result, the petitioner has been

suffering monetary loss and is not able to let out the property. The petitioner

sent a notice dated 22.02.2012 to respondent No.2, but, despite the said

notice served upon respondent No.2, the respondent did not complete the

requisite formalities and did not get their licences renewed for the use of the

terrace space of the said property and also did not vacate the same. Another

notice dated 11.04.2014 was sent to the respondents calling upon them to

remove their equipment installed at the terrace and handover its vacant

possession to the petitioner along with other user charges. It is submitted

that the agreement contained an arbitration clause and their dispute was

required to be resolved by the sole Arbitrator, to be appointed jointly by

both the parties. It is further submitted that the present controversy does not

fall in the ambit of arbitration clause, but the petitioners gave their no

objection for the same and also for the resolution of their controversy and

suggested the name of Shri Anil Uttam, Advocate for the said purpose. No

response, however, was received from the respondents. On these facts, the

petitioner has prayed that an Arbitral Tribunal be appointed for adjudication

of the dispute and controversy between the parties.

4. The notice was issued to both the respondents and the counsel for

respondent No.1, who was present in the Court on 28.05.2014, accepted the

notice for respondent No.1. Thereafter, on the next date, i.e., on 23.03.2014,

the learned counsel for the petitioner made a submission to drop respondent

No.2 from the array of respondents on the ground that he does not claim any

relief against him. On his submission, the name of respondent No.2 was

deleted from the array of respondents. The present petition is now, therefore,

between petitioner and respondent No.1. The respondent No.1 has filed his

reply. The respondent No.1 has not disputed the fact that he had entered into

the Licence Deed with the petitioner for use of the terrace of the above said

property. The sole contention of the respondent No.1 is that he had now

sold this business to respondent No.2 pursuant to the authority given to him

under clause 14 of the agreement. The business was sold by him to

respondent No.2 in the year 2007 and since then, the respondent No.2 has

been using the said property and paying the rent. It is submitted that

pursuant to his agreement with respondent No.2, all the business, assets

relating to this telecom tower has been transferred to him and, therefore, the

said contract is no more binding upon him and the petition is liable to be

dismissed.

5. I have heard the arguments and perused the relevant record.

6. There is no dispute that under Section 11(6) of the Act, the Court is

empowered to appoint an Arbitrator in case the parties fail to appoint their

Arbitrator as per the arbitration clause. While the contention of the petitioner

is that there is an arbitration agreement between him and respondent No.1,

respondent No.1 has denied so. As is clear from the facts mentioned above,

although initially the petitioner and respondent No.1 had entered into an

agreement to use the terrace of the petitioner's property for a particular

period, but the clause 14 of the said deed dated 14.02.2003, empowers

respondent No.1 to assign his business to a third person with the consent of

the petitioner. The said clause 14 is reproduced as under:-

"14. ASSIGNMENT

14.1 It is hereby agreed by both the parties to the deed that this is a transferable deed and that TTL during the period of the deed or its renewals thereof shall be entitled to make an assignment of this deed duration, transfer in whole or a portion of the Site, antennae, the Equipment subject to prior consent in writing of GRANTOR to such assignment, transfer or sub-grant. Such consent shall not be unreasonably refused or withheld by GRANTOR and in such an event, the transferee or the assignee, as the case may be, shall be bound by

all the conditions set out in the deed. In the event TTL makes available the schedule premises or its desirous of making available the scheduled premises for use, to its subsidiaries, holding companies, joint venture partners or partners, any time during the term of this deed, then TTL shall not require any written consent of the GRANTOR as mentioned above and the same shall not be construed as a sub-licensing or parting with the possession of the scheduled premises in full or part, as the case may be.

14.2 Any agencies such as Financial Institution or Banks or its agents can step into the shoes of TTL on transferring of TTL's Basic Telephone Service License to such agencies and such Agencies shall be treated as Licensee for the rest of the period of this deed. The grantor shall not object or refuse such agency to operate for the rest of the period of this leave and license.

14.3 Notwithstanding anything contained in the other provisions of this deed, TTL shall be entitled to share in whole or in part, with any entity/company of its own choice, the scheduled premises secured by it, under this deed at its sole discretion and terms and conditions settled by TTL, and such sharing shall in no way be treated by GRANTOR as an unauthorized use of the premises or sub-licensing or parting with the possession of the scheduled premises in full or in part, as the case may be."

7. Under this clause 14 which empowers respondent No.1 to assign his

business to a third party with the consent of the petitioner, he had assigned

the said business in favour of respondent No.2 vide Assignment Document

dated 08.11.2007. It is also an admitted fact that since 2007, respondent

No.2 has been using the terrace and also paying the rent. It, therefore, is

clear that respondent No.1 is neither in possession nor in use of the terrace.

There exists no arbitral dispute between him and the petitioner. In view of

this, nothing can be assigned to Arbitrator.

The petition is, therefore, dismissed.

(DEEPA SHARMA) JUDGE DECEMBER 01, 2014 BG