Paradise Hotel And Restaurant v. Airport Authority Of India And Others

D. BISWAS, J.

(1.) R.F.A. No. 49 of 2000 has been filed by the National Airports Authority of India challenging the judgment and decree dated 4.4.2000 passed by the learned Civil Judge (Senior Division), Jorhat in Title Suit No. 42 of 1994. The learned Civil Judge by the aforesaid judgment allowed the suit filed by the respondent M/s. Paradise Hotel and Restaurant and passed the following onder:-

In the result, the suit of the plaintiff is decreed with declaration that (i) the decree passed in (Arbitration) Misc. Case No. 6/92 passed by the learned Addl. District Judge, Jorhat on 14.6.93 is binding both on the plaintiff and the defendants, (ii) the defendants are bound to hold regoriously with the terms of the decree and departure there from will be an illegality, (iii) the defendants are not within their legal competence to incorporate any extraneous matters inconsistent with the terms of the decree of Misc. (Arb) Case No. 6/92 while demanding execution of an agreement of licence by the plaintiff, (iv) the impugned letter No. GT/NAA/ER (C)-15/HP/10,022-26 dated 23.5.94 of defendant No. 3 is inoperative in law and that (v) the parties may settle up the existing dispute through arbitration."

(2.) F.A.O. No. 66/2000 has been filed by the Airports Authority of India against the order dated 15.5.2000 passed by the learned Civil Court, Jorhat in Misc. (Arb) Case No. 95 of 2000. The appeal has been preferred under Section 37(i)(a) of the Arbitration and Conciliation Act, 1996. The order reads as follows:-

"Order Dated 15.5.2000 Received an application filed u/ss. 8,9 read with Section 11 of the Arbitration Act, 1996. Seen the application and certified copy of the Arbitration Agreement. Heard the Id. counsel appearing for the petitioner. Register an Arbitration Misc Case u/s 8 of the Arbitration and Conciliation Act, 1996. Seen also the prayer submitted by the petitioner u/s 9 of the said Act for maintenance of status-quo by way of interim injunction as regards possession of the petitioner's business at Lokapriya Gopinath Bordoloi Airport Restaurant at Guwahati Airport restraining the respondents from dispossessing the petitioner. On this point, the learned counsel has drawn the attention of this Court to a very recent decision of the Apex Court AIR 1999 Supreme Court Page 565. It appears that for ends of justice status-quo as regards petitioner's possession at Lokapriya Gopinath Bordoloi Airport Restaurant at Guwahati Airport has to be maintained. Hence, I grant u/s 9 of the Act interim injunction restraining the respondents from interfering in the petitioner's possession at Lokapriya Gopinath Bordoloi Airport Restaurant at Guwahati and issue show cause notice to the respondent as to why this interim injunction shall not be made absolute pending disposal of this arbitration proceeding. Give notice of the application to the respondents for filing any objection, if any, on or before the date fixed. Fix 16.6.2000 for submissions of show cause."

(3.) F.A.O. No. 49/2000 preferred by M/s. Paradise Hotel and Restaurant is directed against the order dated 2.3.2000 passed in Misc. Case No. 12/98 arising out of Title Suit No. 42 of 1994 passed by the learned Civil Judge (Senior Division), Jorhat. The learned Civil Judge disposed of the misc. case along with petition No. 437/98 and 1031/98 filed by the appellant praying for interim relief in the form of injunction. The learned Civil Judge passed the following order :-

"In view of the discussions made above and submissions made by the learned counsel of the plaintiff/petitioner as no relief has been sought for till decision of the issue of jurisdiction and as the NIT in question has been declared invalid by the Hon'ble High Court, I am not inclined to grant any relief on the petitions numbering 437/98 dated 23.2.98,1031/98 dated 6.4.98 and 1071/98 dated 18.4.98 till final disposal of the issue regarding jurisdiction of the Court, as directed by Hon'ble High Court by order dated 14.8.97, passed in Civil Revision No. 373/96. The Misc. case 12/98 and petition 1031/98 and 1071/98 are accordingly disposed of according to the direction of the Hon'ble High Court passed on 16.6.98 in Misc. First Appeal No. 62/98."

