FAO (COM ) 175/2024 & connected appeals Page 1 of 34 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 28 .07.2025 Judgment delivered on: 20 .08.2025 + FAO (COM ) 175/2024, CM APL. 52685/2024 (Stay) & CM APL. 44943/2025 (Delay of 113 days in filing the reply to appeal) JITENDER PAL SINGH HUF ...Appellant Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus M /S OYO APARTM ENTS INVESTM ENTS (LLP) ...Respondent Through: M r. Ashish M ohan, Sr . Adv . along with M r . Diptiman Acharya & M r. Sagar Pradhan, Advs . + FAO (COM ) 193/2024, CM APL. 56310/2024 (Stay) & CM APL. 44180/2025 (Delay of 113 days in filing the reply to the appeal) JUVELLO HOM ES PVT. LTD. ...Appellant Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus M /S OYO APARTM ENTS INVESTM ENT (LLP) ..Respondent Through: M r. Ashish M ohan, Sr . Adv . along with M r. Diptiman Acharya & M r.Sagar Pradhan, Advs. + FAO (COM ) 194/2024, C M APL. 56909/2024 (Stay) & CM APL. 44940/2025 (Delay of 113 days in filing the reply to the appeal) FAO (COM ) 175/2024 & connected appeals Page 2 of 34 VIBRUS HOM ES PVT. LTD. ...Appellant Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus M /S O YO APARTM ENTS INVESTM ENTS (LLP) ..Respondent Through: M r. Ashish M ohan, Sr . Adv . along with M r. Diptiman Acharya & M r.Sagar Pradhan, Advs. + FAO (COM ) 199/2024, CM APL. 57915/2024 (Stay) & CM APL. 44945/2025 (Delay of 113 days in filing the reply to appeal) RAUNAK INTERNATIONAL ...Appellant Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus M /S OYO APARTM ENTS INVESTM ENTS (LLP) ...Respondent Through: M r. Ashish M ohan, Sr Adv along with M r. Diptiman Acharya & M r.Sagar Pradhan, Advs. + FAO (COM ) 203/2024, CM APL. 59614/2024 (Stay) & CM APL. 44944/2025 (Delay of 113 days in filing the reply to appeal) CONVEST BUILDCON PVT. LTD ...Appellant Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus FAO (COM ) 175/2024 & connected appeals Page 3 of 34 M /S OYO APARTM ENTS INVESTM ENTS(LLP) ..Respondent Through: M r. Ashish M ohan, Sr . Adv . along with M r. Diptiman Acharya & M r.Sagar Pradhan, Advs. + FAO (COM ) 252/2024 & CM APL. 8440/2025 (restoration of main case) CONVEST OVERSEAS PVT. LTD. ...Appellant Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus M /S OYO APARTM ENTS INVESTM ENT (LLP) ..Respondent Through: M r. Ashish M ohan, Sr . Adv . along with M r. Diptiman Acharya & M r.Sagar Pradhan, Advs. + FAO (COM ) 67/2025 & CM APL. 13370/2025 (Interim relief) JEET CORPORATION AND ANOTHER ...Appellants Through: M r. Pawanjit Singh Bindra, Senior Advocate with M r. Udit Gupta and M r. T.S. Sawhney, Advocates. versus M /S OYO APARTM ENTS INVESTM ENT (LLP) ..Respondent Through: M r. Ashish M ohan, Sr Adv along with M r. Diptiman Achary a & M r.Sagar Pradhan, Advs. CORAM : HON'BLE M R. JUSTICE ANIL KSHETARPAL HON'BLE M R. JUSTICE HARISH VAIDYANATHAN SHANKAR FAO (COM ) 175/2024 & connected appeals Page 4 of 34 % JUDGEM ENT HARISH VAIDYANATHAN SHANKAR J. 1. These appeals under Section 37 of the Arbitration and Conciliation Act, 1996 1, have ben filed against separate orders, all dated 07.06.2024, passed by the learned District Judge (Com m ercial Court -10), Central, Tis Hazari Courts, Delhi 2, in petitions filed by the appellants under Section 34 of the A&C Act, whereby the learned Judge dismissed the said petitions and consequently upheld the separate arbitral awards, all dated 25.01.2023, passed by the learned Arbitrator. 2. Before delving into the legal submissions, it is important to note certain excerpts from the Arbitral Award dated 25 .01.2023, which set out the relevant and analogous background to the present appeals. The following paragraphs from the Arbitral Award, rendered in one of the connected matters [ FAO (COM M ) 175/2024 ], are particularly illustrative: - ³2. The Claimant entered into a M anagement Services Agreement dated 2.7.2019 with the Respondent, in respect of a property owned by the Respondent in M alka Ganj, Delhi, whereunder the Claimant was to pay 70% of the revenue share to the Respondent for the fir st three months, folowed by the same share of the revenue, with a minimum guarante stipulated in the Agreement, in the remaining term of the Agreement. The net revenue was to be derived by excluding, from the payments colected from the occupants, the sa le proceeds of the fod and beverages sold at the property. The term of the Agreement was agreed at two years with a Lock -in -Period of 11 months. Some payments in terms of the said Agreement were made by the Claimant to the Respondent. The claimant made an Interest Free Refundable Security Deposit of Rs. 6,20,0/ (Six Lacs Twenty Thousand Only) with the respondent. 1A&C Act 2District Court FAO (COM ) 175/2024 & connected appeals Page 5 of 34 3. As many as seven identical Agreements were executed by the Claimant, with seven diferent entities. Al the seven entities were represented by the same person as their Authorised Representative and by the same counsel. The properties subject mater of these seven Agreements were being managed by a comon person, who apeared in the witnes box as their Authorised Representative . 4. On 1.9.202 , it was agreed that for the purpose of recording the cros -examination of the witneses, al the seven maters may be consolidated so that the cros -examination pertaining to al the seven cases was recorded in one case and read and considered for the pur pose of al the seven cases. One witnes namely M s. Ankita M unjal was examined by the Claimant. A comon Authorised Representative was examined on behalf of al the seven Respondents . 5. The Agreement between the parties is titled as "M anagement Services A greement". The Claimant is described as the Service Provider / Party of the First Party, whereas the Respondent is described as the Owner/Party of the Second Part, in the Agreement. It is recorded in the preamble that "The Owner is desirous of engaging a Service Provider for providing the services in the premises on an exclusive basis and on the terms and conditions as more specificaly agreed hereunder." * 7. Vide an email dated 28.1.2019, the Claimant asked the Respondent to provide the documents spec ified therein and informed that the said documents are mandatorily required to run its operations. It was also stated in the email that further payment to the Respondent would be put on hold till the said documents were provided. The documents so sought by the Claimant were not provided to it. 8. On 1 M arch, 2020, an advisory on Social Distancing M easures was isued by Government of India, M inistry of Health and Family W elfare, in the wake of breakout of the pandemic COVID -19. The case of the Claimant is t hat to adres the situation created by the pandemic throughout countries, lockdowns were imposed and non - esential travel was curbed. As a result, bokings in the Hotels were canceled and travel plans were shelved. The Claimant, vide its email dated M arc h 30, 2020, referring to the situation created by the spread of COVID -19, sought to re -visit the Agreement it had executed with the Respondent and as an interim measure, proposed a revised revenue sharing model with efect from 12.3.2020. It was also state d in the said email that because of the situation created by the pandemic COVID - 19, the Claimant was left with no option but to invoke Force M ajeure and suspend payment of the monthly rent and/or any other amount payable to the Respondent under the Agreeme nt. It was further stated that though the Claimant was wel within its right to terminate the FAO (COM ) 175/2024 & connected appeals Page 6 of 34 Agreement, it was refraining from taking such a drastic step while reserving its right to do so should the circumstances continue to deteriorate. However, the Res pondent did not respond to the proposed revenue sharing model. 9. Vide its notice dated 2.5.2020, purporting to be sent under Clause 10.3(a) of the Agreement, the Claimant, refering to its email dated 28.1.2019 requested the Respondent to provide al the necesary documents within 30 days of the notice and informed that not providing the said documents would vitiate the Agreement which shal stand terminated forthwith, if the documents were not provided within 30 days. It was also stated in the said notic e that the Claimant had received complaints from the occupants informing that the Respondent was colecting the rom tarif directly from them. The Respondent was caled upon to render accounts of al such colections with efect from December, 2019. The A rbitration Clause contained in the Agreement was also invoked and an Arbitrator named in the Notice was proposed with a request to the Respondent to confirm his apointment as a Sole Arbitrator. 10. The Respondent sent a Reply through its Advocate on 27.2. 