TMI Blog2017 (9) TMI 1945X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case based on the admitted Lease Deed, which is a registered document. We further find that the balance of convenience is also in favour of the respondent and against the appellant. The respondent had taken a loan facility from Bank of India and a tripartite agreement had also been executed where under the appellant had undertaken to deposit the monthly rent in the designated escrow account. Therefore, the respondent shall suffer great irreparable injury in case the appellant is not directed to deposit the outstanding rent, till the date of its occupation of the Leased Premises, to the respondent. Appeal dismissed. - FAO(OS) 307/2016, 40/2017, CM 39210/2016, CMs 5569 and 5571/2017 - - - Dated:- 22-9-2017 - Sanjiv Khanna and Navin Chawla, JJ. JUDGMENT Navin Chawla, J. 1. The appellant has filed the above appeals, challenging the judgment and order dated 29.04.2016 passed by the Learned Single Judge of this Court in OMP(I) No. 643/2015 and the order dated 14.09.2016 passed by the Learned Single Judge in I.A. No. 5844/2016 in OMP (I) 643/2015 modifying the order dated 29.04.2016 with respect to the amount payable to the respondent as an interim measure. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appointed jointly by the two arbitrators. Clause 20 of the Lease Deed is reproduced herein under: DISPUTE Resolution: 20.1 If any dispute, controversy or claim between the parties arises out of or in connection with this Lease Deed, including the breach, termination or invalidity thereof ( Dispute ), the parties shall Lease (sic.) all reasonable endeavors to negotiate with a view to resolving the Dispute amicably. The complaining party may serve a written notice of such dispute ( Dispute Notice ) to the other party and if the parties are unable to resolve the Dispute amicably within 30(thirty) days of service of the Dispute Notice, then the Dispute shall be settled by arbitration under the Indian Arbitration and Conciliation Act, 1996 by three arbitrators, with three arbitrators (sic.) with one arbitrator each being appointed by the Parties individually, and such two arbitrators jointly appointing the third arbitrator who shall chair the arbitration proceedings. The parties agree to a fast track arbitration which is to be disposed within 60 (sixty) days from the date of reference. The venue of arbitration shall be New Delhi and the proceedings shall be conducted in the Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the respondent and a further sum of ₹ 15 lacs on account of mixed land use charge, which again is the liability of the respondent. 5. Learned Single Judge vide order dated 29.04.2016 rejected the above defence of the appellant. As far as the claim of no rent being payable for the period of 01.04.2014 to 31.12.2014 is concerned, the Learned Single Judge held that the last line of Clause 4.1.b seemed to be a mathematical error as otherwise Clause 4.4 to 4.6 of the Lease Deed clearly and unambiguously states that rent for this period was payable @ ₹ 18 lacs per month. Learned Single Judge also relied upon the Tripartite Agreement dated 18.06.2014 entered into between Bank of India, the Appellant and the respondent herein, whereby the Bank had agreed to disburse a loan of ₹ 4 crores to the respondent on the undertaking of the appellant that monthly rent as payable under the Lease Deed, would be directly paid to the referred escrow account. 6. As far as the claim of reduction of rent is concerned, the Learned Single Judge relying upon Section 92 of the Evidence Act and the judgment of this Court in M/s. Kusum Enterprises and Ors. v. Vimal Kochhar and Anr., 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total amount of rent already paid by the appellant, including the security deposit. 11. It is important to note here that the appellant had vacated the leased premises on 16.05.2016 and therefore the direction to pay rent, as agreed in the Lease Deed, was confined till the said date only. 12. The appellant has filed the above appeals challenging the above two orders i.e. 29.04.2016 and 14.09.2016 passed by the Learned Single Judge. 13. As far as the legal challenge is concerned, Learned Senior Counsel appearing for the appellant has contended that no such direction for payment of money could have been issued by the Learned Single Judge while exercising jurisdiction under Section 9 of the Act. In support of this contention, Learned Senior Counsel has drawn our reference to the judgment of the Supreme Court in Firm Ashok Traders and Anr. v. Gurumukh Das Saluja and Ors. (2004) 3 SCC 155 and the judgment of the Division Bench of this Court in Ratnagiri Gas and Power Pvt. Ltd. v. Joint Venture of Whessoe Oil and Gas Ltd., 2013 (133) DRJ 482. 14. Learned Senior Counsel for the respondent on the other hand has referred to the judgment of Division Bench of this Court in Value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1976 observed that such provision is made to protect the landlord from hardship and to prevent unfair advantage of delaying the disposal of the suit by the tenant. 