Delhi High Court
Adwel Advertising Service & Anr. vs South Delhi Municipal ... on 19 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM.) 383/2017 & IA No. 12481-12483/2017
Reserved on: 22nd May, 2018
Date of decision : 19th July, 2018
ADWEL ADVERTISING SERVICE & ANR. ..... Petitioners
Through: Mr. Sachin Datta, Sr. Adv. with
Mr.Sandeep Grover, Ms.Pankhuri Bhardwaj,
Mr.Yatender, Advs.
versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Mr.Sanjay Poddar, Sr. Adv. with
Mr.Gaurang Kanth, Ms.Biji Rajesh, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. The present petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the Act) has been filed
by the petitioners challenging the Arbitral Award dated 22.05.2017
passed by the Sole Arbitrator adjudicating the disputes that have arisen
between the parties in relation to the offer(s) of allotment of contract for
display of illuminated kiosks on street light poles on MCD roads
(excluding all PWD maintained roads) for the period 01.04.2006 to
31.03.2008 in respect of City Zone, South Zone, West Zone and Central
Zone of the MCD, all dated 10.04.2006.
2. The primary dispute between the parties is in relation to the
exclusion of all PWD maintained roads from the offer of allotment made
O.M.P. (COMM.) 383/2017 Page 1
by the respondent in favour of the petitioners and the claim of the
petitioners for a consequential reduction in the license fee on this ground.
3. The respondent had issued a Notice Inviting Tender (NIT) on
27.01.2006 in relation to allotment of rights for display of advertisement
through kiosks on street poles existing on all MCD roads "including"
PWD maintained roads in respect of all the 12 municipal zones from the
date of allotment or 01.04.2006 (whichever is earlier) to 31.03.2008 in
respect of City, Central and South Zones and for the period 01.04.2006 to
31.03.2008 in respect of remaining nine Zones. The last date of
submission of the tender was 16.02.2006 and the NIT prescribed the
Minimum Reserve Price per month for the award of such rights.
4. There is no dispute between the parties on the fact that the last date
of submission of tender was extended by the respondent till 01.03.2006
vide Corrigendum dated 14.02.2006.
5. It is the case of the respondent that thereafter the NIT was
amended by the respondent vide its Public Notice dated 05.03.2006 and a
revised NIT was published on that date which excluded PWD maintained
roads; gave a uniform period of license for all 12 municipal Zones as
01.04.2006 to 31.03.2008; revised the Minimum Reserve Price per month
for various Zones; as also extended the last date of submission of tenders
to 10.03.2006. The petitioners dispute the issuance of this Public Notice
and submit that it had submitted its tender with the respondent based on
the NIT published on 27.01.2006.
O.M.P. (COMM.) 383/2017 Page 2
6. The respondent vide its letter(s) dated 10.04.2006 made an offer of
allotment of the contract for display of illuminated advertisement through
kiosks on street poles of MCD roads (excluding all PWD maintained
roads) for the period 01.04.2006 to 31.03.2008 in respect of City Zone,
South Zone, West Zone and Central Zone of MCD in favour of the
petitioners on the monthly license fee offered by the petitioners. It is
relevant to note here that such offer letter(s) clearly made reference to the
Public Notice published on 05.03.2006 alongwith NIT published on
27.01.2006. The said offer letter(s) also called upon the petitioners to
deposit the security deposit equivalent to three months' license fee and
one month's advance license fee together with advance advertisement tax
and also submit an Agreement duly executed and signed by the
petitioners on or before 17.04.2006. The said letter(s) further warned that
incase of failure to comply with this condition it shall be presumed that
the petitioners are not interested in the offer and the same shall be
withdrawn and the earnest money deposited by the petitioners shall be
forfeited.
7. The petitioners filed a civil suit being CS (OS) 621/2006
challenging the exclusion of PWD roads from the offer letter(s) dated
10.04.2006. This Court vide its order dated 17.04.2006 was pleased to
grant an ad interim ex-parte injunction in favour of the petitioners. The
same was however, modified by the order dated 17.07.2007, which, on
the issue of the applicability of Public Notice dated 05.03.2006 inter alia
held as under:-
O.M.P. (COMM.) 383/2017 Page 3
"13. I have heard learned counsel for the parties who have taken
me through the relevant documents. As far as the advertisement
dated 27.01.2006 is concerned, there is no doubt it includes PWD
maintained roads as well. Subsequently, in the minutes of the
meeting held on 02.02.2006, the terms of the advertisements were
approved to include illumination of kiosks. The public notice dated
05.03.2006 mentions that although, the kiosks will be illuminated
the PWD maintained roads have been excluded. I agree with the
argument advanced by learned senior counsel for the defendants
that the plaintiff had made a bid in pursuance to the public
advertisement dated 05.03.2006, otherwise, there was no occasion
for him to make a bid less than the reserve price as per the
advertisement dated 27.01.2006. It is pertinent to note the fact that
the communication dated 10.04.2006 was directly addressed to the
plaintiff and in this communication it was clearly mentioned that
the PWD maintained roads are excluded. In case, the plaintiff had
any reservations while making the endorsement as reproduced in
para 8 above he would be entitled to make the payment only from
17.04.2006. These objection could have been raised by the plaintiff
at that stage, which only goes to show that he was fairly aware that
the PWD roads are not included."
8. This Court further, by the same order directed the petitioners to
pay to the respondent a sum of Rs. 25 Lakhs per month from the month
of July 2007, as the dispute as to who was responsible for arranging
electricity for illumination of the advertisement kiosks remained to be
adjudicated. The extract of the eventual directions passed by this Court
are as under:-
"14. On 17.04.2006, while granting the interim order, the plaintiff
was asked to deposit the sum of Rs. 20.00 lakhs and by a
subsequent order the plaintiff was asked to continue to pay a sum
of Rs. 20.00 lakhs per month as well as a security deposit of Rs.
O.M.P. (COMM.) 383/2017 Page 4
1.00 crore. While making the order of deposit of Rs. 20.00 lakhs,
the Court had taken into consideration that the roads maintained
by PWD were to be excluded in the tender. Having come to the
conclusion prima facie that the plaintiff was aware that the PWD
maintained roads were not included, the sum of Rs. 20.00 lakhs
would be insufficient and thus, the sum of Rs. 20.00 lakhs is
increased to Rs. 25.00 lakhs per month. Although, the plaintiff was
required to deposit of Rs. 36,13,004/- the remaining amount need
not be deposited by the plaintiff keeping in mind that the amount in
respect of illumination of kiosks is yet to be decided. Needless to
say that the security deposit of Rs. 1.00 crore and also the fact that
the plaintiff is a Category 'A' contractor of the MCD will ensure
that the interests of the defendants are secured. Accordingly, it is
decided that the plaintiff will pay a sum of Rs. 25.00 lakhs per
month from the month of July, 2007 to the defendant no. 1 and also
the registry is directed to release the security of Rs. 1.00 crore in
favour of defendant no. 1. With these observations IA No.