2021 stating therein that al the necesary documents had already been provided to the Claimant, the subject premises was already in its posesion and the busines was going on smothly. It was stated in para 6 of the Reply that "due to non -availability o f inhouse stay supervisor from your Client's side, residents deposited fee to my Client's W arden whose salary was agreed to be borne by your Client." The Respondent sugested another Arbitrator to adjudicate the disputes between the parties. 1. Disputes having arisen between the Claimant and al those seven entities, the Hon'ble High Court of Delhi was pleased to apoint me as the Arbitrator to adjudicate al those disputes. The nature of the disputes between the parties is identical though the reliefs cl aimed by the parties are not comon . (Emphasis suplied ) 3. In the present appeals, the Appellants have raised a limited and common issue, and with the consent of both parties, all appeals were heard together. For consistency and clarity, arguments and references during the hearing were made from the record of FAO (COM M ) 175/2024 only. Acordingly, this judgment shall also refer to the contents of FAO (COM M ) 175/2024 , and for ease of reference, the Appellants will FAO (COM ) 175/2024 & connected appeals Page 7 of 34 hereinafter FROOHFWLYHO\ EH UHIHUUHG WR DV Apellant(s) ´ DQG WKH 5HVSRQGHQWDV³ OYO ´. 4. The core submission advanced by the learned Senior Counsel for the Appellant, which was even duly recorded by this Court at the stage of issuing notice, is that the arbitral award dated 25.01.2023 suffers from patent perversity, as the learned Arbitrator failed to duly consider a critical aspect of the case. It is contended that the alleged breach attributed to the Appellant, namely , the failure to furnish ownership documents, stood impliedly waived or condoned on 30.03.2020, when OYO itself issued a communication i nviting the Appellant to re -negotiate the financial terms under the M anagem ent Services Agrem ent dated 20.08.2019 3. 5. At this stage, it is apposite to set out the relevant background facts that form the basis of the present controversy, which are: (a) On 20.08. 2019, t he Appellant and OYO entered into a M anagement Services Agrementfor the operation and management of a property located at various locations in Delhi, which were primarily intended to serve as acommodation facilities. Prior to this, a draft version of the agrement was exchanged betwen the parties on 22.07.2019. The arangement under the said Agreement was structured on a revenue -sharing model, wherein OYO, acting as the service provider, was entitled to receive a M anagement Fe based on the net re venue generated from the said properties. 3Agrement FAO (COM ) 175/2024 & connected appeals Page 8 of 34 (b) On 28.11.2019, OYO, by way of a formal email, raised a specific request calling upon the Appellant to provide essential regulatory and legal documents. These included, inter alia , a No -Objection Certificate from th e local Society or Resident W elfare Association as well as clearances from the local Police authorities. OYO explicitly stated in the said communication that the absence of these documents would amount to a material compliance lapse and further made it cle ar that all future payments would be put on hold until such documents were submitted by the Appellant. (c) However, notwithstanding the aforesaid request, the Appellant did not provide the relevant documents, and by December 2019, the Appellant allegedly began collecting room charges directly from the residents of the subject premises, which constituted a clear violation of the terms of the said Agrement. This act of GLUHFW FROOHFWLRQ RI UHYHQXH VLJQ operational and financial visibili ty with respect to the said property. Consequently, OYO was unable to acurately monitor or track the revenue generated from the premises from that point onward. (d) On 11.03.2020, the W orld Health Organization oficially declared COVID -19 as a global pandemic . In response, the Government of India invoked the provisions of the Epidemic Diseases Act, 1897 , on 12.03.2020 and implemented a series of nationwide lockdown measures, including severe restrictions on movement and FAO (COM ) 175/2024 & connected appeals Page 9 of 34 business operations. Domestic air travel was suspended starting from 25.03.2020. These unprecedented restrictions gravely impacted the hospitality and accommodation sectors across the FRXQWU\LQFOXGLQJ2<2¶VRSHUDWLRQ (e) In light of the extraordinary and unforeseen circu mstances arising from the COVID -19 pandemic, OYO, vide communication dated 30.03.2020, issued a Force M ajeure Notice to the Appellant. In this notice, OYO stated that due to the closure of educational institutions and the mass departure of students, ocupa ncy levels at the subject premises had drastically declined. Consequently, OYO proposed a revised revenue -sharing arangement, reducing its share to 30% of the net revenue. (f) Thereafter, on 02.05.2020, OYO issued a formal Notice to the Appellant under Claus es 10.3(a) and 11.2 of the Agreement. In this Notice, OYO refered to its earlier email dated 28.11.2019 and once again requested the Appellant to furnish all the required documents within a period of 30 days. It was categorically stated that failure to pr ovide the said documents within the stipulated period would result in automatic termination of the Agreement . OYO also alleged that it had received several complaints from ocupants stating that the Appellant had ben collecting room tarifs directly from them. Acordingly, the Appellant was called upon to disclose and render accounts of all such collections made from the residents with efect from December 2019 onwards. In the same notice, for the purpose of resolving the issues regarding FAO (COM ) 175/2024 & connected appeals Page 11 of 34 Thereafter, OYO filed a Rejoinder. The Appellant also filed a Counter -Claim before the learned Arbit rator, seeking certain reliefs against OYO in addition to its defence. (k) After considering the pleadings, evidence, and submissions made by both sides, the learned Arbitrator passed an Arbitral Award dated 25.01.2023. In the said Award, the learned Arbitrato r dismissed the counter -claims raised by the Appellant and partially allowed certain claims made by OYO. (l) Aggrieved by the said Arbitral Award dated 25.01.2023, the Appellant filed a Petition under Section 34 of the A&C Act before the learned District Judge. (m) After due consideration of the pleadings, material on record and contentions of the parties, the learned District Judge, vide impugned Order dated 07.06.2024, dismissed the said Petition filed by the Appellant, thereby afirming the Arbitral Award. On the same line, in other cases also, the learned District Judge dismissed the Petitions. (n) It is against these dismissals that the p resent set of appeals has ben prefered by the Appellant (s) under Section 37 of the A&C Act. ANALYSIS : 6. This Court has heard both parties at length and has undertaken a detailed consideration of the pleadings, Impugned Orders and Arbitral Awards . FAO (COM ) 175/2024 & connected appeals Page 12 of 34 7. At the o utset, it is necessary to reiterate that this Court is fully conscious of the limited scope of appellate jurisdiction under Section 37 of the A&C Act . Judicial interference with arbitral awards is strictly circumscribed and may only be exercised on well -se ttled and narow JURXQGV $V REVHUYHG E\ WKH +RQ¶EOH Punjab State Civil Supplies Corpn. Ltd. v. Sanman Rice M ills 4, appellate courts must remain cautious not to sit as appellate forums over the reasoning or conclusions of the Arbitrator un less a finding is so perverse or unreasonable as to shock judicial conscience. The relevant paragraphs of the Punjab State Civil Supplies Corpn. Ltd (supra) that summari ze s the law are as follows: ³1. Section 37 of the Act provides for a forum of apeal inter -alia against the order seting aside or refusing to set aside an arbitral award under Section 34 of the Act. The scope of apeal is naturaly akin to and limited to the grounds enumerated under Se ction 34 of the Act. 12. It is pertinent to note that an arbitral award is not liable to be interfered with only on the ground that the award is illegal or is eroneous in law that too upon reapraisal of the evidence aduced before the arbitral trial. Eve n an award which may not be reasonable or is non -speaking to some extent canot ordinarily be interfered with by the courts. It is also wel setled that even if two views are posible there is no scope for the court to reapraise the evidence and to take the diferent view other than that has been taken by the arbitrator. The view taken by the arbitrator is normaly acceptable and ought to be alowed to prevail. 