19. We are therefore of the opinion that while exercising the powers under Section 9 of the Act, the Court can certainly be guided by the principles of Order XV-A and Order XXXIX Rule 10 of CPC. The same view was expressed by another Division Bench of this Court in the case of Value Source Mercantile Ltd. (supra) . The relevant portion of the said judgment reads: 13. Section 9 of the Arbitration Act uses the expression interim measure of protection as distinct from the expression temporary injunction used in Order XXXIX Rules 1 2 of the CPC. Rather, interim injunction in Section 9 (ii) (d) is only one of the matters prescribed in Section 9 (ii) (a) to (e) qua which a party to an Arbitration Agreement is entitled to apply for interim measure of protection . Section 9(ii) (e) is a residuary power empowering the Court to issue/direct other interim measures of protection as may appear to the Court to be just convenient. Section 9 further clarifies that the Court, when its jurisdiction is invoked thereun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with a direction to deposit money, which was not even the subject matter of the application under Section 9 of the Act. 21. Reliance of the appellant on Firm Ashok Traders (supra), in our view, is totally ill-founded. In the said case Supreme Court held that the relief sought vide an application under Section 9 of the Act was neither in a suit nor a right arising from a contract. In fact, the Court held that Section 69 of the Partnership Act would have no bearing on the right of the party to file an application under Section 9 of the Act. This judgment was also considered by this Court while passing the judgment in Ajay Singh (supra) and we quote from the same: 24. The first question which the court addresses is the one adverted to by the appellant, that principles underlying Order 38, Rule 5 CPC have to be kept in mind, while making an interim order, in a given case, directing security by one party. Indian Telephone Industries v. Siemens Public Communication 2002 (5) SCC 510 is an authority of the Supreme Court, which tells the courts that though there is no textual basis in the Arbitration Act, linking it with provisions of the CPC, nevertheless, the principles underlyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulating interim measures so as to protect the right under adjudication before the Arbitral Tribunal from being frustrated..... 26. Though apparently, there seem to be two divergent strands of thought, in judicial thinking, this court is of the opinion that the matter is one of the weight to be given to the materials on record, a fact dependent exercise, rather than of principle. That Section 9 grants wide powers to the courts in fashioning an appropriate interim order, is apparent from its text. Nevertheless, what the authorities stress is that the exercise of such power should be principled, premised on some known guidelines-therefore, the analogy of Orders 38 and 39. Equally, the court should not find itself unduly bound by the text of those provisions rather it is to follow the underlying principles. In this regard, the observations of Lord Hoffman in Films Rover International Ltd. v. Cannon Film Sales Ltd.(1986) 3 All ER 772 are fitting: But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as 'guidelines', i.e. useful generalisations about the way to deal with the normal run of cases falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be adjusted against the Monthly Rent to be paid over the first 9 (nine) Calendar Months of the Lease Period. In other words the LESSEE shall not pay any amount as monthly rent to the LESSOR for the period 1st April, 2014 to 31st December, 2014. He submits that in the said clause, it is clearly mentioned that lessee/appellant shall not pay any amount as monthly rent to the lessor/respondent for the period 01.04.2014 to 31.12.2014. He, therefore, submits that if no amount was payable during the said period, the appellant would have over paid the respondent and, therefore, no direction for payment should have been ordered by the Learned Single Judge. 24. We would not for several reasons at this stage agree with the submission of Learned Senior Counsel of the appellant. We first note some other clauses of the Lease Deed, which are reproduced herein under: 3. Term: The Lease shall be for an initial period of 9 (nine) years from 1st April, 2014 till 31st March, 2023 (the Lease Period ) . The LESSOR shall not be entitled to terminate this Lease Deed without cause (i.e. other than for Material Breach by the LESSEE) for the entirety of the Lease Period. Notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be paid over the first 9 (nine) Calendar Month of the lease period . It is a settled principle of law that the Court, as part of the process of construction, has the power to correctly interpret the written expression, with reference to the intention of the parties. We, prima facie, feel that the latter part of clause 4.1.b is a case of bad drafting. The plea raised is an afterthought, and not the intent. The appellant had not understood the Clause in this manner. The appellant admits that during this period it has regularly paid the agreed rental of ₹ 18 lacs per months minus ₹ 6 lacs per month (i.e. ₹ 54 lacs divided into 9 months) as provided in the first part of clause 4.1.b quoted by us above. This is how, the clause was interpreted by the appellant. Therefore, the appellant had also acted in accordance with the prima facie construction of the clause now being put by us. 26. As far as the plea of oral understanding of deduction in the monthly rent, the same cannot be accepted at this stage and would be a matter to be investigated and decided by the Arbitral Tribunal. The plea would not defer and prevent the Court from passing this order. 27. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X
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