Delhi High Court
Department Of ... vs Shri Ravi N. Sahni on 26 November, 2018
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th November, 2018
+ O.M.P. 676/2008
DEPARTMENT OF TELECOMMUNICATIONS AND TWO
OTHERS ..... Petitioners
Through: Mr. Suryakant Singla with
Ms. Rimjhim Naudiyal, Advs.
(M-9810075888).
versus
SHRI RAVI N. SAHNI ..... Respondent
Through: Mr.Mishal Vij, Adv.
(M-8800386667).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present Section 34 petition arises out of Award dated 12th
September, 2008 passed by the learned sole Arbitrator. The Petitioners/DOT
had taken on rent, premises bearing no.114, First Floor, Bajaj House, Nehru
Place, New Delhi. The initial lease was entered into on 6th October, 1980.
Admittedly, the DOT was in possession of this property till 29th April, 2005.
Disputes arose, in view of the termination of the lease by the Respondent on
16th July, 2001. Post the termination of lease, suit was filed by the
Respondent seeking possession and mesne profits. In view of the
Arbitration Clause contained in the lease deed, the disputes were referred to
arbitration vide order dated 28th January, 2003.
2. During the pendency of the arbitration proceedings two letters were
executed between the parties, which read as under;-
Letter Dated 6th April, 2005
"No 81-9/2004-GM/Nehru Place Bldg/114
Date 06-04-2005
It has been decided that, the flat No. - 114, 1st floor,
Bajaj House, 97 Nehru Place, will be vacated by
Telegraph Office Nehru Place and the same will be
handed over to Shri Ravi N. Sahni C/o Sahni
International, 51 Paschim Marg, Vasant Vihar, New
Delhi - 57 by 30-04-05 under the following terms and
condition :-
• That Shri Ravi N. Sahni will allow to pass the water
pipes through his premises to Telegraph Office.
• That he will also allow the exit of waste-water of
Telegraph Office through the existing hole in his
premises through pipes.
Agreed
Sd/- Sd/-
Shri Ravi N. Sahni (R.P.GOND)
C/o. Sahni International Chief Supdt.
51, Paschim Marg, Vasant Vihar CTO, New Delhi
New Delhi-57"
Letter dated 29th April, 2005
"No.81-9/2004/GM/Nehru place Bldg.
Dated :- 29.04.2005
Sub.: - Handing over the premises flat No.114, 1st
Floor, Bajaj House, 97, Nehru Place, New Delhi.
As per agreement made on dated 06-04-2005 vide
letter No.81-9/2004-GM/Nehru Place Bldg/114 the
premises (Area 116.80 sq. fts.) flat No.114, 1st Floor,
Bajaj House, 97, Nehru Place, New Delhi is handed
over to Shri Ravi N. Sahni, C/o Sahni International, 51
Paschim Marg, Vasant Vihar, New Delhi today dt
29.04.2005.
In turn Shri Ravi N. Sahni will withdraw his case No.
PCE (ARB) /GS/NC/20/989 with no cost immediately.
Agreed and taken over
Sd/- Sd/-
Shri Ravi N. Sahni R.P.GOND
C/o Sahni International Chief Superintendent
51, Paschim Marg Central Telegraph Office
Vasant Vihar New Delhi.
New Delhi."
3. In the impugned Award, the learned Arbitrator holds that the
possession has already been handed over to the Respondent on 29th April,
2005 and hence the claims relating to possession stood settled. Insofar as
claims 2 and 3 for mesne profits and damages are concerned, the learned
Arbitrator applies an increasing rate of rent with effect from 3 rd October,
1983 till 29th April, 2005 and awarded damages as under:-
"Accordingly, the Claimant is allowed increase of rent
w.e.f. 03.10.1983 and the additional rent has been assessed
as tabulated below.
Rent (in Rs.) Interest
3.10.1980 Paid per Payable Due per Amount due Period Amount
to 2.10.83 month per month for the (in Rs.)