13. In paragraph 1 of Bharat Coking Coal Ltd. v. L.K. Ahuja , it has been observed as under: ³ 1. There are limitations upon the scope of interference in awards pased by an arbitrator. W hen the arbitrator has aplied his mind to the pleadings, the evidence aduced before him and the terms of the contract, there is no scope for the court to reaprai se the mater as if this were an apeal and even if two views are posible, the view taken by the arbitrator would prevail. So long as an award made by an 42024 SCC OnLine SC 2632 FAO (COM ) 175/2024 & connected appeals Page 13 of 34 arbitrator can be said to be one by a reasonable person no interference is caled for. However, in ca ses where an arbitrator exceeds the terms of the agreement or pases an award in the absence of any evidence, which is aparent on WKHIDFHRIWKHDZDUGWKHVDPHFRXOG 14. It is equaly wel setled that the apelate power under Section 37 of the Act is not akin to the normal apelate jurisdiction vested in the civil courts for the reason that the scope of interference of the courts with arbitral proceedings or award is very limited, confined to the ambit of Section 34 of the Act only and even that power canot be exercised in a casual and a cavalier maner . 15. In Dyna Technology Private Limited v. Crompton Greaves Limited , the court observed as under: ³7KHUHLVQRGLVSXWHWKDW6HFWLRQ limits a chalenge to an award only on the grounds provided therein or as interpreted by various courts. W e need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier maner, unles the court comes to a conclusion that the pervers ity of the award goes to the rot of the mater without there being a posibility of alternative interpretation which may sustain the arbitral award. Section 34 is diferent in its aproach and canot be equated with a normal apelate jurisdiction. The ma ndate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course o n factual aspects, then the comercial wisdom behind opting for alternate dispute resolution would stand frustrated. 25. M oreover, umpteen number of judgments of this Court have categoricaly held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unles such award portrays pervers ity unpardonable XQGHU6HFWLRQRIWKH$UELWUDWLRQ$F 16. It is seen that the scope of interference in an apeal under Section 37 of the Act is restricted and subject to the same grounds on which an award can be chalenged under Section 34 of the Act. In other words, the powers under Section 37 vested in the court of apeal are not beyond the scope of interference provided under Section 34 of the Act. 17. In paragraph 14 of M M TC Limited v. Vedanta Limited , it has been held as under: FAO (COM ) 175/2024 & connected appeals Page 14 of 34 ³$VIDUDVLQWH rference with an order made under Section 34, as per Section 37, is concerned, it canot be disputed that such interference under Section 37 canot travel beyond the restrictions laid down under Section 34. In other words, the court canot undertake an ind ependent asesment of the merits of the award, and must only ascertain that the exercise of power by the court under Section 34 has not exceeded the scope of the provision. Thus, it is evident that in case an arbitral award has been confirmed by the court under Section 34 and by the court in an apeal under Section 37, this Court must be extremely cautious and slow to disturb such FRQFXUUHQWILQGLQJV´ 18. Recently a three -Judge Bench in Konkan Railway Corporation Limited v. Chenab Bridge Project Undertaki ng refering to M M TC Limited (supra) held that the scope of jurisdiction under Section 34 and Section 37 of the Act is not like a normal apelate jurisdiction and the courts should not interfere with the arbitral award lightly in a casual and a cavalier m aner. The mere posibility of an alternative view on facts or interpretation of the contract does not entitle the courts to reverse the findings of the arbitral tribunal. * CONCLUSION : 20 . In view of the above position in law on the subject, the scope of the intervention of the court in arbitral maters is virtualy prohibited, if not absolutely barred and that the interference is confined only to the extent envisaged under Section 34 of th e Act. The apelate power of Section 37 of the Act is limited within the domain of Section 34 of the Act. It is exercisable only to find out if the court, exercising power under Section 34 of the Act, has acted within its limits as prescribed thereunder o r has exceeded or failed to exercise the power so conferred. The Apelate Court has no authority of law to consider the mater in dispute before the arbitral tribunal on merits so as to find out as to whether the decision of the arbitral tribunal is right or wrong upon reapraisal of evidence as if it is sitting in an ordinary court of apeal. It is only where the court exercising power under Section 34 has failed to exercise its jurisdiction vested in it by Section 34 or has traveled beyond its jurisdict ion that the apelate court can step in and set aside the order pased under Section 34 of the Act. Its power is more akin to that superintendence as is vested in civil courts while exercising revisionary powers. The arbitral award is not liable to be int erfered unles a case for interference as set out in the earlier part of the decision, is made out. It canot be disturbed only for the reason that instead of the view taken by the arbitral tribunal, the other view which is also a posible view is a beter view according to the FAO (COM ) 175/2024 & connected appeals Page 15 of 34 apelate court. 21. It must also be remembered that proceedings under Section 34 of the Act are sumary in nature and are not like a ful -fledged regular civil suit. Therefore, the scope of Section 37 of the Act is much more sumary in nature and not like an ordinary civil apeal. The award as such canot be touched unles it is contrary to the substantive provision of law; any provision of the Act or the terms of the agreement ´ (emph asis suplied ) 8. The principal argument of the Appellant is that the Arbitral Award and Impugned Order are perverse , as the learned Arbitrator as well as the learned District Judge failed to appreciate that the alleged breach by the Appellant in not furnishing documents st ood condoned by OYO vide its communication dated 30.03.2020 . 9. This contention, however, fails at the very outset. It was never part ofthe $SSHOODQW¶V UHSO\ GDWHG 02.05.2020, nor was it raised before the learned Arbitrator, either in the Statement of Defence or in the Counter -Claim. 10. The argument that the communication dated 30.03.2020 amounted to condon ation of any prior breach was made for the first time before the learned District Judge during procedings under Section 34, and that too only in the course of oral arguments. Such a belated plea appears to be nothing more than an afterthought or improvisa tion by the arguing FRXQVHO8SWRWKDWSRLQWWKH$SSHOO that no such documents were required under the Agrement or that all necessary documents had already ben furnished during the course of the execution of the Ag reement . 11. A perusal of the record reveals that the Appellant ¶s submissions, before the learned Arbitrator, were entirely silent on any claim that OYO FAO (COM ) 175/2024 & connected appeals Page 16 of 34 had expressly or impliedly waived its earlier demand dated 28.1.2019 for documents. The relevant paragraph s pertaining to the contentions raised by the Appellant in its Statement of Defence would demonstrate the same and are as follows : ³18. Para no. 18 of the Statement of Claim is categoricaly denied. It is submitted that the notice dated 30.03.2020 was prem ature as the clause 10.4 of the Agreement clearly states that ³if the premises are rendered XQILW« for a period exciding 3 months then this unfit Agreement may be terminated « .´ It is pertinent to mention that the lockdown declared by the Central Government was w.e.f. 25th M arch, 2020 to 31st M ay, 2020 and thereafter the State Government continued the lockdown til June, 2020. After the said period the various lockdowns were lifted and things became normal. Therefore, it canot be ascertained that the subject property was lying vacant. The notice dated 30.03.2020 seems to be vague and based presumption and asumptions. The remaining contents of the answering paragraph are mater of record. * 27. That para no.27 of the Statement of Claim is wrong and denied. As per clause 10.4 of the M anagement Services Agreement, if the premises rendered unfit, in whole or part or use and occupation or the acces thereof is hindered by any event such as tempest, flod, earthquake or any irresistible force or act o f God not occasioned by negligence on the part of the service provider or his servant and agents, for a period exceeding 3 months, then in such event, the service provider may terminate this agreement by giving to the owner a written notice of One month, w hereas the claimant served the notice on 30.03.2020 and didn't adhered to the terms of agreement. It is pertinent to mention here that without waiting for period for 3 months, the claimant sent the notice within 7 days of imposing day of lockdown anounced E\FHQWUDOJRYHUQPHQW´ 12. 