M/S V2 Retail Limited vs.m/s s.s. Enterprises - Court Judgment

SooperKanoon Citationsooperkanoon.com/1222166
CourtDelhi High Court
Decided OnMar-20-2019
AppellantM/S V2 Retail Limited
RespondentM/S s.s. Enterprises
Excerpt:
$~3 * in the high court of delhi at new delhi % date of judgment:20. 03.2019 + fao(os) (comm) 290/2018 m/s v2 retail limited ..... appellant through: mr. vishwendra verma & mr. pranav verma, advocate versus m/s s.s. enterprises ..... respondent through: mr. sudhir nagar & mr. bhanu sanoriya & mr. arun nagpal, advocates coram: hon'ble mr. justice g.s. sistani hon'ble ms. justice jyoti singh jyoti singh, j.(oral) fao(os) (comm) 290/2018 and c.m. appl. no.51343/2018 (for stay) 1. the present appeal has been filed by the appellant assailing the order dated 26.10.2018 passed by the learned single judge in o.m.p. (comm) 64/2017 whereby the learned single judge has dismissed the petition under section 34 of the arbitration and conciliation act, 1996 (hereinafter referred to as „the act‟) and has upheld the award dated 27.12.2012 passed by the fao (os) (comm) no.290/2018 page 1 of 15 learned arbitrator except for the rate of interest which has been reduced to 8% instead of 12% per annum awarded by the learned arbitrator 2. the brief and relevant facts are that the appellant, who was the respondent in the arbitral proceedings had entered into a memorandum of understand (hereinafter referred to as „mou‟) dated 25.12.2007 with the respondent, who was the claimant before the arbitrator. by virtue of this mou the appellant had taken on lease the premises bearing no.3/1/22, site iv, sahibabad industrial area, ghaziabad, u.p. (hereinafter referred to as „the suit property‟) at a monthly lease amount of rs.3,30,000/- for a period of nine years with a lock-in period of 15 months. the lessee/appellant had the liberty under the mou to terminate the agreement prior to the expiry of the lease period by giving a three months notice in writing. the lessor however did not have the option of terminating the lease. one of the important and relevant clauses in the mou was that the lessor had to get the user of the premises changed from “manufacturing corrugated boxes” to “software development unit” within a period of three months from the date of signing of the mou.3. the appellant paid rent till september, 2008 but thereafter the payments were stopped. this resulted in issuing of a notice dated fao (os) (comm) no.290/2018 page 2 of 15 22.10.2008 by the respondent, who called upon the appellant herein to execute the lease deed and pay the rental amount. on 10.11.2008 the respondent invoked the arbitration clause. the appellant immediately thereafter on 14.11.2008 filed a suit in the court of civil judge seeking a declaration that the mou be declared as null and void, and an order of restraining the respondent, its agents from removing the articles of the appellant from the premises and obstructing the appellant and its workers from removing his articles. a direction was also sought to the respondent to accept the vacant possession of the suit premises or in the alternative permission was sought to deposit the keys of the premises in the court. in the said suit an application under section 8 of the act was moved and thus in arbitration petition no.33/2009, a sole arbitrator was appointed. the arbitrator having been appointed on 3.7.2009, entered reference. the respondent filed his claims. claim nos. 1, 2, 3 and 6 were for rent for the period 1.10.2008 to 31.5.2010 at the rate of rs.3,30,000/- per month. claim no.7 was for damages of rs.40,00,000/-. cost of arbitration and interest @ 12% p.a. was also claimed. the appellant filed his counter claims for cost of goods lying in the premises and sought rs.50,00,000/- under this head. he also sought refund of the security deposit of rs.9,90,000/- as well as damages of rs.20,00,000/-. fao (os) (comm) no.290/2018 page 3 of 15 4. the learned arbitrator vide his award dated 27.12.2012 allowed the claim for the rent @ rs. 3,30,000/- p.m. from 1.10.2008 till 30.4.2009 (up to the lock-in period) and @ rs.1,65,000/- from 1.5.2009 to 31.5.2010 (up to handing over possession), totalling to rs.44,55,000/-.5. rs.5,00,000/- was awarded towards damages and rs.2,00,000/- towards cost of arbitration proceedings along with rs. 82,500/- as share of arbitration fees & expenses. the arbitrator also awarded interest at the rate of 12% per annum. the counter claims of the appellant were disallowed except for refund of security deposit of rs.9,90,000/-.6. the appellant challenged the said award by filing omp no.740/2013 before the learned single judge of this court, which was dismissed on 25.09.2014 as there was a delay in re-filing the petition. in appeal, the division bench on 14.03.2016, condoned the delay and the matter was directed to be heard on merits. the said omp was thereafter renumbered as omp (comm) 64/2017.7. the principal submission of the learned counsel for the appellant before the learned single judge was that the respondent had failed to obtain the change of user from uttar pradesh state industrial development corporation (upsidc) which was a pre-condition for the mou and since he fao (os) (comm) no.290/2018 page 4 of 15 was in breach of mou, he could not have been compensated with the rental amount for the entire period. his further contention was that the appellant had clearly expressed his intention as in october, 2008 itself that he no longer desired to continue in the suit premises and in fact he had filed a suit before the learned civil judge for giving back the possession and/or handing over the keys in the court. he placed heavy reliance on the letter of upsidc as well as the prayers made in the plaint before the civil judge to support his stand. he further submitted that since the appellant had made all efforts to hand over possession back to the respondent, he was not liable to pay any rent at all.8. per contra, the counsel for the respondent had argued that though the appellant repeatedly took the stand that he did not need the premises but the actual possession was handed over only on 31.5.2010 and that too during the arbitration proceedings and based on various orders passed by the arbitrator. he submitted that till 31.5.2010 the appellant continuously used the premises and in fact did not even terminate the lease as per section 106 of the transfer of property act, 1882 or in terms of the mou. he contended that no notice of termination was ever given by the respondent. thus the appellant had illegally used the premises and deliberately delayed handing over of possession. fao (os) (comm) no.290/2018 page 5 of 15 9. the learned single judge after having gone through the mou and the award as well as the respective documents, came to a finding that in fact the appellant had delayed the handing over of the possession and even despite repeated orders of the arbitrator from february, 2010 to may, 2010 the possession was handed over only in may, 2010. this reflected that the appellant wanted to enjoy the possession of the property and simultaneously avoid payment of rent under the garb of the respondent not having applied in time to the upsidc for change of the user. the learned single judge also noticed that delay on the part of the respondent in applying for change of user in fact did not prejudice the appellant, inasmuch as, no government authority came to stop or obstruct the business activities or user of the premises of the appellant. reliance was placed on the cross-examination of the ex-legal head of the appellant in this regard. as regards the stand of the appellant that he always wanted to hand over the possession and thus filed a suit in the court of civil judge, the learned single judge found that in fact the suit was filed on 14.11.2008 which was soon after the respondent had issued a notice invoking arbitration. the learned single judge also referred to repeated orders of the arbitrator wherein the appellant was asked to hand over the keys but the same were handed over after a considerate delay, only on 31.5.2010. the learned single judge found that the findings of the fao (os) (comm) no.290/2018 page 6 of 15 arbitrator were justified inasmuch as the appellant never terminated the tenancy after the lock-in period by giving three months notice, which he could have done under the mou. while on one hand he continued to enjoy the possession, on the other hand he stopped paying the rent. the court thus found that the claims of the respondent for rent for the period the appellant was in possession was justified, along with the damages and costs of the proceedings and upheld the award to that extent. the learned single judge also did not find any infirmity in the award in so far as it dismissed the counter claims of the appellant except for the refund of the security deposit, as in her view the appellant misused the premises and admittedly delayed the handing over of the possession.10. we have heard the learned counsel for the appellant and perused the award as well as the other documents and pleadings on record.11. the principal contention of the learned counsel for the appellant before us is also that the respondent had committed a breach by not applying for the change of user of the premises within the time stipulated in the mou. he submitted that in the absence of the respondent having obtained proper permission, he did not want to use the premises illegally and therefore in the early stages itself he had indicated that he wanted to hand over the fao (os) (comm) no.290/2018 page 7 of 15 possession. he contended that to show his bonafides, he even filed a suit in the court of civil judge, where his main prayer was to direct the respondent to take over the vacant possession and in the alternative seeking permission to deposit the keys in the court. the argument is that a tenant/lessee who wants to hand over possession can do no more and if the respondent was not willing to take the possession, the appellant could not have been penalised by paying rent for the said period. the award and the judgment of the learned single judge is thereby erroneous and the same be set aside.12. at the outset we must point out that the scope of challenge under section 37 of the act