Evidence affidavit of claimant (CW1) in arbitration proceedings before DIAC
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BEFORE LD. SOLE ARBITRATOR;
DELHI INTERNATIONAL ARBITRATION CENTER,
NEW DELHI.
ARBITRATION CASE NO. DIAC/Arbitration case number/03-21
IN THE MATTER OF:-
Claimant's name: CLAIMANT
VERSUS
Respondent's name: RESPONDENTS
EVIDENCE BY WAY OF AFFIDAVIT OF THE CLAIMANT (CW1)
Affidavit of Sh. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o Deponent's address, who hereby solemnly affirms and declares as under:-
1.That I am the Claimant in the present proceedings and, as such, I am fully conversant with the facts and circumstances of the present case, and am therefore competent to depose to this affidavit.
2.I state that the Deponent is the absolute and exclusive owner of the super built-up area measuring 1008 sq. ft. and the carpet area measuring 865 sq. ft. of the property bearing no. Property number, Property locality, New Delhi (hereinafter referred to as the "subject property").
3.I further state that in Month of lease negotiation Year of lease negotiation, the Respondents approached the Deponent on behalf of Respondent No. 1 and expressed their desire to take the subject property on rent/lease for the purpose of running a business under the name and style of "Business name of lessee Centre". Accordingly, the Deponent let out the said premises to the Respondents vide a registered lease agreement dated Date of lease agreement for a period of 09 years, on a monthly rental of Rs. Monthly rent (₹)/-, 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 was mutually agreed to be Lock-in period (years) years from the date of commencement. A copy of the Lease Agreement dated Date of lease agreement is Ex. CW1/1.
4.I further state that the Respondents assured and represented to the Deponent that the Respondents are in charge of and responsible for the day-to-day affairs of Respondent No. 1 company, and that they are designated Directors and Authorised Representatives of Respondent No. 1. That the Respondents have breached the terms of the lease agreement and are in gross violation of the terms of the lease deed.
5.I further state that the Respondents failed to pay the rent for more than two consecutive months, i.e., for the months of First month of unpaid rent and Second month of unpaid rent Year of unpaid rent in respect of the leased premises, and even thereafter. Further, on the contrary, the Respondents sent an e-mail dated Date of termination email by respondents to the Deponent, whereby the Respondents illegally terminated the lease agreement at their own whims and fancies. That the Deponent has fulfilled all obligations required under the lease agreement; however, the Respondents, with malafide intent, sent the termination e-mail to the Deponent, which is not tenable in the eyes of law. A copy of the e-mail dated Date of termination email by respondents is Ex. CW1/2.
6.I further state that it was to the astonishment and dismay of the Deponent that, on Date respondents vacated premises, persons and contractors hired by the Respondents entered the leased premises in the early morning hours and removed all the assets and articles of their company. The said action of the Respondents is bad in law per se, inasmuch as the leased premises were vacated without any prior knowledge or intimation to the Deponent, coupled with the fact that arrears of rent for more than two months were outstanding. The said fact was duly intimated to, and acknowledged by, the concerned police station by way of a registered letter/complaint.
7.I further state that the Deponent, keeping in view the pandemic situation, sent a proposal to the Respondents vide letter and e-mail dated Date of rent relief proposal letter, generously offering substantial relief in rent in order to maintain good relations with the Respondents; however, the conduct of the Respondents remained indifferent, non-cooperative, callous and evasive, which apparently demonstrates their malafide intent. A copy of the letter and e-mail dated Date of rent relief proposal letter is Ex. CW1/3.
8.I further state that the Respondents have vacated the leased premises, and the Deponent is presently in absolute physical possession thereof. That despite vacating the premises, the Respondents are in arrears of rent for the months of First month of rent arrears and Second month of rent arrears Year of rent arrears, which remains due towards them, apart from the rent for the lock-in period as mutually agreed between the parties as per the registered lease deed dated Date of registered lease deed (day).Date of registered lease deed (month).Date of registered lease deed (year).
9.I further state that, by way of the legal notice dated Date of legal notice (day).Date of legal notice (month).Date of legal notice (year), the Deponent, in terms of the lease agreement, and by virtue of Clause 20.3 thereof, terminated the lease on account of the gross violation and breach of its terms by the Respondents, who failed to pay rent for two consecutive months, and the said lease agreement accordingly stands terminated. Although the Deponent has taken vacant physical possession of the premises, the Respondents remain liable to pay the outstanding rent for the unpaid period of First month of unpaid rent and Second month of unpaid rent Year of unpaid rent, together with the rent for the period up to End month of lock-in period End year of lock-in period, 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 the assurances and representations made by the Respondents that they would continue the lease for a minimum period up to the expiry of the lock-in period. A copy of the legal notice dated Date of legal notice (day).Date of legal notice (month).Date of legal notice (year) is Ex. CW1/4.
