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2014 SCC OnLine Del 6948 : (2015) 147 DRJ 481

In the High Court of Delhi

(BEFORE PRADEEP NANDRAJOG AND MUKTA GUPTA, JJ.)

Adidas India Marketing Pvt. Ltd. .…. Appellant

Represented by : Mr. Arvind Nigam, Sr. Advocate instructed by Mr.
Pramod K. Singh and Mr. Vijay Srivastava, Advocates
Versus
Hicare India Properties Pvt. Ltd. .…. Respondent
Represented by : Mr. Arun Kathpalia, Advocate with Mr. M. Shoeb
Alam, Mr. Santosh Kumar, Mr. Anupam Pandey and Mr. Shikhar Garg,
Advocates
FAO (OS) 262/2013
Decided on December 9, 2014

Practice and Procedure — Arbitration — Arbitration and Conciliation Act

1996 — S. 34 — Interpretation of a document is a question of law and not
one of fact — An issue relating to an interpretation of a document would be
an issue of law and not one of fact, but it is settled law that where a
document is required to be interpreted, it would be within the jurisdiction of
the arbitrator to interpret the same — If two interpretations are possible,
while considering a challenge to the award the Court would not set aside the
interpretation adopted by an arbitrator and would not reason whether the
other interpretation is more plausible — In the instant case the learned
arbitrator has noted the rival versions and has referred to various clauses of
the agreement Ext. C-2 to conclude that the same is a contract to enter into
a lease and not a contract of lease — When the parties described
themselves as the intending lessor and the intending lessee, they clearly
indicated that the document does not create the relationship of a lessor and
a lessee — That the document is a binding contract binding them for the
future — Under the circumstances the reasoning in the award that Ext. C-2
is not a lease deed and thus was not required to be drawn up on a stamp
paper treating the same to be a lease deed and did not require registration
has to be upheld — Whilst it may be true that a lock in period clause in a
lease deed, being in the nature of a penalty, requiring the tenant to pay the
rent for the lock in period cannot be enforced without proof of loss of
damages that would only require the owner of the premises to prove the
loss which is occasioned due to breach of the agreement that possession
would be retained for the lock in period — In the instant case the
respondent availed loans from the bank to purchase the commercial space
in question — There is further evidence before the learned arbitrator that
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due to the economic global melt down and slow down in the Indian economy
rentals had fallen drastically — The appellant itself has admitted that rentals
have crashed by 40% — 50% in the market. The appellant suggested a
revenue sharing model — The promise by the appellant can be enforced by
the respondent against the appellant on the principles of estoppel, as rightly
held by the learned arbitrator — The appeal is dismissed with cost
The Judgment of the Court was delivered by
PRADEEP NANDRAJOG, J.
1. Award dated December 10, 2010 passed by the learned sole
arbitrator against the appellant and in favour of the respondent was
challenged by the appellant by way of objections under Section 34 of
the Arbitration and Conciliation Act, 1996 before the learned Single
Judge of this Court. The challenge partly succeeded because of a
concession given by the respondent. The concession finds a reflection in
the last paragraph of the impugned order dated February 27, 2013
which reads as under : -
“The objections are dismissed except as agreed by the respondent
the amount awarded towards rent/damages for use and occupation
from October, 2008 to March, 2009 (six months), which comes to Rs.
3,61,600/- multiplied by 6 = Rs. 21,69,600/- minus the amount of Rs.
4,84,990/- paid = Rs. 16,84,610/- is set aside and further the amount
paid so far by the petitioner i.e. Rs. 4,84,990/- towards the
rent/damages and Rs. 7,23,200/- towards two months' security deposit
adjusted against the award of Rs. 86,78,400/- (amount of 24 months'
rent for lock in period for damages) under clause is set aside.”
2. To understand the effect of the concession we note that as per the
award the learned arbitrator has awarded the respondent a sum of Rs.
1,27,35,612/- as under : -
“Rs. 86,78,400/- (24 months' rent) under clause 48 of the
agreement.
Balance rent from October, 2008 to March, 2009 = Rs. 16,84,610/-.
Total Rs. 1,03,63,010/-
Interest @ 12% per annum on Rs. 1,03,63,010/- from April 31, 2009
till date of award = Rs. 20,72,602/-.”
3. The factual backdrop of the dispute between the parties
commences when an agreement to lease Ex.C-2 was executed on
August 02, 2007 between Uppal Housing Ltd. and the appellant,
referring to Uppal Housing as the intending lessor and the respondent
as the intending lessee. The recitals to Ex.C-2 record that the intending
lessor was in the process of developing a shopping mall and multiplex
on the land bearing Municipal No. 177/D, Industrial Area, Phase-I,
Chandigarh and the intending lessee was desirous of taking on lease a
commercial space having approximate super area 1808 sq.ft. (covered
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area 1130 sq.ft.) on the ground floor on lease basis for an initial term of
three years. The recitals further record that the lease commencement
date would be when the intending lessor intimates to the intending
lessee that possession of the commercial space was being offered and
that possession would be delivered when a registered lease deed would
be executed for which stamp duty and registration charges shall be
borne by the intending lessee. The recitals further record that within 30
days of the possession being offered the intending lessee would take
possession of the commercial space. The lease commencement date i.e.
the date when possession of the commercial space was offered is
referred to in the recitals as the ‘Effective Date’. The recitals further
record that notwithstanding the agreement between the parties that
the lease shall commence from the effective date, 75 days reckoned
from the effective date would be treated as rent free and this period
would be treated as ‘fit out period’. The agreement Ex.C-2 records that
the intending lessee shall pay to the intending lessor rent @ Rs. 200/-
per sq.ft. of the super area i.e. Rs. 3,61,600/- for a period of three
years and thereafter the rent shall be increased by 15% every three
years; the lease to be extended after three years at the option of the
intending lessee, to be communicated at least three months prior to the
expiry of the lease. Thus, a further recital was recorded that as regards
