REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No.72/2007
Date of Decision: MAY 20, 2010
B.S.N.L. ..... Appellant
through Mr. Asad Alvi, Advocate with
Mr. Faiz Hyder Rizvi, Advocate
versus
SAROJ KRISHANA ATRAY & ORS ..... Respondents
through Mr. Naresh Kaushik, Advocate with
Ms. Amita Kalkal Chaudhary & Mr. Aditya
Verma, Advocates
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
1. Whether the reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the „Digest‟? Yes
REKHA SHARMA, J. (ORAL)
This appeal has been preferred by the appellant against the
order of Additional District Judge, Shri M.K.Gupta dated
October 16, 2006 whereby the learned Judge has dismissed the
objections filed by the appellant against the arbitration award dated
September 05, 2005 made by Sole Arbitrator, Shri S.M.Aggarwal.
Unfortunately, the Additional District Judge has given no reasons for
dismissing the objections except stating the provisions of law. Hence,
FAO No.72/2007 Page 1 of 7
it has fallen upon this Court to deal with the objections raised before
the Additional District Judge.
It is not in dispute between the parties that a lease deed was
entered between them in respect of Flat No.1502 on 15 th Floor,
Devika Tower, 6, Nehru Place, New Delhi, measuring 400 sq. ft. The
first such lease deed was dated March 28, 1986 and it was to
commence with effect from April 01, 1986. It is also not in dispute
that the said lease deed dated April 01, 1986 was renewed from time
to time after every three years and the last renewal was made on
April 01, 2001, the other terms and conditions of the lease deed
remaining the same.
It so happened that on December 31, 2002 the appellant who
was the lessee of the said premises gave a notice in writing to the
respondents-lessors, intimating thereby that it proposed to surrender
the premises after the expiry of the period of three months, i.e. on
March 31, 2003. The respondents in response to the notice wrote to
the appellant on January 10, 2003 calling upon it to restore the flat in
question in the same shape and condition in which it was taken at the
time of execution of the initial lease deed and till then declined to take
possession of the same. The appellant, in the meanwhile, in terms of
its notice dated December 31, 2002 though vacated the flat, but put
its own lock on the same. The respondents, on the other hand,
invoked the arbitration clause and consequently, Shri S.M.Aggarwal,
a retired Additional District Judge was appointed as the arbitrator to
go into the questions – whether the appellant had offered to the
FAO No.72/2007 Page 2 of 7
respondents possession of the flat in the same shape in which it was
taken when the lease deed was executed and if not, whether the
respondents were entitled to the rent of the flat as agreed upon up till
the expiry of the period of notice, i.e. March 31, 2003 and thereafter
on enhanced rent which as per the terms of the lease deed was to be
15% more than the last agreed rent till the flat was handed over to the
respondents in the original shape and further, whether the
respondents were liable to claim the expenses incurred in bringing
the flat to its original shape as well as the maintenance charges which
the respondents became liable to pay after March 31, 2003.
It is the case of the respondents that when the flat in question
was leased out to the appellant, it had four walls and a toilet block
with a separate and an independent entry gate having full-fledged
partitioned wall from floor up to the ceiling between the demised flat
No.1502 and contiguous adjoining flats No.1503A and 1508A and that
the appellant who was also in possession of the adjoining contiguous
flats dismantled the wall of flat No.1502 so as to make all the flats
into a one full hall.
The appellant has disputed that the flat in question was given in
the manner as stated by the respondents.
The arbitrator after examining evidence led before him has held
that the flat as initially let out to the appellant was having four walls
and a toilet block. The arbitrator while giving this finding has,
particularly, made reference to the affidavit of Shri Subhash
Sharma, XEN (Electrical) who was examined by the appellant as its
FAO No.72/2007 Page 3 of 7
witness. The relevant paragraph, where the arbitrator has discussed
the evidence of this witness, runs as under:-
“x x x x x x
12. The claimants‟ attorney in his Affidavit had
categorically stated on oath that that flat No.1502
with four walls and independent gate for entry and
exit having a toilet block was the one let out to the
respondent. The respondent in the Affidavit of
Shri Subhash Sharma, XEN (Elect.) did not take any
specific stand-controverting stand of the claimants.
The respondent‟s Shri Rakesh Mathur, the then
Electrical Engineer had responded to the claimants
letter dated 10.4.2003 enclosing letter of builders
M/s. Pragati Construction Company of Devika Tower
and had taken entirely absurd stand that
M/s. Pragati Construction Company might have
handed over the possession of the flat to the
claimants as per contents of their letter. But that
did not mean that the flat was handed over to the
respondent in the same state. Hence, the
respondents are not liable to construct any partition
wall etc. The letter date 7.3.2003 of M/s. Pragati
Construction Company which was enclosure of
claimants letter dated 10.4.2003 clearly mentioned
confirming enquiry of the claimants that flat
No.1502 in Devika Tower measuring 400 Sq. feet
was handed over to the claimants on 1.5.1986,
complete in all respects viz. partition walls, toilet,
wiring of electricity and telephone, fire/smoke
detectors etc. On page P-55 of the statement of
facts and claims is a provisional letter of possession
dated 28.3.1986 vide which M/s. Pragati
Construction Company had given provisional
possession and the claimants had taken over
provisional possession of flat No.1502 in all
resepcts.”