4155/2006 & 9218/2006 stand disposed of."
9. The suit was eventually withdrawn by the petitioners on
17.12.2008.
10. Before the Arbitral Tribunal the petitioners inter alia made a claim
of reduction of monthly license fee on account of exclusion of the PWD
roads. The same was defended by the respondent relying upon the Public
Notice dated 05.03.2006, however, it is an admitted case of the parties
that the said document was not filed by the respondent before the Sole
Arbitrator and it was only with an application dated 04.04.2016 that the
respondent sought leave of the Arbitral Tribunal to place a copy of the
same on record. The said application was objected to by the petitioners
on the ground of inordinate delay in filing of the same.
O.M.P. (COMM.) 383/2017 Page 5
11. The Sole Arbitrator by his order dated 06.02.2017 allowed the
application of the respondent and a copy of the Public Notice dated
05.03.2006 was taken on record.
12. The Sole Arbitrator, vide his Impugned Award rejected the claim
of the petitioners with respect to reduction of the license fee on the
ground of exclusion of PWD roads inter alia relying upon the order dated
17.07.2007 passed by this Court as also on the fact that the bids offered
by the petitioners were less than the reserve price fixed in the NIT dated
27.01.2006, which in the opinion of the Sole Arbitrator showed that the
petitioners had submitted its bids in response to the Public Notice dated
05.03.2006. The Sole Arbitrator further relied on the fact that the
petitioners had not raised any objection to the change in the terms of the
NIT and the claim now raised by the petitioners was an afterthought. The
Arbitrator further held that the petitioners had not produced any evidence
to show the total electricity poles and number of roads covered under the
contract and how the exclusion of the PWD roads would entitle the
petitioners to claim a rebate of 56.75% of monthly license fee.
13. The learned senior counsel for the petitioners submits that the Sole
Arbitrator has erred in law and on fact by not appreciating that the
petitioners had submitted its bid in response to the NIT dated 27.01.2006.
He further submits that the Public Notice dated 05.03.2006 was not
applicable to the present dispute and in fact, only a copy thereof had been
filed by the respondent before the Arbitrator and that too at a very belated
stage. Relying upon the judgment of the Supreme Court in Bagai
Construction vs. Gupta Building Material Store, (2013) 14 SCC 1, he
O.M.P. (COMM.) 383/2017 Page 6
submits that the Arbitrator has erred in taking the said document on
record and relying upon the same while passing the Impugned Award. He
submits that the Public Notice dated 05.03.2006 was not proved in
evidence and in fact, even if the Arbitrator was to take the same on
record, the petitioners should have been granted an opportunity of leading
evidence in rebuttal to the same. For this submission he relies upon the
judgment of Supreme Court in Billa Jagan Mohan Reddy & Anr. vs.
Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659. As far as the quotation
of the petitioners being below the Minimum Reserve Price is concerned,
the learned senior counsel for the petitioners submits that no inference
could have been drawn against the petitioners on this account as there
had been many instances where parties have quoted below the Minimum
Reserve Price and the respondent has accepted the same. In this regard
the petitioners also sought to file an additional affidavit contending facts
of another tender where, according to the petitioners, the petitioners had
quoted below the Minimum Reserve Price and the same had been
accepted by the respondent. The learned senior counsel for the petitioners
further submits that in any case, the respondent could not have changed
the terms of the NIT once the same was issued and in this regard he
places reliance on the judgment of the Supreme Court in Monarch
Infrastructure (P) Ltd. vs. Commissioner, Ulhasnagar Municipal
Corporation and Ors., (2000) 5 SCC 287 and of this Court in L.G.
Information & Communications Ltd. & Ors. Vs. Mahanagar
Telephone Nigam Ltd. and another, (1999) 51 DRJ 276.
O.M.P. (COMM.) 383/2017 Page 7
14. I have considered the submissions made by the learned senior
counsel for the petitioners, however, I am unable to accept the same.
Admittedly, the respondent had issued a NIT dated 27.01.2006 inviting
quotation for the display of advertisement through kiosks on street light
poles existing on all MCD roads including PWD maintained roads. The
said notice prescribed the Minimum Reserve Price for each zone as also
stated that the last day of receipt of tenders would be 16.02.2006. There
is no dispute that by a Corrigendum dated 14.02.2006, the last date of
submission of tender was extended till 01.03.2006. It was only with the
Public Notice dated 05.03.2006 that the respondent, not only reduced the
Minimum Reserve Price for each zone, but also extended the last date of
submission of tender to 10.03.2006. There is no dispute between the
parties that the petitioners submitted their tender on 10.03.2006 and its
quotation, for atleast two Zones, was below the Minimum Reserve Price
stipulated in the NIT dated 27.01.2006.
15. Though the petitioners denied the knowledge of Public Notice
dated 05.03.2006, in my opinion, the fact that the petitioners submitted
their tender on 10.03.2006 and for two Zones made a bid which was
below the Minimum Reserve Price prescribed in the NIT dated
27.01.2006, belies such denial of knowledge by the petitioners. The
submission of the petitioners that in some other tenders also the
respondent had accepted bids that were below the Minimum Reserve
Price cannot be accepted at this stage while considering the challenge of
the petitioners under Section 34 of the Act. The respondent in its reply
before the Arbitral Tribunal had placed reliance on this fact. In fact, even
O.M.P. (COMM.) 383/2017 Page 8
this Court in its order dated 17.07.2007 placed reliance on this
submission of the respondent. Therefore, any explanation in this regard
and proof in support of such explanation should have been filed by the
petitioners before the Sole Arbitrator. The petitioners cannot now seek to
impugn the Arbitral Award by seeking to place additional documents and
submissions on record. It is not the case of the petitioners that the
documents now sought to be placed on record by way of additional
affidavit before this Court, were not available to the petitioners at the
time of the proceedings before the Arbitral Tribunal.
