BEFORE LD. SOLE ARBITRATOR;

DELHI INTERNATIONAL ARBITRATION CENTER,  

NEW DELHI.

ARBITRATION CASE NO. DIAC/2927/03-21.

IN THE MATTER OF:-

_________________                 : CLAIMANT

VERSUS

_____________________________

_____.                                                 : RESPONDENTS

EVIDENCE BY WAY OF AFFIDAVIT OF THE CLAIMANT (CW1)

Affidavit of Sh. _______ aged about ___ years, S/o _____________, New Delhi-110065., do hereby solemnly affirm and declare as under:-

1.              That I am the Claimant in the present case and as such I am well conversant with the facts of the present case, and therefore, am competent to depose this affidavit.

2.              I state that the Deponent is the absolute and exclusive owners of Super Built Up area 1008 Sq. ft.  and carpet area 865 Sq. ft. of the property bearing no____________, New Delhi (hereinafter called as subject property).

3.              I further state that in __________, the respondents approached the Deponent on behalf of respondent no. 1 and expressed their desire to take the subject property on rent/lease for running the business under the name and style ‘’Cultfit Fitness Centre’’. Accordingly, the Deponent let out the said premises to the respondents vide registered lease agreement dated ________ for a period of 09 years on monthly rental of Rs.75,000/- exclusive of electricity and water charges and other charges as mentioned in the lease agreement. That as per clause 6 of the Lease Agreement, the lock-in period for the same was mutually decided to be 03 years from the date of commencement. Copy of Lease Agreement dated _____ is Ex.CW1/1.

4.              I further state that the respondents assured and represented to the Deponent that respondents are in-charge & responsible for the day to day affairs of respondent no. 1 company and are all designated Directors and Authorized Representatives of respondent no. 1. That the respondents have breached the terms of the lease agreement and the respondents are in gross violation of the terms of the lease deed.

5.              I further state that the respondents did not pay the rent for more than two consecutive months i.e. the period of April and May 2020 for the leased premises and even thereafter. Further, on the contrary the respondents have sent an e-mail dated 05.06.2020 to the Deponent whereby respondents have illegally terminated the lease agreement at their own whims and fancies. That the Deponent has fulfilled all obligations as required by the lease agreement, however, the respondents with malafide intent have sent termination mail to the Deponent which is not tenable under the eyes of law. Copy of email dated ______ is Ex.CW1/2.

6.              I further state that it was to the astonishment and dismay to the Deponent, when suddenly 12-14 of respondents hired persons / contractors entered the leased premises and took away all the assets and all articles of their company in the early morning hours on __________. The said action of the respondents are bad in law per-se, as the leased premises were vacated without prior knowledge and intimation to the Deponent coupled with the fact that there is arrears of rent for more than two months. The said fact was duly intimated and acknowledged to the concerned police station by registered letter / complaint.

7.              I further state that the Deponent had sent a proposal to the respondents, keeping in view the light of the pandemic situation and generously offered a substantial relief in rent vide letter and email dated _______ , in order to continue good relations with the respondents, but the conduct of the respondents was rather indifferent, non-cooperative, callous and evasive, which apparently shows the malafide intent on their part. Copy of letter and email dated _________ is Ex.CW1/3.

8.              I further state that the respondents have vacated the leased premises and presently the Deponent is in absolute physical possession of the leased premises. That the respondents despite vacating the premises, are in arrear of rent for the month of ___________, which is due towards them apart from the rent for the lock in period as mutually agreed between both parties as per registered deed dated _______.

9.              I further state that by way of the legal notice dated ___________ the Deponent in terms of the lease agreement, due to gross violation and breach of terms of the lease agreement, and by virtue of Clause 20.3 of the lease agreement terminated the lease, since the respondents have not paid rent for two consecutive months, the said lease agreement stands terminated. Although, the Deponent has taken the vacant physical possession of the premises, the respondents are still liable to pay an outstanding rent for the unpaid period of __________ along with the rent for the period up-to ___________, being the agreed lock in period as per clause 6 of the Lease agreement along with other charges incurred by the Deponent on account of assurances and representations made by the respondents, that they will continue the lease minimum up-to the lock in period. Copy of legal notice dated __________ is Ex.CW1/4.

10.           I further state that as per clause 6 of the Registered Lease Deed which categorically states that for ‘’any reason’’ of termination of the lease, the lessee i.e. the respondents will have to pay rent for the unused period of lock-in period.

11.           I further state that the Deponent has terminated the lease agreement vide notice dated _______ with respect to the said leased premises on account of non-payment of rent, and accordingly, terminated their said tenancy on the expiry of 15 days from the date of receipt of said notice and also called upon the respondents to make the payment of arrears of rent and rent for the unpaid lock in period amounting to Rs._________/-  (Rs. 75,000/- p.m. X 24 Months (24 Months Lock in is remaining) – ____________) for the tenanted subject premises.