Having regard to the aforementioned finding of the arbitrator
who has relied upon the appellant‟s own witness, it is not open to the
appellant to contend that the flat in question when it was leased out
did not have four walls and a toilet block or a separate independent
entry gate. In any case, the issue before the arbitrator was a question
of fact and the arbitrator having given a finding, this Court will not
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re-appreciate the evidence led before the arbitrator and superimpose
its own finding on the issue raised and decided by the arbitrator.
The arbitrator has also given the finding that the actual physical
possession of the flat was given over to the respondents in his
presence on February 14, 2005 when he had himself visited the flat in
question and there the representative of the appellant and the
respondents were also present. The arbitrator in his award has also
noted the condition of the flat as it existed on February 14, 2005. The
relevant part of the observations made by the arbitrator in this regard
run as under:-
“x x x x x x
13. During the site inspection carried out on
14.2.2005 by the undersigned in the presence of the
parties, was had found a toilet block in the corner of
flat No.1501 owned by Shri T.S.Oberoi and also let
out to the respondent along with flat No.1502,
1503A and 1508A. We had also found only one gate
which was in fact the gate of flat No.1501 for entry
which led us to a big hall comprising of flat No.1501
of Shri T.S.Oberoi and flat No.1502 of the claimants
with a passage opened into flat No.1508A by
breaking into the partition wall separating flat
No.1502 and 1508A. We had also found that the
partition wall separating flat No.1502 from flat
No.1508A and 1503A had a passage opened into flat
No.1508A and portion of the wall between flat
No.1502 and 1503A had been lately raised for an
area of about size of two passages i.e. about 10 feet
but was left un-plastered. This shows that there was
indeed a full partition wall from floor up to roof
between demised flat No.1502 and adjoining
contiguous flat Nos.1503A and 1508A. The
inspection had also showed prominence of plaster of
the exterior wall of flat No.1502 adjoining the gate
of flat No.1501 which clearly revealed entry and
identical entrance gate which had been walled up.
Shri Tilak Raj Baweja, who was the concerned A.E.
(Elect.) at the time the termination of lease notice
was given could not point out any independent entry
to flat No.1502. The inspection had shown that
there was no partitioned wall between the demised
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flat No.1502 of the claimants and flat No.1501 of
Shri T.S.Oberoi in existence to distinguish one from
the other but on the floor and the ceiling there were
clear and corresponding tell tale marks that such a
partitioned wall once existed……..”
After having given the aforementioned findings, the arbitrator
made the following award in favour of the respondents:-
(i) The respondents were allowed rent @ Rs.10,862/- per
month up to March 31, 2004, i.e. up to the expiry of the period
of the lease deed, amounting to Rs.1,30,344/-.
(ii) The respondents have also been awarded compensation/
damages @ Rs.12,491/- per month from April 01, 2001 till
February 14/15, 2005 when the keys of the flat were actually
handed over to the respondents, amounting to Rs.1,12,419/-
from April 01, 2004 to December 31, 2004 plus Rs.18,736/- up
to February 14, 2005, totaling Rs.1,31,155/-.
(iii) The respondents have also been awarded Rs.30,000/-
towards the restoration cost and, Rs.21,118/- as maintenance
charges for the period April 01, 2003 to February 14, 2005.
It is apparent from what has been noticed above that the two
questions of fact, which arose before the arbitrator with regard to the
original condition of the flat and the date on which the possession was
actually handed over to the respondents, have been decided by the
arbitrator against the appellant and in favour of the respondents. The
rest of the award was only consequential and the respondents became
entitled to the claims as raised by them because those claims flowed
from the findings of fact given by the arbitrator. It is well settled that
FAO No.72/2007 Page 6 of 7
the decision of the arbitrator upon the question of facts is final and
binding on the parties and the Court shall not re-appreciate the
evidence led before the arbitrator. It has been conclusively held by
the Apex Court in the case of Oil & Natural Gas Corporation Ltd.
Versus SAW Pipes Ltd. reported in AIR 2003 SC 2629 that an arbitral
award can be set-aside if it is against the public policy of India or if it
is contrary to the fundamental policy of Indian law; the interest of
India; or justice or morality; or if it is patently illegal. The award in
question does not fall within the ambit of any of the aforesaid grounds
as have been laid down by the Supreme Court. I find no merit in the
appeal. The same is dismissed, with no order as to costs.
The appellant has already deposited in this Court the awarded
amount. The Registrar General is directed to release the amount
along with interest that has accrued thereon in favour of the
respondents on their making an application for releasing the same.
REKHA SHARMA, J.
MAY 20, 2010
ka
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