10.I further state that, as per Clause 6 of the Registered Lease Deed, which categorically provides that, for "any reason" of termination of the lease, the lessee, i.e., the Respondents, shall be liable to pay rent for the unexpired period of the lock-in period.
11.I further state that the Deponent terminated the lease agreement in respect of the said leased premises vide notice dated Date of lease termination notice (day).Date of lease termination notice (month).Date of lease termination notice (year) on account of non-payment of rent, and accordingly terminated the said tenancy with effect from the expiry of 15 days from the date of receipt of the said notice, and further called upon the Respondents to make payment of the arrears of rent and the rent for the unexpired lock-in period amounting to Rs. Arrears of rent and lock-in rent claimed (₹)/- (Rs. Monthly rent (₹)/- per month × 24 months, i.e., 24 months of the lock-in period remaining, from Start month of remaining lock-in period Start year of remaining lock-in period to End month of remaining lock-in period End year of remaining lock-in period) in respect of the tenanted subject premises.
12.I further state that the Respondents have breached the terms of the lease agreement and are in gross violation of the terms of the lease deed, and have failed to pay the rent for more than two consecutive months, i.e., for the months of First month of unpaid rent and Second month of unpaid rent Year of unpaid rent, in respect of the leased premises, in addition to the rent for the lock-in period. Further, on the contrary, the Respondents sent an e-mail dated Date of termination email by respondents to the Deponent, whereby the Respondents illegally terminated the lease agreement at their own whims and fancies. That the Deponent has fulfilled all obligations required under the lease agreement; however, the Respondents, with malafide intent, sent the termination e-mail to the Deponent, which is not tenable in the eyes of law. That other issues/disputes, in addition to the above-said issues, have also been raised by the Deponent in the legal notice dated Date of legal notice through counsel (day).Date of legal notice through counsel (month).Date of legal notice through counsel (year) sent through Counsel.
13.I further state that by notices dated Date of first termination notice (day).Date of first termination notice (month).Date of first termination notice (year) and Date of second termination notice (day).Date of second termination notice (month).Date of second termination notice (year), the Deponent terminated the lease agreement on account of gross violation and breach of its terms, and in exercise of Clause 20.3 of the lease agreement, since the respondents failed to pay rent for two consecutive months. Although the respondents have taken actual physical possession of the premises, they remain liable to pay the outstanding rent for the unpaid months of First month of unpaid rent and Second month of unpaid rent Year of unpaid rent, together with rent for the period up to End month of lock-in period End year of lock-in period, being the agreed lock-in period as per Clause 6 of the lease agreement, that is, Rs. Lock-in period rent amount (₹)/-, in addition to other charges incurred by the Deponent owing to the misrepresentations and false assurances made by the respondents. A copy of the legal notice dated Date of legal notice (day).Date of legal notice (month).Date of legal notice (year) is Ex.CW1/5, and a copy of the reply filed by the respondents dated Date of respondents' reply (day).Date of respondents' reply (month).Date of respondents' reply (year) is Ex.CW1/6.
14.I further state that, in reliance upon the assurances of the respondents that they would continue to occupy the leased premises for the minimum lock-in period expiring on Expiry month of lock-in period Expiry year of lock-in period, the Deponent obtained conversion of the leased premises to commercial use and paid an amount of Rs. Conversion charges paid to MCD (₹)/- to the Municipal Corporation of Delhi on Date of payment to MCD for that purpose. Had the Deponent known that the assurances of the respondents were mala fide and that they did not intend to continue in occupation until the expiry of the lock-in period, the Deponent would not have invested the said amount in the conversion of the premises.
15.I further state that the obligations, representations, warranties, covenants, averments and promises contained in the Lease Agreement dated Date of lease agreement (day).Date of lease agreement (month).Date of lease agreement (year) have proved to be false, incomplete and inaccurate, and that the respondents have defaulted in and failed to perform and discharge the payments due from them to the Deponent under the said Agreement.
