Full Text
HIGH COURT OF DELHI
Date of order : 08th February, 2023
LAKHVINDER SINGH PROP OF M/S LAKHVINDER SINGH..... Petitioner
Through: Mr.Arun Bata, Ms. Indira Marla and Mr.Abdul Wahid, Advocates
Through: Mr.Bhagwan Swarup Shukla, CGSC with Mr.Sarvan Kumar, Mr.Vikrant, Ms.Sunita Shukla and
Mr.Venugopal Abhay, Advocates
CHANDRA DHARI SINGH, J (Oral)
JUDGMENT
1. The instant petition has been filed on behalf of the petitioner seeking the appointment of a Sole Arbitrator under the provision of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act, 1996”) qua the dispute arising out of the Parking Agreement dated 10th June, 2022.
2. Learned counsel for the petitioner submits that the petitioner is a parking contractor that operates a number of pay-per-use parking lots in the Delhi NCR region.
3. It has been submitted on behalf of the petitioner that respondent is a Government agency in-charge of Northern Railway's Delhi Division's maintenance and train operations, among other things.
4. It has been submitted on behalf of the petitioner that the respondent issued a request for proposals for the Delhi Sadar Bazar (DSB) Cycle - Scooter - Car -Bus -Truck -temporary parking Site for a duration of three years. According to clause 6(b) of Chapter 5 of the Tender Document, the Parking Site was proposed for a bid.
5. It has been submitted on behalf of the petitioner that the petitioner submitted a bid for Rs. 4,76,17,500/- (Rupees Four Crores Seventy Six Lakhs Seventeen Thousand Five Hundred Only) for a term of three years after touring the parking site, reviewing the site map posted with the tender, and evaluating the viability of the parking site. It has been further submitted that the petitioner was declared the successful bidder for a period of three years, and therefore was obligated to pay the quarterly licence fee to the tune of Rs. 39,68,125/- (Rupees Thirty-Nine Lakhs Sixty-Eight Thousand One Hundred And Twenty-Five Only) and a monthly licence fee of Rs. 13,22,808/- (Rupees Thirteen Lakhs Twenty Two Thousand Seven Hundred and Eight). In addition to the aforementioned license fee, the petitioner owed the respondent relevant taxes, namely GST at 18% and TCS at 2%.
6. It has been submitted on behalf of the petitioner that an Offer Letter No. 23AC/393/C-S-C-T-T/Pkg/E- Tender/DSB/2022 dated 19th April, 2022 was issued to the petitioner demanding the payment of quarterly licence fee of Rs. 39,68,125/-, GST of Rs. 7,14,263/-, TCS of Rs.79,363/- and security deposit of Rs.70,05,450/- within a stipulated time frame of 15 days.
7. It has been submitted on behalf of petitioner that pursuant to the completion of all the formalities, the petitioner deposited Rs. 39,68,125/- (Rupees Thirty-Nine Lakhs Sixty-Eight Thousand One Hundred And Twenty-Five Only) towards three months advance quarter licence fee via letter dated 26th April, 2022. Additionally, the petitioner deposited sum of Rs. 70,05,450/- (Rupees Seventy Lakhs Five Thousand Four Hundred and Fifty) in fixed deposit after deducting Rs. 9,30,800 /- (Rupees Nine Lakhs Thirty Thousand and Eight Hundred) which was already paid as EMD while bidding for the tender. A receipt for a fixed deposit for the amount of Rs. 70,05,450/- (Rupees Seventy Lakhs Five Thousand Four Hundred and Fifty) was also submitted with the respondent by letter dated 2nd May,
2022. Consequently, the petitioner had fulfilled all the procedures as required in the Offer Letter dated 19th April, 2022 within the respondent's specified time limit.
8. It has been submitted on behalf of the petitioner that possession of the parking site was transferred to the petitioner via joint note dated 11th May, 2022. After the parking lot was turned over to the petitioner, he requested water and electricity connections from the respondent.
