Evidence affidavit of claimant (CW1) in arbitration proceedings before DIAC
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BEFORE THE LEARNED SOLE ARBITRATOR,
DELHI INTERNATIONAL ARBITRATION CENTRE,
NEW DELHI.
ARBITRATION CASE NO. Arbitration case number.
IN THE MATTER OF:-
Claimant's name: CLAIMANT
VERSUS
First respondent's name
Respondents 2 to 4 names.: RESPONDENTS
EVIDENCE BY WAY OF AFFIDAVIT OF THE CLAIMANT (CW1)
Affidavit of Sh. Deponent's name, aged about Deponent's age years, S/o Deponent's father's name, Deponent's address, who 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 am competent to depose this affidavit.
2.I state that the Deponent is the absolute and exclusive owner of Area of leased premises of the property bearing no. Property number and address, New Delhi (hereinafter referred to as the "subject property").
3.I further state that in Date respondents approached claimant for lease, 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 a business under the name and style "Business name of respondent company". Accordingly, the Deponent let out the said premises to the respondents vide registered lease agreement dated Date of registered lease agreement for a period of Lease period in years years on a monthly rent of 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 in years years from the date of commencement. Copy of the Lease Agreement dated Date of lease agreement (exhibit) is Ex.CW1/1.
4.I further state that the respondents assured and represented to the Deponent that the respondents were in charge of and responsible for the day-to-day affairs of respondent no. 1 company and were all 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 period of Months of unpaid rent in respect of the leased premises, and even thereafter. Further, on the contrary, the respondents sent an email dated Date of respondents' termination email to the Deponent whereby the respondents 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 mala fide intent, sent the termination email to the Deponent, which is not tenable in the eyes of law. Copy of the email dated Date of respondents' termination email is Ex.CW1/2.
6.I further state that it was to the astonishment and dismay of the Deponent when suddenly Number of respondents' hired persons/contractors hired persons/contractors of the respondents entered the leased premises in the early morning hours on Date premises were vacated and took away 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 prior knowledge or intimation to the Deponent, coupled with the fact that there were arrears of rent for more than two months. 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, generously sent a proposal to the respondents offering substantial relief in rent vide letter and email dated Date of rent relief proposal letter and email, in order to continue good relations with the respondents; however, the conduct of the respondents was indifferent, non-cooperative, callous and evasive, which apparently shows the mala fide intent on their part. Copy of the letter and email dated Date of relief proposal letter (exhibit) 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 of the leased premises. That the respondents, despite vacating the premises, are in arrears of rent for the month of Month of outstanding rent, which is due towards them, apart from the rent for the lock-in period as mutually agreed between the parties as per the registered deed dated Date of registered lease deed.
9.I further state that, by way of the legal notice dated Date of legal notice terminating lease, the Deponent, in terms of the lease agreement and by virtue of clause 20.3 thereof, terminated the lease on account of gross violation and breach of the terms of the lease agreement, since the respondents had not paid 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 are still liable to pay the outstanding rent for the unpaid period of Unpaid rent period along with the rent for the period up to End date 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 lock-in period. Copy of the legal notice dated Date of legal notice (exhibit) 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 pay rent for the unused period of the lock-in period.
11.I further state that the Deponent terminated the lease agreement with respect to the said leased premises by notice dated Date of lease termination notice on account of non-payment of rent, and accordingly terminated the said tenancy on the expiry of 15 days from the date of receipt of the said notice, and also called upon the respondents to pay the arrears of rent and rent for the unpaid lock-in period amounting to Rs. Amount of arrears and lock-in rent claimed (₹)/- (Rent calculation details (Months of lock-in period remaining lock-in period remaining) – Amount of security deposit or deductions (₹))) 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 not paid the rent for more than two consecutive months, i.e. for the period of Months 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 email dated Date of respondents' termination email to the Deponent whereby they 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 mala fide intent, sent the termination email to the Deponent, which is not tenable in the eyes of law. That other issues/disputes, along with the issues stated above, were also raised by the Deponent in the legal notice dated Date of legal notice sent through counsel sent through counsel.
