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TMI Blog2020 (10) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ants paying the complete decretal amount to the respondents on or before 30.06.2010, failing which the Award along with interest would stand as it is. 2. The appellants are in the business of running of restaurants/eateries and manufacture & sale of sweets and other food items. The appellants are running their business under the brand name "Nathu's Sweets". In the year 1990, the appellants entered into two separate licence agreements with the respondents whereunder it was agreed that the appellants will operate and run a restaurant cum sweets shop at the respondents' premises and make payment to the respondents on commission basis. The first licence agreement dated 27.08.1990 was executed between appellant no. 1M/ s. Arun Kumar Kamal Kumar through appellant no.2Arun Kumar Gupta and respondent no.1 M/s. Selected Marble Home through respondent no.2Anil Kumar Jain and two other partners of the said respondent no. 1 firm and the second agreement of the same date was executed between appellant no. 1M/ s. Arun Kumar Kamal Kumar through appellant No.2Arun Kumar Gupta and respondent no.3Bhim Sain Jain. 3. According to the appellants, the respondents started violating the terms of the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amages for the period during which the business was closed but the appellants had retained possession of the respondents' premises. It is the case of the appellants that in this statement of accounts submitted before the Learned Arbitrator, inadvertent errors had crept in. Firstly, the appellants argue that the sales tax paid on the sales was inadvertently not deducted to arrive at the commission payable. Secondly, the expenses incurred on electricity and water bills were inadvertently deducted from the sales instead of deducting the same from the amount of commission payable to the respondents, as the same were their liability as per Clause 14 in both of the Agreements entered into between the parties. Learned Arbitrator published his award on 16.03.1998. 8. The appellants challenged the said award before the High Court. The Learned Single Judge vide judgment and order dated 04.11.2004 rejected the objections and made the award of the Arbitrator rule of the court. As noticed above, the Division Bench of the High Court has confirmed the judgment of learned Single Judge, apart from allowing a reduction in the rate of interest applicable to postaward interest. 9. We have heard lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no commission payments were made. Thus, it was argued that the findings of fact recorded by the courts below do not call for interference in this appeal. 11. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 12. As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15A regarding damages payable to the respondents. The Learned Arbitrator has rejected the plea of the appellants that they had to close the business because of the obstructionist tactics adopted by the respondents and for that reason the business activities remained closed from April, 1991 to November, 1995. On a detailed consideration of the materials on record, the Learned Arbitrator had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electricity supply and the appellants used generator set for electricity. The contention of the appellants is that the expenses incurred towards generator ought to have been deducted from the gross commission payable and not from the gross sale amount and then the commission should have been calculated at the contractually stipulated rates of 6% and 5%. This plea has been dealt with by learned Single Judge as under: "The other mistake pointed out of deduction of expenses on diesel generator set from sales rather than from commission payable, even if made out, also cannot be permitted to be withdrawn at this stage especially when the respondents have already deducted and paid taxes on the basis of said statement. Under the agreement the electricity and water charges of the premises were to be borne by the petitioners. Admittedly, the premises/shop on reopening were without electricity and diesel generator set arranged. There is no dispute that the expenses therefor were to be borne by the petitioners. The respondents while furnishing the statement to arbitrator, did direct the same. The objections now that such deduction was wrongly done is not tenable?" This contention has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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