7KH VDPH RPLVVLRQ LV HYLGHQW HYHQ Counter - Claim filed before the learned Arbitrator, where the narrative remained consistent with the initial pleadings and did not introduce any assertion WKDWWKHFRPPXQLFDWLRQGDWHG position regarding the requirements of the documents. FAO (COM ) 175/2024 & connected appeals Page 17 of 34 13. The learned Arbitrator framed specific issues for determination and, after conducting a reasoned and detailed analysis, rendered findings on each; among the principal issues examined were whether the $SSHOODQW¶V IDLOXUH WR SURYLGH WKH V requested by OYO in its email dated 28.1.2019 constituted a material EUHDFKDQGZKHWKHUWKH$SSHOODQW¶V the residents violated the terms of the Ag rement. Both of which were answered against the Appellant and in favour of OYO. 14. W hile delivering the Arbitral Award, the learned Arbitrator concluded that the Appellant had violated Clauses 6.1(h), 6.2(b), and 6.2(j) of the Agreement, holding that the bre aches were not confined to the failure to furnish documents but also extended to the unauthorized FROOHFWLRQRIUHQWZKLFKVLJQLILFDQ operational entitlements, thereby justifying the termination of the Agrement under Cla use 10.3. The relevant portion of the Arbitral Award is produced hereinbelow: ³ISSUES/POINTS NO. 1 & 2 18. The Claimant had two main grievances against the Respondent, the first grievance being that the Respondent, despite receiving the email dated 28.1. 2019 from the Claimant, did not provide the documents specified therein, the second grievance being that the Respondent had colected rom tariff directly from the residents, though it had no authority to colect the said tarif and such an act on the part of the Respondent amounted to a material breach of the terms of the Agreement. Clause 6.2 (b) mandated the Respondent to ensure availability and validity of the documents such as Sale Deed, Power of Atorney, electricity and water bills. The documents req uired by the Claimant, vide its email dated 28.1.2019 inter alja included the registered title deed in favour of the Owner, registered and irevocable Power of Atorney for entering into Lease Deed on behalf of the Owner, if any and latest electricity bil l and water bill in the name of the Owner. Other documents included the completion certificate, FAO (COM ) 175/2024 & connected appeals Page 18 of 34 occupancy certificate and police NOC for renting the premises to the Claimant for co -living purposes. The case of the Respondent is that the Claimant having mad e its due diligence before executing Agreement with the Respondent, and having satisfied itself in al respects, it was not entitled to seek the documents specified in the said email dated 28.1.2019. In view of the specific obligation agreed by the Respon dent in Clause 6.2 (b) of the Agreement, it would be dificult to say that it was not contractualy bound to provide the copy of the Sale Deed of the subject Property, the electricity and water bills and the Power of Atorney / authorization for executing the Agreement with the Claimant. Clause 6.2(b) does not contain an exhaustive list of the documents required to be kept available and valid by the respondent. The use of the word 'such as' in the said Clause indicates that there could be other documents re lated to the property which would be necesary for the purpose of permiting the Claimant to rent the property for co -living purposes. The occupancy certificate would be one such document since a building canot be legaly occupied without isuance of an o ccupancy certificate by the concerned Local Authority. It has come in para 4 of the legal notice dated 2 M ay, 2020 sent by the Claimant to the Respondent that the aforesaid documents were demanded by the Auditors of the Claimant during internal audit and k nown provisioning of the said documents amounted to material breach of the terms of the Agreement.Despite receiving the legal notice, the Respondent did not provide the documents demanded vide email dated 28.1.2019. It was also stated in the legal notice dated 2 M ay, 2020 that the Claimant as a policy did not provide services in the premises which do not fulfill the legal compliance and necesary requirements under the aplicable laws. Vide para 7 of the legal notice, the Respondent was informed that in ca se the said documents were not provided within 30 days from the date of the notice, the Agreement shal stand terminated. Clause 10.3 of the Agreement entitled the Claimant to terminate the Agreement at any time including within the Lock -in -Period, in case there was a material breach of the said Agreement by the Respondent . 19. As regards the second grievance of the Claimant, though the submision of the Respondent during the course of argument was that no rent was colected by it from the occupants during the currency of the Agreement, the said submision is contrary to the pleadings and documents of the Respondent. Para 6 of the legal notice dated 2.5.2020 reads as under: "Our Clients have received complaints from the residents who are staying at the subject premises (residents) that you are colecting the rom tarif directly from the residents. It is pertinent to mention that you have no authority to colect FAO (COM ) 175/2024 & connected appeals Page 19 of 34 rom tarif f rom the residents directly and such an act amounts to material breach of the terms of the Agreement. You are therefore also being caled upon to render accounts of al the colections done directly by you from December, 2019 til date." Para 6 of the Re ply sent by the Respondent through counsel on 27.2.2021 reads as under: ". Due to non -availability of in -house stay Supervisor from your client's side, residents deposited fe to my clients warden whose salary was agred to be borne by your client." It w ould thus be seen that the colection of rent by the Respondent from the residents / occupants of the subject Property through the Supervisor apointed by it was admited in the Reply sent to the legal notice of the Claimant. This was not the plea taken in the Reply that the Respondent was entitled to colect the rom rent directly from the residents/occupants or that the said rom rent was colected by the Respondent with the consent of the Claimant. This is also not the case of the respondent that though some rent was colected by it, the amount so colected was paid to the claimant. 20. In para 21 of the Statement of Claim, the Claimant has inter alia stated that "The act of the Respondent in colecting the tarif/ charges/fee / rent directly from residen ts, which apart from being in direct breach of the Agreement had also compounded the viability of the arangement." In para 21 of the Statement of Defence, the Respondent has inter alia stated that "It is submitted that no oficial of the Claimant was pres ent at the subject Property and, therefore, the residents paid the due amount to the employee/caretaker of the Respondent." In para 15 of the Statement of Defence, it is stated that "W ithout any rhyme and reason, the Claimant had abandoned the premises and the Respondent was forced to lok after/manage the day to day busines." 21. It is thus evident that colection of rent/tarif from the occupants residents of the subject Property has been admited not only in reply to the legal notice but also in the Sta tement of Defence filed by the Respondent. 2. In its email dated 28.1.2020 sent to the Claimant, the Respondent inter alia stated that " According to. rent colected by the Owner is Rs. 2,92,809/ -whereas actual amount colected by me is only Rs. 1,57,097. " It was submitted by the learned counsel for the Respondent that the above refered extract of the email pertained to the amount which the Claimant had taken from the occupants as security deposit and which FAO (COM ) 175/2024 & connected appeals Page 20 of 34 the Respondent was compeled to adjust at the time the occupants left the accomodation. However, the said submision is contrary to the stand taken in the reply to the legal notice and the Statement of Defence filed by the Respondent. Therefore, the submision made by the learned counsel for the Resp ondent is nothing but an afterthought. 