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Judgment
In this application the respondent in the arbitral proceeding, being the appellant in APO No.233 of 2018 has prayed for modification of the order dated September 10, 2018 passed by this Court in the appeal, APO No.233 of 2018. The applicant had filed the said appeal, APO No. 233 of 2018, under Section 37 of the Arbitration and Conciliation Act, 1996 (in short, 'the Act of 1996') against an order dated May 15, 2018 passed by the learned Arbitrator under Section 17 of the Act of 1996. The disputes between the parties in the arbitration arose out of the Management Contract dated April 04, 1995, as modified by the revised management agreement dated September 19, 2005 (hereinafter referred to as "the management contract") under which the applicant was allowed to run the sad tourist lodge namely, Digha Tourist Lodge II (hereinafter referred to as " the said tourist lodge").
Indisputably, the present respondent has terminated the management contract and it is in control and possession of the said tourist lodge to the exclusion of the applicant. By the said order dated May 15, 2018 the learned arbitrator had allowed the present respondent, also the claimant in the arbitration to proceed with the tender for renovation of the said tourist lodge. However, by the said order dated May 15, 2018 the arbitrator further directed that nothing should be done to disturb the status quo in respect of the tourist lodge. In a separate appeal, APO 249 of 2018 filed under Section 37 of the Act of 1996, the present respondent had also challenged the said order of the arbitrator dated May 15, 2018 in so far as the same directed that nothing should be done to disturb the status quo in respect of the tourist lodge. The applicant has not claimed any relief, in the arbitration, for recovery of possession of the tourist lodge. However, as per the said revised management agreement dated September 19, 2005 the applicant may be entitled to remove or take away the furniture, fixture and other movable assets which it had brought into the said tourist lodge. By a common judgment and order dated September 10, 2018 this Court rejected the appeal, APO No.233 of 2018 filed by the applicant and allowed the appeal, APO No. 249 of 2018 filed by the present respondent. By the said order, this Court allowed the present respondent to proceed with the e-tender notice dated March 28, 2018. This Court further directed that in the event the respondent in the arbitral proceeding is not interested to retain the furniture, fixture and other movable assets financed by the applicant (the claimant in the arbitration), lying at the said tourist lodge, in terms of Clause 19 of the revised management contract dated September 19, 2005 it shall forthwith communicate such decision to the applicant and thereafter, the Advocates-on-Record of the respective parties in the appeals, as Special Officers shall make an inventory of the said furniture, fixture and other movable assets.
As mentioned earlier, the applicant has filed this application praying for modification of the said order dated September 10, 2018. This application has been filed on December 19, 2018. The ground urged by the applicant in support of its prayer in the application is that on November 20, 2018 it obtained a change from its erstwhile Advocate-on-Record Sri Ganesh N. Jajodia and engaged the present Advocate-on-Record. In this connection, it is to be noted that by two communications dated September 28, 2018 and November 14, 2018 the present respondent through its Advocate informed the then Advocate-on-Record of the petitioner that it is not at all interested to retain the furniture, fixture and other movable assets financed by the applicant ands lying at the said tourist lodge. The copies of the said letters dated September 28, 2018 and November 14, 2018, as produced by Mr. Ghosh appearing for the present respondent, are kept on record.
Learned Counsel appearing for the applicant could not dispute receipt of the said letters dated September 28, 2018 and November 14, 2018 by the then Advocate-on-Record of the applicant. It was only on November 20, 2018 when the applicant obtained change from its Advocate-n-Record, namely, Sri Jajodia.
It was strenuously contended by the respondent that the entire exercise of the applicant belatedly changing its Advocate-on-Record is motivated and the same was aimed to delay the inventory of its furniture and fixtures lying at the said tourist lodge, as well as to stall the progress of the arbitral proceeding between the parties.
In the facts of the present case, as already discussed I find substance in the above contentions raised by the present respondent. Accordingly, subject to payment of costs assessed at Rs.10,000/- (Rupees Ten Thousand only) by the petitioner to the State Legal Services Authority within January 10, 2019, the petitioner's prayer in this application shall be considered favourably.
Accordingly, let this application appear in the list, under the same heading, on January 11, 2019 for passing appropriate order in this application.