FAO (COMM) 63/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 8^th March, 2021.

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FAO (COMM) 63/2021

INDIANA TRAVELS PVT. LTD.

..... Appellant

Through:

Mr.Rajat Bhalla, Adv.

versus

INSION PRIVATE LIMITED

..... Respondent

Through:

None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

HON'BLE MR. JUSTICE AMIT BANSAL

[VIA VIDEO CONFERENCING]

RAJIV SAHAI ENDLAW, J.

CM APPL. 9203/2021 (of the appellant for exemption)

1. Allowed, subject to all just exceptions and as per extant Rules.

2. The application is disposed of.

FAO (COMM) 63/2021 and CM APPL. 9202/2021 (of the appellant for

interim relief)

3. This appeal, under Section 37(2) of the Arbitration and Conciliation

Act, 1996 read with Section 13 of the Commercial Courts Act, 2015,

impugns the order dated 11^th February, 2021 of the Commercial Court on

an application for interim measures, under Section 9 of the Arbitration Act,

being OMP (COMM) No. 611/2020 preferred by the appellant.

4. We have heard the counsel for the appellant at length.

5. The Arbitration Agreement between the appellant and the respondent

is contained in a registered Lease Deed dated 7^th March, 2019, for a period

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FAO (COMM) 63/2021

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of 9 years, executed by the appellant as landlord in favour of the respondent

tenant with respect to Flat No. 11, 1^st and 2^nd Floor, Khan Market, New

Delhi. The application under Section 9 of the Arbitration and Conciliation

Act, from the order wherein this appeal arises, was filed by the appellant,

complaining of non-payment of agreed rent by the respondent tenant and

seeking reliefs of, (i) directing the respondent tenant to pay arrears of rent

and to continue to pay future rent to the appellant; (ii) appointment of a

Receiver to take over possession of the tenanted premises; (iii) direction to

the respondent tenant and its directors to file a list of their movable and

immovable assets; and, (v) restraining the respondent tenant from

alienating, transferring and in any manner creating third party interest in

movable and immovable assets including the tenanted premises.

6. The Commercial Court, vide the impugned order, though has granted

the reliefs of directing the respondent tenant to pay Rs.25,00,000/- to the

appellant landlord and though has restrained the respondent tenant from

creating third party rights in the tenanted premises, but has not granted the

other reliefs.

7. The appellant, in this appeal, is aggrieved from non-grant of the relief

of appointment of Receiver with respect to the premises.

8. The Commercial Court has declined appointment of Receiver,

reasoning (i) that there was a dispute between the parties with respect to

payment of rent during the national and local lock down owing to the

prevalent pandemic; (ii) that the term of tenancy had not expired by efflux

of time; (iii) that on opening of the lock down, the restaurant business being

carried on by the respondent tenant in the tenanted premises had started

picking up; (iv) that the respondent tenant had shown intention to clear the

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arrears and pay reasonable rent; (v) Arbitrator had already been appointed

to adjudicate the disputes between the parties; and, (vi) that there was

nothing to indicate that the respondent tenant was acting in a manner so as

to defeat the realisation of the monetary award/decree which may be passed

by the Arbitrator in favour of the appellant.

9. The contention of the counsel for the appellant is, that once the

respondent tenant was in default of payment of rent and had not complied

with the directions for payment of rent, appointment of Receiver of the

property should have axiomatically followed. Strong reliance is placed on

S.C. Mehta Vs. Aviral Kaushik 2007 (93) DRJ 769, followed in order

dated