the intending lessor it would be obliged to grant a lease for three terms
of three years each, but as regards the lessee, the obligation was to
continue as a lessee for a period of two years from the effective date.
4. Under the agreement Ex.C-2 it was intended that three months
rent towards interest free security deposit i.e. Rs. 10,84,800/- would be
paid by the intending lessee to the intending lessor which was to be
adjusted if apart from normal wear and tear the commercial space let
out was found damaged. It was agreed that possession would be
handed over before August 31, 2007.
5. Parties are not at variance that towards interest free security
deposit, as against Rs. 10,84,800/-, only Rs. 7,23,200/- i.e. two
months agreed rent was paid by the intending lessee to the intending
lessor.
6. The further admitted facts between the parties are that the
intending lessor offered possession of the commercial space to the
intending lessee on May 20, 2008 and possession was taken over on
July 07, 2008.
7. The respondent purchased under a registered sale deed Ex.C-3
the commercial space which was the subject matter of the agreement
Ex.C-2 from the intending lessor and thus on October 22, 2008 change
of ownership was conveyed to the intending lessee that the liability to
pay rent henceforth of the intending lessee would be towards the
respondent. It was followed by an e-mail dated November 11, 2008
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written by the intending lessor i.e. Uppal Housing Ltd. to the appellant
regarding transfer of the right in favour of the respondent to have the
lease deed executed.
8. On December 15, 2008 the appellant addressed a letter Ex.C-11
to the respondent as under : -
“December 15th, 2008
Dear Mr. Satnam S. Nanuwa,
Hicare India Properties Pvt. Ltd. 9-Rukhmini Building,
A-5, Dilshad Colony,
New Delhi - 110095
This has reference to the adidas exclusive shop at Chandigarh which
we/our partner have taken on lease at a monthly rent of Rs. 3,61,600/-.
The Indian economy is currently undergoing a slow down which has
resulted in a huge impact on the business all around. Retailers across
the country are either closing down or not expanding their business.
Our business has also been impacted by the negative sentiment which
is causing losses to our franchisees and to us. The key element of these
losses is the high cost of rentals.
In the spirit of partnership, we would urge you to partly reduce the
burden on our business by being flexible on the rental being charged to
us (rentals have also crashed by 40-50% across the country as you
would be well aware). In this regard we propose that we move to a
revenue sharing model wherein we offer your @ 10% on our net sales
per months from January 2009 onwards as we have already got the
rent waiver from Uppal's Housing till November, 2008 and we would
request you to please extend the rent waiver till December 2008. This
is required to help us sustain our business and this will be mutually
beneficial in time to come for both you as the owner of the property and
us as a brand conducting business in your premises through our
Franchisee.
We are keen to close this discussion immediately so please contact
our Regional Manager Mr. Rajeev Chettri at 9910899189 immediately
on receipt of this notice.
Looking forward to a long and mutually beneficial association.
Yours sincerely
Sd/
Sundeep Chugh
National Sales Manager
Adidas India
Gurgaon, Haryana, India - 122001”
9. It is apparent that the appellant considered itself to be a lessee
with liability to pay rent @ Rs. 3,61,600/- per month. It requested that
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rent should be waived till December, 2008 and from January, 2009 the
parties should move in the direction of a revenue sharing. It is further
apparent that the appellant recognized the respondent to be the owner
of the premises and entitled to the lease rent.
10. Appellant continued to be in possession of the commercial space
agreed to be leased to it under Ex.C-2, but did not pay rent. On March
06, 2009, vide Ex.C-15 the appellant terminated the relationship and
we simply note that the communication was addressed to the
respondent. Treating itself to be a tenant under an unregistered lease
(and though not expressly stated in Ex.C-15, but the underlying
signature tune being that the appellant would be deemed to be a
tenant on month to month basis), referring to Section 106 of the
Transfer of Property Act, the lease was determined intimating that
possession would be handed over on March 23, 2009. Referring to
interest free security deposit in sum of Rs. 7,23,200/- with the
respondent, and treating the period up to November 30, 2008 as rent
free on the stand taken that Uppal Housing Ltd. had extended the rent
free period to November 30, 2008, it was indicated that remainder rent
would be paid simultaneously with possession being handed over by
the appellant and taken over by the respondent.
11. The respondent was rightly advised to litigate later but take
possession as offered, for the reason law requires a landlord to take
possession when offered by the tenant and if it is a case of a breach of
the term of the lease, to litigate for damages. Thus, the respondent
took Rs. 4,84,990/- offered by the appellant towards rent payable up to
March 23, 2009 and commencing from December 01, 2008; Rs.
7,23,200/- being adjusted by the appellant towards two months' rent
with respect to the security deposit paid when agreement to lease Ex.C
-2 was executed. It took over the possession as well.
12. Ex.C-2 contains an arbitration clause which was invoked by the
respondent and in a petition filed under Section 11 of the Arbitration
and Conciliation Act, 1996 a learned Single Judge of this Court
appointed Justice Awadh Bihari (Retd.) as the sole arbitrator who, after
considering the pleadings of the parties and the evidence led published
an award on December 10, 2008 awarding Rs. 1,03,63,010/- as
damages and interest in sum of Rs. 20,72,602/- for the pendente lite
period. He also held that the security deposit was liable to be forfeited.
13. The concentrate of the distillate of the Award is as under : -
(a) Agreement Ex.C-2 has been held to be an agreement to lease
and not an agreement of lease and thus the same not requiring
compulsory registration nor requiring to be drawn on a stamp paper :
treating the same to be an agreement of lease.
(b) The effect of the finding (a) above being that Ex.C-2 was
admissible in evidence.
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(c) The possession of the appellant in the commercial space