(4.) W.P.(C) No. 1974/2000 has also been filed by M/s. Paradise Hotel and Restaurant challenging the notice inviting tender dated 15.3.2000 published by the respondents, the National Airports Authority of India Ltd. for settlement of the restaurant. The petitioner prayed for issue of a Writ of Mandamus commanding the respondents not to take any steps in pursuance of the impugned NIT dated 15.3.2000 and orders of prohibition restraining the respondents from interfering with the continuance of the petitioner as a licencee in respect of the Airport Restaurant at Lokapriya Gopinath Bordoloi Airport.

(5.) W.P.(C) No. 2375/2000 has been filed by M/s. Guddi Enterprises praying for similar direction as in W.P.(C) No. 1974/2000.

(6.) I have heard Mr R.M. Chatterjee, learned senior counsel for the petitioner in F.A.O. No. 49/2000, Shri A.K. Bhattacharjee, learned senior counsel for the petitioner in Writ Petition (C) No. 2375/2000, Shri A.R. Borthakur, learned senior counsel for the petitioner in writ petition (C) No. 1974/2000 and Shri K.N. Choudhury, learned senior counsel for the appellants in F.A.O. No. 49 and 66 of 2000. Also perused the pleadings and other documents on record.

(7.) At this very outset I would like to advert to the facts of the case which led the parties to litigations. M/s Paradise Hotel and Restaurant was awarded a licence by the Airport Authority of India to render the service of catering by running a restaurant at Lokapriya Gopinath Bordoloi International Airport vide order dated 28.9.1981 for a period of two years ending on 30.9.1983. An agreement was also entered into by the parties. During the period of operation of the licence, dispute crept in. Eventually the dispute was referred to the sole arbitrator Shri K. Techchandani, Executive Director, Delhi Region. The sole arbitrator pronounced an award on 20.4.1993 and it was made a rule of the Court by a decree passed on 14.6.1993 by the learned Additional District Judge, Jorhat in Arbitration (Misc.) Case No. 6 of 1993. In compliance of the aforesaid award, the Airport Authority vide letter dated 20.4.1993 awarded contract for the aforesaid catering arrangement in favour of M/s. Paradise Hotel and Restaurant for a period of five years on the said terms and conditions stated in the draft agreement. Although the award was carried out, M/s. Paradise Hotel and Restaurant did not execute the agreement as required. It continued with the possession and management of the Restaurant on the strength of an injunction which was operating till 3.4.2000. In view of reluctance of M/s. Paradise Hotel and Restaurant to execute the agreement of licence, a letter was issued by the Airport Director on 23.5.1994 requiring the licencee to execute the agreement within a period of 15 days failing which authority reserves the right to determine the licence to run the restaurant. It is further pleaded that there is no subsisting agreement: between the parties and, hence, the present: occupation of the restaurant is without legal authority. The said letter was challenged in Title Suit No. 42/1994 in the Court of Civil Judge (Senior Division), Jorhat. The suit was decreed with the direction that the parties may settle their existing dispute through arbitration. The said judgment is in challenge in R.F.A. No. 49/2000 which is being disposed of together. The judgment of the learned Civil Judge has been stayed by this Court by an order passed on 15.5.2000. M/s. Paradise Hotel and Restaurant in the meantime invoked the arbitration and appointed Shri P.C. Borpujari, a retired District and Sessions Judge as the sole arbitrator and called upon the Airport Authority to appoint their arbitrator within 30 days. In the said letter M/s. Paradise Hotel and Restaurant apart from financial claim also asserted the right to run the restaurant till 31/5/2002. However, this Court by order dated 15/5/2000 directed that further arbitration proceedings pursuant to the aforesaid letter shall remain suspended. In the meantime, the licencee also moved an application under Section 8 and 9 of the Arbitration Act of 1996 in Misc. Case No. 95 of 2000 where an interim direction was given to the parties to maintain status-quo. This order dated 15.5.2000 is in challenge in F.A.O. No. 66/2000.

