The petitioner was entitled to damages from 10.6.2009 and the respondent shall pay damages to the petitioner at the rate of Rs. 25 per sq. ft. per month till the actual possession was handed over to the petitioner.

ORDER :

Mr. Justice Navin Chawla, J.-This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”) has been filed by the petitioner challenging the Arbitral Award dated 31.3.2018 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the “Retail/Commercial Office Space Buyer’s Agreements” dated 31.5.2006 (hereinafter referred to as the “Space Buyers Agreement”).

2. In short, the dispute between the parties is regarding the delay in handing over of the possession of the office spaces to the petitioner by the respondent. While the respondent claimed that the possession of the office space could not be handed over to the petitioner as the petitioner had defaulted in making the payment of the last installment, being the 12th installment, in accordance with Annexure-III (Schedule of Payments) and other charges like maintenance and holding charges, the petitioner claimed that the last installment was payable only on the receipt of notice from the respondent stating that it had received the Occupancy Certificate. As no such intimation was received by the petitioner, the final installment became due only in 2011 when the petitioner received such intimation. However, though the petitioner was ready and willing to make such payment, the respondent refused to hand over the possession of the office space to the petitioner until and unless the petitioner also pays the other charges demanded by the respondent. As these charges were not payable by the petitioner, disputes arose between the parties with respect to the entitlement of the respondent to demand such charges.

3. Eventually the possession of the office space was handed over by the respondent to the petitioner in November 2014 pursuant to orders being passed by this Court on an appeal under Section 37 of the Act filed by the petitioner.

4. The Arbitrator in the Impugned Award has held that for the final installment to become payable, the respondent was under an obligation to send an intimation of receipt of Occupancy Certificate to the petitioner. As the respondent failed to furnish proof of such intimation having been delivered to the petitioner, the petitioner was not liable to pay the final instalment till 12.1.2011, when for the first time the respondent sent an e-mail to the petitioner giving details of payment allegedly due from the petitioner and the paper work and other formalities to be completed. At the same time, the petitioner has been held entitled to damages for delay in grant of possession till 12.1.2011 at the rate of Rs. 25 per sq. ft. per month. For the period beyond 12.1.2011, the Arbitrator has held that as both the parties contributed to the delay in handing over of the possession of the office space, the petitioner was not entitled to any damages for the period beyond 12.1.2011, while the respondent was not entitled to claim interest on the last instalment for this period. There are other directions also passed by the Arbitrator with respect to each specific claim and counter claim of the parties.

5. The primary challenge of the petitioner is to the finding of the Arbitrator that the petitioner is not entitled to claim damages beyond 12.1.2011. The petitioner further challenges the finding of the Arbitrator that such damages would be confined to Rs. 25 per sq. ft. per month as provided in Clause 11.4 of the Space Buyers Agreement.

6. The learned Counsel for the petitioner submits that the Arbitrator has erred in holding that the petitioner had contributed to the delay in handing over/taking over of the possession of the office space. She submits that the petitioner became aware of the demand of 12th and last installment for the first time only on 12.1.2011. As the respondent demanded maintenance and holding charges along with interest, the petitioner protested against the same. The petitioner by his notice dated 18.5.2011 even offered to make payment of the 12th