16. The judgment of Supreme Court in Billa Jagan Mohan Reddy,
(Supra) would not be of any assistance to the petitioners as in the present
case, the parties have gone to trial on basis of the averment of the
respondent that the Letters of Offer issued to the petitioners were on the
basis of the Public Notice dated 05.03.2006. The petitioners were
therefore, well aware of the case of the respondent and contested the
same. Though in normal circumstances the petitioners should have been
granted an opportunity to lead evidence in rebuttal once the copy of the
Public Notice dated 05.03.2006 was taken on record, however, in the
present case I do not find any prejudice being caused to the petitioners
due to denial of such opportunity and therefore, this itself cannot be
sufficient to interfere with the Impugned Award.
17. As far as delay of the respondent to place a copy of the Public
Notice dated 05.03.2006 on record is concerned, the Sole Arbitrator in
his order dated 06.02.2017 as also in the Impugned Award, has taken
note of the fact that the respondent had consistently pleaded that due to
O.M.P. (COMM.) 383/2017 Page 9
trifurcation of the MCD into three separate Corporations, including the
respondent herein, some of the records pertaining to the case had been
misplaced / lost and the respondent, despite its best effort to trace the
same, had failed.
18. Judgment of Supreme Court in Bagai Construction (Supra) would
have no application inasmuch as in that case the Court was dealing with a
suit for recovery and found that the bills in question therein, though being
in exclusive possession of the plaintiff therein, for reasons unknown,
were not placed on record. In the present case, however, not only are the
provisions of the Code of Civil Procedure not applicable in view of
Section 19(1) of the Act, but also, the finding of the Arbitral Tribunal that
a copy of the Public Notice dated 05.03.2006 could not be placed by the
respondent on record at an earlier stage as it had lost all the records
relating to the case due to trifurcation of the erstwhile MCD is a valid
justification for taking on record a copy of the Public Notice at a belated
stage.
19. In any case, it is not as if the respondent has sought to contend a
new case before the Sole Arbitrator by filing the copy of the Public
Notice dated 05.03.2006. The case of the respondent has always been that
the bid of the petitioners was considered and accepted by the respondent
only in terms of Public Notice dated 05.03.2006. This stand of the
respondent was considered by this Court and accepted by its order dated
17.07.2007 passed in CS (OS) 621/2006 as quoted hereinabove.
20. In any case, all the above discussion will pale into insignificance as
the respondent by its communication(s) dated 10.04.2006 clearly offered
O.M.P. (COMM.) 383/2017 Page 10
allotment of rights to the petitioners excluding all PWD maintained
roads. In case such offer was not acceptable to the petitioners, the
petitioners could have rejected the same, however, having accepted the
same, cannot now seek reduction in the license fee on ground of
exclusion of PWD roads. It is settled law that Notice Inviting Tender is a
notice to invite an offer from the interested parties. When a bid is
submitted in response to Notice Inviting Tender, it is an offer. It becomes
a contract only with the acceptance of tender by the authority issuing
NIT. In the present case in fact, even this would not have resulted in a
concluded contract as letter dated 10.04.2006 required the petitioners to
fulfill further conditions like deposit of security deposit, one month's
advance license fee and advertisement tax before the contract could be
stated to have come into force between the parties. Even if the case of the
petitioners is to be accepted that the present case would be governed by
NIT dated 27.01.2006 and not by Public Notice dated 05.03.2006, the
letters dated 10.04.2006 would be in form of counter offer, which the
petitioners could have rejected if they so desired.
21. The judgment of Monarch Infrastructure (Supra) relied upon by
the petitioners has no application to the facts of the present case as in that
case the Court was considering a challenge by an unsuccessful bidder to
the award of work to the successful party, who but for the change in the
terms of the tender, would have been ineligible to participate in the same.
In the present case, the petitioners were the successful party and
therefore, it was for them to accept or reject the counter-offer made by
O.M.P. (COMM.) 383/2017 Page 11
the respondent, but cannot complain of such offer having accepted the
same.
22. Similarly in L.G. Information (Supra) again this Court was
considering a challenge of an unsuccessful party to a tender process and
therefore, it would have no application to the facts of the present case.
23. The next challenge raised by the petitioners is to the award of a
rebate of Rs.50 lakhs only in favour of the petitioners towards loss of
revenue due to non-illumination of kiosks. The learned senior counsel for
the petitioners submits that the contract granted in favour of the
petitioners was for display of illuminated advertisement through kiosks.
Prior to the grant of this contract a meeting was held on 02.02.2006
between various officers of the MCD wherein it was decided that the
contractors will be provided electricity for illumination of advertisement
during the contract period. However, when the petitioners applied for
electricity connection with the BSES, BSES refused to deal with the
petitioners and insisted that the MCD should directly take up this matter
with the BSES. In this regard, the learned senior counsel for the
petitioners has drawn my attention to the letter dated 07.11.2006
addressed by the petitioners to BSES asking for grant of electricity
connection as also letter dated 01.12.2006 addressed by the petitioners to
the Additional Deputy Commissioner, Advertisement, MCD whereby the
petitioners informed the respondent that BSES has refused to grant such
electricity connection and has advised that they shall be dealing with
MCD directly. The learned senior counsel for the petitioners further
submits that due to non grant of electricity connection, the petitioners
O.M.P. (COMM.) 383/2017 Page 12
suffered a loss inasmuch as the revenue that can be earned by the
petitioners from illuminated sites is almost double than non illuminated
sites. He further submits that the petitioners were therefore, entitled to the
rebate in the license fee. In this regard the petitioners had submitted
detailed calculation before the Arbitral Tribunal, however, the Arbitral
Tribunal has wrongly held that this claim was only for an amount of Rs.
87,27,572 and also that the petitioners had been unable to prove such
claim and held that the petitioners were entitled to a rebate of license fee
of only Rs. 50 lakhs on this account.
24. I have considered the submission made by the learned senior
counsel for the petitioners. Before dealing with the same, I would quote
the findings of the Arbitral Tribunal on the said issue:
"32. The Claimants do not seem to have pursued the matter with
BSES as they have not furnished copies of any further
communication addressed to BSES. No documentary evidence has
been produced by either party clearly laying down the
responsibility of the authority which was to obtain electricity
connections from different DISCOMs. The Claimants have stated
that it was crucial and significant that the Respondent would
facilitate supply of electricity from the electricity distribution
companies. In this connection, the Respondent had taken a meeting
with the Electricity Distribution Companies on 12/04/2006 which
was also attended by the advertisers including the Claimants, with
a view to facilitating the supply of electricity to the kiosks installed
on electric poles by the Claimant.
