Delhi High Court
Direct News Pvt. Ltd vs Dts Travels Pvt. Ltd on 3 March, 2025
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 03.03.2025
+ FAO (COMM) 53/2025 & CM APPL. 12360-61/2025
DIRECT NEWS PVT. LTD .....Appellant
Through: Ms Ekta Choudhary, Mr Anand
Krishna and Mr Ayush Kumar,
Advocates.
versus
DTS TRAVELS PVT. LTD .....Respondent
Through: Mr Deepak Dhingra and Ms Sneh
Somani, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE TEJAS KARIA
VIBHU BAKHRU, J. (ORAL)
1. The appellant is a media company and runs an English news channel
named ‘NewsX’. It was formerly known as INX News Private Limited. The
appellant has filed the present appeal under Section 37(1)(c) of the
Arbitration and Conciliation Act, 1996 [A&C Act] impugning an order
dated 30.07.2024 [impugned order] passed by the learned Commercial
Court in OMP (COMM) No.12/2020 captioned Direct News Pvt Ltd v. DTS
Travels Pvt Ltd whereby the appellant’s application under Section 34 of the
A&C Act was rejected.
2. The appellant had filed the said petition [OMP (COMM) No.12/2020]
assailing the Arbitral Award [impugned award] dated 18.09.2019 passed
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by the learned Sole Arbitrator [Arbitral Tribunal] whereby the Arbitral
Tribunal had awarded a sum of ₹45,58,193.11 (Rupees Forty-Five lacs
Fifty-Eight thousand One hundred Ninety-Three and Eleven paisa only)
along with pendente lite interest at the rate of nine per cent per annum in
favour of the respondent. The Arbitral Tribunal had further awarded future
interest at the rate of nine per cent per annum from the date of the impugned
award till the date of realisation, if the awarded amount was not paid within
the period of 30 days.
FACTUAL CONTEXT
3. The impugned award was rendered in the context of the disputes that
had arisen between the parties in connection with the Transport Agreement
dated 15.09.2011 [the Agreement]. The respondent is engaged in the
business of providing services of a ‘Cab Operator’ to public in general. The
appellant being desirous of availing such services had entered into the
Agreement. It was agreed that the term of the Agreement would be for three
years commencing from 05.09.2011, however, the same could be terminated
by either parties without assigning any reason by giving three months’
notice in writing1. Further, the appellant could also terminate the Agreement
forthwith without any notice if it was found that the respondent had failed to
discharge any of its obligations under the Agreement. Clauses 1.c and 1.d of
the Agreement are relevant and are reproduced as under: –
“1. Term and termination
c. Either party may terminate this agreement
without assigning any reason by giving 3 months1
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notice in writing to the other party.
d. Notwithstanding anything contained
hereinabove, INX News may terminate the
Agreement forthwith without any notice to the
Vendor, if in its opinion, the Vendor has failed to
discharge any of its obligations stipulated herein or
the Vendor commits a material breach of any term
or condition of this Agreement and fails to rectify
the same within fifteen (15) days of being
requested to do so. After the termination of the
Agreement, the Parties would settle dues if any
within a reasonable period of time.”
4. It was also agreed that the respondent would raise monthly bills in
two parts. First part being the Part A relating to fixed committed billing and
the second part, Part B, being the supplementary bill for extra
kilometres/hours at the agreed rates.
5. It is the respondent’s case that it provided the agreed services and
periodically raised the bills for the services rendered. However, the appellant
did not discharge the bills in entirety and a sum of ₹46,95,759/- (Rupees
Forty Six lacs Ninty Five thousand Seven hundred and Fifty Nine only)
remained outstanding. The respondent claimed that it sent legal notices
dated 24.09.2013, 22.10.2013, and 23.01.2014 and called upon the appellant
to pay the outstanding amount along with interest at the rate of twenty-four
per cent per annum, but the appellant failed and neglected to do so. In the
aforesaid circumstances, the respondent issued a notice dated 22.05.2015
under Section 21 of the A&C Act seeking reference of the disputes to
arbitration and also proposed the name of a former Judge of this court to be
appointed as the sole arbitrator. However, the appellant rejected the
respondent’s request.
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6. In view of the above, the respondent filed a petition under Section 11
of the A&C Act being Arb. P No.594/2015 in this court seeking
appointment of an arbitrator, which was allowed by an order dated
08.01.2016.
7. The respondent filed the statement of claim before the Arbitral
Tribunal, which was subsequently amended. The respondent by way of the
amended statement of claim dated 12.05.2017, claimed a sum of
₹46,95,759/- (Rupees Forty-Six lacs Ninety-Five thousand Seven hundred
and Fifty-Nine only) as outstanding. The appellant filed its statement of
defence, inter alia, claiming that the services provided by the respondent
were deficient on the following counts: (i) shortage of cabs; (ii) badly
maintained cabs; (iii) non availability of drivers; (iv) misbehaviour of
drivers; (v) non availability of GPS in cabs; (vi) tampered meters; and (vii)
non tax registration in Haryana.