16.I further state that the process contemplated under Clause 28.1 now stands exhausted on account of the lack of cooperation of the respondents, and the said clause is being invoked by the Deponent by way of the notice dated Date of arbitration notice (day).Date of arbitration notice (month).Date of arbitration notice (year), whereby the respondents were requested either to pay the arrears of rent as claimed by the Deponent or to appoint an Arbitrator for adjudication of the dispute in terms of the agreement. A copy of the arbitration notice dated Date of arbitration notice (day).Date of arbitration notice (month).Date of arbitration notice (year) is Ex.CW1/7.
17.I further state that the said Ld. Arbitrator issued a notice dated Date of arbitrator's notice (day).Date of arbitrator's notice (month).Date of arbitrator's notice (year) to the respondents as well as to the Deponent for their appearance, and in response thereto, the respondents sent an objection letter dated Date of respondents' objection letter (day).Date of respondents' objection letter (month).Date of respondents' objection letter (year) and also moved an application dated Date of respondents' Section 13 application (day).Date of respondents' Section 13 application (day).Date of respondents' Section 13 application (day) under Section 13(2) read with Section 16 of the Arbitration and Conciliation Act, whereby they raised objections seeking discontinuation of the arbitral proceedings as well as withdrawal of the notice of appearance dated Date of notice of appearance (day).Date of notice of appearance (month).Date of notice of appearance (year). A copy of the notice for appearance issued by the Ld. Arbitrator dated Date of arbitrator's appearance notice (day).Date of arbitrator's appearance notice (month).Date of arbitrator's appearance notice (year) is Ex.CW1/8.
18.I further state that on Date of invocation of arbitral clause (day).Date of invocation of arbitral clause (month).Date of invocation of arbitral clause (year), the Deponent served upon the respondents a notice of invocation of the arbitral clause contained in the agreement dated Date of arbitration agreement (day).Date of arbitration agreement (month).Date of arbitration agreement (year). It is pertinent to note that the respondents did not even reply to the said arbitration notice despite its due receipt, and only at a belated stage did they choose to object to the Ld. Arbitrator and challenge the notice of the Arbitrator dated Date of arbitrator's notice (day).Date of arbitrator's notice (month).Date of arbitrator's notice (year). By such conduct, it is evident that the respondents are not only in breach of their contractual mandate but also show disrespect to the rule of law, and that their sole objective is to delay the resolution of the present dispute between the parties. A copy of the application filed by the respondents dated Date of respondents' application (day).Date of respondents' application (month).Date of respondents' application (year) is Ex.CW1/9.
19.I further state that thereafter, upon receipt of the objections from the respondents, the Sole Arbitrator appointed by the Deponent was pleased to withdraw from the said proceedings, and the same was communicated by e-mail dated Date of arbitrator's recusal email (day).Date of arbitrator's recusal email (month).Date of arbitrator's recusal email (year) sent to the Deponent as well as to the respondents.
20.I further state that the Deponent has been compelled to invoke the arbitration clause, which was incorporated to address and provide for the resolution or settlement of such disputes between the parties relating to the agreement, as narrated above.
21.I further state that in light of the aforesaid, the Deponent was constrained to approach the Hon'ble Delhi High Court and file Arbitration Petition bearing No. Arbitration petition number of Year of arbitration petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, for the appointment of a sole arbitrator under the aegis of the Delhi International Arbitration Centre. Accordingly, the Hon'ble High Court, vide order dated Date of High Court order (day).Date of High Court order (month).Date of High Court order (year), was pleased to refer the disputes under the aegis of DIAC and constitute the present arbitral tribunal. A copy of the Arbitration Petition bearing No. Arbitration petition number/Year of arbitration petition filed by the Deponent before the Hon'ble High Court of Delhi is Ex.CW1/10, and a copy of the order dated Date of High Court order passed by the Hon'ble High Court in Arbitration Petition bearing No. Arbitration petition number/Year of arbitration petition is Ex.CW1/11.
22.I further state that the Deponent received an e-mail from DIAC on Date of DIAC email (day).Date of DIAC email (month).Date of DIAC email (year) directing the Deponent to file the statement of claim within fifteen days. However, owing to the lockdown situation in Delhi, and as the Deponent and his wife suffered from COVID-19 infection — the Deponent's wife unfortunately expired on Date of wife's death (day).Date of wife's death (month).Date of wife's death (year) due to COVID-19 — the Deponent was unable to file the statement of claim within the said period, 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 and belief.
DEPONENT
VERIFICATION :-
Verified at Delhi on this Date of verification day of December, Year of verification, that the contents of paragraphs 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