HOTEL KOHINOOR Vs. VIJAY KUMAR

JUDGEMENT

(1.) This application has been filed by the applicant M/s. Hotel Kohinoor for appointment of an arbitrator in terms of Clause 18 of the agreement which has been entered into between the applicant-M/s. Hotel Kohinoor and the respondent M/s. Vijay Kumar & Co. It Is an admitted position that the applicant M/s. Hotel Kohinoor was given out on lease for its maintenance and management by the respondent M/s. Vijay Kumar & Co. for which purpose the respondent licencee had to pay the licence fee of Rs. 3,61,000/- per month payable by 10th of each month. A written agreement for this purpose was executed between the parties incorporating clause 18 which envisaged that in case of any dispute or difference arising out of the deed of licence between the parties, the same shall be referred to the arbitration for sorting out the dispute in accordance with the provisions of the Indian Arbitration Act, 1996 and in that case it shall be subject to the jurisdiction at Jaipur. It was further specifically agreed that the period of licence being specific i.e. for 5 years, monthly licence fee arid the due date of its payment also being clearly fixed, the licensee will not raise any dispute or difference on this count due to which it shall not be subject to arbitration and the licensor shall have exclusive power to terminate the licence on expiry of licence period and on payment of licence fees subject to notice of 30 days as stipulated in clause 10 of the agreement.

(2.) The agreement further lays down that all the rights, title and interest and building shall always vest in the licensor, before, during pr after the licence agreement and no right, title and interest is created by licensor in favour of licensee by this instrument except the privilege to use and occupy the licensed premises for carrying only the specified hotel and restaurant activities for a future specified period.

(3.) In spite of the specific clause incorporated in the agreement that the licencee would be under obligation to pay the licence fee by 10th of each month, it is alleged by the applicant M/s. Hotel Kohinoor that the respondent has failed to honour the agreement and did not pay the licence fee as specifically stipulated in the agreement and since the same is payable by the respondent, which has not been paid to them, the matter has to be referred to the arbitrator. The applicant, therefore, has filed this application for appointment of an arbitrator in terms of clause 18 of the agreement as it has been stated that the licencee neither paid the licence fee nor handed over the management of the hotel to the applicant which he was legally bound to do in terms of the agreement. As a consequence of this, several legal documents for instance the papers relating to the tax deduction at source. Insurance charges, forfeiture of securities have not been handed over to the applicant by the respondent on one pretext or the other which has given rise to a bona fide dispute between the parties and is a fit case for referring the dispute and deciding the same by appointing an arbitrator in terms of clause 18 read with Section 11 of the Arbitration & Conciliation Act, 1996.