month Period
3.10.1980 2,084.00 2,984.00 0.00 NIL NIL NIL
to 2.10.83
3.10.1983 2,084.00 2,397.00 313.00 11,268.00 3.10.1986 to 22,250
to 2.10.86 12.09.2008
3.10.1986 2,084.00 2,756.00 672.00 24,192.00 3.10.1989 to 41,238
to 2.10.89 2,084.00 12.09.2008
3.10.1989 2,084.00 3,170.00 1,086.00 39,096.00 3.10.1992 to 66,643
to 2.10.92 12.09.2008
3.10.1992 2,084.00 3,645.00 1,561.00 56,196.00 3.10.1995 to 80,619
to 2.10.95 12.09.2008
3.10.1995 2,084.00 4,192.00 2,108.00 75,888.00 3.10.1998 to 88,379
to 2.10.98 12.09.2008
3.10.1998 2,084.00 4,820.00 2,736.00 98,496.00 3.10.2001 to 88,115
to 12.09.2008
2.10.2001
3.10.2001 2,084.00 5,543.00 3,459.00 124,524.00 03.10.2004 to 77,778
to 12.09.2008
2.10.2004
3.10.2004 2,084.00 6,375.00 4,291.00 25,746.00 03.04.2005 to 9,245
to 12.09.2008
2.04.2005
3.04.2005 6,375.00 6,375.00 5,526.00 30.04.2005 to 1,711
to 12.09.2008
29.04.2005
Total Rs.460,932/ Rs.474,656/-
-
Award: I hold that the claim no 2 and 3 as partially
justified and the respondent shall release and pay
Rs.4,60,932/- on account of these claim to the claimant."
4. The learned Arbitrator also awarded simple interest at the rate of 9%
per annum in the following terms:-
"The Claimant is therefore allowed simple interest on
the awarded amount for Claim No.2 & 3 above @
9.00% P.A. w.e.f. the period indicated as below till the
date of Award. This amount as per table above works
out to be Rs.4,74,656/-. The respondent shall make the
payment against the award within 90 days of its
receipt. In case the respondent fails to pay the
Awarded sums within 90 days of its receipt, the
Respondent shall be liable to pay simple interest @
11.00% P.A. on the awarded amount including the
interest up to the date of Award as indicated above ie
Rs.9,35,588/-, from the date of award till the date of its
payment.".
5. Costs of arbitration as Rs.25,000/- was also awarded.
6. The submission of Mr. Suryakant Singla, Ld. Counsel appearing for
the Petitioners is that the witness who appeared on behalf of the
Petitioner/DOT had specifically averred that the entire claims of the
Respondent stood satisfied in view of the letter dated 29 th April, 2005. It is
his submission that the claim of damages could not have been awarded as
the execution of letter dated 29th April, 2005 is not disputed. The objection
of Mr. Singla is that the Arbitrator failed even to consider the purport and
meaning of the said letter while giving the award of damages under claims 2
and 3.
7. On the other hand, learned counsel for the Respondent submits that
the letter dated 29th April, 2005 ought to be construed only in terms of the
earlier letter i.e. 6th April, 2005. There was no agreement between the
parties for withdrawing of the claims in the arbitration proceedings.
8. The Court has heard the counsels for the parties.
9. A perusal of the Award shows that while the learned Arbitrator
considers the letter dated 29th April, 2005 in relation to the relief of
possession, the same finds no mention whatsoever in respect of claims 2 and
3. A perusal of the affidavit-in-evidence filed by the Respondent shows that
the Respondent does not dispute the execution of the letter dated 29 th April,
2005. Paragraphs 11 and 12 of the Respondent's affidavit-in-evidence are
relevant and are set out below:-
"11. That in terms of agreement arrived at vide
letter dated 06.04.2005, the respondent vacated the
property in question on 20.04.2005 and got a letter
dated 29.04.2005 (which was already prepared by the
respondent) signed from the deponent/claimant in good
faith acknowledging receipt of possession in terms of
agreement dated 06.04.2005. A copy of the letter dated
29.04.2005 is Ex. C-1/11. A perusal of the said letter
would reveal beyond doubt that the possession of the
property in question has been handed over by the
respondent to the deponent/claimant in terms of
agreement vide letter dated 06.04.2005.
12. That as already submitted, the only term and
condition agreed for vacation of the property in
question was with regard to pipelines and waster water
pipelines passing through the premises of the
deponent/claimant. The deponent/claimant never
agreed to give up his other claims or withdraw the
claim petition at any stage. A perusal of the terms of
agreement vide letter dated 06.04.2005 would reveal
beyond doubt that what was agreed between the
parties, was the issue with regard to vacation of the
property in question taking care of prayer (A) of the
claim petition. It was represented to the
deponent/claimant at the time of agreement dated
06.04.2005 that the respondent is running into losses
on account of introduction of highly advanced
communication techniques and continuing in
possession would only be leading to further recurring
losses by the respondent inasmuch as the telegraph
office being run by the respondent in the property in
question was not giving reasonable profits/returns. It
was also represented that early vacation of the
property in question would check the recurring costs in
continuing the said telegraph office in the property in
question."
10. The witness appearing on behalf of DOT categorically averred in his
evidence that the relief in the arbitral proceedings stands satisfied.