is extremely limited. the powers of the appellate court in the realm of judicial review are far more restricted than even the powers of the single judge under section 34 of the act. on the scope of judicial review we refer to a paragraph of the judgment of the hon‟ble supreme court in the case of mcdermott international inc. vs. burn standard co. ltd. (2006) 11 scc181 which we quote as under: “52. the 1996 act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. the court cannot correct errors of the arbitrators. it can only quash the award leaving the fao (os) (comm) no.290/2018 page 8 of 15 parties free to begin the arbitration again if it is desired. so, scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court‟s jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.” 13. in the case of mtnl vs. fujitshu india private limited, reported at 2015 (2) arblr332(delhi), also this court had examined the scope of judicial review under sections 34 an 37 of the act and held as under: “the law is settled that where the arbitrator has assessed the material and evidence placed before him in detail, the court while considering the objections under section 34 of the said act does not sit as a court of appeal and is not expected to re-appreciate the entire evidence and reassess the case of the parties. the jurisdiction under section 34 is not appellate in nature and an award passed by an arbitrator cannot be set aside on the ground that it was erroneous it is not open to the court to interfere with the award merely because in the opinion of the court, another view is possible. the duty of the court in these circumstances is to see whether the view taken by the arbitrator is a plausible view on the facts, pleadings and evidence before the arbitrator. even if on the assessment of material, the court while considering the objections under section 34 is of the view that there are two views possible and the arbitral tribunal has taken one of the possible views which could have been taken on the material before it, the court would be reluctant to interfere. the court is not to substitute its view with the view of the arbitrator if the view taken by the arbitrator is reasonable and plausible fao (os) (comm) no.290/2018 page 9 of 15 jhang cooperative group housing society v. p.t. munshi ram & associates private limited:202. (2013) dlt218 the extent of judicial scrutiny under section 34 of the act is limited and scope of interference is narrow. under section 37, the extent of judicial scrutiny and scope of interference is further narrower. an appeal under section 37 is like a second appeal, the first appeal being to the court by way of objections under section 34. where there are concurrent findings of facts and law, first by the arbitral tribunal which are then confirmed by the court while dealing with objections under section 34, in an appeal under section 37, the appellate court would be very cautious and reluctant to interfere in the findings returned in the award by the arbitral tribunal and confirmed by the court under section 34 court, or vitiated by an apparently untenable interpretation of the terms of the contract, requires to be eviscerated. in view thereof, the decision of the ld. single judge that reasoning of the arbitral award in this regard was based on no material and was contrary to the contract, cannot be said to be deserving of any interference at our hands under section 37 of the act. in a pronouncement reported at, mtnl v. fujitshu india pvt. ltd. (fao(os) no.63/2015), the division bench of this court has held that “an appeal under section 37 is like a second appeal, the first appeal being to the court by way of objections under section 34”. being in the nature of a second appeal, this court would be hesitant to interfere, with the decision of the learned single judge, unless it is shown to be palpably erroneous on facts or in law, or manifestly perverse.” 14. we also place reliance on the judgment in the case titled as associate builders vs. delhi development authority reported as (2015) 3 scc49 wherein the supreme court held that arbitrator is a master of facts and fao (os) (comm) no.290/2018 page 10 of 15 findings of fact cannot be interfered by a court of appeal. the relevant para reads as under:-"“it must clearly be understood that when a court is applying the “public policy” test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. a possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts in p.r. shah, shares and stock brokers (p) ltd.. v. b.h.h. securities (p) ltd.: (2012) 1 scc594 this court held: a court does not sit in appeal over the award of an arbitral tribunal by reassessing or re-appreciating the evidence. an award can be challenged only under the grounds mentioned in section 34(2) of the act. the arbitral tribunal has examined the facts and held that both the second respondent and the appellant are liable. the case as put forward by the first respondent has been accepted. even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the stock exchange under bye- law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. the finding of the majority is that the appellant did the transaction in the name of the second respondent and is fao (os) (comm) no.290/2018 page 11 of 15 therefore, liable along with the second respondent. therefore, in the absence of any ground under section 34(2) of the act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.” 