23. The case of the Claimant is that the Respondent had circulated a pamphlet amongst the occupants/residents of seven properties including the subject Property, asking them to deposit the rent directly in its bank ac count. The said pamphlet purports to request the residents to make rent payment only to the Owner and his Authorised Representatives whose names and mobile numbers were given in the pamphlet. The Bank name, IFS Code and beneficiary name as wel as the acco unt number were also given in the pamphlet, in case payment was sought to be made through bank transfer. It was sugested to CW - 1, in her cros -examination, that the pamphlet had been isued only to the occupants of the property subject mater of the Agree ment with JHPL. It would be pertinent to note here that the property subject mater of this Agreement was being managed by the same person who was managing the property subject mater of the Agreement with JHPL. This very person has apeared as a comon wi tnes in al the seven maters. 24. In the mater of JHPL, the Respondent in that mater has placed on record a bank statement isued by HDFC Bank in respect of the account maintained by it with the said Bank. The statement of account pertains to the perio d from 1.8.2019 to 31.7.2020. There are several credit entries in the said statement which show transfer of rent/tarif directly to the Account Holder. On 7.9.2019, there is a transfer of Rs. 16,0/ - by one Ratan Kumar described as "Bipasha PG Fees". The re is a credit entry on 6.9.2019 describing the transfer of Rs. 2,0/ - as 'September rent'. There is a credit of Rs. 13,0/ - on 29.8.2019 described as 'rent'. There is a credit entry of Rs. 9,0/ - on 14.12.2019 described as 'Charu M ital rent'. On 10.12 .20219 there is a credit entry of Rs. 15,0/ - described as 'Sankalp rent'. On 27.1.2020 there is a credit entry of Rs. 9,00/ -described as 'Sudhanshu rent' and another entry of Rs. 4,50/ - described as 'rent'. On 13.1.2020 there is a credit entry of Rs. 9 0/ - as 'rent'. On 1.1.2020 there is a credit entry of Rs. 16,0/ - described as 'rent'. It is evident from the admision contained in the reply to the legal notice as wel as the Statement of Defence, that the Respondent had been colecting rent/tariff from the residents / occupants of the subject Property. Though it was submitted by the learned counsel for the respondent that the aforesaid entries in the bank account of JHPL pertained to other properties or that portion of the property which was retaine d by the FAO (COM ) 175/2024 & connected appeals Page 21 of 34 respondent, the said submision is not backed either by the pleadings or by any documentary evidence and therefore canot be accepted. 25. Clause 10.3 of the Agreement entitled the Respondent to terminate the Agreement even within Lock -in -Period i n case the Claimant failed to pay the share of the Claimant for one month despite being in operation and the said breach on the part of the Claimant was not remedied within 30 days of Notification of the said breach to the Claimant. Therefore, even if the Claimant had failed to pay the share of the Respondent in the net revenue subject to the stipulated minimum guarante to it, the Respondent could not have started colecting rent directly from the occupants/residents though it could have terminated the Agr eement executed between the parties. 26. The next question which arises for consideration is as to whether the colection of rent/tarif by the Respondent directly from the occupants/residents amounts to a material breach of the terms of the Agreement or n ot. The Agreement between the parties was esentialy a Revenue Sharing Agreement under which the net revenue colected by the Respondent by renting/licensing accomodations in the subject Property was to be shared between the Claimant and the Respondent. The Respondent was to receive 70% of the net revenue whereas the remaining 30% was to be retained by the Claimant. If 70% of the net revenue came to les than the amount of minimum Guarante given by the Claimant to the Respondent and incorporated in Sched ule I of the Agreement, the respondent was entitled to the said amount irespective of the net revenue colected by the claimant. After a period specified in the Agreement, if 70% of the net revenue was higher than the amount of the minimum Guarantee, the Respondent was entitled to the said higher amount. Such an arrangement necesarily required colection of the rent solely and exclusively by the Claimant. If both the parties were to colect rent/tariff from the residents/occupants, it would not have been posible to determine the total rent colected from the occupants. The Agreement between the parties did not envisage colection of rent/tarif by both the parties. This is more than evident from the terms of the Agreement including Clause 2.3, which requi red the Respondent to execute an Irrevocable Power of Atorney in favour of the Claimant authorizing it to colect rent / licence fee from guests and take action in the event they did not pay the rent, Clause 6.2 (j) required the Respondent not to interfer e in the day to day operations of the Claimant including with the occupation of any sub -licencee/sub -lesee except for partial inventory (the portion of the building which had not been given to the Claimant for management). In any case, the colection of rent/tarif solely by the Service Provider is inherent in such an Agreement. It is not posible for the Service Provider to determine the exact net revenue recovered from the FAO (COM ) 175/2024 & connected appeals Page 22 of 34 occupants/residents if rent/tarif is colected by the Owner as wel as by the Service Provider. In such a situation, the amount payable to the Owner in terms of the Agreement canot be corectly determined. In any case, the Agreement between the parties did not permit both the sides to recover the rent/t ariff from the occupants/residents. It would be pertinent to note here that neither in reply to the legal notice nor in its Statement of Defence, the Respondent has claimed that under the terms of the Agreement, both the parties were entitled to colect re nt from the occupants/residents of the subject Property. 27. Though the term 'material breach' has not been defined in the Agreement executed between the parties, it would be dificult to dispute that breach of a fundamental term of the Agreement would ce rtainly constitute its material breach. The colection of rent/tarif by the Claimant alone, in my opinion was a fundamental term of an Agreement of this nature since the Agreement could not have been sucesfuly implemented if the rent/tarif is colecte d by both the parties. As rightly contended by learned counsel for the Claimant, a breach which makes the comercial performance of an Agreement imposible and unviable would amount to a material breach. The whole concept of revenue sharing becomes meaning les, if the revenue is colected by both the parties. 28. The Agreement between the parties is based on and comprises reciprocal rights and obligations. The right of the respondent to receive the agreed share in the net revenue caried with it, an obligat ion not to interfere in the management of the subject property by the respondent, including inducting occupants/residents therein and recovering rent/tariff from them. If a party to the Agreement comits breach of one or more of its material terms and ther eby deprives the other party of its rights under the said Agreement, the party in breach can not compel the other party to perform the obligations of that party under the said Agreement, Logicaly also, such an Agreement canot be performed, if both the pa rties colect rent/tarif from the tenants/occupants. The share of the respondent canot be quantified in money terms, without first ascertaining the total revenue generated from the property. If the rent from the occupants is colected not only by the cla imant but also by the respondent, the claimant canot be sure of the total revenue generated from the property, even if the respondent were to offer to disclose the total rent colected by it. In any case, here no such offer has been made by the respondent . The stand taken during the arguments was that no rent/tarif from the residents/occupants of the subject property was colected by the respondent. By colecting rent /tariff from the residents/occupants, the respondent forfeited its right to receive any share in the net revenue generated from the property, irespective of the extent of such FAO (COM ) 175/2024 & connected appeals Page 23 of 34 colection. A party who himself is in breach of an Agreement can not compel the other party to perform his obligations, ignoring the breach comitted by him. I therefo re hold that the respondent is not entitled to the any share in the revenue colected by the Claimant. 29. As noted earlier, in terms of clause 6.2(b) of the Agreement, the respondent was required to keep available and valid, the documents relating to the property subject mater of the Agreement and the documents specificaly mentioned therein canot be said to be the only documents required to be kept available and valid by the respondent. The use of the words 'al the documents related to the property suc h as 'clearly indicates that all the documents which could be genuinely required by the claimant were required to be kept available and valid. Of course, the claimant could not have sought irelevant documents from the respondent. But, it can be hardly dis puted that the documents such as title deed, Sanctioned Building Plans and the Occupancy Certificate would be genuinely required by the person entrusted with the management of the property. This is more so, when the policy of the service provider is to man age only those properties which are legaly compliant. The respondent did not offer the copies of even these core property documents to the claimant. The case of the claimant is that the documents were necesary for carying out an audit of the subject pro perty, which was also envisaged in the Agreement. By failing to provide these core property documents to the claimant comitted breach of yet another material term of the Agreement, thereby giving a right to the claimant to terminate the Agreement. 30. It is contended by the learned counsel for the Respondent that the Agreement between the parties was a Lease Agreement and, therefore, the Claimant was bound to pay the share of the Respondent in the net revenue subject to the minimum guarante agreed between the parties, as the lease money. I however, find myself unable to accept the contention. Though the words "lease" and "lesee" have been occasionaly used in the Agreement as wel as in the Statement of Claim, in pith and substance the Agreement between t he parties is a management Service Agreement. As noted earlier, the Agreement is described as M anagement Service Agreement, the Claimant is described as Service Provider and the Respondent as Owner, in the preamble to the Agreement. It is also recorded tha t the Owner was desirous of engaging the Service Provider for providing the services on an exclusive basis. As per Clause 2.1 of the Agreement, the Respondent had apointed the Claimant for providing services in the premises on the terms and conditions con tained therein and had undertaken to execute an Irrevocable Power of Attorney in its favour, authorizing it interalia to colect rent / licence fee from the guests. The FAO (COM ) 175/2024 & connected appeals Page 24 of 34 most important feature of the Agreement is that as per Clause 2.4, the posesion of th e premises was to remain with the Owner. In a lease, the posesion is transfered to the Lesee and does not remain with the Lesor. Therefore, it would not be correct to say that the Agreement between the parties was a Lease Agreement. In any case, it wo uld be immaterial whether the Agreement between the parties was a Lease or a M anagement Agreement, the relevant fact being breach of the material terms of the said Agreement. I therefore hold that the respondent had comitted breach of clause 6.1(h), 6.2(b ) and (j) of the Agreement. The claimant therefore, was entitled to terminate the $JUHHPHQWLQWHUPVRIFODXVHWKHUHR 15. Significantly, from the above analyses by the learned Arbitrator , it is clear that the findings of breach are not predicated sole ly on the $SSHOODQW¶V IDLOXUH WR IXUQLVK GRFXP rent collection, which was found to be a distinct and substantive violation. Therefore, even assuming, arguendo, that there was a subsequent waiver of the document requirement , which, as discussed later, is not borne out from the record, it would still not absolve the Appellant of the second and independent ground of breach. 16. It further appears from the Impugned Order of the learned District Judge that the Appellant, for the fir st time, sought to characterize the communication dated 30.03.2020 as amounting to condonation /waiver of the breach for non -compliance with the email dated 28.11.2019 . The learned District Judge, however, after a thorough examination of the scope of review under Section 34 and the arbitral record, declined to interfere with the arbitral award. 17. A plain reading of the communication dated 30.03.2020 leaves no room for any inference, either express or implied, that OYO had waived or condoned the requirement of the documents. The tenor and content of FAO (COM ) 175/2024 & connected appeals Page 25 of 34 the email clearly show s that it was written in the context of the emerging COVID -19 crisis, and merely propose d a revision of the revenue -sharing arangement due to the significant disruption in operations. There is no indication in the said communication that OYO had abandoned its earlier demands or that it was willing to forego the contractual compliance on esse ntial legal and regulatory obligations. For the sake of absolute clarity, the entire communication dated 30.03.2020 is produced hereinbelow: ³'HDU%XVLQHVV3DUWQHU At the outset, we would like to expres our sincere gratitude for the faith that you have reposed in OYO Apartment Investments LLP ("OYO") by partnering with us. The overwhelming suport you have provided to us as a valued aset partner in our goal of providing safe, afordable, secure and reliable quality living spaces to millions of our value d customers is apreciated wholeheartedly. As you are aware, the widespread and severity of the Novel Coronavirus (COVID -19) pandemic has exponentialy increased in the last weeks, both in India and over hundred fifty countries around the world. On M arch 1 1, 2020, the W orld Health Organization declared that COVID -19 is a "pandemic". To combat this pandemic, many governments around the world have declared lockdown in their respective countries until the virus is contained. In India, State Governments and Un ion Teritories have invoked the provisions of the Epidemic Diseases Act, 1897 from M arch 12, 2020 as a measure to arrest growth in the number of cases of COVID - 19. The State Governments have isued notifications declaring COVID -19 as an epidemic and order ed a complete lockdown of their respective states with severe restrictions on movement of the people, including sealing of borders. On M arch 1, 2020, the M inistry of Health and Family W elfare Has isued an advisory on Social Distancing M easures where they have advised everyone to avoid non - esential travel and use video conferencing facilities to avoid face to face meetings. Due to these situations, the M inistry of Railways canceled al train services to help contain the spread of the pandemic. Domestic a ir travel to has ben suspended w.e.f. M arch 25, 2020. On top of that, the Hon'ble Prime M inister Narendra M odi adresed the nation on M arch 19, 2020 advising the general public to stay indors, folowed by a "Janta Curfew on M arch 2, 2020 and given tha t the pandemic is spreading so fast and uncontroled, on FAO (COM ) 175/2024 & connected appeals Page 26 of 34 M arch 24, 2020 he gave directions that the entire country wil be on lockdown, with exception of certain esential services, starting M arch 25, 2020 12:0 AM until April 15, 2020. Even globaly, the hospitality and accomodation industry is facing one of the most chalenging times in its history, as people acros the globe are forced to change their normal routine way of work including but not limited to working from home, cancelation of any travel p lans in deference to or in compliance with advisories or regulations from their respective governments against traveling, public gatherings, visiting workplaces, and similar activities. M inistry of Health and Family W elfare has isued a consolidated trave l advisory for COVID -19 on M arch 1, 2020 puting the prohibition of travel from China, Italy, Iran and some countries of EU to India and an aditional travel advisory on M arch 19, 2020 prohibiting scheduled international comercial pasenger aircrafts to enter into India from M arch 2, 2020. These and many such circulars and notifications isued by the Central and State Governments mandating, cancelations of travels, lockdowns, curfews etc. as a consequence of the COVID -19 pandemic are available on the w ebsite of several ministries of Government of India and as responsible citizen, we must abide by these and help contain this COVID -19 pandemic and save precious lives. W hile we hope that circumstances wil improve and force majeure situation would improve, given the experience in other jurisdictions as is available in the public domain, it is likely that the