33. The fault basically lay with the DISCOMS who failed to spell
out the difficulties in providing electricity connections at so many
points and in different areas in the meeting organized by MCD as
early as 12/04/2006 i.e. much ahead of the date for filing the
tenders. Had they expressed their inability in providing
connections, the stipulation regarding illuminated kiosks could
O.M.P. (COMM.) 383/2017 Page 13
have been dropped from the Tender conditions before the parties
filed their bids.
34. The parties had not even counted the total number of electric
poles on which advertisements were to be displayed before they
signed the contract. It is, therefore, difficult to make an assessment
as to how non-illumination of kiosks would have affected the
revenue earning capacity of the Claimants or the Respondent. The
Claimants have not given any cogent explanation as to how they
have come to the conclusion that they are liable to pay only
20.13% of the monthly license fee in view of non-illumination of
the kiosks.
35. In view of the facts stated above, while it is difficult to hold any
one agency solely responsible for not arranging the electricity
connections for illuminating the kiosks, there is no doubt that the
Claimants' earnings were, to some extent, adversely affected due
to non-illumination of the kiosks. There cannot be any foolproof
criterion for assessing the loss in the instant case. Under the
circumstances, relief can be provided only on an ad hoc basis. In
my view, it will meet the ends of justice if the Claimants are
allowed a rebate of Rs. 50,00,000/- (Rs. Fifty Lakhs) to
compensate them for the loss of revenue due to non-illumination of
kiosks as against their claim of Rs. 87,27,572/- demanded towards
loss of profit on this account as mentioned under claim no. 10."
25. Reading of the above finding would show that the Arbitral
Tribunal has found that the fault basically lied with the DISCOMS in non
grant of electricity connections. It further found that the petitioners did
not take up the matter further after raising it with BSES and MCD. The
Arbitral Tribunal further found that in absence of the total number of
electricity poles on which advertisements were to be displayed, it was
difficult to make an assessment of the effect of non grant of electricity
connection on the revenue earning capacity of the petitioners and
O.M.P. (COMM.) 383/2017 Page 14
therefore, on an ad hoc basis, has granted a rebate of Rs. 50 lakhs in
favour of the petitioners.
26. From the letter dated 07.11.2006, it is apparent that the respondent
had issued a No Objection Certificate for the purpose of grant of
electricity connection in favour of the petitioners. The letter also relied
upon the meeting held between the officers of MCD, BSES and the
petitioners in May 2006 in this regard. However, the Arbitral Tribunal
also notes that the minutes of this meeting have not been placed on record
by either party. For MCD, the explanation as noted above, is that due to
trifurcation they have misplaced the documents relating to the contract.
The onus was therefore, on the petitioners to have proved before the
Arbitrator the exact decision reached between the parties in such meeting.
27. In any case, the petitioners made a grievance regarding non grant
of electricity connection to the respondent by its letter dated 01.12.2006,
however, thereafter, there is no document on record to show if this issue
was taken up by the petitioners with the MCD or BSES and if so, the
outcome of the same. It seems that the petitioners did not pursue the same
as this Court by its order dated 17.07.2007 had given interim protection
to the petitioners by reducing the amount to be paid by the petitioners to
Rs. 25 lakhs in place of ₹ 36,13,004 per month on which the contract had
been awarded by the respondent to the petitioners, the petitioners were to
pay Rs. 25 lakhs per month from July, 2007 onwards. This, however, was
an interim arrangement and it was upon the petitioners to prove their
claim as to the amount to which they were entitled before the Arbitral
Tribunal.
O.M.P. (COMM.) 383/2017 Page 15
28. As far as the quantification of the rebate is concerned, the learned
senior counsel for the petitioners submits that the Arbitral Tribunal has
erred in ignoring the evidence led by the petitioners in support of its
claim for such rebate. He submits that the petitioners were entitled to a
larger amount of rebate based on such evidence. The so called evidence
in support of this claim on which reliance has been placed by the learned
senior counsel for the petitioners is the following chart:-
"M/S Adwel Advertising Service
ANNEXURE "A"
Detail of License fee of Four Zones & Amount Payable of MCD
Zone Licence Total Kiosks Kiosks on Roads Kiosk Kiosks Total Displayed Licence
Fees number on roads denied to the allowed on roads in Non- fees
P.M. of allowed Claimant and to the denied to (%) Illumunation Payable
Kiosks to be occupied/displayed Claimant the Sides (50% (% of
in the displayed by others in (%) Claimant of Column Column
Zone by the in (%) 6) 9 of
Column
2)
Central 825501 1635 800 835 49% 51% 100% 24.50% 202248
South 1236501 3353 876 2477 26% 74% 100% 13.00% 160745
West 745501 1758 735 1023 42% 58% 100% 21.00% 156555
City 805501 769 433 336 56% 44% 100% 22.00% 177210
3613004 7515 2844 4671 43.25 56.75 100% 20.13 696758
29. A reading of the above would show that this is merely a table made
by the petitioners without any supporting documents for any of the
figures mentioned therein. It is based on an assumption of percentage,
given without any supporting document. It cannot be treated as a primary
piece of evidence.
30. The other so called evidence in support of this claim is paragraph
48 of the evidence by way of affidavit filed by the petitioners before the
Arbitral Tribunal. The same is reproduced herein below:-
"48. I say that in order to make kiosks ready for installation of
illuminated display, electricity connection was required and
O.M.P. (COMM.) 383/2017 Page 16
Electric meter was to be installed for every pole. I say that the
electrification was to be done in a manner that was/is both safe
and aesthetically appropriate. I say that in order to make street
poles ready for installing of illuminated advertisement panels
considerable expenditure of more than Rs. 15 lacs were-was
incurred by the Claimant and benefit of this expenditure would,
have continued for other advertisers also in future. I say that the
Sales revenue for advertisement on illuminated kiosks was/is
almost 4 to 5 times the sale revenue of non-illuminated Kiosks. I
say that due to lack of provision of illumination for their display
the kiosks of the Claimant were effectively being exhibited only for
about 50% duration of time thus, drastically reducing the
Claimant's revenue generation as also the Respondent entitlement
of monthly license fee. I say submit that exclusion of PWD Roads
has already reduced the liability towards the monthly license fee of
the Claimant up to 44%, which further stood reduced by 50%
thereof due to non-illumination of the kiosks. I say therefore, the
actual liability of the Claimant toward payment of license fee was
20.13% only of monthly license fee. I say that in fact the
respondent was/is only entitled to the monthly license fee amount
of Rs. 6,96,758/- per month, being 20.13% of Rs.36,13,004/-
Rupees Thirty Six Lacs Thirteen Thousand and Four)."