Paragraphs 3 and 4 of his affidavit are relevant and are set out here-in-
below:-
"3. I say that the claim of the respondent does not
survive any further in view of the specific agreement
having been arrived at in this behalf on 29.4.2005. I
submit that no amount is due and/or payable by the
respondents to the claimant on any account whatsoever
and the whole of the relief as claimed stands satisfied
as the claimant had voluntarily, without any force,
coercion or fraud agreed to withdraw the arbitration
proceedings pending before this Hon'ble Tribunal, on
receipt of the possession of the premises demised.
4. I say that the claimant had sought two reliefs in
these proceedings. He has sought possession of Flat
No.114, Bajaj House, 97, Nehru Place, New Delhi.
Besides he had sought damages/mesne profits for use
and occupation of these premises after the alleged
termination of the tenancy. I say that the possession
has already been handed over to the claimant on
29.04.2005. Relief in this behalf stands satisfied. With
regard to the relief of damages/mesne profits I submit
that on handing over of the possession, whole of the
claim of the claimant stood satisfied as he had
unequivocally agreed t withdraw these proceedings
immediately on receipt of the possession on
29.04.2005. Letter Ex.C-1/11 may kindly be perused
for its true purport and meaning. The letter Ex.C-1/11
was prepared in consultation with the claimant after he
had agreed to withdraw these proceedings. The
claimant signed the Letter Ex. C-1/11 after reading
and fully understanding the contents of this letter After
having accepted the possession and agreed to
withdraw the Arbitration case, as his claim stood fully
satisfied, it does not lie in the mouth of the claimant
now to say that he had never agreed to withdraw his
claim petition. I submit that the claimant cannot now
lead any oral evidence to contradict the contents of
letter dated 29.4.2005 execution whereof has been
admitted. The contention that he had never agreed to
withdraw the claim petition is absolutely misconceived,
false and is denied. The claimant after receiving the
possession of the premises demised has turned
dishonest and is pursuing these proceedings in utter
violation of the agreement that he would withdraw
these proceedings immediately. I submit that the whole
of the claim as laid stands fully satisfied and now no
cause of action survives in favour of the claimant."
11. A perusal of the above two extracts from the affidavits filed by the
witnesses shows that this issue was a contested issue between the parties and
hence the Arbitrator ought to have adjudicated the said issues as to whether
the Respondent had to withdraw the claims in the arbitration as well.
12. A perusal of letter dated 6th April, 2005 is clear that there is no
mention of withdrawal of claims in this letter. However, at the time when
possession was handed over on 29th April, 2005, the Respondent clearly
agreed that he would withdraw his case in the arbitration. The relevant
portion of the said letter reads as under:-
"As per agreement made on dated 06-04-2005 vide
letter No.81-9/2004-GM/Nehru Place Bldg/114 the
premises (Area 116.80 sq. fts.) flat No.114, 1st Floor,
Bajaj House, 97, Nehru Place, New Delhi is handed
over to Shri Ravi N. Sahni, C/o Sahni International, 51
Paschim Marg, Vasant Vihar, New Delhi today dt
29.04.2005.
In turn Shri Ravi N. Sahni will withdraw his case
No.PCE PCE (ARB) /GS/NC/20/989 with no cost
immediately."
13. This portion of the letter dated 29th April, 2005 appears to have been
completely ignored by the Arbitrator while awarding damages/mesne
profits. The Arbitrator's award would have been right in law in the absence
of such a letter inasmuch as since the DOT was in possession of the property
till 29th April, 2005, they ought to pay the lease amount/damages for the said
period. However, the question is as to whether there was, in fact, any lis in
the arbitration after the execution of letter dated 29th April, 2005. The
Respondent had clearly and categorically agreed under his signature that he
would withdraw his case No. PCE (ARB/) GS/NC/20/989 before the
Arbitrator, immediately, with no costs. This is a settlement entered into
between the parties which could not have been ignored by the Arbitrator,
thereby leading to award of damages. Once a dispute between the parties
stands settled, there is no arbitral dispute to be adjudicated. The only
exceptions would have been if the Respondent had argued that there was any
fraud, coercion or duress in the execution of the letter dated 29th April, 2005.
14. The affidavit of Respondent does not raise any plea in respect of the
said letter and in fact admits that the Respondent signed the said letter "in
good faith acknowledging receipt of possession" thus the letter dated 29 th
April, 2005 being an admitted document duly signed by the Respondent, the
disputes between the parties stood settled. There was no arbitral dispute for
being adjudicated. Hence there was no question of the Arbitrator's
awarding damages or mesne profits or costs. Accordingly, the impugned
Award is set aside with no orders to costs.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 26, 2018/ak
