Delhi Tourism & Transportation Development Corporation Ltd v. M/S Graviss Catering Pvt Ltd

judgment and order [Kandhari Beverages Ltd. v. Haryana Tourism Ltd., 2018 SCC OnLine P&H 3233] passed by the High Court is hence not sustainable."

¶31As regards the limited scope of interference under Sections 34/37 of the Act, we may also usefully refer to the following observations of a three-Judge Bench of this Court in UHL Power Co. Ltd. v. State of H.P. [UHL Power Co. Ltd. v. State of H.P., (2022) 4 SCC 116 :

(2022) 2 SCC (Civ) 401] : (SCC p. 124, paras 15-16) "15. This Court also accepts as correct, the view expressed by the appellate court that the learned Single Judge committed a gross error in reappreciating the findings returned by the Arbitral Tribunal and taking an entirely different view in respect of the interpretation of the relevant clauses of the implementation agreement governing the parties inasmuch as it was not open to the said court to do so in proceedings under Section 34 of the Arbitration Act, by virtually acting as a court of appeal.

¶16As it is, the jurisdiction conferred on courts under Section 34 of the Arbitration Act is fairly narrow, when it comes to the scope of an appeal under Section 37 of the Arbitration Act, the jurisdiction of an appellate court in examining an order, setting aside or refusing to set aside an award, is all the more circumscribed."

¶32The learned Attorney General has referred to another three-Judge Bench decision of this Court in SAL Udyog [State of Chhattisgarh v. SAL Udyog (P) Ltd., (2022) 2 SCC 275 : (2022) 2 SCC (Civ) 776] , wherein this Court indeed interfered with the award in question when the same was found suffering from non-consideration of a relevant contractual clause. In the said decision too, the principles aforesaid in Delhi Airport Metro Express [Delhi Airport Metro Express

(P) Ltd. v. DMRC, (2022) 1 SCC 131 : (2022) 1 SCC

(Civ) 330] , Ssangyong Engg. [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 :

(2020) 2 SCC (Civ) 213] and other cases were referred to and thereafter, this Court applied the principles to the facts of that case. We shall refer to the said decision later at an appropriate juncture.

¶33Keeping in view the aforementioned principles enunciated by this Court with regard to the limited scope of interference in an arbitral award by a Court in the exercise of its jurisdiction under Section 34 of the Act, which is all the more circumscribed in an appeal under Section 37, we may examine the rival submissions of the parties in relation to the matters dealt with by the High Court."

¶17In the present case, both the ld. Arbitrator as also the ld. Single Judge have considered all the contentions of the Respondent and the stand of the Corporation.

¶18A perusal of the license deed would show that banqueting services were clearly permitted. However, for whatever reason, the sealing of the licensed premises had occurred and thereafter, the premises was de-sealed. When the license deed itself permitted banqueting facilities, the Respondent could not be stated to be in violation of the license deed. The refund of the license fee was, therefore, completely justified.

¶19Insofar as the claim for loss of profits is concerned the period when the premises could not be used is a substantial period. A perusal of the balance sheet of the Respondent which was placed on record clearly shows that the profit of the Respondent for the period pending 31st March, 2007 is to the tune of Rs.3,16,30,078/-.

¶20On the basis of the figures in the balance sheet, the assessment of the ld. Arbitrator granting Rs. 1.5 lakhs to the Respondent for one month cannot be stated to be either exaggerated or lacking in evidence. Non-use of a premises, does naturally result in loss of profits. The grant of loss of profits by the ld. Arbitrator also therefore, cannot be faulted.

¶21Insofar as the order in the writ petition is concerned, there was no decision either on plea of waiver or refund in the writ petition and, therefore, the same would not operate as res judicata. In fact, post the decision in the writ petition, the disputes have been referred to arbitration, in terms of the arbitration clause contained in the License Deed.

¶22Finally, insofar as the award of interest is concerned, considering the fact that in the present appeal, initially, stay was granted on 2nd September, 2019 by directing deposit of 50% of the awarded amount along with up-to-date interest, further grant of interest @12% per annum is clearly on the higher side.

¶23Accordingly, the total interest on the awarded amount is reduced to @ 6% per annum both on Claim No. 1, and also, Claims No. 3 and 4 i.e., on the loss of profits and the amount spent on the salary of the staff/employees and security.