31. A reading of the above paragraph would again show that the same
is not supported by any documents and is based on supposition. It can at
best be said to be the claim of the petitioners and not evidence in support
of the same.
32. The learned senior counsel for the petitioners further places
reliance on an additional affidavit filed on behalf of the petitioners before
this Court in the Civil Suit being Suit No. 621/2006. The paragraphs of
the affidavit on which reliance was placed are reproduced hereinunder:-
3. I state that in the current NIT the defendant MCD made specific
representation to the effect that the kiosks would be allowed to be
illuminated for which the plaintiff had submitted its bids at almost
O.M.P. (COMM.) 383/2017 Page 17
double the amount or the previous monthly license fee which is
clearly evident from the following comparative table.
S. No. Zone Monthly License Monthly License
fee Previous fee current term
term
1. City 4,26,751/- 8,05,501/-
2. Central 5,26,251/- 8,25,501/-
3. South 5,11,751/- 12,36,501/-
4. West -- 7,45,501/-
4. I state that it was only because of the defendant's
representation that the illuminated kiosks would be allowed and
that the plaintiff had submitted its bid for monthly license fee on
almost double the amount.
5. I state that the revenue for advertisement on illuminated
kiosks is almost five times the monthly rent from the prospective
clients of the plaintiff. To this effect plaintiff craves leave of this
Hon'ble Court to file documents in support thereof. In addition
thereto it is submitted that during the previous term of the contract
also all the PWD roads were allotted to be exhibited under the
same contract. The plaintiff is submitted the following documents
to this effect:-
(A) In support of rates for non-illuminated kiosk--
(i) Purchase Order dated 28.3.2006;
(ii) Purchase Order dated 9.8.2006;
(iii) Purchase Order No.CCI/DEL/06/544
(B) Rates for illuminated kiosk
(i) Purchase Order dated 26.7.2006 issued by Ogilvi
Landscape
(ii) Purchase Order dated 10.9.2006
The aforesaid documents are being annexed herewith and marked
as ANNEXURE-I(Colly)
xxxxx
8. I further state that because of the facility of
electricity/electricity connection having not been provided by the
defendant MCD, the plaintiff has not been able to fully utilize and
O.M.P. (COMM.) 383/2017 Page 18
exploit the said sites. The sites are being exhibited only for 50%
duration of the time, thus reducing the plaintiff's liability and
defendant's entitlement to about 35% of the total monthly license
fee, as against this the plaintiff if already paying 50% of the
monthly license fee to the defendant and the same at the said rate
stands paid upto date i.e. upto 18.11.2006.
9. I further state that there was a tripartite meeting dated
7.11.2006 in the office of MCD wherein MCD agreed to provide
electricity and issued necessary direction to BSES in this regard
for supply of connection supply to ............... bidders. An affidavit
to this effect had already been filed by the plaintiff before this
Hon'ble Court. I further state that subsequent to said decision in
meeting dated 7.11.2006, the plaintiff has already applied to BSES
for supply of electricity vide its letter dated 7.11.2006. A copy of
said letter is being annexed herewith as ANNEXURE-2."
33. It would first be noted that the above was an affidavit filed in the
Suit. It is not shown if the documents which were sought to be relied
upon in the said affidavit were filed before the Arbitral Tribunal. In any
case, the said affidavit is also based on supposition rather than any
evidence in form of documents.
34. The Arbitral Tribunal in its Impugned Award has considered the
evidence led before it on this claim and has also observed that as it
cannot be held that the MCD was solely responsible for arranging the
electricity connection and the parties have not even counted the total
number of electricity poles on which the advertisement had to be
displayed, therefore, it was difficult to make an assessment as to how non
illumination of kiosks would have affected the revenue earning capacity
of the petitioners. This being a finding of the fact cannot be interfered
with by this Court in exercise of its power under Section 34 of the Act.
O.M.P. (COMM.) 383/2017 Page 19
The claim granted in favour of the petitioners was akin to damages and it
was for the Arbitral Tribunal to have assessed the same on the basis of
the evidence led before it. In absence of any admissible evidence, the
Arbitral Tribunal has given an ad hoc figure of damages as rebate in the
license fee which cannot be interfered with by this Court in exercise of its
limited jurisdiction.
35. In Associate Builders vs. DDA, (2015) 3 SCC 49, the Supreme
Court has held as under:-
"33. It must clearly be understood that when a court is applying
the "public policy" test to an arbitration award, it does not act as
a court of appeal and consequently errors of fact cannot be
corrected. A possible view by the arbitrator on facts has
necessarily to pass muster as the arbitrator is the ultimate master
of the quantity and quality of evidence to be relied upon when he
delivers his arbitral award. Thus an award based on little evidence
or on evidence which does not measure up in quality to a trained
legal mind would not be held to be invalid on this score [ Very
often an arbitrator is a lay person not necessarily trained in law.
Lord Mansfield, a famous English Judge, once advised a high
military officer in Jamaica who needed to act as a Judge as
follows:
"General, you have a sound head, and a good heart; take courage
and you will do very well, in your occupation, in a court of equity.
My advice is, to make your decrees as your head and your heart
dictate, to hear both sides patiently, to decide with firmness in the
best manner you can; but be careful not to assign your reasons,
since your determination may be substantially right, although your
reasons may be very bad, or essentially wrong".
It is very important to bear this in mind when awards of lay
arbitrators are challenged.] . Once it is found that the arbitrators
approach is not arbitrary or capricious, then he is the last word on
facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H.
O.M.P. (COMM.) 383/2017 Page 20
Securities (P) Ltd. [(2012) 1 SCC 594 : (2012) 1 SCC (Civ) 342] ,
this Court held: (SCC pp. 601-02, para 21)
"21. A court does not sit in appeal over the award of an
Arbitral Tribunal by reassessing or re-appreciating the
evidence. An award can be challenged only under the
grounds mentioned in Section 34(2) of the Act. The Arbitral
Tribunal has examined the facts and held that both the
second respondent and the appellant are liable. The case as
put forward by the first respondent has been accepted. Even
the minority view was that the second respondent was liable
as claimed by the first respondent, but the appellant was not
liable only on the ground that the arbitrators appointed by
the Stock Exchange under Bye-law 248, in a claim against a
non-member, had no jurisdiction to decide a claim against
another member. The finding of the majority is that the
appellant did the transaction in the name of the second
respondent and is therefore, liable along with the second
respondent. Therefore, in the absence of any ground under
Section 34(2) of the Act, it is not possible to re-examine the
facts to find out whether a different decision can be arrived
at."
xxxxxx
42. In the 1996 Act, this principle is substituted by the
"patent illegality" principle which, in turn, contains three
subheads:
42.1 (a) A contravention of the substantive law of India
would result in the death knell of an arbitral award. This
must be understood in the sense that such illegality must go
to the root of the matter and cannot be of a trivial nature.