(8.) It has been pleaded by the Airport Authority that the disputes which arose pursuant to the agreement made in 1981 were adjudicated by the sole arbitrator by the award pronounced on 20/4/1993 and it was made the rule of the Court by the decree dated 14/6/1993. M/s. Paradise Hotel and Restaurant operated the restaurant for more than five years as awarded without performing its duties under the award and the decree. According to Airport Authority, there is no existing agreement enabling the parties to settle their dispute by arbitration and that the Court cannot refer the parties to arbitration without being satisfied about existence of a valid arbitration agreement.

(9.) M/s. Paradise Hotel and Restaurant, however, asserted that the agreement still subsists and the award given by the sole arbitrator could not be enforced because of omissions/commissions on the part of the Airport Authority in charging higher licence fees and in laying down conditions beyond the decree. Besides, they are licencee under the Airport Authority for all purposes on payment of licence fees and their p arbitrator including the question of jurisdiction as the Court cannot initiate any enquiry as to the existence of the arbitration agreement in view of the provisions of section 16 of the Arbitration Act of 1996.

(10.) At this stage, for convenience and better appreciation, I would like to quote hereinbelow the award given by the sole arbitrator Mr K. Techchandani. The award reads as follows:-

"1)The claim of the claimant, M/s. Hotel Paradise for the duration of licence period for the airport restaurant vide letter of award No. GR/R-GT/Ew dated 28th Sept., 1981 for a period of three years instead of two years, viz. from 1.10.1981 to 30.9.1984, is allowed. (The licence fee being Rs.21,202.00 p.m.).

2) The claim of damages preferred by the NAA@ Rs.50,000.00 per month for the period Oct., 83 to Sept. 86 is partly allowed for Rs.25,442.40p p.m. (Rupees twenty five thousand four hundred and forty two and paise forty only, per month), on the basis of 20% increase on the licence fee of Rs.21,202.00 p.m., for the next three years viz. for 01.10.1984 to 30.09.1987, in accordance with the statement of arrears and interest enclosed with this award which shall form a part of this award (Annex-I).

3) The claim of the NAA for damages for the period from Oct., 86 to Sept., 89 @ Rs. 1.00 lac per month is partly allowed to Rs.30,530.90p per month for next three years viz. from 1st Oct., 87 to 30th Sept., 90, based on 20% increase on damages for the period Oct., 84 to Sept., 87 i.e. Rs.25442.40 awarded in para 2 above.

4) The claim of the NAA for damages for the period Oct. 89 to 31st Dec. 91, @ Rs.2.00 lacs per month is partly allowed to Rs.36,637.00 p.m., (Rs. Thirty six thousand six hundred thirty seven only) for the period 1 st Oct., 90 to 31 st May, 93 based on 20% increase on the damages for the period Oct., 87 to Sept., 90 viz. Rs.30,530.90 awarded in para 3 above.

5) The claim of the claimants regarding reduction in the licence fee due to the ban of entry of visitors is allowed @ 25% rebate on monthly license fee from 1 st Oct. 87 to 31st May, 93.

6) The claimants M/s. Hotel Paradise shall pay simple interest @ 12% (twelve percent) on all the arrears due from 1.10.1984 based on the above awarded damages as calculated as per para 1 to 5 above. IV (i) The claimant M/s. Paradise Hotel shall be given a licence for of the restaurant premises for a total period of five years (5 years) from 1 st June, 93 to 31 st May, 98, on NAAs present terms and conditions in vogue for Airport Restaurants. (ii) Out of the total period of five years mentioned above, for the first three years period from 1 st June, 93 to 31 st May, 96 the licence fee shall be @ Rs.43,150.20 p.m. (Rupees Forty three thousand one hundred and fifty and paise twenty p.m.) being the proportionate increased licence fee on previous damages of Rs.36,637.00 (increase of 17.77% in 32 months, at the rate of 20% increase in 3 years or 36 months) and further licence period of two years viz. from 1.6.96 to 31.5.98 on payment of licence fee @ Rs.51,780.25p p.m. (Rupees fifty one thousand seven hundred and eighty and paise twenty five p.m.) increased @ 20% on the last licence fee payable upto May, 96 with NAA's standard terms and conditions for licencing the Airport Restaurants, at present in vogue. V The claimant shall pay aforesaid arrears of damages along with interest in accordance with the statement of arrears and interest enclosed, forming a part of this award, within 30 days of this award i.e. by 20th May, 1993. This being a composite award, further continuance of licence for five years as aforesaid shall become effective from 1 st June, 1993 for a period of five years only on payment of arrears of damages and interest thereon as per statement enclosed."

