IST PETITIONER Vs. 1ST RESPONDANT

JUDGEMENT

(1.) THIS application is filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for brevity, "the Act") for a direction against the respondent to furnish security for a sum of ` 1 Crore, failing which to attach the property described in the schedule.

(2.) THE respondent company, which has proposed the development of a property situated at Navaloor Village into an IT Park in the name of Pacifica Tech Park with office and commercial spaces, and the applicant, on negotiation, have entered into a lease deed dated 18.1.2008, by which the applicant agreed for taking on lease a super built up area of approximately 24513 sq.ft. in the ground floor of the building bearing No.GF-1 for nine years to run a Food Court named "Planet Yumm". THE said lease deed was entered based on a Term Sheet dated 23.10.2007. THE portion of the lease, as stated above, also included 5 car parks in the basement/stilts and the initial period of lease was three years. It is stated that the commencement of lease is based on the completion of construction by the respondent and obtaining Completion Certificate and to meet the condition of a minimum 5000 number of employees in the IT Park.

(3.) IT is the contention of the learned counsel for the applicant that the condition precedent for commencement of lease is the Completion Certificate, which has not been obtained by the respondent and furnished to the applicant, and therefore, the lease has never commenced and it is the duty on the part of the respondent to return the Interest Free Security Deposit of ` 1 Crore, for which a notice was given on 18.7.2009. 5.2. IT is the contention of the learned counsel for the applicant, by referring to various provisions of the agreements, that as there was no actual commencement of the lease, the applicant has terminated the agreement on 30.7.2008, since by the conduct of the respondent, the contract has been frustrated.