8. In addition, the appellant also raised a counter claim for a sum of
₹10,97,259 (Rupees Ten lacs Ninety-Seven thousand Two hundred and
fifty-nine only). A tabular statement giving the break up of the counter claim
amount as set out in the statement of defence and counter claim filed by the
appellant is set out below: –
Description Amount (₹)
Cab Shortage 5,82,427
Uniform & GPS Mobile 4,79,032
Mobile Switched off 500
Tampered meter 4,500
Refused to go on shoot 2,000
Perfume and Tissue Paper 28,800
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Total 10,97,259
9. The appellant claimed that it had paid a sum of ₹1,04,01,482 to the
respondent against the aggregate amount of bills to the tune of
₹1,03,64,014/- as raised by the respondent. Thus, the appellant had paid an
excess amount of 37,468/- (Rupees Thirty Seven thousand Four hundred and
Sixty Eight only). The appellant did not produce any document or any other
material to establish the aggregate value of the bills as raised, but has relied
upon the figures as set out in the petition filed by the respondent under
Section 11 of the A&C Act.
10. It is material to note that in its petition under Section 11 of the A&C
Act the respondent had claimed that a sum of ₹46,95,759/-(Rupees Forty-
Six lacs Ninety Five thousand Seven hundred and Fifty Nine only) was
payable and it had raised the bills to the extent of ₹1,03,64,014/- during the
period from 20.09.2011 to 23.04.2013. However, in the amended statement
of claims, the respondent claimed that it had raised the bills aggregating an
amount of ₹1,50,59,773/- during the period of 20.09.2011 to 23.04.2013 and
also produced the copies of the said bills.
IMPUGNED AWARD
11. In view of the pleadings of the parties, the Arbitral Tribunal framed
the following issues for consideration: –
“1. Whether the Claimant is entitled for a sum of
Rs.46,95,759.00 (Rupees Forty Six lacs ninety five
thousand seven hundred Fifty Nine only) in view
of Transport Agreement dated 15.09.2011 andSignature Not Verified
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reconciliation statement dated 9th of November,
2012? OPC.
2. Whether the Respondent failed to make the
payment within the time prescribed under the
clause-8 of the Transport Agreement? OPC.
3. Whether the Respondent is entitled for an award
of Rs.11,34,727/- (Rupees Eleven lakhs thirty four
thousand seven hundred and twenty seven only) in
lieu of the reductions liable to be made by the
Respondent and the additional payment made by
the Respondent to the Claimant, under the
Agreement dated September 15, 2011? OPR.
4. Whether the Claimant is entitled for any interest
as claimed in the claim petition?
5. Whether the Respondent is entitled for any
interest as claimed in the counter-claim?
6. Relief.”
12. The Arbitral Tribunal examined the pleadings, rival contentions as
well as the evidence led by the parties and decided the issues in favour of the
respondent.
13. A plain reading of the impugned award indicates that the Arbitral
Tribunal accepted the respondent’s claim as the respondent had produced its
statement of account and copies of bills to establish its claims. However, the
appellant had not produced any document to counter the claims made by the
respondent.
14. The respondent examined two witnesses, who established the
statement of account as well as the bills raised. In addition, the respondent
also produced the copy of the reconciliation statement dated 09.11.2012,
which indicates that the appellant had agreed to pay a sum of ₹33,00,615/-
as on 09.11.2012 and further a sum of ₹7,64,328/- towards the bills raised by
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the appellant in September 2012. The Arbitral Tribunal noted that the parties
had reconciled the amounts due and had prepared a reconciliation statement.
Although the appellant had disputed the reconciliation statement, the record
indicated that the respondent had also sent emails dated 13.12.2014 and
15.01.2015, which were not specially controverted. In so far as the counter
claim is concerned, the Arbitral Tribunal found that the appellant had failed
to establish the same.
IMPUGNED ORDER
15. The appellant filed the petition under Section 34 of the A&C Act to
assail the impugned award on several grounds. The principal contention
advanced by the appellant was that the Arbitral Tribunal had erred in
ignoring the principles of the Indian Evidence Act, 1872. The appellant
claimed that the Arbitral Tribunal had accepted photocopies of the
documents including the invoices, which were disputed and reliance on such
secondary evidence is impermissible. The appellant claimed that these
documents were insufficient to establish the respondent’s claim. The
appellant contended that only the original invoices accompanied by the log
books could be looked into for establishing the amount due to the
respondent.