(11.) The award pronounced by the sole arbitrator took care of the disputes arising out of the agreement made in 1981. The awarded was pronounced on 20/4/1993 and it was made a rule of the Court on 14/6/1993. The sole arbitrator recommended that M/s. Paradise Hotel and Restaurant be given a licence to run the restaurant for a period of five years ending on 31st May, 1998 in addition to other collateral benefits. The fact remains that despite disputes between the parties regarding implementation of the award, M/s. Paradise Hotel and Restaurant continued in possession of the restaurant premises. The period of five years stipulated by the arbitrator has been availed of. Since the award was made a rule of the Court and a decree was passed by the civil Court, it was open to either of the parties to approach the civil Court for execution of the decree. Question has been raised whether once the arbitral agreement was invoked and the award pronounced, would it still be permissible to invoke the said arbitral agreement to settle the dispute that cropped up at the time of implementation of the award.

(12.) Mr Choudhury, the learned senior counsel argued that the Civil Court cannot direct the parties to settle the existing disputes through arbitration unless it is satisfied that an arbitration agreement exists between the parties. Shri Choudhury relied upon the provisions of section 8 of the Act of 1996 in support of his argument! Sub-section (1) and (2) of Section 8 read as follows :-

"8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or duly certified copy thereof. (3)....."

(13.) The marginal heading read with the contents of sub-section (1) and (2) clearly indicate that the powers under Section 8 to refer the parties to arbitration is available with the Civil Court only when an action is pending before the Court and a party applies that the matter is the subject of an arbitration. The Supreme Court in M/s. Sundaram Finance Ltd., appellant- Vs-M/s. NEPC India Ltd., respondent (AIR 1999 SC 565) held as follows:-

"13. The position under the Arbitration Act, 1940 was that a party could commence proceedings in Court by moving an application under Section 20 for appointment of an arbitrator and simultaneously it could move an application for interim relief under the second schedule read with Section 41(b) of the 1940 Act. The 1996 Act does not contain a provision similar to Section 20 of the 1940 Act. Nor is Section 9 or Section 17 similar to Section 41(c) and the Second Schedule to the 1940 Act. Section 8 of the new Act is not in pari materia with section 20 of the 1940 act. It is only if in any action which is pending before the Court that a party applies that the matter is the subject of an arbitration agreement does the Court get jurisdiction to refer the parties to arbitration. The said provision does not contemplate, unlike Section 20 of the 1940 Act, a party applying to a Court for appointing an arbitrator when no matter is pending before the Court. Under the 1996 Act appointment of arbitrator is made as per the provision of section 11 which does not require the Court to pass a judicial order appointing arbitrator/s. The High Court was, therefore, wrong in referring to these provisions of the 1940 Act while interpreting Section 9 of the new Act."

In this connection it would be relevant to quote the observation of the Hon'ble Supreme Court in M/s. Rickmers Verwaltung Gimb H. appellant-Vs-Indian Oil Corporation Ltd., Respondent ( AIR 1999 SC 504). The Supreme Court held as

follows:-

" 12. In this connection the cardinal principle to remember is that it is the duty of the Court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties which could create a binding contract between them but the Court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. Unless from the correspondence it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The Court is required to review what the parties wrote and how they acted and from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to gather only from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind betw een the parties and they had actually reached an agreement, upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence."

(14.) In U.P. Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd. and others (1996) 2 SCC 667, the Supreme Court held that where the contract is in a number of parts it is essential to the validity of the contract that the contracting parties should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consensus ad idem.