15. to the same effect is the judgment of this court in the case of lg electronics vs. dinesh kalra in fao(os)(comm) 86/2016 decided on 19.3.2018.16. having traversed through the judicial pronouncements, we now examine the judgment of the learned single judge which is impugned before us. the learned single judge in our view has rightly held that though the respondent had applied for change of the user of the premises, after the time stipulated in the mou, but as per the evidence of the witness of the appellant himself, no government authority had ever obstructed the user of the premises by the appellant. the appellant was well aware that if the premises were being used, the rent was payable every month and there was no justification for non-payment of the rent. the contention of the appellant that he had resorted to filing a civil suit, is of no avail to the appellant, as rightly held by the learned single judge. if the appellant was advised to resort to the remedy of filing a civil suit, he could well had been advised to send a termination notice and/or simply hand over the keys to the fao (os) (comm) no.290/2018 page 12 of 15 respondent. it is obvious, as held by the learned single judge, the intent was to continue using the premises on one hand and not pay the rent, on the excuse that the respondent had not applied in time for change of user of the premises.17. we also find from the orders of the arbitration proceedings, as brought out in the impugned judgment, that it took a lot of effort and time even for the arbitrator to get the appellant to hand over the keys to the respondent. the learned single judge has referred to certain letters and ordersheets with a view to bring out that the appellant in fact never intended to hand over the possession. an order dated 12.12.2010 passed by the arbitrator has been extracted in which it is noted that it was the respondent who had submitted that at least the possession of the property be handed over to him in accordance with the mou. the learned single judge observed that the order indicates that it was the respondent who was seeking the possession of the property. another letter dated 16.02.2010 is relied upon which was a letter written by the counsel for the appellant to the counsel for the respondent in which he had categorically stated that the appellant would start operations to withdraw all his material/equipment from the premises w.e.f. 19.02.2010. in response to this letter, the respondent‟s counsel had sent a reply on 20.02.2010 asking the appellant to hand over vacant and peaceful possession fao (os) (comm) no.290/2018 page 13 of 15 on 03.03.2010 at 12 noon. the appellant then moved an application seeking police help for removal of goods. the learned arbitrator on 25.03.2010 recorded the statements of the appellant and the respondent that the appellant will remove the goods and the respondent will not create any hinderance and that after vacating the premises, keys will be handed over by the counsel for the appellant to the counsel for the respondent on 15.04.2010, before the arbitrator. the learned single judge notes that despite this order, and repeated communications exchanged thereafter between the parties, the keys were not handed over on 15.04.2010. on 24.04.2010, the arbitrator again recorded that the handing over of the keys did not materialize and the proceedings were rescheduled for 08.05.2010 and thereafter again for 13.05.2010. it was only on 31.05.2010 that the goods were finally removed and possession was handed over. the chronology narrated above clearly reveals that the appellant had made every effort to delay the handing over of the possession and thus in our view the arbitrator has rightly allowed the claims of the respondent herein.18. we also endorse the view of the learned single judge that the appellant never issued any notice of termination of the lease in terms of the liberty that it had under a specific clause incorporated in the mou to that effect. the contentions thus raised by the learned counsel for the appellant fao (os) (comm) no.290/2018 page 14 of 15 before us on his bonafides to hand over possession at the earliest opportunity is not borne out from the conduct of the appellant.19. the learned single judge has in her discretion reduced the rate of interest awarded to the respondent from 12% p.a. to 8% p.a. keeping view the prevailing interest rates. we find that this was in the domain and discretion of the court and no fault can be found with this direction as well.20. we find no infirmity in the impugned judgment of the learned single judge. there is no merit in the appeal and the same is hereby dismissed with all pending applications. no orders as to costs. march20 2019 ak/rd jyoti singh, j g.s.sistani, j fao (os) (comm) no.290/2018 page 15 of 15
Judgment:

$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment:

20. 03.2019 + FAO(OS) (COMM) 290/2018 M/S V2 RETAIL LIMITED ..... Appellant Through: Mr. Vishwendra Verma & Mr. Pranav Verma, Advocate versus M/S S.S. ENTERPRISES ..... Respondent Through: Mr. Sudhir Nagar & Mr. Bhanu Sanoriya & Mr. Arun Nagpal, Advocates CORAM: HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MS. JUSTICE JYOTI SINGH JYOTI SINGH, J.

(ORAL) FAO(OS) (COMM) 290/2018 and C.M. Appl. No.51343/2018 (for stay) 1. The present appeal has been filed by the appellant assailing the order dated 26.10.2018 passed by the learned Single Judge in O.M.P. (COMM) 64/2017 whereby the learned Single Judge has dismissed the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as „the Act‟) and has upheld the Award dated 27.12.2012 passed by the FAO (OS) (COMM) No.290/2018 Page 1 of 15 learned Arbitrator except for the rate of interest which has been reduced to 8% instead of 12% per annum awarded by the learned Arbitrator 2. The brief and relevant facts are that the appellant, who was the respondent in the arbitral proceedings had entered into a Memorandum of Understand (hereinafter referred to as „MOU‟) dated 25.12.2007 with the respondent, who was the claimant before the Arbitrator. By virtue of this MOU the appellant had taken on lease the premises bearing No.3/1/22, Site IV, Sahibabad Industrial Area, Ghaziabad, U.P. (hereinafter referred to as „the suit property‟) at a monthly lease amount of Rs.3,30,000/- for a period of nine years with a lock-in period of 15 months. The lessee/appellant had the liberty under the MOU to terminate the agreement prior to the expiry of the lease period by giving a three months notice in writing. The lessor however did not have the option of terminating the lease. One of the important and relevant clauses in the MOU was that the lessor had to get the user of the premises changed from “manufacturing corrugated boxes” to “software development unit” within a period of three months from the date of signing of the MOU.

3. The appellant paid rent till September, 2008 but thereafter the payments were stopped. This resulted in issuing of a notice dated FAO (OS) (COMM) No.290/2018 Page 2 of 15 22.10.2008 by the respondent, who called upon the appellant herein to execute the lease deed and pay the rental amount. On 10.11.2008 the respondent invoked the arbitration clause. The appellant immediately thereafter on 14.11.2008 filed a suit in the Court of Civil Judge seeking a declaration that the MOU be declared as null and void, and an order of restraining the respondent, its agents from removing the articles of the appellant from the premises and obstructing the appellant and its workers from removing his articles. A direction was also sought to the respondent to accept the vacant possession of the suit premises or in the alternative permission was sought to deposit the keys of the premises in the Court. In the said suit an application under Section 8 of the Act was moved and thus in Arbitration Petition No.33/2009, a Sole Arbitrator was appointed. The Arbitrator having been appointed on 3.7.2009, entered reference. The respondent filed his claims. Claim Nos. 1, 2, 3 and 6 were for rent for the period 1.10.2008 to 31.5.2010 at the rate of Rs.3,30,000/- per month. Claim No.7 was for damages of Rs.40,00,000/-. Cost of Arbitration and interest @ 12% p.a. was also claimed. The appellant filed his counter claims for cost of goods lying in the premises and sought Rs.50,00,000/- under this head. He also sought refund of the security deposit of Rs.9,90,000/- as well as damages of Rs.20,00,000/-. FAO (OS) (COMM) No.290/2018 Page 3 of 15 4. The learned Arbitrator vide his Award dated 27.12.2012 allowed the claim for the rent @ Rs. 3,30,000/- p.m. from 1.10.2008 till 30.4.2009 (up to the lock-in period) and @ Rs.1,65,000/- from 1.5.2009 to 31.5.2010 (up to handing over possession), totalling to Rs.44,55,000/-.

5. Rs.5,00,000/- was awarded towards damages and Rs.2,00,000/- towards cost of arbitration proceedings along with Rs. 82,500/- as share of arbitration fees & expenses. The Arbitrator also awarded interest at the rate of 12% per annum. The counter claims of the appellant were disallowed except for refund of security deposit of Rs.9,90,000/-.