9. It has been submitted on behalf of the petitioner that the petitioner received a Show Cause Notice dated 9th June, 2022 bearing number 23AC/393/C-S-C-T-T/Pkg/E-Tender/DSB/2022, which was issued in furtherance of a surprise inspection purportedly performed on 8th June, 2022, less than a month after the parking space was given over to the petitioner. It is further submitted that in the aforementioned Show Cause Notice, false and unfounded allegations were alleged against the petitioner, and it was further alleged that the petitioner had constructed a new entry/exit way of approximately 25 metres in width at the parking lot facing Sadar Bazar, Main Road by demolishing the boundary wall on that side.
10. It has been submitted on behalf of the petitioner that the parking contract agreement was signed on 10th June, 2022. On 13th June, 2022, the respondent's staff returned to the parking site and asked that the gate at point 'A' on the site map be closed without waiting for the petitioner's response to the Show Cause Notice. On 15th June, 2022, the petitioner responded to the fraudulent and false Show Cause Notice, issued by the respondent, stating that the petitioner had not committed any of the asserted faults. In the Show Cause Notice dated 9th June, 2022, the petitioner denied constructing a new entry/exit point. The petitioner has not removed boundary barriers along Sadar Bazar, Main Road.
11. It has been submitted on behalf of the petitioner that as soon as the reply dated 15th June, 2022 was received, Railway Police Force (RPF) officials began coming to the parking site and demanding that the Gate at point 'A' shown on the site map be closed. They also threatened to close the gate at point 'A' shown on the Site Map forcibly, if it was not closed. The petitioner even attended the respondent personally on 20th June, 2022 to discuss the serious concerns he was experiencing, but respondent officials provided no adequate explanation. Subsequently, the petitioner vide letter dated 24th June, 2022 apprised the respondent with pertinent information concerning the entry and exit gates. It was further specified that the petitioner had never opened the gate, and that if the gate were closed forcibly, it would be extremely difficult for the petitioner to operate the Parking Site.
12. It is submitted on behalf of the petitioner that in lieu of considering the genuine problems being faced by the petitioner and allowing him to run the Parking Site as per the terms and conditions of the contract, the respondent issued another Show Cause Notice dated 22nd June, 2022 levelling similar allegations as the previous Show Cause Notice, i.e. allegations with respect to the entry/exit gate, the construction of a tin shed, the absence of a fire extinguisher, and the unauthorised connection of electricity. The petitioner provided a thorough response to the aforementioned Show Cause Notice on 26th July, 2022, highlighting all the facts pertaining to access, exit, uniform, boards, etc.
13. It is submitted on behalf of the petitioner that the petitioner again met with the respondent's employees, who verbally informed him that no action for the closing of the gate of parking site would be done. The petitioner began operating the parking lot in accordance with the contractual terms and conditions.
14. It is submitted on behalf of the petitioner that, to the surprise of the petitioner, on 2nd September, 2022 one, Sh. Rajneesh Chauhan, SSC of the respondent, along with five staff members and approximately four to five RPF officers led by Sh. Devender, Head Constable, along with Sh. Munna Singh, Manager of M/s SS Multi Services (who is the Contractor of the Parking Site namely Tanga Stand Qutub Road) suddenly approached the parking site without any notice or prior intimation, in order to close the entry/exit gates in view of the numerous show causes notices that have been issued to the petitioner.
15. It is submitted on behalf of the petitioner that the manager of the petitioner, Sh. Tuntun Kumar Singh, suspected foul play and suspicious as to why the parking site Qutub Road Manager, Sh. Munna Singh, was there when the Railway Employees arrived to unlawfully close the entry/exit gate. Upon enquiry, it was revealed that Sh. Munna Singh, a competitor and owner of Tanga Stand Qutub Road Railway Parking, which is right next to the petitioner's parking site, has been making false complaints to the Railway Authorities about the petitioner's parking site. It appeared that the respondent's officials had come to close the entry/exit gate. It is further submitted that the Show Cause Notices dated 9th June, 2022 and 22nd June, 2022 and all the surprise inspections at the parking site of the petitioner that too late in the night within a period of only two and a half months of the Parking Contract being granted to the petitioner appeared to have been issued at the behest and instigation of the said Sh. Munna Singh as the Parking Site of the petitioner is giving competition to the Parking Site namely Tanga Stand Qutub Road railway parking.
16. It has been submitted by the petitioner that the petitioner being apprehensive of respondent‟s unlawful conduct of closing one of the aforementioned entry/exit gates, filed a petition under section 9 of the Act, 1996. It is further submitted that while the said petition was pending adjudication before the Court of District Judge (Commercial Court)-07, Central District, Tis Hazari Court, the respondent authorities summoned RPF officers from Lahori Gate, Anand Vihar, New Delhi Railway Station, and Old Delhi Railway Station to seal the said entry/exit gate and started digging the area with the help of a JCB machine. It is further submitted that the entry/exit gate situated at point „A‟ in the Site Map existed at the time when tender was floated, hence the petitioner kept seeking that respondent authorities had no right to do the same.
17. It is submitted on behalf of the petitioner that the while the pendency of the said petition, the petitioner invoked the Arbitration Clause i.e. Clause 28 of the Master License Agreement vide notice dated 21st September, 2022 to appoint an arbitrator for redressal of the disputes between the parties. The respondent however, refuted to the request of the petitioner on the ground that a case titled as "Lakhvinder Singh vs. Northern Railways" bearing No. OMP (I) (Comm) 362/2022 is pending before the Ld. District Judge (Commercial Court) -07, Central District, Tis Hazari and both the processes cannot be carried on simultaneously.
18. It is submitted on behalf of the petitioner that the Ld. District Judge (Commercial Court) -07, Central District, Tis Hazari vide its judgment dated 11th October, 2022 allowed the petition of the petitioner herein and directed the respondent to restore the entry/exit gate till the matter is adjudicated upon by the arbitrator.
19. Learned counsel for the petitioner further submits that since the petition filed by the petitioner under Section 9 of the Act, 1996 has been granted by the Ld. District Judge in accordance with Section 9(2) of that Act, 1996, the arbitration proceeding must begin within ninety days of that decision. However, the respondent has declined to nominate the Arbitrator vide letter dated 4th October, 2022, on erroneous and baseless reasons.
20. It is submitted on behalf of the petitioner that the parking agreement dated 10th June, 2022 executed between the parties contained an arbitration clause i.e. clause 28.[1] (b) whereby all the disputes between the parties were to be governed by the provisions of the Act, 1996. The said clause is reproduced hereunder: “Any dispute, difference or controversy which is not resolved amicably within 30 days then any Claims(s) on disputed matters shall be demanded in writing that the dispute or difference be referred to arbitration. Such arbitration shall be governed and held in accordance with the provisions of the Arbitration and Conciliation Act, 1996.”
21. Learned counsel appearing on behalf of the respondent vehemently opposed the averments made in the instant petition. However, he fairly concedes that the dispute between the parties is arbitral in nature and has no objection if this Court appoints a sole arbitrator for adjudication of disputes between the parties. Heard the learned counsel for the parties and perused the record. As agreed on behalf of the parties, it is evident that the parties intend the Court to refer the disputes to arbitration, by appointing a sole arbitrator. In view of the request made by the parties, to resolve the dispute arising under the Parking Agreement, the said disputes and differences arising between the parties are referred to arbitration, by appointing an arbitral tribunal. Hence, the following Order: ORDER
(i) Mr. Vishwajit Singh, Senior Advocate is appointed as a sole arbitrator to adjudicate the disputes between the parties which have arisen under the parking agreement dated 10th June, 2022;
(ii) The learned sole arbitrator, before entering the arbitration reference, shall ensure the compliance of Section 12(1) of the Arbitration and Conciliation Act, 1996;
(iii) The learned sole arbitrator shall be paid fees as prescribed under the Delhi International Arbitration Center (Administrative cost and Arbitrators‟ Fees), 2018;
(iv) At the first instance, the parties shall appear before the learned sole arbitrator within 10 days from today on a date which may be mutually fixed by the learned sole arbitrator;
(v) All contentions of the parties are expressly kept open;
22. A copy of the order be forwarded to the learned sole arbitrator on the following address: Mr. Vishwajit Singh, Senior Advocate 81, A.K. Sen Block, Supreme Court, New Delhi - 110001 Mobile No. - +91-9310118870 E-mail Id - singh.vishwajit@gmail.com
23. The petition is disposed of in the aforesaid terms along with pending applications, if any.