Municipal Corporation of Delhi v. Narinder Kumar

1. Appellant (Municipal Corporation of Delhi), the original respondent[1] before the learned Sole Arbitrator, through this appeal under Section 37 of The Arbitration and Conciliation Act, 1996[2] seeks to challenge the impugned judgment dated 31.08.2022 whereby in a petition under Section 34 of the Act filed by it, the learned District Judge (Commercial Court)-02, Patiala House Court, New Delhi[3] has upheld the Arbitral Award dated 27.11.2020 passed by the learned Sole Arbitrator in favour of the respondent, the original claimant[4] before the learned Sole Arbitrator. Hereinafter referred to as “MCD” Hereinafter referred as “Act" Hereinafter referred to as “learned Trial Court” Hereinafter referred as “allottee”

2. This Court, after hearing detailed arguments addressed by the learned Standing Counsel for MCD at length, prior to issuing notice and without entering into the merits of the disputes involved in the present petition, is of the opinion that in view of the settled position of law regarding the interpretation and limited scope of interference by the appellate Court under Section 37 of the Act, especially in view that the MCD is, once again, seeking to reagitate the very same contentions which have already been refuted after due consideration by two forums being the learned Sole Arbitrator and the learned Trial Court below, by two detailed/speaking orders separately, the petition in the present form is not maintainable under Section 37 of the Act.

3. It is thus that this Court, hereinbelow, is elucidating only the broad and essential facts involved in the present dispute, without going into any specific details with respect to time or date or event, more so, as the same are irrelevant for the purposes of the adjudication of the present appeal in terms of what follows hereunder.

4. Record of the present appeal reveals that pursuant to invitation of sealed tenders for allotment of parking site, the allottee was allotted car/scooter parking site at Jwala Heri Market, Paschim Vihar, New Delhi[5] for a period of five years. As such, though the possession of the said parking site was claimed to be handed over to him on a particular date, however, physical possession thereof was actually handed over to him subsequently. As the allottee faced noncooperation in operating the said parking site from various entities and as he was handed over only a part thereof instead of what was allotted to him, the allottee faced difficulties. Moreover, despite the allottee repeatedly taking up his cause Hereinafter referred as “parking site” with the MCD and the local Police, from time to time, MCD served Demand Notice(s) and issued Show Cause Notice(s) upon him for payment of outstanding dues for different periods.

5. Because a sizable chunk of the parking site originally allotted to the allottee could not be made operational as some portions thereof were deleted by the Traffic Police and as no amount was owing on his behalf, he initiated arbitral proceedings against MCD before the learned Sole Arbitrator claiming refund of the excess amount of Rs.47,08,815/- along with interest @ 15% p.a. along with a declaration to the effect that he was not liable to pay any amount to MCD towards alleged licence fee and cost of arbitration. Interestingly, as MCD failed to file its Statement of Defence thereto despite due service, its right to file the same stood waived by the learned Sole Arbitrator. Mysteriously, though MCD was duly represented by its counsel, no challenge was made to it. Additionally, as there was no response from MCD and no admission/denial of documents filed by allottee were carried out, it resulted in the non-framing of issues, however, despite the aforesaid flaws by the MCD, the allottee led its evidence and produced his witness, who, needless to say, was duly cross-examined for long durations repeatedly by learned counsel for MCD.

6. It was thence that the learned Sole Arbitrator, after holding that nothing substantial came out of the lengthy cross-examination of the witness of the allottee and disapproving the judgements relied upon by MCD being S.K. Pandey vs. MCD[6] and Delhi Jal Board vs. M/s. Dev Raj Kataria[7], rejected all the pleas/ defences raised by MCD with respect to authority of the witness, length of the parking site allotted to the allottee, the site map and taking note of

2015 SCC OnLine Del 14058 the admitted „File Noting‟ produced by the allottee, which indicated the approval from the Additional Commissioner (Rev.) and after considering the relevant material and evidence, especially the admitted position that the parking site was reduced to a great extent resulting in deprivation of the complete area allotted at the time of possession to the allottee and further noting that the claim of allottee for remission was due to reduction in the total parking area and not due to declining of potential customers or other extraneous or unforeseen reasons, vide the Arbitral Award dated 27.11.2020 awarded an amount Rs.47,08,815/- along with interest as per what is set out therein.