6. The appellant challenged the said Award by filing OMP No.740/2013 before the learned Single Judge of this Court, which was dismissed on 25.09.2014 as there was a delay in re-filing the petition. In appeal, the Division Bench on 14.03.2016, condoned the delay and the matter was directed to be heard on merits. The said OMP was thereafter renumbered as OMP (COMM) 64/2017.

7. The principal submission of the learned counsel for the appellant before the learned Single Judge was that the respondent had failed to obtain the change of user from Uttar Pradesh State Industrial Development Corporation (UPSIDC) which was a pre-condition for the MOU and since he FAO (OS) (COMM) No.290/2018 Page 4 of 15 was in breach of MOU, he could not have been compensated with the rental amount for the entire period. His further contention was that the appellant had clearly expressed his intention as in October, 2008 itself that he no longer desired to continue in the suit premises and in fact he had filed a suit before the learned Civil Judge for giving back the possession and/or handing over the keys in the Court. He placed heavy reliance on the letter of UPSIDC as well as the prayers made in the plaint before the Civil Judge to support his stand. He further submitted that since the appellant had made all efforts to hand over possession back to the respondent, he was not liable to pay any rent at all.

8. Per contra, the counsel for the respondent had argued that though the appellant repeatedly took the stand that he did not need the premises but the actual possession was handed over only on 31.5.2010 and that too during the arbitration proceedings and based on various orders passed by the Arbitrator. He submitted that till 31.5.2010 the appellant continuously used the premises and in fact did not even terminate the lease as per Section 106 of the Transfer of Property Act, 1882 or in terms of the MOU. He contended that no notice of termination was ever given by the respondent. Thus the appellant had illegally used the premises and deliberately delayed handing over of possession. FAO (OS) (COMM) No.290/2018 Page 5 of 15 9. The learned Single Judge after having gone through the MOU and the Award as well as the respective documents, came to a finding that in fact the appellant had delayed the handing over of the possession and even despite repeated orders of the Arbitrator from February, 2010 to May, 2010 the possession was handed over only in May, 2010. This reflected that the appellant wanted to enjoy the possession of the property and simultaneously avoid payment of rent under the garb of the respondent not having applied in time to the UPSIDC for change of the user. The learned Single Judge also noticed that delay on the part of the respondent in applying for change of user in fact did not prejudice the appellant, inasmuch as, no Government authority came to stop or obstruct the business activities or user of the premises of the appellant. Reliance was placed on the cross-examination of the ex-Legal Head of the appellant in this regard. As regards the stand of the appellant that he always wanted to hand over the possession and thus filed a suit in the court of Civil Judge, the learned Single Judge found that in fact the suit was filed on 14.11.2008 which was soon after the respondent had issued a notice invoking arbitration. The learned Single Judge also referred to repeated orders of the Arbitrator wherein the appellant was asked to hand over the keys but the same were handed over after a considerate delay, only on 31.5.2010. The learned Single Judge found that the findings of the FAO (OS) (COMM) No.290/2018 Page 6 of 15 Arbitrator were justified inasmuch as the appellant never terminated the tenancy after the lock-in period by giving three months notice, which he could have done under the MOU. While on one hand he continued to enjoy the possession, on the other hand he stopped paying the rent. The Court thus found that the claims of the respondent for rent for the period the appellant was in possession was justified, along with the damages and costs of the proceedings and upheld the Award to that extent. The learned Single Judge also did not find any infirmity in the Award in so far as it dismissed the counter claims of the appellant except for the refund of the security deposit, as in her view the appellant misused the premises and admittedly delayed the handing over of the possession.

10. We have heard the learned counsel for the appellant and perused the Award as well as the other documents and pleadings on record.

11. The principal contention of the learned counsel for the appellant before us is also that the respondent had committed a breach by not applying for the change of user of the premises within the time stipulated in the MOU. He submitted that in the absence of the respondent having obtained proper permission, he did not want to use the premises illegally and therefore in the early stages itself he had indicated that he wanted to hand over the FAO (OS) (COMM) No.290/2018 Page 7 of 15 possession. He contended that to show his bonafides, he even filed a suit in the Court of Civil Judge, where his main prayer was to direct the respondent to take over the vacant possession and in the alternative seeking permission to deposit the keys in the Court. The argument is that a tenant/lessee who wants to hand over possession can do no more and if the respondent was not willing to take the possession, the appellant could not have been penalised by paying rent for the said period. The Award and the judgment of the learned Single Judge is thereby erroneous and the same be set aside.

12. At the outset we must point out that the scope of challenge under Section 37 of the Act is extremely limited. The powers of the appellate court in the realm of judicial review are far more restricted than even the powers of the Single Judge under Section 34 of the Act. On the scope of judicial review we refer to a paragraph of the judgment of the Hon‟ble Supreme court in the case of McDermott International Inc. vs. Burn Standard Co. Ltd. (2006) 11 SCC181 which we quote as under: “52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the FAO (OS) (COMM) No.290/2018 Page 8 of 15 parties free to begin the arbitration again if it is desired. So, scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court‟s jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.” 13. In the case of MTNL vs. Fujitshu India Private Limited, reported at 2015 (2) ARBLR332(Delhi), also this Court had examined the scope of judicial review under Sections 34 an 37 of the Act and held as under: “The law is settled that where the Arbitrator has assessed the material and evidence placed before him in detail, the court while considering the objections under Section 34 of the said Act does not sit as a court of appeal and is not expected to re-appreciate the entire evidence and reassess the case of the parties. The jurisdiction under section 34 is not appellate in nature and an award passed by an Arbitrator cannot be set aside on the ground that it was erroneous it is not open to the court to interfere with the award merely because in the opinion of the court, another view is possible. The duty of the court in these circumstances is to see whether the view taken by the Arbitrator is a plausible view on the facts, pleadings and evidence before the Arbitrator. Even if on the assessment of material, the court while considering the objections under section 34 is of the view that there are two views possible and the Arbitral Tribunal has taken one of the possible views which could have been taken on the material before it, the court would be reluctant to interfere. The court is not to substitute its view with the view of the Arbitrator if the view taken by the Arbitrator is reasonable and plausible FAO (OS) (COMM) No.290/2018 Page 9 of 15 Jhang Cooperative Group Housing Society v. P.T. Munshi Ram & Associates Private limited:

202. (2013) DLT218 The extent of judicial scrutiny under section 34 of the Act is limited and scope of interference is narrow. Under section 37, the extent of judicial scrutiny and scope of interference is further narrower. An appeal under section 37 is like a second appeal, the first appeal being to the court by way of objections under section 34. Where there are concurrent findings of facts and law, first by the Arbitral Tribunal which are then confirmed by the court while dealing with objections under section 34, in an appeal under section 37, the Appellate Court would be very cautious and reluctant to interfere in the findings returned in the award by the Arbitral Tribunal and confirmed by the court under section 34 Court, or vitiated by an apparently untenable interpretation of the terms of the contract, requires to be eviscerated. In view thereof, the decision of the ld. Single Judge that reasoning of the arbitral award in this regard was based on no material and was contrary to the contract, cannot be said to be deserving of any interference at our hands under Section 37 of the Act. In a pronouncement reported at, MTNL v. Fujitshu India Pvt. Ltd. (FAO(OS) No.63/2015), the Division Bench of this court has held that “an appeal under Section 37 is like a second appeal, the first appeal being to the court by way of objections under Section 34”. Being in the nature of a second appeal, this court would be hesitant to interfere, with the decision of the learned Single Judge, unless it is shown to be palpably erroneous on facts or in law, or manifestly perverse.” 14. We also place reliance on the judgment in the case titled as Associate Builders vs. Delhi Development Authority reported as (2015) 3 SCC49 wherein the Supreme Court held that Arbitrator is a master of facts and FAO (OS) (COMM) No.290/2018 Page 10 of 15 findings of fact cannot be interfered by a Court of appeal. The relevant para reads as under:-

"“It must clearly be understood that when a court is applying the “public policy” test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts In P.R. Shah, Shares and Stock Brokers (P) Ltd.. v. B.H.H. Securities (P) Ltd.: (2012) 1 SCC594 this Court held: A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second Respondent and the Appellant are liable. The case as put forward by the first Respondent has been accepted. Even the minority view was that the second Respondent was liable as claimed by the first Respondent, but the Appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye- law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the Appellant did the transaction in the name of the second Respondent and is FAO (OS) (COMM) No.290/2018 Page 11 of 15 therefore, liable along with the second Respondent. Therefore, in the absence of any ground Under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.” 15. To the same effect is the judgment of this Court in the case of LG Electronics vs. Dinesh Kalra in FAO(OS)(COMM) 86/2016 decided on 19.3.2018.

