The main legal point established is that Section 9 proceedings are for grant/non-grant of interim measures, not for adjudicating disputed facts, and the principles of granting interim measures should be applied, as supported by relevant case laws.

JUDGMENT :

[Via Video Conferencing]

RAJIV SAHAI ENDLAW, J.

1. This appeal, under Section 37 of the Arbitration and Conciliation Act, 1996 read with Section 13 of the Commercial Courts Act, 2015, inter alia impugns the order dated 29th December, 2020 of the Commercial Court/Additional District Judge-04 (ADJ) (West), Tis Hazari Courts, Delhi, of dismissal of OMP(I)(COMM) No.195/2020 under Section 9 of the Arbitration Act preferred by the appellant seeking interim measure of restraining the respondent from accessing the premises of the appellant at A-16, 29 & 30, Mayapuri Industrial Area, Phase-I, New Delhi and of directing the respondent not to use the licenses/approvals obtained by the respondent in the name of the appellant and further, of directing the respondent to vacate the subject premises in view of termination of the lease and the agreement, on or before 31st December, 2020.

2. The appeal came up first before the Vacation Bench of this Court on 31st December, 2020, when notice thereof was ordered to be issued. The appeal thereafter was adjourned from time to time and came up last before us on 7th January, 2021, when though we heard the counsels but being of the prima facie opinion that the impugned order of the Commercial Court/ADJ of dismissal of the Section 9 application of the appellant was liable to be set aside, the matter was adjourned to today to enable the parties to explore the possibility of amicable settlement.

3. However no settlement has been possible and we have today again given opportunity to the counsel for the respondent to address us on why the appeal should not be allowed.

4. The appellant filed the petition aforesaid under Section 9, seeking interim measures, pleading (i) that the appellant is engaged in the business of sale, maintenance and repair of motorcycles along with other ancillary services relating to parts and accessories; (ii) that the appellant, in or around 2018 was interested in opening a cafe/bar/lounge to compliment it’s Harley Davidson dealership and showroom in the subject premises, in the name and style of “Red Fort Harley Davidson”; (iii) that accordingly, the appellant entered into an Operations & Maintenance Agreement dated 1st September, 2018 (O&M Agreement) with the respondent, granting rights to the respondent to run and operate a cafeteria in a portion of the subject premises at A-16, 29 & 30, Mayapuri Industrial Area, Phase-I, New Delhi and for complimenting the business being carried on by the appellant therein; (iv) that the appellant had taken the aforesaid premises on rent under a Lease Deed dated 16th May, 2016, from Universal Engineering Corporation; (v) that the O&M Agreement entered into by the appellant with the respondent, was made co-terminus with the lease of the appellant of the said premises; (vi) that the respondent was in breach of the various terms and conditions of the O&M Agreement (however the need to herein elaborate the pleas with respect thereto is not felt); (vii) that the appellant, due to breaches by the respondent of the O&M Agreement, vide Notice dated 10th December, 2020 terminated the O&M Agreement with the respondent; (viii) that the appellant, due to disruption of its business of Harley Davidson dealership and showroom, has also agreed to vacate the said premises and had got sent a Notice dated 1st July, 2020 to the landlord Universal Engineering Corporation, of the intent of the appellant to vacate the premises; (ix) that the appellant has deposited a sum of Rs.75 lakh as security with its landlord Universal Engineering Corporation and as per the terms of the lease deed, on failure of the appellant to vacate the premises by 31st December, 2020, i.e. the date on which the appellant had noticed the landlord Universal Engineering Corporation of its intent to vacate the premises, the said security deposit of Rs.75 lakh shall be forfeited; and, (x) that the O&M Agreement between the appellant and the respondent contains an arbitration clause.

5. Notice