16. The learned Commercial Court did not accept the aforesaid contention
and held that in proceedings under Section 34 of the A&C Act, it was
impermissible for the Court to reappreciate the evidence and re-adjudicate
the claims. The learned Commercial Court referred to the decision of the
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Supreme Court in Arosan Enterprises Limited v. Union of India & Others2
and rejected the appellant’s prayer to set aside the impugned award.
REASONS AND CONCLUSIONS
17. Ms Ekta Choudhary, the learned counsel for the appellant has
earnestly contended that in terms of the Agreement, the respondent was
required to raise bills in two parts. She stated that there may not be the issue
regarding the first part, which was of fixed component and the same was
paid. But the respondent was required to establish variable dues
(supplementary amount) by producing the relevant log books to establish the
additional kilometres. She submitted that the respondent had not produced
the original log book before the Arbitral Tribunal and therefore, its claim
cannot be accepted.
18. Before proceeding further, it would be relevant to refer to clause no. 8
of the Agreement, which contains the provision regarding the bills. The
same reads as under: –
“8. ‘Billing’: The Vendor shall raise a monthly bill
in two parts. A Fixed Committed billing and Part-
B Supplementary bill for Extra Km/hrs at rates
agreed as per Schedule III, alongwith the
production of pay log books and other dues for its
duties which shall be paid by the client within 20
days of receipt of the same after deduction of tax at
source (TDS) as may be applicable and adjusting
any other amounts pursuant to any of the other
terms of the Agreement. The rates agreed will be
revised in the eventuality of hike in fuel prices.
Any charges in the rates per km. have to be agreed
2
(1999) 9 SCC 449Signature Not Verified
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by both parties in writing.”
19. There is no dispute that the respondent was required to periodically
raise bills comprising of two components. However, in the present case, the
respondent had produced the copies of the bills, which according to the
respondent, were furnished to the appellant. The witness examined on
behalf of the respondent also proved the copies of the original bills that were
submitted to the appellant.
20. The question whether the copies of the bills, were sufficient for the
Arbitral Tribunal to accept the respondent’s claim, is a question, which
relates to quality and quantity of evidence.
21. Having noted above, it is also relevant to note that the impugned
award does not rest solely on the copies of the bills claimed to have been
raised by the respondent. The respondent also produced the statement of
accounts, which reflected the quantum of bills raised as well as the amount
received. The witness examined by the appellant (CW1) admitted that the
parties were maintaining running account.
22. The respondent also produced a copy of the reconciliation statement
(Ex.CW1/6) and its witnesses testified to the said statement. Thus, the
respondent also led evidence to establish that the parties had reconciled the
accounts, and a sum of ₹33,00,615/- was outstanding as on 09.11.2012 and
further a sum of ₹7,64,328/- was payable towards the bill for the month of
September 2012. Apart from the above material, the respondent also
produced certain emails, which pertained to the claims raised by it.
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23. Whilst, the appellant disputed the accounts produced by the
respondent, but it did not produce the running account maintained in its
books despite acknowledging that it had maintained a running account. It
claimed that the copies of the bills raised by the respondent were bogus,
however, did not produce the copies of the bills that were furnished by the
respondent.
24. It is apparent from the reading of the impugned award that the
Arbitral Tribunal drew its conclusion after evaluating the evidence and
material produced by the parties.
25. We consider it apposite to set out the following passage from the
impugned award which is indicative of the above: –
“27. However, the Respondent did not file its
ledger, the invoices received by it from the
claimant, apart from some e-mails. From the
record it has not been pointed out by Respondent
as to which invoices they received and which they
did not receive. It has also not pointed the defects
in invoices as received by them. The Denials of
invoices, reconciliation statement, and Auditors
report are only reflected in the admission/Denial of
documents. But there is neither any plausible
explanation nor any documents filed as to whether
they received the same and whether they raised
any objections thereto. Before, the reference to
Arbitration Tribunal there is not a whisper or
grievance raised by the Respondents apart from
isolated protest on some isolated issues.
Admittedly no claims were also raised by the
respondents prior to the commencement of these
proceedings. It is also not the case of the
Respondent in their pleadings that it did not
receive any invoices. Only during admission/Signature Not Verified
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denial of documents, the Respondent denied some
of the documents which is not supported by its
pleadings. The only bald averment made is that the
invoices are “bogus and manufactured”. However,
they failed to bring on record any of the invoices
actually received by them.
28. Not only this, to the specific questions (Nos. 40
& 41) of the cross examination put to Sumit
Kumar Dewan (RWI) by the Ld. Counsel for the
claimant, he admitted that both the claimant and
Respondent maintained a running account of the
invoices. For the sake of convenience, the said
questions and answers are reproduced hereunder:
Q.40: It is correct that for the invoices
raised by the claimant was maintaining a
running account?