12.           I further state that the respondents have breached the terms of the lease agreement and the respondents are in gross violation of the terms of the lease deed and the respondents have not paid the rent for more than two consecutive months i.e. the period of April and May, 2020 for the leased premises in addition to the rent for the lock in period. Further, on the contrary the respondents have sent an e-mail dated __________ to the Deponent whereby respondents have illegally terminated the lease agreement at their own whims and fancies. That the Deponent have fulfilled all obligations as required by the lease agreement, however, the respondents with malafide intent have sent termination mail to the Deponent which is not tenable under the eyes of law. That other issues/disputes along with the above said issues have also been raised by the Deponent in their Legal notice dated _________ sent through the Counsel.

13.           I further state that by way of the notices dated _________ and __________, the Deponent terminated the lease agreement, due to gross violation and breach of terms of the lease agreement, and by virtue of Clause 20.3 of the lease agreement, since the respondents have not paid rent for two consecutive months. Although, respondents have taken the actual physical possession of the premises, the respondents are still liable to pay an outstanding rent for the unpaid period of _________ along with the rent for the period up-to ________, being the agreed lock in period as per clause 6 of the Lease agreement i.e. Rs. ______/- in addition to other charges incurred by the Deponent because of the mis-representations and false assurances made by the respondents. Copy of legal notice dated _________ is Ex.CW1/5 and copy of reply filed by respondents dated ____________ is Ex.CW1/6.

14.           I further state that the Deponent based on the assurances of the respondents, that they will continue with the leased premises for the minimum lock in period which expires on ______, the Deponent got the conversion of the leased premises to commercial and paid an amount of Rs. ________/- to the Municipal Corporation of Delhi on _________ for the said purpose. Had the Deponent known that the assurance of the respondents is malafide and they do not intend to continue till the lock in period also, then the Deponent would not have invested such amount for conversion of the premises.

15.           I further state that the Deponent states that the obligations, representations, warranties, covenants, averments and promises under the Lease Agreement dated __________ have turned out to be false, incomplete and inaccurate and that respondents have defaulted and failed to perform and discharge their part of payment to be made to the Deponent under the said Agreement.

16.           I further state that the process provided under Clause 28.1 is now exhausted on account of respondents lack of cooperation and the said clause is being invoked by the Deponent by way of the notice dated __________ and made request to the respondents to either pay the arrears of rent as claimed by the Deponent or appoint the Arbitrator for adjudication of the dispute in terms of the agreement. Copy of legal arbitration notice dated __________ is Ex.CW1/7.

17.           I further state that the said Ld. Arbitrator sent the notice dated __________ to the respondents as well as the Deponent for appearance and in response to the said notice, respondents sent an objection letter dated __________ and further also moved an application dated _________ under Section 13(2) r/w 16 of Arbitration and Conciliation Act whereby raising objections by the respondents to discontinue the arbitral proceedings as well as withdraw the notice of appearance dated _______. Copy of notice for appearance by Ld. Arbitrator dated _________ is Ex.CW1/8.

18.           I further state that on _____ the Deponent served the notice of invocation of the arbitral clause under the agreement dated __________ to the Respondents. It is trite to mention that the respondents neither bothered to reply to the said arbitration notice despite the fact that the same was duly received to the respondents, and only thereafter at a belated stage they chose to object to the Ld. Arbitrator and challenged the notice of the Arbitrator dated ______. Thus, by such conduct of the Respondents, it is evident that the Respondent is not only in the breach of its contractual mandate but also disrespects the rule of law and the only objective of the respondents is to delay the present dispute between the parties. Copy of application filed by the respondents dated _________is Ex.CW1/9.

19.           I further state that thereafter on receipt of objections from the respondents, the Sole Arbitrator appointed by the Deponent was pleased to withdraw himself from the said proceedings and the same was communicated by e-mail dated ______ sent to the Deponent as well respondents.

20.           I further state that the Deponent has been compelled to invoke the arbitration clause, which had been incorporated to combat such disputes arising between the parties for the resolving of disputes or settlements of such matters between the parties relating to the agreement as narrated above.

21.           I further state that in light of the aforesaid, the Deponent  herein was constrained to approach the Hon’ble Delhi High Court and file Arbitration Petition bearing no. ________ under Section 11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of sole arbitrator under the aegis of Delhi International Arbitration Center. Accordingly the Hon’ble High Court vide order dated _________ was pleased to refer the disputes under the ageism of DIAC and constituted the present arbitration tribunal.  Copy of the Arbitration Petition bearing No._________ filed by the Deponent before the Hon’ble High Court of Delhi is Ex.CW1/10 and copy of the order dated _______ passed by Hon’ble High Court in Arbitration Petition bearing No__________ is Ex.CW1/11.

22.           I further state that the Deponent received the mail of the DIAC on __________ to submit the statement of claim within 15 days, however due to lockdown scenario in Delhi and also the Deponent and his wife who suffered from COVID-19 infection, which unfortunately the wife of the Deponent expired on _________ due to corona; the Deponent was not able to file the statement of claim, and is now filing the same.

23.           I hereby state that whatever is stated hereinabove is true and correct to the best of my knowledge.

DEPONENT

VERIFICATION :-

          Verified at Delhi on this _____, day of December, 2024 that the contents of paras 1 to 23 of my above evidence affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT