KAILASH STORE Vs. UNION OF INDIA

JUDGEMENT

(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 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.