16. Having traversed through the judicial pronouncements, we now examine the judgment of the learned Single Judge which is impugned before us. The learned Single Judge in our view has rightly held that though the respondent had applied for change of the user of the premises, after the time stipulated in the MOU, but as per the evidence of the witness of the appellant himself, no Government authority had ever obstructed the user of the premises by the appellant. The appellant was well aware that if the premises were being used, the rent was payable every month and there was no justification for non-payment of the rent. The contention of the appellant that he had resorted to filing a civil suit, is of no avail to the appellant, as rightly held by the learned Single Judge. If the appellant was advised to resort to the remedy of filing a civil suit, he could well had been advised to send a termination notice and/or simply hand over the keys to the FAO (OS) (COMM) No.290/2018 Page 12 of 15 respondent. It is obvious, as held by the learned Single Judge, the intent was to continue using the premises on one hand and not pay the rent, on the excuse that the respondent had not applied in time for change of user of the premises.

17. We also find from the orders of the arbitration proceedings, as brought out in the impugned judgment, that it took a lot of effort and time even for the Arbitrator to get the appellant to hand over the keys to the respondent. The learned Single Judge has referred to certain letters and ordersheets with a view to bring out that the appellant in fact never intended to hand over the possession. An order dated 12.12.2010 passed by the Arbitrator has been extracted in which it is noted that it was the respondent who had submitted that at least the possession of the property be handed over to him in accordance with the MOU. The learned Single Judge observed that the order indicates that it was the respondent who was seeking the possession of the property. Another letter dated 16.02.2010 is relied upon which was a letter written by the counsel for the appellant to the counsel for the respondent in which he had categorically stated that the appellant would start operations to withdraw all his material/equipment from the premises w.e.f. 19.02.2010. In response to this letter, the respondent‟s counsel had sent a reply on 20.02.2010 asking the appellant to hand over vacant and peaceful possession FAO (OS) (COMM) No.290/2018 Page 13 of 15 on 03.03.2010 at 12 noon. The appellant then moved an application seeking police help for removal of goods. The learned Arbitrator on 25.03.2010 recorded the statements of the appellant and the respondent that the appellant will remove the goods and the respondent will not create any hinderance and that after vacating the premises, keys will be handed over by the counsel for the appellant to the counsel for the respondent on 15.04.2010, before the Arbitrator. The learned Single Judge notes that despite this order, and repeated communications exchanged thereafter between the parties, the keys were not handed over on 15.04.2010. On 24.04.2010, the Arbitrator again recorded that the handing over of the keys did not materialize and the proceedings were rescheduled for 08.05.2010 and thereafter again for 13.05.2010. It was only on 31.05.2010 that the goods were finally removed and possession was handed over. The chronology narrated above clearly reveals that the appellant had made every effort to delay the handing over of the possession and thus in our view the Arbitrator has rightly allowed the claims of the respondent herein.

18. We also endorse the view of the learned Single Judge that the appellant never issued any notice of termination of the lease in terms of the liberty that it had under a specific clause incorporated in the MOU to that effect. The contentions thus raised by the learned counsel for the appellant FAO (OS) (COMM) No.290/2018 Page 14 of 15 before us on his bonafides to hand over possession at the earliest opportunity is not borne out from the conduct of the appellant.

19. The learned Single Judge has in her discretion reduced the rate of interest awarded to the respondent from 12% p.a. to 8% p.a. keeping view the prevailing interest rates. We find that this was in the domain and discretion of the Court and no fault can be found with this direction as well.

20. We find no infirmity in the impugned judgment of the learned Single Judge. There is no merit in the appeal and the same is hereby dismissed with all pending applications. No orders as to costs. MARCH20 2019 AK/rd JYOTI SINGH, J G.S.SISTANI, J FAO (OS) (COMM) No.290/2018 Page 15 of 15