This again is really a contravention of Section 28(1)(a) of
the Act, which reads as under:
"28. Rules applicable to substance of dispute.--(1) Where
the place of arbitration is situated in India.--
(a) in an arbitration other than an international
commercial arbitration, the Arbitral Tribunal shall
decide the dispute submitted to arbitration in
O.M.P. (COMM.) 383/2017 Page 21
accordance with the substantive law for the time
being in force in India;"
42.2.(b) A contravention of the Arbitration Act itself would
be regarded as a patent illegality - for example if an
arbitrator gives no reasons for an award in contravention of
Section 31(3) of the Act, such award will be liable to be set
asided.
42.3. (c) Equally, the third subhead of patent illegality is
really a contravention of Section 28(3) of the Arbitration
Act, which reads as under:
"28. Rules applicable to substance of dispute. (1)-(2)
(3) In all cases, the Arbitral Tribunal shall decide in
accordance with the terms of the contract and shall take into
account the usages of the trade applicable to the
transaction."
This last contravention must be understood with a caveat.
An Arbitral Tribunal must decide in accordance with the
terms of the contract, but if an arbitrator construes a term of
the contract in a reasonable manner, it will not mean that
the award can be set aside on this ground. Construction of
the terms of a contract is primarily for an arbitrator to
decide unless the arbitrator construes the contract in such a
way that it could be said to be something that no fair-minded
or reasonable person could do.
xxxxxx
56. Here again, the Division Bench has interfered wrongly
with the arbitral award on several counts. It had no business
to enter into a pure question of fact to set aside the
arbitrator for having applied a formula of 20 months instead
of 25 months. Though this would inure in favour of the
appellant, it is clear that the appellant did not file any cross-
objection on this score. Also, it is extremely curious that the
Division Bench found that an adjustment would have to be
made with claims awarded under Claims 2, 3 and 4 which
are entirely separate and independent claims and have
O.M.P. (COMM.) 383/2017 Page 22
nothing to do with Claims 12 and 13. The formula then
applied by the Division Bench was that it would itself do
"rough and ready justice". We are at a complete loss to
understand how this can be done by any court under the
jurisdiction exercised under Section 34 of the Arbitration
Act. As has been held above, the expression "justice" when
it comes to setting aside an award under the public policy
ground can only mean that an award shocks the conscience
of the court. It cannot possibly include what the court thinks
is unjust on the facts of a case for which it then seeks to
substitute its view for the arbitrator's view and does what it
considers to be "justice". With great respect to the Division
Bench, the whole approach to setting aside arbitral awards
is incorrect. The Division Bench has lost sight of the fact
that it is not a first appellate court and cannot interfere with
errors of fact."
36. In National Highways Authority of India v. ITD Cementation
India Ltd., (2015) 14 SCC 21, the Supreme Court reiterated the limits of
jurisdiction of a Court exercising power under Section 34 of the Act in
the following words:-
"25. It is thus well settled that construction of the terms of
a contract is primarily for an arbitrator to decide. He is
entitled to take the view which he holds to be the correct one
after considering the material before him and after
interpreting the provisions of the contract. The Court while
considering challenge to an arbitral award does not sit in
appeal over the findings and decisions unless the arbitrator
construes the contract in such a way that no fair-minded or
reasonable person could do."
37. In fact the learned senior counsel for the respondent has contended
that it was not the responsibility of the respondent to ensure the provision
of electricity connection in favour of the petitioners and therefore, the
O.M.P. (COMM.) 383/2017 Page 23
Arbitral Tribunal has erred in granting a rebate of Rs. 50 lakhs in the
license fee in favour of the petitioners, in my opinion, as the respondent
has not challenged the Impugned Award, such submission cannot be
accepted. Therefore, for the purpose of the present order the finding of
the Arbitral Tribunal in the Impugned Award that the petitioners are
entitled to the rebate in the license fee is to be accepted.
38. The next objection of the petitioners is to Claim No. 3, which was
seeking a rebate of Rs.44,78,980 from the license fee on account of
removal of poles by Government Agencies/Departments. It was the claim
of the petitioners that large number of poles had been removed by various
Government Agencies like DIMTS, DMRC etc. from time to time
entitling the petitioners to seek a rebate in the license fee payable.
39. The Arbitral Tribunal has considered this claim, however, has held
that the petitioners have been unable to prove the quantum of claim under
this head in form of the number of poles that were there at the time of the
grant of license and that had been removed by various authorities from
time to time. In absence of such proof, the Arbitral Tribunal has placed
reliance on a report of an Internal Committee constituted by the
respondent to consider the claims and counter claims of the parties. As
the Committee had recommended a rebate of ₹ 16, 38,134 in favour of
the petitioners, the Arbitral Tribunal has granted the same.
40. The learned senior counsel for the petitioners submits that the
Arbitral Tribunal has ignored the evidence led by the petitioners in
support of the above claim. He submits that such evidence was found in
various letters written by the petitioners to the respondent seeking rebate
O.M.P. (COMM.) 383/2017 Page 24
in the license fee on account of the electricity poles, allotted to the
petitioners, being removed from the road. He submits that these letters
have never been refuted by the respondent and, therefore, should be
accepted and constitute evidence in support of the claim.
41. To consider the submissions made by the learned senior counsel
for the petitioners it would be appropriate to first reproduce the sample
letters that have been relied upon by him in support of this claim. The
first such letter is dated 09.04.2007, which is reproduced herein below:-
"Kindly refer to our letter dated 23.2.07 wherein we had
requested that since Delhi Metro had removed all the poles on
Mehrauli -Gurgaon road we are unable to display the kiosks and
that since you have granted similar rebate to other parties in areas
like Karol Bagh Zone etc. due to DMRC constriction, we should be
provided the same from 1.2.2007.
We are also constrained to point out that the High Speed Corridor
system project initiated by the Transport Department has removed
all poles from the Chirag Delhi Road starting from Chirag Delhi
Crossing till Khanpur Crossing which is approximately 350 poles.
