Delhi High Court
India Tourism Development ... vs M/S Cp & Associate Pvt. Ltd & Ors. on 9 December, 2020
$~S.B.-1 and 2
* IN THE HIGH COURT OF DELHI AT NEWDELHI
+ REV. PET. No. 84/2020
INDIA TOURISM DEVELOPMENT
CORPORATION ... Petitioner
Through: Mr. Sangram Patnaik, Mr. Swayam
Sidha Patnaik and Mr. Vaibhav
Prabhakar Advocates.
Versus
M/S. C.P. & ASSOCIATES PVT. LTD & ORS. ... Respondents
Through: Mr. Sanyat Lodha, Advocate for
Respondents No. 1 and 2.
Mr. Pawan Mathur, Standing Counsel
for DDA.
WITH
REV. PET. No. 85/2020
INDIA TOURISM DEVELOPMENT
CORPORATION ... Petitioner
Through: Mr. Sangram Patnaik, Mr. Swayam
Sidha Patnaik and Mr. Vaibhav
Prabhakar Advocates.
Versus
M/S. C.P. & ASSOCIATES PVT. LTD. & ORS. ... Respondents
Through: Mr. Sanyat Lodha, Advocate for
Respondents No. 1 and 2.
Mr. Pawan Mathur, Standing Counsel
for DDA.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
REV. PET. No. 84/2020 & 85/2020 Page 1 of 8
ORDER
(ORAL)
I.As. 2817-2819/2020 (exemption)
1. Allowed, subject to all just exceptions.
I.As. 2816-2818/2020 (delay)
2. There is a delay of 133 days in filing the review petitions. For the reasons
stated in the applications, the delay is condoned.
3. The applications are allowed.
REV. PET. No. 84/2020 & 85/2020
4. The present petitions have been filed seeking review of the common
judgment and final order dated 03.09.2019 [hereinafter referred to as the
'Impugned Order'] delivered by this Court in OMP (COMM) 252/2019 and
OMP (COMM) 257/2019 filed under section 34 of the Arbitration and
Conciliation Act, 1996. The Impugned Order dismissed the challenge made
by the Petitioners (i.e. the Review Petitioners herein) to Arbitral Awards dated
06.05.2019 [in OMP (COMM) 252/2019] and dated 05.02.2019 [in OMP
(COMM) 257/2019]. The liberty for filing the present review was granted vide
common order dated 14.01.2020 of the Division Bench of this Court in
FAO(OS)(COMM) 4/2020 and FAO(OS)(COMM) 5/2020, which the
Petitioner/Review Petitioner had moved to assail the Impugned Order.
Relevant portion of the order dated 14.01.2020 is extracted herein below:
"1. The appellant/ITDC has filed the present appeals being
aggrieved by a common judgment dated 03.09.2019, passed by the
learned Single Judge in OMP (COMM) 252/2019 and 257/2019
filed by it under Section 34 of the Arbitration and Conciliation Act,
assailing the Arbitral Award dated 06.02.2019 [subject matter of
OMP(COMM) 257/2019] and Arbitral Award dated 05.02.2019
[subject matter of OMP(COMM) 252/2019].
2. Mr. Patnaik, learned counsel for the appellant/ITDC commences
his arguments by referring to para 6 of the impugned judgment and
states that the appellant/ITDC had assailed the Award passed by
the Arbitral Tribunal on three counts, namely, recovery of
liquidated damages due to delay in supply of furniture, obligations
cast on the respondent under the MOD's dated 07.07.2010 and
31.07.2010 and the payment of material lying in the warehouse
adjoining the project site. However, the learned Single Judge has
erred in not dealing with the grounds taken to assail the impugned
Award on the last head, though arguments were duly advanced on
the aforesaid aspect before the learned Single Judge.
3. In view of the submission made hereinabove, we have enquired
from learned the counsel for the appellant/ITDC as to whether any
steps were taken to invoke the review jurisdiction of the court and
point out the aforesaid error, which as per him, is an error apparent
on the face of the judgment. Learned counsel concedes that no such
steps have been taken so far and requests for some time to file a
review petition in this regard.
4. At the request of the counsel for the appellant, preliminary
arguments on the present appeals are deferred for 23.04.2020.