(15.) The decision of the Supreme Court in the above judgments clearly indicate that the arbitrators are required to be appointed only under the provisions of section 11 of the Act of 1996 and that the powers under Section 8 to refer the parties to arbitration is available only in a pending matter where the party before submission of defence statement apply that the matter is subject to arbitration agreement. The conditions which are must before the powers under sub-section (1) of Section 8 are as follows :-

"(1) there is an arbitration agreement; (2) a party to the arbitration agreement brings an action in the Court against the other party; (3) subject matter of the action is same as subject matter of the arbitration agreement; and (4) the other party moves the Court for referring the parties to arbitration before he submits his first statement on the substance of the dispute."

(16.) It is, therefore, obvious that the word "party" referred to in sub-section (1) is the defendant against whom a suit has been instituted. The applicant of a petition under Section 8 is certainly not the party envisaged in sub-section (1). Besides, there must be an arbitration agreement to invoke the powers of the Court under the Section. The agreement has to be in compliance with the provisions of Section 7. It shall be in writing and signed by the parties, or intention thereof is available from exchange of letters, telex, telegrams and other means of telecommunication or exchange of statement of plaints and defence.

(17.) It is on this context that the legality, propriety and correctness of the orders under challenge need to be considered. In Misc. (Arb.) Case No. 95/2000, the learned civil Court passed the interim order restraining the appellant Airport Authority from interfering in the petitioner's possession at Lokapriya Gopinath Bordoloi Airport Restaurant and to maintain status-quo. The Court also issued a notice to show cause as to why this interim injunction shall not be made absolute. In para-20 of the judgment in M/s. Sundaram Finance Ltd. (supra), the Supreme Court made it clear that if an application is made under Section 9 for an interim measure, the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Only on such satisfaction the Court will have jurisdiction to pass orders under Section 9. The order dated 15.5.2000 do not evince that the learned civil Court passed the interim order after being satisfied that a valid arbitration agreement exists between the parties and that the applicant intends to settle the dispute by arbitration. The decision about the existence of a valid arbitration agreement and the intention of the party applying for interim measures have to be taken by the court at the first instance. In the instant case, no such decision has been taken before the impugned order was passed. Hence, in my opinion, in the normal course the matter has to go back to the learned Civil Court for a decision - (i) whether on the pleading and materials on record it could be concluded that the earlier arbitration agreement survives and, if not, (ii) whether from the correspondence and exchange of views undertaken, a consensus id idem could be gathered. Such an exercise is indispensible for the civil Court being the Court of first instance before any order is passed either under Section 8 or Section 9. But, remand of the matter at this belated stage will not be in aid of speedy dispensation of justice.

(18.) It is needless to say that M/s. Paradise Hotel and Restaurant not being the defendant in any suit cannot take recourse to provisions of section 8 for orders to refer the parties to arbitration. It is only the provisions of section 11 which may be invoked for appointment of arbitrator. Section 9 provides that a party may, before or during arbitral proceeding or at any time before the award is enforced in accordance with Section 36 could apply to the Court for interim measures including injunction. Section 36 provides for enforcement of the award which reads as follows:-

"36. Enforcement: Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court."

(19.) It would appear that enforcement of the award is complete only when it has been enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court. The arbitration agreement of 1981 was invoked and admittedly the award given by the sole arbitrator on 20/4/1993 was made a rule of the Court on 14/6/1993 in Arbitration Case No. 6/1993. But this decree has not been put into execution as provided under Section 36. The parties sought to implement the decree without aid of the execution proceedings. This resulted into dispute, but the fact remains that the M/s. Paradise Hotel and Restaurant have availed of the 5 years period recommended by the sole arbitrator. Since the provisions of section 8 is not available to M/s. Paradise Hotel and Restaurant on the ground that this petition under Section 8 read with Section 9 and 11 have been moved independent of any pending proceedings, it would be appropriate for them to request the learned Chief Justice of the High Court for consideration and appointment of arbitrator in exercise of the powers under Section 11(6) of the Act within the time to be stipulated hereinafter. This is indispensible because under the given situation the learned Chief Justice is the only authority empowered to resolve the dispute.

(20.) At this stage, I would like to dispose of the objection raised by Sri Chatterjee with regard to the maintainability of the appeal (F.A.O. No. 66/2000). Shri R.M. Chatterjee, learned senior counsel argued that this appeal (FAO No. 66/2000) against an interim order calling upon the appellant to show cause as to why the order of status- quo would not be made absolute is premature. It is argued that it was open to the appellant to approach the Court of first instance and question the legality and propriety of the said order. This appeal has been preferred undsr Section 37(1)(a) of the Act of 1996 which provides for an appeal against an order granting or refusing to grant any measure under Section 9. While issuing notice to show cause, the learned Court below has directed the parties to maintain status-quo and the Airport Authority is specifically directed not to interfere with the possession of the respondent M/s. Paradise Hotel and Restaurant. The order is interim in natutre and there is no doubt that the appellant authority could have approached the Civil Court for a final decision. But this cannot be a ground for rejection of the appeal since the Court below granted measure by way of maintaining status-quo, even though interim in nature. In Jabalpur Cable Network Pvt. Ltd.-Vs-E.S.P.N. Software India Pvt. Ltd. (AIR 1999 M.P. 271), the learned Single Judge in an appeal against an order passed under Section 9 refusing to grant ex-parte injunction observed that such decision would be appealable since it is a formal expression of an adjudication. In the instant case, ex-parte injunction has been granted without recording satisfaction about the existence of an arbitration agreement. Although the order is not final, yet it affects the substantive right of the appellant. Hence, it cannot be said that the appeal is not maintainable.

(21.) The judgment and decree passedion 4.4.2000 in T.S. No. 42/2000 has been challenged in R.F.A. No. 49/2000. The learned Civil Court directed that the decnee passed in Misc. (Arbitration) Case No. 6/1992 is binding on both the parties, the appellant Airport Authority have no legal competence to incorporate any extraneous matters inconsistent with the terms of the decree and that the direction given by the Airport Authority vide letter dated 23.5.1994 is inoperative in law. The Court further directed that the parties may settle the existing dispute through arbitration.

(22.) The first two directions given by the learned Civil Judge do not suffer any infirmity and illegality since the arbitration award given by the sole arbitrator was made a rule of the Court by the aforesaid decree dated 15/6/1993. No fault can be found with it. Even, the third direction that the Airport Authority is not competent to incorporate any extraneous matters beyond the terms of the decree also appears to be in conformity with the provisions of law, the terms of the decree being final. Now let us examine the fourth direction declaring the letter dated 23/5/1994 as inoperative. The relevant part of the letter is quoted below:-

"Be it stated that repeated reminders on our part, as stated above, has filed to evoke any response from you in the following matters: 1. Execution of the Agreement of Licence, which is indispensible for the relevant contract, without which you cannot be said to have proper authority to run business in the restaurant premise of Guwahati Airport. 2. (a) Payment of L/F in full, without deducting therefrom any rebate, whatsoever, (b) Payment of L/F monthly, on a regular basis, and thereby to avoid accumulation of arrears. (c) Payment of arrears of L/F, outstanding against you, along with interest thereon. 3. Pledging of Security Deposit equivalent to 6 (six) month's L/F. 4. Payment of revenue for the sale of Beer according to the clause incorporated in the (draft) agreement for licence, on that behalf. 5. Payment of 10% of gross sales on account of the Inflight Sales. 6. Filling of the statement of monthly sales in respect of : a) Inflight sales b) Beer sale in the Airport Restaurant. Under the above circumstances you are once again directed to execute the Agreement of Licence as well as to amend the matters as stated above within 15 (fifteen) clear days from the receipt of this letter; failing which the authority shall be constrained to determine your authority to run the Guwahati Airport Restaurant without prejudice to any other remedial action/measures which may be adopted by the authority, which please take notice."

(23.) By the above letter the Airport Authority incorporated certain terms and conditions which are not covered by the decree passed on 15/6/1993. Therefore, the learned Civil Judge declared the said letter directing the respondents M/s. Paradise Hotel and Restaurant to execute the agreement (Ext. 4) as inoperative. The learned Civil Judge discussed the matter in Issue No. 1 and 3 of the judgment with reference to the draft agreement (Ext. 4). This Court after going through the reasons recorded by the learned District Judge, the draft agreement, the original award and the decree passed on 15/6/1993 is of the opinion that matters as pointed out by the learned Judge have been incorporated in the draft agreement beyond the terms and conditions of the decree. Therefore, the fourth direction given by the learned District Judge cannot be held to be illegal.