7. Aggrieved thereby, under the aforesaid circumstances, MCD filed objections under Section 34 of the Act against the Arbitral Award, once again, reiterating the same contentions and relying upon the same two judgments which already stood refuted by the learned Sole Arbitrator. Alas, MCD was unable to overcome its flaws and the learned Trial Court, taking note of the fact that the MCD could not be allowed to urge a new ground which was never raised before the learned Arbitrator, and further holding that while adjudicating a petition under Section 34 of the Act, the Court cannot reappreciate facts and is not expected to interfere with an award if the conclusion of the learned Arbitrator is based on a plausible view and is in consonance with the terms of the contract as well as public policy, dismissed the said objections. The learned Trial Court also held that in any event, the acts of the MCD disclosed that it was well aware of the hindrances with respect to the allotted parking site faced by the allottee and further that the allottee was not an unauthorized occupant of the parking site.

8. Aggrieved thereby, the MCD has now filed another set of objections, this time under Section 37 of the Act against the impugned judgment of the learned Trial Court before this Court, once again, reiterating the same contentions and relying upon the very same two judgments which already stood refuted twice, once by the learned Sole Arbitrator and thence by the learned Trial Court.

9. It is only after hearing learned Standing Counsel for MCD at considerable length and upon going through the numerous documents on record as also the very same two judgements cited by the learned counsel for MCD, this Court has no hesitation in holding that the opinion recorded hereinbefore is since strengthened with confirmation as the MCD is indeed, through the present appeal, blatantly trying to exhibit the same old dilapidated building albeit with a fresh coating over it for approval again, even though the same has twice been rejected as such. Unfortunately, the MCD by this appeal is trying to reiterate and reagitate the very same issues which warrant no consideration after the concurrent findings of the two forums below. More so, as the Court dealing with a challenge to an order passed by the Court below while disposing of a petition/ objection under Section 34 of the Act has almost „Nil‟ scope of interference therewith lest there is something adverse, perverse, contrary to law and/or which actually shocks the conscience of the Court.

10. The law qua maintainability of an appeal under Section 37 of the Act is well settled and does not require any further clarification as the law thereof is further more stringent and an order under Section 34 of the Act cannot be interfered with if the two forums below, after exercising their minds, have come to the same conclusion/finding of fact and law. The Court exercising jurisdiction under Section 37 of the Act cannot and is not allowed to create a new path to render a new finding save and except when something has been left, overlooked and/or ignored. The said view has been affirmed by a Co-ordinate Bench of this Court in National Highways Authority of India vs. M/s Intercontinental Consultant and Technocrats Pvt. Ltd.[8] wherein it was held as under:- “8…..Besides the same argument and submissions were gone into by the Tribunal which gave proper justifications for its conclusions. Learned Single Judge also, after careful scrutiny, endorsed that view. Given the limited scope of the Appellate jurisdiction under Section 37 of the Act, interference is not called for….”

11. The same position has once again been reiterated after discussing the broad principles and the scope of the appellate Court while adjudicating a petition under Section 37 of the Act in detail in another recent decision by a Coordinate Bench of this Court in Mangalwar Filling Station v. Indian Oil Corporation Limited[9], of which, one of us (Manmohan, J.) was a part, wherein is has been held as under:-

12. Needless to say, the Special Leave Petition being SLP(C) No.12125/2021 against the abovementioned order filed before the Hon‟ble Apex Court has since been dismissed vide order dated 16.08.2021.

13. Moreover, in view of catena of pronouncements by the Hon‟ble Apex