( 1 ) AGGRIEVED by the order dated 18th May, 2001 disposing of IA No. 3075/2000, plaintiff/appellant has filed the present appeal. By the impugned order appellant has been directed to pay licence fee @ 21 % of its gross turnover.

( 2 ) IN brief, facts relevant for the determination of the present appeal may be noted. The respondent/ndmc, being the owner of a parcel of land at Windsor Place, Janpath, invited offers from parties to have the land licenced to them on certain terms and conditions. The site was to be used for construction of a Five Star Hotel. Various offers were received. One of the offer received was from M/s Pure Drinks (New Delhi) Ltd. This was accepted by the respondent. The offer was that the licencee offered to pay a licence fee of 23% of the gross turnover or Rs. 2. 68 crores per annum, which ever was higher. This offer of 23% of the gross turnover was subsequently reduced to 21% of the gross turnover.

( 3 ) A licence agreement dated 16. 4. 1981 was executed. Rights of the licencee M/s Pure Drinks New Delhi Ltd. were assigned/taken over by the appellant and on 14. 7. 1982 a licence agreement was entered into.

( 4 ) AS per the licence deed dated 14. 7. 1982, the demised parcel of land measuring 4. 29 acres was licenced to the appellant. The stipulated licence fee was 21% of the gross turnover or 2. 68 crores per annum, whichever was higher.

( 5 ) DUE to certain reasons, the hotel building could not be completed within the time envisaged by the appellant. Appellant wrote letters to the respondent to re-consider the quantum of licence fee (reduce the same) and reschedule the licence fee which had become payable. Matter dragged on till 1990. The respondent issuing a letter dated 6. 3. 1990 to the appellant, calling upon the appellant to stop user of the plot of land and hand over vacant possession of the same to the respondent and further pay a sum of Rs. 13,11,24,758. 89 on account of the arrears of licence fee. There was also a threat of disconnection of the electric supply to the hotel constructed by the appellant. Two proceedings were initiated by the appellant. A Civil Writ Petition being CW No. 356/89 was filed challenging the threatened action of disconnection of electric supply. Petition under Section 20 of the Indian Arbitration Act, 1940 was also filed for appointment of an Arbitrator to decide the disputes, which according to the appellant arose in relation to the demand raised by the respondent. Since the respondent had initiated eviction proceedings under the Public Premises (eviction of unauthorised occupants) Act, 1971, the appellant sought interim protection to restrain the Estate Officer from proceeding further in the matter, stay was also sought against recovery of the arrears of licence fee. By order dated 16th October, 1990 the application for interim stay in the proceedings initiated under Section 20 of the Indian Arbitration Act, 1940 was decided and stay was declined. An appeal was preferred against the order dated 16. 10. 1990 declining the interim relief. Parties arrived at some settlement outside the Court. What was agreed to, was reduced into writing and a supplementary agreement dated 11. 03. 1991 was executed. Recitals of the said supplementary agreement dated 11. 03. 1991 traced out the background of the dispute between the parties which led to the execution of the supplementary agreement. Since the supplementary agreement was re-scheduling the licence fee, which had fallen in arrear, a chart was annexed thereto containing the details of the schedule of instalments. It worked out the arrears of licence fee payable and granted time upto 2003 for payment of the same. The licence fee computed for determination as being payable upto the date of agreement was taken at 2. 68 crores per annum.

( 6 ) PRECEEDING and succeeding the date of supplementary agreement, various requests were made by the appellant to the respondent that licence fee payable had rendered the hotel as