Hence we request you to allow us rebate from 15 th Feb. onwards
as these poles were removed by RITES. Ltd. who is the contractor
for the Transport Deptt. of Delhi for High capacity bus stops.
You have not replied to our earlier letter dtd 23.2.07 and we await
your immediate and quick response because there is a huge
License Fee being paid by us to MCD."
42. The second such letter is dated 03.03.2008 contents whereof are
reproduced hereinbelow:-
"This has reference to our contract for pole kiosks allotted to us
by MCD in South Zone.
O.M.P. (COMM.) 383/2017 Page 25
We wish to state that the Delhi Metro Rail Corporation has
removed our pole kiosks for the last 6 months and are not allowing
us to put up the pole kiosks on the following roads.
1. MG Road
2. Aurobindo Marg near Yusuf Sarai.
We request you to kindly take up this matter with DMRC and in the
meantime we are being allowed display on these roads which have
been allotted to us by you, the proportionate rebate on these roads
may be informed to us."
43. A reading of the above letters would show that while there is a
mention of the number of poles that have been removed by the
authorities, it is not mentioned what would be the proportion of these
poles to the total number of poles that were in existence in the Zones
allotted to the petitioners pursuant to the tender. The Arbitral Tribunal
has also taken note of the fact that apart from filing such letters on record,
the petitioners has not tendered any evidence or witness from any
Governmental Authorities in support of the contents of the letters.
44. The learned senior counsel for the respondent has also drawn my
attention to various discrepancies in the claims made in these letters when
compared to the calculation sheets that have been filed by the petitioners
before the Arbitral Tribunal in support of its claim. The said calculation
sheet is reproduced hereinunder:-
M/s Adwel Advertising Service
Details of Calculation Rebate of South Zone
O.M.P. (COMM.) 383/2017 Page 26
Sl. No. Particulars Rebate for Months Amount Total
Period
Less: 405( 01.02.07 to 21 1560678
Four 31.10.08
hundred &
Five) Kiosks
Removed by
DMRC at
Aurobindo
Marg in
South Zone
i.e.
405*183.50
1 P.M.
Less: 105( 01.02.07 to 21 581889 2142567
Four 31.10.08
hundred &
Five) Kiosks
Removed by
DMRC at M
G Road in
South Zone
i.e.
151*183.50
2 P.M.
Details of Calculation of Rebate of Central Zone
Less: 412 01.04.07 to 19 1979002
(Four 31.10.08
hundred &
twelve)
Kiosks
1 removed
From Chirag
O.M.P. (COMM.) 383/2017 Page 27
Delhi by
DIITMS i.e.
252.81*412
P.M.
Less: 40 01.06.07 to 17 171904 2150906
(Forty) 31.10.08
Kiosks in
Central Zone
removed by
DMRC of
LSR
252.81*40
2 P.M.
Details of calculation of Rebate of City Zone
Sl.No. Particulars
Less: 115 01.04.08 to 7 185507 185507
Kiosks 31.10.08
removed
from City
Zone i.e.
230.44*115
1 P.M.
Total Rs. 4478980
45. A reading of the above calculation sheet would also show that
again there is no basis given for making such claim.
46. The learned senior counsel for the petitioners further submits that
the Arbitral Tribunal has erred in placing reliance on the report of the
O.M.P. (COMM.) 383/2017 Page 28
Committee appointed by the respondent. He submits that the said
committee, in its attempt to reduce the entitlement of the petitioners, had
arbitrarily increased the number of poles that were available in each Zone
and further the Committee has confined its exercise only to the removal
of poles by DMRC and not by other agencies.
47. I have considered the submissions made by the learned senior
counsel for the petitioners, however, I find that the Arbitral Tribunal has
passed its Award in favour of the petitioners and against the respondent
by relying upon the Committee Report as an admission of the respondent
to the claim of the petitioners. As a Claimant, the onus of proof of the
claim was on the petitioners. It was for the petitioners to have led
evidence in support of its claim and petitioners cannot succeed merely
because the report of the Committee appointed by the respondent was
incorrect. In fact, if this report is to be ignored from evidence as an
admission of liability of the respondent, there would be no basis for
granting any rebate in the license fee in favour of the petitioners and the
entire claim of the petitioners would have failed.
48. It is also relevant to refer to a few terms of the NIT issued by the
respondent on 27.01.2006 pursuant to which the Contract was granted in
favour of the petitioners. Clause 5 of the Terms and Conditions called
upon the intending tenderer to inspect the road / street light poles before
submitting tenders and clearly stated that no remission in license fee shall
be given on the ground that the display of kiosks is objected to by any
authority.
O.M.P. (COMM.) 383/2017 Page 29
49. Clause 6 of the Terms and Conditions is most relevant and is
reproduced hereinbelow:-
"Number of street light poles
6. During the period of allotment, the number of street light poles
existing on any MCD road or PWD maintained road in the MCD
area of any of the zones, may increase or decrease and for such
increase/decrease of the poles, the allottee/advertiser shall not
have any right to claim any compensation/remission on account of
such increase or decrease in the number of kiosks. Any street light
pole(s) is/are liable to be removed without any notice to the
advertiser, if necessitated, for carrying out repairs, maintenance,
shifting of poles, laying of power lines, widening of
road(s)/pavements or for any other purpose."
50. In view of the above Clause, in fact, the claim of the petitioners
was not even maintainable before the Arbitral Tribunal. As the
respondent has not challenged the Impugned Award before this Court,
this Court refrains from making further comments on the very
maintainability of the claim of the petitioners.
51. As far as the quantification of such claim is concerned, Clause 21
of the Terms and Conditions cast an obligation on the petitioners to
maintain a proper record of the advertisements displayed by it in respect
of each kiosk and submit true monthly statements showing the number of
kiosks displayed during the preceding month. Clause 21 is reproduced
hereinbelow:-
"Statement of Accounts
21. The advertiser shall maintain proper record of the
advertisements displayed by him in respect of each kiosk and
O.M.P. (COMM.) 383/2017 Page 30
produce the same on demand before the Commissioner or any
other officer authorized by him in this behalf. The advertiser shall
also submit true monthly statement showing the number of kiosks
displayed during preceding month, at the time of payment of
licence fee/ground rent and advertisement tax."