13.I further state that, by way of the notices dated Date of first termination notice and Date of second termination notice, the Deponent terminated the lease agreement on account of gross violation and breach of the terms of the lease agreement, and by virtue of clause 20.3 thereof, since the respondents had not paid rent for two consecutive months. Although the respondents have taken actual physical possession of the premises, the respondents are still liable to pay the outstanding rent for the unpaid period of Unpaid rent period along with the rent for the period up to End date of lock-in period, being the agreed lock-in period as per clause 6 of the Lease Agreement, i.e. Rs. Amount of lock-in period rent (₹)/-, in addition to other charges incurred by the Deponent on account of the misrepresentations and false assurances made by the respondents. Copy of the legal notice dated Date of legal notice (exhibit) is Ex.CW1/5 and copy of the reply filed by the respondents dated Date of respondents' reply to notice is Ex.CW1/6.
14.I further state that, acting upon the assurances of the respondents that they would continue in the leased premises for the minimum lock-in period expiring on Expiry date of lock-in period, the Deponent obtained conversion of the leased premises to commercial use and paid an amount of ₹ Amount paid for conversion to commercial use (₹)/- to the Municipal Corporation of Delhi on Date of payment to Municipal Corporation of Delhi for the said purpose. Had the Deponent known that the assurance given by the respondents was malafide and that they did not intend to continue even till 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 have turned out to be false, incomplete and inaccurate, and that the respondents have defaulted in, and failed to, perform and discharge their obligations of payment to the Deponent under the said Agreement.
16.I further state that the process provided under Clause 28.1 now stands exhausted on account of the lack of cooperation of the respondents, and the said clause has been invoked by the Deponent by way of the notice dated Date of arbitration clause invocation notice, 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. Copy of the legal arbitration notice dated Date of arbitration notice (exhibit) is Ex.CW1/7.
17.I further state that the learned Arbitrator issued a notice dated Date of arbitrator's notice of appearance to the respondents as well as to the Deponent for appearance before him. In response to the said notice, the respondents sent an objection letter dated Date of respondents' objection letter and also moved an application dated Date of respondents' application under Section 13(2) under Section 13(2) r/w Section 16 of the Arbitration and Conciliation Act, raising objections and seeking discontinuance of the arbitral proceedings as well as withdrawal of the notice of appearance dated Date of notice of appearance. Copy of the notice for appearance issued by the learned Arbitrator dated Date of arbitrator's appearance notice (exhibit) is Ex.CW1/8.
18.I further state that on Date of service of arbitration invocation notice the Deponent served upon the respondents the notice of invocation of the arbitral clause contained in the Agreement dated Date of lease agreement. It is pertinent to mention that the respondents did not care to reply to the said arbitration notice despite its due receipt, and only thereafter, at a belated stage, chose to raise objections to the learned Arbitrator and challenged the notice of the Arbitrator dated Date of arbitrator's notice challenged by respondents. 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 present dispute between the parties. Copy of the application filed by the respondents dated Date of respondents' application (exhibit) is Ex.CW1/9.
19.I further state that upon receipt of the objections from the respondents, the learned Sole Arbitrator, who had been appointed by the Deponent, was pleased to withdraw himself from the said proceedings, and the same was communicated by e-mail dated Date of arbitrator's withdrawal email 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 had been incorporated in the Agreement precisely to resolve and settle disputes of the nature arising between the parties in relation 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 under Section 11(6) 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 (DIAC). Accordingly, the Hon'ble High Court, vide order dated Date of High Court order referring dispute to DIAC, was pleased to refer the disputes to DIAC and constituted the present Arbitral Tribunal. Copy of the Arbitration Petition bearing No. Arbitration petition number (exhibit) filed by the Deponent before the Hon'ble High Court of Delhi is Ex.CW1/10, and copy of the order dated Date of High Court order (exhibit) passed by the Hon'ble High Court in Arbitration Petition bearing No. Arbitration petition number in order is Ex.CW1/11.
22.I further state that the Deponent received an e-mail from DIAC on Date of DIAC email regarding statement of claim directing the Deponent to file the statement of claim within fifteen (15) days. However, owing to the lockdown situation in Delhi and the fact that the Deponent and his wife suffered from COVID-19 infection, and the wife of the Deponent unfortunately expired on Date of death of deponent's wife due to corona, 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 Month and 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 that nothing material has been concealed therefrom.
DEPONENT