situation wil continue for a litle while longer. In this backdrop, the bigest chalenge that we are facing today is that as the companies and educat ional institutes are closed down, most of our residents have either left for their hometown or are in proces of leaving On our part, we are taking every measure posible to ensure that the safety and security -of our residents remain our highest priority a nd that we should do everything posible to ensure their wel -being as wel as that of our employees and partners amidst the COVID -19 outbreak. To deal with this -COVID -19 situation at property level, we have taken several steps such as: Governm ental Guidelines: Actively monitoring the situation and folowing guidance from the Centers for Disease Control and Prevention (CDC), W orld Health Organization (W HO) and "local/national health officials and regularly updating our busines partners with accu rate information and advisories; Enhanced Sanitization Initiatives: taking enhanced sanitization initiatives in al public areas of al the buildings, such as lobies, elevators, dor handles, bathroms and advising our busines partners to do the same; FAO (COM ) 175/2024 & connected appeals Page 27 of 34 Techno logical Support: Our technological solutions continue to deliver easy and hasle -free check -in, check out and online payment experience, ensuring minimum people -to -people contact; Support through Custom er Service: Our customer. residents and ground suport teams are fuly equiped and sensitized to efectively manage resident concerns and our 24x7 emergency response team is ready to help busines partners and OYO teams to aply necesary safety protocols and report any incident or suspected case. Provide su port services to ensure we do our part to help the comunity and enable our aset partners to provide accomodation to the healthcare profesionals, stranded persons whether they are from neighbourhod cities or foreign countries, people who need suport for isolation or quarantine which initiatives are being explored in discusion with the Government and Hospital Authorities. In light of this COVID -19 pandemic and various restrictions isued by the governmental authorities, the occupancy rate of your prop erty has been significantly and adversely impacted and it is unlikely to improve in the next few months. At the time of entering into the agreement between ( Agreem ent ) between JP Singh (" you ") and OYO (" OYO " or " we "), this global pandemic, the Government's response to it (which is rightly so in light of this serious pandemic situation where we have no control whatsoever) and the resulting decline in the revenue of the property simply wasn't and could not have been foreseen by either of us. The basic asumpt ion under which the Agreement and particularly the Rent/Benchmark Revenue was agreed, amongst others, "was that the demand for bed occupancy would continue in the ordinary course of busines subject to usual fluctuations that are typical in the hospitality , accomodation and/or co -living busines. This abrupt, extra -ordinary and unprecedented drop in your property's revenue as a result of the COVID -19 pandemic can hardly be considered to be in the ordinary course of busines. OYO's performance and obligatio n in relation to the Rent/Benchmark Revenue under the Agreement has become extremely onerous and comercialy impracticable. This leter provides notice of the occurrence of a 'Force M ajeure event efective from M arch 12, 2020 on account of the outbreak of COVID -19 around which various State Governments invoked provisions of the Epidemic Diseases Act, 1897, being an extraordinary circumstance, which is beyond our control and which could not be avoided by any amount of foresight and care and its severe impac t on our performance under the Agreement. As you are aware, the COVID -19 pandemic and the consequent actions of both the Government and other Regulators/private FAO (COM ) 175/2024 & connected appeals Page 28 of 34 organizations has had an unforeseen and extremely adverse impact on the entire hospitality and accomodation industry which has, efectively, disrupted the entire industry. In these exceptional and trying circumstances, kindly note that it is imposible for OYO to discharge its obligations under the Agreement including, inter alia, the provisions of Rent/Benchmark Revenue. Given that the impact of this unforeseen situation is likely to be felt long after the withdrawal of the lockdown and COVID -19 pandemic, it apears that the very basis upon which the Agreement was entered into has been altered beyo nd anyone's imagination. Consequently, OYO will find it virtualy imposible to continue to operate the Agreement from the point of view of the object and purpose in relation to which the Agreement was first executed. As such, OYO is left with no option bu t to invoke Force M ajeure in as much as the pandemic and related consequences have adversely impacted the operation of the property and the busines of the property and to put you to notice that it is constrained to exercise its rights thereunder to suspen d payment of the monthly rent and/or any other amounts payable to you under the Agreement. Kindly note that while OYO is wel within its rights to terminate the Agreement, in view of the above, we are curently refraining from taking such a drastic step wh ile reserving our rights to do so should the circumstances continue to deteriorate or the adverse conditions, be prolonged. Notwithstanding the above, in our endeavour to efectively provide facilities and benefits at the property, we wil continue to incu r expenses during the time when we are runing the property in relation to the quality maintenance and upkeep, safety and security, renovations and manpower for managing the property to the extent feasible and without any obligation on our part. Further, d uring this period of lockdown, please note that the existing residents and/or the belongings of the residents who have left for their hometown before or at the start of the lockdown wil continue to stay/remain at your property in accordance with the instr uctions from the Government authorities. W e wil endeavor to colect the rental payment from such residents in subject to the instructions from the Government authorities, if any. Under the circumstances, please note that we deeply value our partnership an d wish to continue it while also safeguarding our comon financial interests from the property and in larger public and government interest. As mentioned above, since the entire hospitality and accomodation industry as wel as the way people live apears to have been disrupted and its impact is likely to continue wel after the lockdowns restrictions are withdrawn/modified, it may be in our mutual interest to revisit our Agreement to try and arive at a more FAO (COM ) 175/2024 & connected appeals Page 29 of 34 rational and mutualy, beneficial comercial arr angement that is more in tune with the present day reality and the likely future. In this regard, and in the interim, we propose a revenue share model, efective M arch 12, 2020, whereby our comercial engagement, in supersession of the existing comercial terms, under the Agreement wil be 30% (thirty percent) of the net revenue Le., the revenue on account of accomodation deducting therefrom levies/ces/duties whether imposed by local/state/central authorities (wherever aplicable), sales and marketing cos ts, chanel charges including but not limited to comisions, customer acquisition expenses etc. and subject to al aplicable taxes both present and which may be levied in the future (" Revenue Share "). Also, note that, as our joint eforts for the comunity services, OYO might not be able to make payme nt of Revenue Share as per the above -mentioned terms in case part or in ful in the event that property is being utilized for suporting esential services by or under the orders of Government/ Health care centres/authorities. W e would like to emphasize continuity of the busines at the property shal be subject to busines feasibility, safety and security of the residents, manpower peaceful surounding envi ronment and compliance of the property with various aplicable laws and regulations and OYO may use discretion in the event of any change in the aforementioned situations (including but not limited to shutting down the property), which we shal endeavour t o inform to you as son as practicable. Apart from, the day -to -day operations, to achieve higher standard of governance for our respective responsibilities, you are expected to and comitted to observe compliance with various government policies and regula tory requirements aplicable to the property (including in relation to al guidelines and