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TMI Blog2012 (7) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... aul of the rake; (c) Railways be entitled to recover the haulage cost; (d) The Respondent with their associate agencies will manage on board/off board services, marketing, booking, pricing, etc." 2. The Petitioner came to be selected as the Joint Venture shareholder for the operation of the Luxury Tourist Train Project. On 11th January, 2008, the Respondent forwarded the draft Memorandum of Understanding, which was proposed to be executed between the Petitioner and the Respondent, to the Indian Railways. In terms of the said Memorandum of Understanding, the Petitioner and the Respondent would be equal shareholders of the Joint Venture Company and the project cost was estimated at ₹ 37.5 crores, out of which an amount of ₹ 7.5 was to be contributed by the Ministry of Tourism as a grant and an amount of ₹ 15 crores was to be contributed as advance lease rental by the Petitioner as its share. In addition to the above, the Petitioner was to bring in the funding for the project and the Luxury Tourist Train was to be leased by the Respondent to the Joint Venture Company for a period of 15 years, which could be extended by another period of 10 years on conditions to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its clients, who were mainly from foreign countries. Discontinuance of operation would also besmirch the reputation of the Indian Government. 8. One of the other concerns of the Petitioner was that it had been looking after the marketing and the bookings internationally and within India and such bookings had been made much in advance. It was the case of the Petitioner that the Joint Venture Company had received and was holding approximately 400 bookings up to December, 2011 and such bookings had been made by various international travel companies. 9. The prayer for interim directions was contested by the Respondent on several grounds. One of the grounds taken was that by making relief on the basis of the Joint Venture Agreement, the Petitioner was trying to get a lease in favour of the Joint Venture Company, which was neither a party to the proceedings nor to the Agreement. It was further contended that, in fact, the lease was never executed in favour of the Joint Venture Company and the rights of the Petitioner could not go beyond what had been laid down in the Articles of Association of the Joint Venture Company. It was also urged that since the relationship between the Joint V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to have their disputes resolved by the appointment of an Arbitral Tribunal which would be at liberty to decide the disputes without being influenced by the order passed on the application under Section 9 of the 1996 Act. The rights and contentions of both sides were also kept open for submission before the Arbitral Tribunal, if appointed. 11. The order of the learned Single Judge was challenged by IRCTC Ltd. by way of FAO(OS)Nos.433-35 of 2011. 12. The submissions made before the learned Single Judge were reiterated on behalf of both the parties before the Division Bench, but a new dimension was attempted to be added to the submissions advanced on behalf of the Petitioner, M/s Cox & Kings India Ltd. An attempt was made to make out a case that the Joint Venture Company was akin to a partnership and the train in question was partnership property. The Division Bench took note of the fact that the total cost of the train was ₹ 49.5 crores, which had been borne by IRCTC and was even recorded in Article 6 of the Agreement. Apart from the above, not only the shell train, but even the cost of the interior, fittings and furnishing was borne by IRCTC. The Division Bench also noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Single and allowed the appeal preferred by the Respondent herein. 15. It is against the said judgment and order passed by the Division Bench of the Delhi High Court on 6th January, 2012 in FAO(OS)Nos.433-35 of 2011, that the present Special Leave Petitions have been filed by M/s. Cox & Kings India Ltd. 16. Appearing for the Petitioner Company, Mr. Mukul Rohatgi, learned Senior Advocate, submitted that the primary reason for filing of the writ petition was to protect and save the image and goodwill of the Petitioner Company in the field of global tourism. Mr. Rohtagi submitted that it is in that context that a prayer had been made on behalf of the Petitioner Company for stay of operation of the termination of the Lease Arrangement by the Respondent IRCTC by its letter dated 12th August, 2012. Mr. Rohatgi submitted that almost the entire expenses for commencing operations in respect of the Maharaja Express had been borne by the Petitioner Company in different forms, and in view of the promises contained in the Memorandum of Understanding and the Agreement executed between the Petitioner Company and the Joint Venture Company, the termination of the Lease Arrangement was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f various reasons and, in particular, on account of non-payment of the dues of IRCTC. The learned Solicitor General submitted that the letter terminating the Joint Venture Agreement was the subject matter of the Section 9 Application before the learned Single Judge of the High Court, who, by his order dated 6th September, 2011, allowed the prayers made therein in part and issued a mandatory injunction and also appointed a Receiver for operation of train between the months of September to December, 2011. However, the train was never operated under the Receiver on account of the interim orders passed in the appeal on 9th September, 2011. 20. The learned Solicitor General reiterated the fact that on 6th January, 2012, the Division Bench set aside the order passed by the learned Single Judge which was, in any event, to operate only till 31st December, 2011. 21. The learned Solicitor General urged that there was no ambiguity regarding the ownership of the train and it had been clearly understood by all concerned that it was IRCTC which was to be the owner of the train and that the Joint Venture Company was to be formed for management and operation of the train. It had also been made c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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