Delhi High Court
Castmaster Mobitec India Private ... vs Delhi Transport Corporation on 30 May, 2019
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 30.05.2019
+ O.M.P. (COMM) 102/2018
CASTMASTER MOBITEC INDIA PRIVATE LIMITED
..... Petitioner
Through: Dr.Arun Mohan, Sr. Adv. with
Mr.Saurabh Jain, Mr.Kuber Giri, Ms.Sarika,
Mr.Vinayak Bhandari, Advs. along with
Mr.Rahul Jain, AR of the petitioner
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through: Ms.Avnish Ahlawat, Standing
Counsel, GNCTD with Mr.N.K.Singh,
Ms.Sakshi, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
Rev. Pet. 154/2018
1. The present review petition has been filed by the
petitioner seeking review of the judgment/order dated
01.03.2018 passed by this Court dismissing the petition filed by
the petitioner under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the 'Act').
O.M.P.(Comm.) No.102/2018 Page 1
The petitioner challenged the Arbitral Award dated 20.11.2017
as also the order dated 30.11.2017 passed by the Sole Arbitrator
in Arbitration Case No.SPN 012/2012.
2. As noted in the said order, the disputes between the
parties arose in relation to the award of work for installation of
LED based Route Display System (RDS) in Standard Floor
Buses on Build Operate Transfer (BOT) basis in lieu of
Advertisement Rights in favour of the petitioner under the
Concession Agreement dated 12.07.2010.
3. Learned senior counsel for the petitioner submits that in
the said order, this Court has failed to consider the effect of
Section 143 of the Delhi Municipal Corporation Act, 1957
(hereinafter referred to as the 'DMC Act'). He submits that in
terms of Section 143 of the DMC Act, there is a complete bar
on fixation of any advertisement upon any vehicle without the
written permission of the Commissioner granted in accordance
with the bye-laws made under the said Act. He submits that
even before the grant of the agreement, the MCD had issued a
warning to the respondent on 30.04.2010, not to allot any
contract for display of advertisement on the buses without
taking prior permission under Section 143 of the DMC Act.
This letter was, however, intentionally concealed by the
respondent while awarding the contract and even thereafter till
the arbitration proceedings.
O.M.P.(Comm.) No.102/2018 Page 2
4. Learned senior counsel for the petitioner further submits
that by letter dated 28.06.2010, the respondent replied to the
abovementioned letter of the MCD, wherein it only confined its
response to the plea that it was not to share the revenue from the
contract with the MCD as also seeking ex post facto permission
from the MCD. He submits that even this letter was concealed
by the respondent at the time of entering into the agreement as
also thereafter till 10.05.2012.
5. Learned senior counsel for the petitioner submits that as
the permission was never granted by the MCD, the
consideration for the contract in question failed and therefore,
the Arbitrator has committed an error by holding that the
petitioner had the right of gainful use of these buses.
6. Learned senior counsel for the petitioner further submits
that the petitioner had raised this issue of non-availability of the
permission from the MCD only by its letter dated 04.04.2011.
The Arbitrator has therefore, erred in holding that this issue
stood settled on 25.01.2011, with the petitioner agreeing to pay
the licence fee.
7. The primary submission of the learned senior counsel for
the petitioner is that in absence of the permission from the
MCD, the respondent was not entitled to recover the licence fee
and/or retain the LED based RDS supplied by the petitioner
without paying for the same. He submits that the plea of the
respondent that the petitioner should have violated Section 143
O.M.P.(Comm.) No.102/2018 Page 3
of the Act and incase MCD proceeds against the petitioner for
such violation, the respondent could have been made liable,
cannot be accepted. He submits that in view of the above, the
Award as also the order dated 01.03.2018 passed by this Court
cannot be sustained.
8. I have considered the submissions made by the learned
senior counsel for the petitioner, however, find no merit in the
same.
9. As noted hereinabove, the Agreement between the parties
was signed on 12.07.2010. It was for a total of 1500 buses.
The petitioner supplied and installed LED based RDS on 605
buses. The dispute raised by the petitioner in its letter
terminating the agreement was that the respondent had failed to
supply the remaining buses to the petitioner, causing loss to the
petitioner. This was the basis even in the Statement of Defence
and the counter claim filed by the petitioner before the Sole
Arbitrator.
10. The plea that the petitioner was unable to award the
advertisement contracts to third parties as they required
permission from the MCD, though raised in the letter dated
04.04.2011, was never made a ground for terminating the
contract and/or making its claim/defence before the Arbitrator.
It is correct that the said plea was raised in the passing before
the Arbitrator and has also been recorded by the Arbitrator as
such, however, the Arbitrator rightly held that the same had no
O.M.P.(Comm.) No.102/2018 Page 4
substance, especially when the petitioner, as late as in the
meeting held on 03.12.2010 agreed to pay licence fee from the
date of issue of COD, that is 21.01.2011.
11. The petitioner is no novice and would have known fully
well that permission from MCD is required before displaying
any advertisement on the buses. However, the petitioner never
enquired the status of such permission from the respondent at
the time of entering into the contract or even when later
committing to pay the licence fee. Incase, the petitioner had
made this as a ground for seeking termination of the contract, it
would have been for the respondent to have either procured
such permission for the petitioner and/or to face consequences
of such non-production in form of damages or otherwise.
However, the petitioner never considered grant of permission
from MCD as a main issue and only, as an afterthought, sought
to use this plea to justify the termination of the Agreement.
12. In view of the above, I find no merit in the present review
petition. The same is dismissed. There shall be no order as to
costs.
NAVIN CHAWLA, J
MAY 30, 2019
RN
O.M.P.(Comm.) No.102/2018 Page 5
