VIBHU BAKHRU, J (Oral).

CM No. 13738/2025 (Filing) and CM No. 13740/2025 (Re-filing)

1. For the reasons stated in the applications, the delay in filing and re filing the appeal is condoned.

2. The applications are disposed of.

FAO (COMM) 68/2025 & CM Nos.13736/2025, 13737/2025, 13739/2025

3. The appellant has filed the present appeal under Section 37(1)(b) of the Arbitration & Conciliation Act, 1996 [the A&C Act] impugning an order dated 09.10.2024 [the impugned order] passed by the learned Commercial Court, whereby the appellant was directed to immediately remove the mobile / cellular tower erected on top of the respondent’s property (property bearing No.J-5/57, Rajouri Garden, New Delhi) and to restore the licensed property to its original state. In addition, the learned Commercial Court had also directed that a sum of ₹18,95,706/-, which is admittedly the outstanding license fee, be deposited in a fixed deposit before the learned Commercial Court within a period of two months from the date of the impugned order.

INTRODUCTION

4. The appellant has assailed the impugned order on, essentially, two fronts. First, it is contended that the impugned order, in effect, grants the final relief as sought for by the respondent, and the court could not grant any such relief in proceedings under Section 9 of the A&C Act. It is contended that the scope of Section 9 of the A&C Act is confined to granting interim measures of protection, and no relief which has trappings of finality can be granted. Second, it is submitted that although arrears of license fee, as directed to be deposited, are admitted, the respondent cannot claim the entire amount, as it relates to license fee for the period of nine years, and the respondent’s claim in this regard is belated.

FACTUAL CONTEXT

5. The respondent, a Hindu Undivided Family (HUF), acting through its Karta, who has since expired, entered into a License Agreement dated 11.06.2009 [the License Agreement] for granting a license for an area of 800 sq. ft. on the roof of the respondent’s property bearing No.J-5/57, Rajouri Garden, New Delhi-110027 [the licenced property] to the appellant for the purpose of erecting a cellular tower.

6. In terms of the License Agreement, the parties had agreed that the appellant (licensee) would pay a monthly license fee of ₹17,000/- on or before the tenth day of each calendar month. It was further agreed that the said license fee would be enhanced by 10% on expiry of every three years. The term of the License Agreement was fifteen years, that is till 10.06.2024. The appellant had also agreed that on termination of the License Agreement, it would vacate the licensed property and remove all furniture, fixtures and belongings brought to the licensed property.

7. The relevant clauses of the License Agreement are set out below:

“2. GRANT OF RIGHT

a. The Licensor hereby grants permission / License to the Licensee for the Licensed Property admeasuring 800 sq. ft. more particularly described in the schedule hereunder written for the development and expansion of its telecom other services. The Licensor hereby grants the right to the Licensee to bring its belongings and things (including for telecommunication network equipment) for using at the Licensed Property during the term of this License without any hindrance or disturbance of any nature whatsoever.

b. The Licensor agree and confirm that the Licensed Property can and may be used by the Licensee or any of the group Companies of the Licensee and the same shall not amount to violation of this License agreement.

3. LICENSEE COVENANTS

d. The Licensee shall in consideration of the license hereby granted by the Licensor pay to the Licensor the license fee of Rs.17,000/- (Rupees Seventeen Thousand only) Service tax if applicable would be borne by licensee on receiving invoice from licensor per month (hereinafter referred to as “License Fee”) subject to applicable Tax Deduction at Source, during the subsistence of the license and the