(24.) The fifth and the last direction was issued calling upon the parties to settle the existing disputes through arbitration. This direction was arrived at after evaluation of facts, but the learned Judge failed to record his satisfaction that there exists a valid aubitration agreement between the parties to refer the existing disputes to arbitration. Prom this point of view, the direction cannot be sustained in law. Besides, it appears from the reliefs sought in the suit that there is no prayer for any direction to refer the parties to arbitration. Therefore, this direction of the Civil Court is beyond the pleadings and cannot be sustained. Consequently, this appeal (R.F.A. No. 49 of 2000) filed by the National Airport Authority has to be allowed in part to set aside the direction given to the parties to settle the disputes through arbitration.

(25.) With regard to the order dated 2/3/2000 challenged in F.A.O. No. 49/2000 it may be mentioned that the learned Civil Court refused to grant prohibitory order restraining the defendants from inviting or publishing notice inviting tenders regarding lease/licence of the Airport Restaurant. This order was passed on the ground that the issue relating to jurisdiction is yet to be decided. The prayer for grant of prohibitory orders under Order 39 Rule 1 and 2 of C.P.C. will follow the decision to be given in the writ petitions W.P.(C) Nos. 1974/2000 and 2375/2000. The grievances of the appellant M/s. Paradise Hotel and Restaurant will ipso facto be taken care of by the decision in the said two writ petitions.

(26.) Before the writ petitions are taken into consideration, it is considered imperative to place on record that Mr. Chatterjee while arguing the appeals repeatedly submitted that as per provisions of section 16 of the Act of 1996, it is the Arbitral Tribunal which alone has the powers to rule on its own jurisdiction including ruling on any objections, with respect to the existence or validity of tihe arbitration agreement. This argument of Sri Chatterjee, learned senior counsel, if accepted, will create a situation where regardless of the question as to the existence or validity of an arbitration agreement, each and every dispute has to be referred to Arbitral Tribunal for a decision thereon thereby rendering tide provisions of Section 11 redundant. Provisions of Section 8 contemplate arbitral proceeding only in an existing proceeding where the defendant bring to the notice of the Court that the dispute at hand is also subject to arbitration agreement. provisions of section 1 provide for appointment of arbitrator of certain eventualities. The powers under section 8 and 11 are available before commencement of arbitration proceeding. The powers under Section 16, as it appeans, may be invoked only after commencement of the arbitration proceeding con appointment of arbitrators either under Section 8 or Section 11. The powers of the Arbitral Tribunal under Section 16 are not in negation of the powers of the Court under Section 8 and powers of the Chief Justice of a High Court under Section 11. The argument advanced by Mr Chatterjee is not acceptable in law.

(27.) Writ Petitions No. WP(C) 1974/2000 and WP(C) 2375/2000 have been filed by M/s. Paradise Hotel and Restaurant and M/s. Guddi Enterprises assailing the Notice Inviting Tender dated 15.3.2000 issued by the Airport Authority for allotment of the Airport Restaurant on the ground that the Notice Inviting Tender has been drafted to oust the writ petitioners from filing tender documents to compete for settlement of the restaurant and that the terms and conditions contained therein are virtually the same with the Notice Inviting Tender dated 6.4.98 which was struck down by this Court on 16.6.98 in Misc. First Appeal No. 62/1998 disposed of along with Civil Rule No. 2159/1998.

(28.) The notice has been invited for grant of licence for operating the airport restaurant for an initial period of three years renewable for a period of additional two years at the discretion of the Airport Authority. The eligibility criteria prescribed and questioned in the writ petitions are as follows:- (a) Parties operating minimum three star or equivalent hotel having on line experience of more than three years. (b) having operating licence/registration, required as per law, for operating such establishment.

(29.) The NIT dated 15/3/2000 appears to be on the same terms and conditions incorporated in the earlier NIT dated 16/4/1998 quashed by this Court. It may be mentioned here that the orders passed in C.R. No. 2159/98 was challenged by the National Airport Authority in Writ Appeal No. 233/98. In the said writ appeal a Division Bench of this Court ordered as follows:-

"The counsel for the parties are agreed that this writ appeal be decided with the observation that the Airport Authority of India, Safdarjung Airport, New Delhi would be entitled to invite NIT in accordance with the law and the relevant rules and that the same be done at the earliest. It is further agreed that all the parties including the respondent would be entitled to apply for allotment of contract. The Airport Authority of India would give vide publication in the local newspapers as well as National Newspapers. In accordance with the agreement arrived at between the parties, the present writ appeal is disposed of."

(30.) Misc. Petition No. 39/2000 was filed by M/s. Paradise Hotel and Restaurant for review of the aforesaid order. The Division Bench vide order dated 10.4.2000 disposed of the review petition with the observation that the National Airport Authority shall be at liberty to call for a fresh NIT as per the National Airport Authority's standard terms and conditions, though not putting any cumbersome conditions, keeping in mind that the criteria so put in agreement be such as to meet public interest, and such terms and conditions be also within the four walls of entering into valid legal commercial contract.

(31.) Considering the above directions and the Airport Commercial Manual submitted by Sri Choudhury, learned senior counsel, this Court is of the opinion that the terms and conditions put in the NIT dated 15.3.2000 are not contrary to the standard norms. Therefore, the NIT cannot be faulted with. However, the order of the Division Bench passed on consent of the parties in the aforesaid appeal have to be taken care of by the Airport Authority while disposing of the tenders as and when the deck is cleared to proceed with the settlement process after the exercise as per observation made in para 19 is complete. Thiis would naturally mean that M/s. Guddi Enterprise or other similarly situated bidders would be allowed to submit their tender documents for consideration for allotment and for this purpose, if necessary, suitable orders may be passed to comply with the orders passed in Writ Appeal No. 233/98 and the Misc. Case No. 39/2000. Therefore, question of quashing the NIT dated 15.3.2000 does not arise. The writ petitions deserves to be disposed of accordingly.

(32.) The gamut of the entire situation and the various orders passed by different Courts in the litigation referred to above call tfor a comprehensive order to put an end to the controversy once for all. As stated earlier, the dispute centres around M/s. Paradise Hotel and Restaurant's insisrtence for initiation of arbitration proceedings to settle the dispute. Since the provisions of section 8 cannot be invoked in the instant case for want of a pending proceedings, the only course available to M/s. Paradise Hotel and Restaurant is to make a request to the learned Chief Justice of the High Court to pass appropriate orders in exercise of his powers under subsection (6) of Section 11. Consequently, it is ordered as follows:-

i) R.F.A. No. 49/2000 is hereby allowed in part and the judgment and decree dated 4.4.2000 is modified and the direction given by the Court below to the parties to settle their dispute through arbitration is hereby set aside; ii) FAO No. 66/2000 is allowed and the interim direction given by the Court vide order dated 15.5.2000 to maintain status-quo is hereby set aside for want of findings with regard to the existence of a valid arbitration agreement and intention of the applicants. The recourse to remand to pass orders afresh after hearing the parties is avoided only to sub-serve the cause of speedy dispensation of justice; iii) F.A.O. No. 49/2000 is hereby dismissed; iv) WP(C) No. 1974/2000 and WP(C) No. 2375/2000 are hereby disposed of subject to the observation made in para No.31. M/s. Paradise Hotel and Restaurant is to make a request before the learned Chief Justice within 15th February, 2002 to pass appropriate orders with regard to their prayer for appointment of arbitrator in accordance with the provisions of section 11; v) Till orders are passed by the learned Chief Justice under Section 11(6), the parties shall maintain status-quo and, thereafter, if the situation so permits, the aggrieved party may approach the appropriate forum for interim measures under Section 9; and vi) The National Ai-rport Authority may proceed with settlement process only after the request to be made by M/s. Paradise Hotel and Restaurant is disposed of by the learned Chief Justice.

(33.) The parties are directed to bear their respective costs.