5. It is made clear that while granting liberty to the appellant/ITDC
to file the review application, we have not made any observations
on the merits/demerits or the maintainability of the review
application proposed to be filed by it. It is left to the learned Single
Judge to consider the review petition as and when the same is filed
by the appellant/ITDC and decide the same in accordance with
law."
5. Mr. Sangram Patnaik, learned counsel for the Review Petitioner submits
that in the Impugned Order, while deciding the objection petitions, this Court
specifically took note of the issues raised before the sole arbitrator in the
Arbitral Award(s), and extracted the same at paragraph number 6 of the
Impugned Order, but failed to deal with the same. The same is reproduced as
follows:
"6. On 28th September 2012, learned Arbitrator entered upon
reference. Petitioner urged before the Arbitrator that since
Respondent No. 2 is a party to the MoU, he should also be made a
party to the proceedings. On 24 October 2013, Respondent No. 2
filed an application for impleadment and the same was allowed.
During the arbitral proceedings, Petitioner objected to separate
Statement of Claims being filed by Respondent No. 1 and 2. The
objection was sustained and the Learned Arbitrator directed
Respondent No. 2 to file a joint Statement of Claim along with
Respondent No. 1. On the basis of Pleadings of the parties, learned
Arbitrator summarized the issues for adjudicating the disputes
between the parties, as noted in the impugned award. The same
reads as follows:-
(A) "Recovery of liquidated damages due to delay in supply of
furniture.
(B) The Obligation of the Respondent towards the MoU
(Memorandum of Understanding) dated 07.07.2010 & dated
31.07.2010 which were entered into between M/s C. P.
Associates (the Claimant) through its Managing Director Sh.
Chander Pal Singh Sisodia and M/s IET (M/ s India Exports
Today) through Sh. Rajiv Kumar Saxena proprietor of M.s
India Exports Today in the presence of the officers of ITDC
(India Tourism Development Corporation Ltd.)
(C) Payment of the material (including the rent of the warehouses,
their watch & ward, expenditure on insurance etc.) which is
lying in the warehouses at Nangal Dewat adjoining the
project site at Vasant Kunj New Delhi."
6. Mr. Patnaik argues that as the issue enumerated at paragraph number 6(C)
above has not been traversed by this Court in the Impugned Order, therefore,
he stresses that this Court has erred in not dealing with the grounds urged in
the objection petitions to assail the arbitral awards on the above-noted issue.
He further submits that he had agitated the grounds urged in the petition in
respect of the said issue, while addressing oral arguments. To support his
submissions, he refers to the grounds raised in the petitions. He urges that this
court dealt with only two issues, and the main issue viz paragraph 6(C) has
been overlooked. However, he candidly admits that in the written submissions
filed before this Court, after the conclusion of the oral arguments, no
contentions were advanced or raised on the said issue. He submits that this
was an inadvertent mistake or oversight on his part, and, as a matter of fact,
contentions on the said issue were advanced before this Court. Mr. Patnaik
also sought to make submissions on the merits of the said issue.
7. Mr. Sanyat Lodha, Advocate for Respondents No. 1 and 2, and Mr. Pawan
Mathur, learned standing counsel for Respondent-DDA, strongly oppose the
present petitions and raise a preliminary objection regarding the
maintainability of the review petitions. They submit that there is no error
apparent in the Impugned Order and that the Petitioner's plea is false, contrary
to the record, and should not be entertained. Mr. Lodha argues that, as a matter
of fact, the grounds relating to the issue enumerated at paragraph number 6(C)
above were given up , never urged during the course of the oral arguments.
For this precise reason, the written submissions also do not contain any
averments on the said issue. He submits that in the written submissions filed
by the respondents, a categorical statement has been made to this effect. He
further draws support from the observations made by this court in paragraph
number 7 of the Impugned Order, which reads as follows:
"7. (...) The Petitioner has challenged the findings of the
Arbitrator on issue nos. 1 and 2, on the grounds discussed
hereinafter."
8. I have heard the learned counsels for the parties at sufficient length. The
submissions advanced by Mr. Patnaik with respect to the merits of the issue
are not required to be examined, as I find merit in the preliminary objection
raised by the respondents qua the maintainability of the Review Petition.