¶24The arbitral award dated 20th March, 2018 is modified in the above terms.

¶25Vide order dated 2nd September, 2019 passed in this appeal, the Court had directed deposit of 50% of the awarded amount. Pursuant to the said order, the Petitioner Corporation had deposited a sum of Rs. 64, 63, 415/-. The same was lying in a fixed deposit in the account of the Registrar General. The said amount be now released to the Respondent after deduction of TDS on the interest component, as per applicable Rules, within two weeks. The remaining amount calculated, in terms of this judgement, be paid to the Respondent within three months.

¶26Petition is disposed of with all pending applications, if any. PRATHIBA M. SINGH JUDGE AMIT SHARMA JUDGE AUGUST 05, 2024 MR/RKS/NS

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:-5th August, 2024. + FAO(OS) (COMM) 108/2019, CM APPL. 23080/2019 & 39332/2019 DELHI TOURISM & TRANSPORTATION DEVELOPMENT CORPORATION LTD .....Appellant Through: Ms. Shobhana Takiar, Advocate with Mr. Kuljeet Singh, Advocate (M: 9810962950). Versus M/S GRAVISS CATERING PVT LTD .....Respondent Through: Mr. Sanjeev Mahajan and Mr. Pranjal Tandon, Advocate (M: 9811156437). CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. 2. The present appeal under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 (hereinafter, 'Act, 1996') has been filed on behalf of the Appellant- Delhi Tourism & Transportation Development Corporation Ltd. (hereinafter 'DTTDC') challenging the impugned judgment dated 12th February, 2019 in O.M.P. (Comm) No. 69/2019. Vide the said judgment, the ld. Single Judge dismissed a petition under Section 34 of the Act, 1996 which sought to challenge the arbitral award dated 20th March, 2018. 3. A brief background of this litigation is that a license deed dated 6th December, 1988 (hereinafter, 'license deed') was executed between the Appellant and the Respondent- M/s Graviss Catering Pvt. Ltd. (earlier known as, 'Leman International Private Limited') vide which, an open space measuring 4395 sq.mtrs. in the complex Qutab Minar, Mehrauli, New Delhi (hereinafter, 'licensed premises') was licensed to the Respondent. The said license deed was renewed on 12th April, 2001 for another period of ten years. As per the said license deed, the Respondent was permitted to carry out its business of running a fast food counter, restaurant-cum-bar and banqueting facilities at the licensed premises. 4. The Monitoring Committee appointed by the Hon'ble Supreme Court sealed the licensed premises on 31st January, 2007 on the ground that the lawn outside the restaurant was being used for marriages and other social functions and the same was alleged to be misuse as per the terms of the license deed. This issue went to the Hon'ble Supreme Court where both the Petitioner and the Respondent had filed their applications, seeking de-sealing but the licensed premises continued to remain sealed till 25th September, 2009. Sometime in 2009, the premises was de-sealed but the Respondent for various reasons was unable to commence use of the premises till the expiry of the licence in 2011. 5. The Respondent in the meantime also filed two writ petitions, being W.P.(C) 55/2011 and W.P.(C) 2083/2012, seeking renewal of the license deed in its favour. The stand of the Respondent was that it had paid a sum of Rs.96,00,000/- for a period of ten years but could not utilise the premises for the entire period due to sealing of the premises. The writ petitions were disposed of vide separate orders dated 14th February, 2012 and 13th April, 2012 respectively. 6. In the order dated 13th April, 2012 passed in W.P. (C) 2083/2012, titled Leman International Ltd. v. UOI, the ld. Single Judge directed that the Respondent could participate in public auction and no special status would be afforded to the Respondent. The operative portion of the said order reads: 8. Having heard learned senior counsel as well as perused the record, I find no merit in this petition. The petitioner had no vested right to seek renewal of the licence. The licence was granted for a period of 10 years which expired on 31.01.2011. The licence deed specifically provides that the licensor reserves the sole discretion whether, or not, to renew the licence. The contention that the petitioner was not in breach of any term of the licence agreement has not been agreed to even by the four member Committee, on whose minutes/recommendations the petitioner places such heavy reliance. The recommendations of the said four member Committee itself records:- "……The Committee further made it clear to Mr. Garg that the Corporation is not satisfied with the reply da