Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 237 (DEL)

Kailash Store v. Union of India

2008-02-28

SHIV NARAYAN DHINGRA

body2008
Judgment JUSTICE SHIV NARAYAN DHINGRA 1. This application has been made under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) wherein the applicant sought appointment of the Arbitrator under Section 11(2) and 11(6) of the Act. .2. The plaintiff had entered into a contract with respondent in respect of parking of New Delhi Railway Station near Pahar Ganj for scooters and cycles on monthly license fees of Rs.3,06,800/-through a sealed tender process. It is stated by the applicant that the parking area mentioned in the tender document was 1066.59 sq. mtr. However, the area actually handed over to him was 20% less since several old vehicles were already lying in the area occupying around 20% of its space. Due to less area provided to him, the applicant was suffering losses. The parking site was not properly fenced, the boundary wall was broken and there were continuous disturbances created by the local thieves. Vide a letter dated 3.5.2007, the applicant was also given instructions that it should provide free parking to media persons and that became another cause of loss. It is further submitted that vide letter dated 28.6.2007, the applicant was communicated that the vehicles should not be allowed to be parked for more than 24 hours at the parking and if any vehicle was parked at the site beyond 24 hours, the applicant would hand over the vehicle to the traffic police. It is stated that due to the circular of free parking for journalists, circular of not allowing vehicles to be parked for more than 24 hours and due to encroachment in the parking area, up to 20% by the old vehicles, the applicant suffered losses. The applicant sent letters to the respondent dated 21.5.2007, 29.5.07, 21.6.2007, requesting the officials to remove encroachment but the officials showed negligent attitude. Vide letter dated 10.7.2007, the applicant asked the respondent for appointment of an Arbitrator in terms of the license deed. The petitioner claimed that it was suffering losses up to 60% of the total revenue. The petitioner has also moved an application under Section 9 of the Arbitration and Conciliation Act for allowing the petitioner to deposit 40% of the monthly license fees. It is stated that the respondent was under obligation to provide necessary paraphernalia to run the parking, but the same was not being provided. The petitioner has also moved an application under Section 9 of the Arbitration and Conciliation Act for allowing the petitioner to deposit 40% of the monthly license fees. It is stated that the respondent was under obligation to provide necessary paraphernalia to run the parking, but the same was not being provided. The applicant requested for appointment of an arbitrator by the court. 3. In reply to the application, it is stated by the respondent that the application was made on false and frivolous grounds. No dispute existed between the parties and all the disputes raised by the applicant were covered by different clauses of the contract. While the applicant placed reliance on letter dated 27.4.2007, alleging encroachment of 20% of parking area due to old vehicles, the respondent relied upon a subsequent letter dated 3.5.2007 duly counter signed by the applicant showing that there was no unclaimed vehicle lying in the parking site and the parking site was handed over to the petitioner as per the contract. It is further submitted that clause 8(b) of the agreement provided that the value of the contract would not change for the reasons of reduction in the area of parking site or for shifting and relocation of the parking area. Regarding broken wall, it is submitted that the license agreement clearly provides that the applicant at his own expense shall create facilities like stand, shelter, fencing and shall keep the parking area properly enclosed during continuation of license agreement. There was no obligation of respondent to provide boundary wall or fencing. Regarding free parking to media persons, it is stated that the media persons at the railway station are there only during the VIP movement and it is not very often. The media persons were minimal in number and all earlier contractors had been providing facilities of free parking to media persons. Regarding circular of the vehicles not being parked for more than 24 hours at a stretch, it is stated that considering the terrorist threat and from safely point of view of the citizens at large, this decision was taken to prevent any loss of life and property. 4. Both parties have filed documents. There is no dispute about the existence of the Arbitration agreement (Annexure P-9). 4. Both parties have filed documents. There is no dispute about the existence of the Arbitration agreement (Annexure P-9). A copy of contract/license agreement between the parties has been filed with this petition and as per clause 26, all disputes arising out of or concerning the agreement, are to be referred to the Sole Arbitrator to be appointed by Chief Commercial Manager. .5. I consider that once the parking site is auctioned by the respondent, specifying a specific area of the parking site, the respondent was bound to hand over entire parking site to the applicant and if there were some old vehicles already lying in the area, the respondent was to take responsibility of these old vehicles and to remove these old vehicles from the area. It is submitted by the respondent that in view of the letter dated 3.5.2007, the parking site with full area was given while the applicant contends that the parking site was still having all old vehicles and there was encroachment up to 20%. There is no dispute that the applicant has been writing letters to the respondent on this count. As far as other contentions are concerned, there is no force in the application. A perusal of the clause 8(3) would show that it was the responsibility of the licensee to keep the plot of parking site clean and free of garbage, to remove all waste or unsaleable properties, other material or refuse. The Administration could give a twenty four hours notice to contractor to remove the same forthwith at the expense of the Licensee/Licensees. 6. I, therefore, consider that it was for the applicant to remove all garbage and Malba etc. from the parking area and it was not the duty of respondent to remove the garbage and Malba from the area. Similarly, the responsibility of keeping the area secure and safe and bounding the area was that of the licensee in terms of clause 12(iii) and it was not the responsibility of the respondent to keep the area bound or provide boundary wall or any railing. If the boundary wall was damages or railing was damaged, the applicant was contractually bound to repair these or suffer at his own peril. No dispute arises in respect of these claims. If the boundary wall was damages or railing was damaged, the applicant was contractually bound to repair these or suffer at his own peril. No dispute arises in respect of these claims. As far as free parking to the journalists is concerned, the letter of the respondent would show that this letter was written not only to the applicant but to all the contractors and it cannot be denied that the journalists would come at the railway station only when there is some news worthy item and when they are doing the duty as journalists. If the journalists visit railway station for their personal work or for leaving some of their relatives or friends etc they are to be treated like any other persons and contractor is free to charge from them. The circular relates only to such events which are held at the railway station and where journalists are invited. Such events are rare and for this reason the applicant cannot raise a dispute. At the most, the applicant can ignore the circular and keep charging regular charges from the journalists and media persons. 7. In view of my foregoing discussion, I, therefore, allow this petition regarding appointment of an Arbitrator. The Division Commercial Manager of Railways is directed to appoint a person as the Arbitrator within 30 days from today. The Arbitrator, so appointed, shall visit the site in presence of both parties and shall physically verify if there was occupation of any part of parking site by old and unclaimed vehicles, pre-existing, at the time of auction of the parking site. Help may be taken from the joint list prepared at the time. No other dispute is referred to the Arbitrator except the dispute regarding 20% less area allegedly handed over to the petitioner/applicant. 8. With above directions, the petition stands disposed of.