Paridhi Arya
Published on: April 5, 2022 at 15:38 IST
The Single Judge Bench of Justice Vibhu Bakhru of Delhi High Court upheld the award passed by the Arbitration Tribunal in Indian Tourism Dvelompent Corporation Ltd vs Bougainvillea Multiplex & Entertainment Centre Pvt. Ltd. Stating that if under a license agreement there is a clause of “as is where is basis” than also the liability of the party does not discharge .
The party of the contract needs to disclose the condition premise under agreement which cannot be seen at the time of inspection.
The Indian Evidence Act 1872 is not applicable in Arbitral proceedings and because of this Court need not take all the evidence again which is represented in front of Arbitral proceedings.
The problem is that the property licensed by the plaintiff has a water leakage issue that is why defendant terminated the contract and under section 11 of Arbitration and Conciliation Act 1996 filed the petition for appointing the Arbitrator.
The Arbitration Tribunal asked the plaintiff to pay damages to the defendant as they had breached their duty to disclose about it. The aggrieved plaintiff filed this case under section 34 of Arbitration and Conciliation Act 1996 in Delhi High Court.
The counsel raised the objection that the award is erroneous on ex facie basis and award is based on the report of independent engineer which is not taken as evidence as it is not signed and the agreement is on “as is where is basis” so plaintiff is not responsible for water leakage.
“The award of damages is premised on the finding that ITDC had breached its obligations to make a fair disclosure regarding the Premises and to ensure that the same was fit for the purpose for which the same was licenced. Thus, this Court is unable to accept that any interference is warranted in regard to the said award of damages.” stated in court.
Indian Evidence Act 1872 is not applicable in Tribunal that is why the report of Independent engineer cannot be denied on the basis that certificate is not provided.
By stating such reasons court upheld the Tribunals decision but set aside the part dealing with loss to reputation and profit.
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