directives isued by the government and administrative authorities in relation to COVID -19 pandemic) and we wil make al comercialy reasonable eforts that we perf orm our obligations in accordance with the Agreement signed between us read in conjunction with this comunication. Needles to mention, our priority continues to be the safety of our residents, manpower, partners and the comunities in which we operate. W e are regularly reviewing the position and shal comunicate once the force majeure event/COVID -19 situation has ceased and when OYO wil be able to resume performance of its currently afected obligations under the Agreement. In any event, you can reach u s through the same mail, if you should have any immediate questions. FAO (COM ) 175/2024 & connected appeals Page 30 of 34 W e apreciate your understanding and we lok forward to the continued succes of our partnership. Yours faithfuly, 2<2´ 18. As is manifest from a bare perusal of the contents of the aforem entioned communication, no novation, as has ben contended by the Appellant , has ben sought of the entire Agrement. The communication, in recognition of the prevailing conditions, seks to amend the working of the Agrement to a limited extent, i.e ., in respect of the commercial engagement inter -se the parties, limited to the revenue share. A reading of the said communication also makes it evident that the rest of the terms as betwen the parties subsisted. 19. This is further coroborated by the subsequent legal notice dated 02.05.2020 issued by OYO, in which the requirement of the same documents was reiterated. In fact, the notice expressly warned that non - furnishing of the documents within 30 days would amount to a material breach of the terms of the Agre ment. The notice also invoked the arbitration clause and proposed the name of a Sole Arbitrator. Thus, far IURPVXSSRUWLQJWKH$SSHOODQW¶VFDVH reinforces the view that OYO consistently insisted on documentary compliance an d never intended to waive the same. 20. The notice dated 02.05.2020 did not constitute a blanket termination of the Agrement but clearly stated that termination would ensue only upon failure to supply the documents. The invocation of the arbitration clause in the same notice further clarifies that OYO treated the breach, the direct rent collection, as live and unresolved disputes, FAO (COM ) 175/2024 & connected appeals Page 31 of 34 waranting formal adjudication. The relevant extracts of the notice dated 02.05.2020 are produced hereinbelow: ³3. Noteworthy to mention here that under the Agreement you have specificaly represented that al the documents related to Subject Premises as required from regulatory & legal perspective are available and the validity of the same shal be maintained throughout the term of the Agreement. 4. That despite repeated requests you have failed to provide necesary documents/permisions/aproval with respect to Subject Premises which are esential for purposes of the Agreement. Even when such documents were demanded by the auditors during internal a udit our client had requisitioned these relevant documents from you vide our client's email dated 28/1/2019, including but not limited to non - objection certificate ("NOC") from the Society/ Housing/Resident W elfare Asociation & Police NOC for renting the Subject Premises to OYO for the purposes defined under the Agreement. However, the aforesaid documents have not been provided to our client til date and thus, non -provisioning of the aforesaid documents amounts to material breach of the terms of Agreemen t. 5. That vide this notice we once again request you to provide the al necesary documents as requested vide our client's email dated 28/1/2019 for the Subject Premises within 30 (thirty) days of the date of this notice. Kindly note that non -provisionin g of aforesaid documents would vitiate the Agreement from the very inception and shal render the same void. Kindly note that our client, as a policy, do not provide services in the premises which do not fulfil the legal compliance and necesary requiremen ts under the aplicable laws. * 7. Also please note that in case the documents refered to in para 4 and 5 above are not provided within aforesaid stipulated period of 30 (thirty) days from the date of this notice, then the Agreement shal stand termi nated forthwith . 8. That in the meanwhile the COVID19 pandemic hit acros the globe which has been declared as pandemic. As you are aware, due to COVID19, companies and educational institutes are closed down and thus, most of our client's residents have either left for their hometown or are in proces of leaving. In view of the same our client invoked the force majeure clause in the Agreement vide its comunication dated 30/03/2020. 9. That dehors the right of our client to terminate the Agreement, and without prejudice to exercise of it s right to terminate the Agreement, it FAO (COM ) 175/2024 & connected appeals Page 32 of 34 is abundantly clear from your aforesaid acts and events that you are not wiling to comply with your obligations under the Agreement dated 2/07/2019. From the aforementioned facts and circumstances, it is crystal cle ar that a dispute has arisen between our client and you regarding the payment of sums of money in terms of the Agreement and viability of doing busines from the Subject Premises in absence of the relevantdocuments/aprovals/permision, if the same are not provided as the formed the vary basis of Agreement. Further, that aforesaid dispute being purely civil and commercial in nature, is mandatorily required to be resolved through the dispute resolution mechanism as agreed between you and our client in the Ag reement by invoking arbitration in accordance with Clause 1.2. of the Agreement dated 2/07/2019. In this regard, Clause 1 of the terms and conditions of the Agreement is relevant, and the same is as under: * 9. In view of the aforementioned clause which lays down the agreed mechanism for resolution of disputes between the parties, our client hereby invokes arbitration. That further our client recomends the name of M r. K. K. Nangia, Retired Registrar of the Delhi High Court as a Sole Arbitrator for adjudicating the disputes which have arisen between our client and you. You are hereby requested to confirm the apointment of M r. K. K. Nangia as a Sole Arbitrator within a period of 30 (thirty) days from receipt of the present notice, failing which our client shal be constrained to initiate apropriate proceedings for constitution of the Arbitral Tribunal before the Hon'ble High Court of Delhi. * «´ (emphasis suplied) 21. In response, the Appellant never furnished the requested documents. Instead, it waited nearly ten months and replied only on 27.02.2021, contending vaguely that the documents had already ben provided in July 2019. Even in this reply, the Appellant made no assertion that the comunication dated 30.03.2020 operated as a waiver or condonation of the earlier breach. This argument was plainly an afterthought and an attempt to raise a new defence not pleaded before the learned Arbitral Tribunal. FAO (COM ) 175/2024 & connected appeals Page 33 of 34 22. The consistent p osition taken by OYO, from the 28.11.2019 request and culminating in the legal notice dated 02.05.2020 , demonstrate s an unambiguous assertion of its rights under the Agrement. The allegation that the communication dated 30.03.2020 altered this legal posit ion is misconceived and finds no support either in language or conduct. 23. Acordingly, the submission that the said communication constituted a waiver or condonation of breach is legally unsustainable, factually incorect, and liable to be rejected as a bela ted and manufactured defence raised for the first time before the learned District Judge. CONCLUSION : 24. As noted at the commencement of this judgment, the core contention advanced by the learned Senior Counsel for the Appellant formed the common thread acro ss all the connected appeals. Having been found devoid of merit in FAO (COM M ) 175/2024 , this ground cannot sustain any of the appeals. 25. In view of the above discussion, no case is made out for interference with the Impugned Orders dated 07.06.2024 passed by the learned District Judge or with the Arbitral Awards dated 25.01.2023 passed by the learned Arbitrator. The findings recorded therein are neither perverse nor contrary to the settled legal position and therefore warant afirmation ; acordingly, all app eals are dismissed. 26. The present appeals and all pending applications, if any, are disposed of in the above terms. FAO (COM ) 175/2024 & connected appeals Page 34 of 34 27. No order as to costs. ANIL KSHETARPAL, J. HARISH VAIDYANATHAN SHANKAR, J. AUGUST 20 , 2025 /sm