OMP 475-2014

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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O.M.P. 475/2014

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Date of Decision: 23^rd December, 2015

DIRECTORATE GENERAL OF HYDROCARBONS ..... Petitioner

Through:

Mr. Somiran Sharma and Mr. K.P.

Sasiprabhu, Advocates.

versus

M/S AMBIENCE EXIM (P) LTD

..... Respondent

Through:

Mr. D.N. Goburdhan and Mr. Prabal

Bagchi, Advocates.

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT

1.

The petitioner has challenged the award dated 03^rd January, 2014

whereby the learned arbitrator awarded Rs.98,42,413.35 along with interest

and cost to the respondent.

2.

Vide lease agreement dated 02^nd July, 2007, the respondent let out

property bearing No.C-139, Sector-63, Noida to the petitioner for a period of

three years. Vide letter dated 29^th January, 2008, the respondent let out

additional space of 2298 sq. ft. to the petitioner. After the expiry of initial 36

months, the lease was extended for a period of further 11 months up to 30^th

June, 2011. The petitioner vacated the subject premises on 31^st August,

2011. 3.

On 8^th April, 2008, the petitioner awarded annual maintenance

contract to the respondent for providing the services for operation and

maintenance of two DG sets, one lift, two AC units, fire alarm, and detection

OMP 475-2014

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systems, fire hydrants and main electrical panel room for a period of one

year w.e.f. 1^st April, 2008 to 31^st March, 2009. On completion of one year,

the petitioner awarded fresh annual maintenance contract to the respondent

on annual basis till the vacation of the premises. The petitioner paid

Rs.53,36,861/- to the respondent under the aforesaid annual maintenance

contracts for the period from 1^st April, 2008 to 30^th August, 2011. On 3^rd

January, 2012, the petitioner for the first time raised an objection that the

annual maintenance contracts have been executed by the petitioner under a

mistake because the respondent was liable to provide maintenance under

clause 8 of the lease agreement dated 2^nd July, 2007. The petitioner sought

refund of Rs.53,36,861/- from the respondent before the learned arbitrator.

4.

The learned arbitrator rejected the petitioner’s claim seeking refund of

Rs.53,36,861. Relevant portion of the award is reproduced here under:-

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5.

Learned counsel for the petitioner submitted that the annual

maintenance contracts have been executed by the petitioner under a mistake

and therefore, the petitioner is not liable to pay the annual maintenance

contract amount to the respondent.

6.

Learned counsel for the respondent submitted that the petitioner

awarded the annual maintenance contract to the respondent on 8^th April,

2008 for a period of one year and renewed the same year after year. Clause

8 of the lease agreement dated 2^nd July, 2007 would not in any manner

invalidate the annual maintenance contracts. On the other hand, the annual

maintenance contracts would supersede clause 8 of the lease agreement

dated 2^nd July, 2007. It was further submitted that the plea of “mistake” is

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misconceived and in any case, the petitioner did not lead any evidence to

prove the mistake and thereafter, the arbitrator was justified in rejecting the

petitioner’s claim for refund and awarding balance annual maintenance

contract amount to the petitioner.

7.

On careful consideration of the rival contentions of the parties, this

Court is satisfied that there is no infirmity whatsoever in the finding of the

learned arbitrator. The petitioner raised a vague plea of “mistake” in

executing the annual maintenance contracts but did not lead any evidence

whatsoever to prove the same. In the absence of any such proof, the learned

arbitrator was justified in rejecting the same.

8.

No other contention was urged before this Court at the time of the

hearing. It may be recorded that vide order dated 6^th May, 2014, this Court

has already dismissed the pet