52. Admittedly, the petitioners did not submit the monthly statements
as required in Clause 21 of the Terms and Conditions. This would have
been the primary evidence in support of the claim raised by the
petitioners as it would have shown, on a month to month basis, the
number of poles / kiosks adversely affected due to their removal by any
Governmental Authority. The petitioners being in breach of the Terms
and Conditions, cannot be allowed to take advantage of its own wrong
and place the burden of proof on the respondent to disprove its claim.
53. In view of the above, I find no merit in the objection against the
Award under Claim no. 3.
54. The last challenge made by the petitioners against the Impugned
Award is to the finding of the Arbitral Tribunal under Claim no. 8 to the
effect that the petitioners are liable to pay monthly license fee for Central,
South and City Zones for the period 01.11.2008 to 25.05.2009. It is
submitted by the learned senior counsel for the petitioners that the
petitionerss could not have been made liable to pay the license fee for this
period as the same did not fall in the contractual period of the license. To
appreciate this argument a few dates would need to be considered.
55. It is an admitted case between the parties that the period of the
contract / license granted in favour of the petitioners under the letters
O.M.P. (COMM.) 383/2017 Page 31
dated 10.04.2006 expired on 31.03.2008. On 12.08.2008 the respondent
had called upon the petitioners to vacate the site and move their kiosks as
the period of license had come to an end on 31.03.2008. The petitioners,
instead of removing the kiosks and vacating the site, informed the
respondent that it was operating under the interim order passed by this
Court in CS (OS) No. 621/2006 and therefore, cannot be removed. In
fact, the petitioners went ahead and filed an application, being IA No.
10416/2008 in the said Suit, seeking initiation of contempt proceedings
against the respondent. This Court by its order dated 29.08.2008 passed
on the above application, directed the respondent to ensure compliance of
the orders dated 17.04.2006 and 17.07.2007 passed in the said Suit.
56. In an appeal filed by the respondent being FAO (OS) 420/2008 this
Court vide its order dated 22.10.2008, while leaving it open to the
petitioners to participate in the fresh auction being conducted by the
respondent for the said sites, recorded the undertaking of the petitioners
that incase the petitioners are not the successful bidder they shall hand
over the possession of the sites to MCD to operate their contract from the
date it is awarded.
57. In the auction that followed, the petitioners were declared
successful in respect of South, Central and City Zones, however, could
not be issued the license as the respondent claimed arrears of the license
fee against it. The Arbitral Tribunal has held that as the petitioners were
unsuccessful with respect to the West Zone, they are not liable to pay any
license fee beyond 31.10.2008.
O.M.P. (COMM.) 383/2017 Page 32
58. For the Central, South and City Zones, wherein petitioners have
been successful in the auction but could not be granted the license as the
respondent was insisting on the payment of the arrears of the license fee
which was in dispute, the petitioners filed another Suit, being CS (OS)
No. 2298/2008, and this Court by its order dated 04.11.2008 restrained
the respondent from awarding the contracts to any other person. The
respondent finally issued the Provisional Offer Letter in favour of the
petitioners for the three Zones on 08.12.2008 and the Suit was withdrawn
by the petitioners on 09.01.2009. The new Agreement was awarded only
on 26.05.2009 to be effective from 01.06.2009. The Arbitral Tribunal has
therefore, held that as the new licenses came to be awarded only on
26.05.2009, the petitioners would remain liable to pay the license fee till
such date.
59. The learned senior counsel for the petitioners submits that the
Arbitral Tribunal has erred in not appreciating that in terms of the order
dated 22.10.2008 passed by this Court in FAO(OS) No.420/2008, the
petitioners are deemed to have handed over the possession of the sites to
the respondent on 30.10.2008 and thereafter, the petitioners have
continued to retain the possession of the site in the three Zones pursuant
to being successful in auction for these Zones. He submits that the claim
for the period beyond 30.10.2008 is therefore, not governed by the
contract in question and no liability for this period can be fastened on the
petitioners on basis of such Agreement.
60. I have considered the submissions made by the learned senior
counsel for the petitioners and I am in partial agreement with the same.
O.M.P. (COMM.) 383/2017 Page 33
This Court vide its order dated 22.10.2008 had allowed the petitioners to
remain in possession till the auction which was to be conducted by the
respondent on 31.10.2008. This Court further recorded the undertaking of
the petitioners that incase the petitioners are not successful in the auction,
they shall hand over the possession of the sites to enable the MCD to
operate the new contract from the date it is awarded. The petitioners were
successful in such auction for three Zones and therefore, would be
deemed to have retained possession of the site under the old contract till
the new contract is awarded. As there were certain disputes due to
demand of arrears of license fee made by the respondent for grant of the
new contract, the same led to further litigation and as noted above, the
Provisional Offer Letters were issued by the respondent in favour of the
petitioners on 08.12.2008. The petitioners in the meantime retained the
possession pursuant to the interim order passed by this Court on
04.11.2008 in CS (OS) No. 2298/2008. The said Suit was finally
withdrawn by the petitioners only on 09.01.2009. The petitioners
therefore, can be said to have been in possession of the site under the
contracts in question till 09.01.2009, when the new Provisional Offer
Letters would have come into operation. Therefore, for the period up to
09.01.2009 the petitioners were under an obligation to pay the license
fee. However, for the period after 09.01.2009, the license fee would be
governed under the Provisional Offer Letters and by the subsequent
contracts.
61. In view of the above, as far as Claim no. 8 is concerned, the
Impugned Award, in so far as it directs that the petitioners shall be liable
O.M.P. (COMM.) 383/2017 Page 34
to pay monthly license fee for Central, South and City Zones for the
period 09.01.2009 to 25.05.2009, cannot be sustained and is set aside. It
is made clear that the finding of the Arbitral Tribunal that the petitioners
are liable to pay the monthly license fee for Central, South and City
Zones for the period 01.11.2008 to 08.01.2009 is sustained and remains
operative.
62. The learned senior counsel for the petitioners also raised an
objection against the award of the amount under counter claim no. 1 in
favour of the respondent, however, on being confronted with the fact that
the same is based on the monthly license fee and the admitted amounts
paid by the petitioners to the respondent and thereafter reduced by the
amounts being awarded in favour of the petitioners in terms of the
Impugned Award, the learned senior counsel for the petitioners did not
press the same any further. It may however be noted that the amount
awarded in favour of the respondent under counter claim no. 1 shall stand
modified due to partial setting aside of the Award with respect to claim
no. 8 as mentioned above.
63. In view of the above, the present petition is partially allowed with
no order as to cost.
NAVIN CHAWLA, J
JULY 19, 2018/rv
O.M.P. (COMM.) 383/2017 Page 35
