S SHANMUGHA SUNDARAM Vs. BHARAT SANCHAR NIGAM LTD

JUDGEMENT

(1.) The petitioner in O.P.(Arbitration) No.110 of 2012 on the files of the Additional District Court No.II, Thiruvananthapuram has filed this appeal challenging the order of dismissal of the petition to set aside partialy the award of the Arbitrator dated 09.12 .2011. The father of the petitioner/claimant is the owner of the building situated in 4.3 cents of land comprised in Sy. No.480/24 of Nagaroor Village of Chirayinkeezhu Taluk. The building situated in that property with Panchayath No.N.P. IX/238 of Nagaroor Panchayath was leased out to the 1st respondent Bharat Sanchar Nigam Limited (hereinafter referred to as 'BSNL') , for a monthly rent of 8, 000/-. The initial lease period was for a period of 5 years commencing from 01.11.2000 with an option to renew the lease. As per the terms of the agreement, the 1st respondent was bound to hand over the premises in the same condition as it was at the time of commencement of the lease or in alternative, to pay compensation for the same. While the building was in the possession of BSNL, on 26.04.2008, a notice was issued intimating intention to vacate the building by 15.05.2008. The appellant was also directed to take over the keys of the building from the Divisional Engineer, Telecom, Attingal. Thereafter, the appellant issued a notice on 30.04.2008, requesting the 1st respondent to effect repairs, as the building was damaged considerably by the BSNL and to hand over possession in the same condition as it was at the time when it was leased out to the 1st respondent. Thereafter, so many communications were issued by the appellant to the BSNL but there was no effective response from the part of the BSNL. Since there was failure to dismantle the fittings erected by BSNL and to effect repair works, and restore the building to its original position, the dispute was referred to the Arbitrator as per the terms of the agreement. Before the Arbitrator, the appellant was examined and he adduced evidence that the repairs were not effected and the building was not handed over as agreed, by restoring the same to its original position. Before the Arbitrator the appellant produced Exhibits-P1 to P19. BSNL also examined 4 witnesses and marked documents as R1 to R12.

(2.) The Arbitrator after evaluating the evidence, passed an award on 09.12011, directing restoration of work as mentioned in R3 and R9 within a period of two months by the BSNL as per CPWD work standards. A further direction was given to the effect that if the works were not completed within the period of two months, rent at the rate of 8, 000/- should be paid to the appellant/claimant till completion from the third month onwards and also to pay the rent arrears up to 30.06.2010 from 01.01.2009 at the rate of 8000/- per month totalling to 1, 44, 000/-. It was also found that the appellant is eligible to get interest at the rate of 6% from 30.06.2010 up to the date of payment of arrears. The claim for enhancement of rent was declined.

(3.) Aggrieved by the said award, the appellant/petitioner has filed O.P.(Arbitration) before the Additional District Court-II, Thiruvananthapuram challenging the award under Section 34 of the Arbitration and Conciliation Act (hereinafter referred to as 'the Act') and sought for a relief to award rent from 01.07.2010. The learned Additional District Judge-II, Thiruvananthapuram, by an order dated 31st October, 2016, dismissed the O.P.(Arbitration) with cost . The said order is under challenge in this appeal. The learned counsel appearing for the appellant has argued that the award is perverse in law, unsustainable and hence is liable to be set aside. It is contended that extensive damages were caused to the building by the BSNL especially by installing a tower in the terrace and while dismantling the tower and fittings, damages have been caused to the building and though a Contractor was entrusted to effect the repair works, it was not completed effectively and the damages were not rectified. But the Arbitrator has not appreciated the evidence properly and the award was passed without taking into consideration of those aspects and hence, the award is perverse and is liable to be set aside.