9. In my recollection, the Petitioner had not made any oral submissions on the
issue enumerated at paragraph number 6(C) and this ground was given up, as
contended by Respondent's counsel. However, as substantial time has lapsed
since the matter was last heard, I would not reject the contention of the
Petitioner solely on the basis of my memory. Pertinently, in the instant case,
since elaborate written submission of the parties are on record, which were
filed after the conclusion of the oral arguments, there cannot be any
misgivings about what transpired in the Court. The written submissions of the
Petitioner are detailed and run into five pages. The opening paragraph spells
out the three issues decided by the learned Arbitrator, including the issue
enumerated at paragraph number 6(C) above, which is in controversy in the
present review petitions. Thereafter, the contentions are summarized under
specific heads, which relate to issues enumerated at paragraph numbers 6(A)
and 6(B) only. It is thus evident that no contentions were urged with respect
to the issue enumerated at paragraph number 6(C). Today, Mr. Patnaik also
seeks to contend that the issue enumerated at paragraph number 6(C) is
fundamental, and therefore there was no reason for him to give up the same
and should be considered afresh by this Court. However, if this was indeed
the case, then there was no reason for the Petitioner to have ignored the same
in their written submissions. The plea that the ground was inadvertently not
taken up in the written submissions, is therefore, clearly an afterthought. It is
a common practice that the counsels, during the course of arguments, urge
only selective grounds and/or give up or not press some of the grounds. Thus,
the only plausible reason for the Petitioner not making any written
submissions in this regard, is that during the course of the oral arguments, the
grounds regarding the issue enumerated at paragraph number 6(C) above were
not pressed. Further it is also significant to note that the written submissions
filed by the respondents also make a mention of the hearings dated 05.07.2019
and 09.07.2019, in the following terms:
"3. At the outset, it is submitted that the present written submissions
are being filed opposing the captioned Petitions in their entirety
and no part of the challenge sought to be made by way of the
captioned Petitions may be deemed to have been admitted by the
Respondents herein for the sake of specific denial or traversal.
However, in the hearings dated 05.07.2019 and 09.07.2019
respectively in the captioned petitions before this Hon'ble Court,
the Petitioner had sought to challenge the awards on the
following premise:
3.1. That the Awards suffer from non-joinder of necessary party
inasmuch as the DDA was not impleaded as a party during
the arbitral proceedings.
3.2. That the Awards in favour of Respondent No. 2 were
erroneous inasmuch as Respondent No. 2 not being a party to
the Arbitration Agreement could not have been impleaded as
a party in the arbitral proceedings on the basis of the MoU
between Respondent No. 1 and Respondent No. 2.
3.3. That the finding of delay on the part of the ITDC was
erroneous and that the delay was on the part of the
Respondents in supplying the furniture. In that view, the
counter claim filed by ITDC was erroneously rejected by the
Ld. Arbitrator."
(Emphasis supplied)
10. Further, in paragraph number 4 of the said written submissions, the
respondents have categorically stated that apart from the contentions urged in
the written submissions, the remaining grounds raised therein have not been
argued before this Court and would be deemed to have been given up by the
Petitioner. The respondent also did not give any response to the same in their
written submissions. The said paragraph reads as under:-
"4. It is submitted that the present written submissions, apart from
placing the settled position of law on the scope of interference with
an arbitral award under Section 34 of the Act before this Hon'ble
Court, seeks to deal with the aforementioned contentions raised by
the Petitioner in particular. It is submitted that the remaining
grounds as sought to be raised in the Petition, not having been
argued before this Hon'ble Court, may be deemed to have been
given up by the Petitioner. It is submitted that the same deserve
no response, and are accordingly not being specifically dealt with
in the present written submissions."
(Emphasis supplied)
11. In this factual background, as the Petitioner had given up the grounds
relating to issue 6(C), as noted above, the Petitioner cannot invoke the review
jurisdiction of this Court to urge that it is an error apparent on the face of the
record. Therefore, there is no merit in the present review petitions.
Accordingly, the same are dismissed.
SANJEEV NARULA, J
DECEMBER 09, 2020
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