Ans: Yes, it is correct.
Q.41: Was the respondent also
maintaining a running account for the
invoices raised by the claimant upon it?
Ans: Yes, it is correct.
29. Not only this, to question No.42, the said
witness also admitted that the running account as
maintained by the Respondent was in the
possession and control of the Respondent.
30. Again, in the answer to question no.52 the said
witness admitted that there were no reservations on
behalf of the Respondent regarding the services of
the claimant when the current management of the
Respondent took over from the previous
management.
31. In para 10 of the affidavit in evidence filed by
RWI, it was deposed that in terms of the agreement
the respondent had right to make reductions from
the bills raised by the claimant. However, in
answer to a specific question (question 53) in this
regard to the effect as to whether there are any
such document on record, the said witness said “atSignature Not Verified
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present, I cannot find any document, however,
shall inform the Tribunal by the next date”. I
have carefully perused the record. It is a fact that
are no such document which exist on record.”
26. It is material to note that the provisions of Indian Evidence Act, 1872
are not applicable to the arbitral proceedings. Section 1 of the Indian
Evidence Act, 1872 as well as the Section 19 of A&C Act expressly
stipulate that the Indian Evidence Act, 1872 is not applicable to arbitral
proceedings. However, its trite that the fundamental principles of the said
enactment would serve as a guide for the Arbitral Tribunal to evaluate the
material and draw its conclusions.
27. As noted above, the impugned award is informed by the material
placed by the parties on record. Thus, this is not a case where the impugned
award is based on no material or evidence at all. It is settled law that the
Arbitral Tribunal is the sole judge of the quality and quantity of the
evidence.
28. In P.R. Shah, Shares and Stock Brokers Pvt. Ltd. v. B.H.H.
Securities Private Limited and Ors.3, the Supreme Court observed as under:
“21. A court does not sit in appeal over the award of an
Arbitral Tribunal by reassessing or reappreciating the
evidence. An award can be challenged only under the
grounds mentioned in Section 34(2) of the Act. The Arbitral
Tribunal has examined the facts and held that both the
second respondent and the appellant are liable. The case as
put forward by the first respondent has been accepted. Even
the minority view was that the second respondent was liable
3
(2012) 1 SCC 594Signature Not Verified
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as claimed by the first respondent, but the appellant was not
liable only on the ground that the arbitrators appointed by
the Stock Exchange under Bye-law 248, in a claim against a
non-member, had no jurisdiction to decide a claim against
another member. The finding of the majority is that the
appellant did the transaction in the name of the second
respondent and is therefore, liable along with the second
respondent. Therefore, in the absence of any ground under
Section 34(2) of the Act, it is not possible to re-examine the
facts to find out whether a different decision can be arrived
at.”
29. In Parsa Kente Collieries Limited v. Rajasthan Rajya Vidyut
Utpadan Nigam Limited4, the Supreme Court had referred to an earlier
decision and observed as under:
“… A possible view by the arbitrator on facts has
necessarily to pass muster as the arbitrator is the ultimate
master of the quantity and quality of evidence to be relied
upon when he delivers his arbitral award. It is further
observed that thus an award based on little evidence or on
evidence which does not measure up in quality to a trained
legal mind would not be held to be invalid on this score.”
30. A similar view also resonates to a number of decisions rendered by
the Supreme Court5.
31. It is well settled that the court is not required to reappreciate or re-
evaluate the evidence and reagitate the disputes. The scope of examination
under Section 34 of the A&C Act is confined to determining whether the
4
(2019) 7 SCC 236
5
Associate Builders v. Delhi Development Authority: (2015) 3 SCC 49; Swan Gold Mining Ltd. v.
Hindustan Copper Ltd.: (2015) 5 SCC 739; State of U.P. v. Allied Constructions: (2003) 7 SCC 396; and
Atlanta Limited v. Union of India: (2022) 3 SCC 739
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arbitral award is required to be set aside on the grounds as set out under
Section 34(2) and 34(2)(a) of the A&C Act6.
32. In view of the above, we are unable to accept that the impugned
award warrants any interference under Section 34 of the A&C Act. The view
expressed by the Arbitral Tribunal is a plausible view. There is no ground
made out for setting aside the impugned award. We concur with the learned
Commercial Court’s decision in rejecting the application of the appellant
under Section 34 of the A&C Act.
33. The appeal is, unmerited and, accordingly, dismissed. Pending
applications are disposed of.
VIBHU BAKHRU, J
TEJAS KARIA, J
MARCH 03, 2025
M Click here to check corrigendum, if any
6
The Project Director, NHAI v. M. Hakeem and Another, (2021) 9 SCC 1; MMTC Ltd. v. Vedanta Ltd.,
(2019) 4 SCC 163.
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