pursuant to Ex.C-2 was permissive possession because the parties did
not give effect to Ex.C-2 and execute an agreement of lease.
(d) The respondent being entitled to damages for breach of Ex.C-2
i.e. not executing a registered lease deed which would have contained a
clause of 24 months period being the lock in period and this period
could be treated as the reference point to compensate the respondent;
and as regards the quantum thereof : the rent required to be paid per
month as per Ex.C-2 being the measure to compute the damages.
14. The learned arbitrator has held that the security deposit in sum
of Rs. 7,23,200/- was liable to forfeited and on said reasoning has not
adjusted said amount while awarding damages for breach of Ex.C-2.
(As per the award damages were payable under two heads : (i)
forfeiture of the security deposit on account of not executing a lease
deed; and (ii) by way of damages 24 months' rent to be paid).
15. Since the respondent has conceded before the learned Single
Judge that the award in relation to forfeiture of security deposit be set
aside and said sum be adjusted towards damages payable on account
of the obligation to retain as a tenant the commercial space for 24
months, we simply note said fact, which is a historical fact, for
purposes of record. No adjudication is required in appeal qua said
aspect of the award.
16. Before the learned Single Judge, laying a challenge to the award,
contention of the appellant was that Ex.C-2 was a demised in presenti
and thus the same was an agreement of lease and not an agreement to
lease, and being neither drawn on a stamp paper of adequate value the
document was not admissible in evidence unless proper stamp duty
was paid thereon and the consequence being the arbitration clause
itself perishing and thus the arbitrator having no jurisdiction to decide
the dispute with reference to Ex.C-2. The second contention was that in
the absence of Ex.C-2 being registered, it was not admissible in
evidence, for the purposes of relying upon its contents for the reason as
per Ex.C-2 the initial term of the lease was for three years. The
extended limb of the second contention was that appellant's status
under the respondent would have to be treated as that of a tenant from
month to month, sans any liability of a lock in period, and thus the
award was liable to be set aside being founded on wrong principles of
law and thus opposed to public policy. In a decision which is a re-run of
the award the learned Single Judge has negated the contentions
advanced by the appellant. In a nut shell, the impugned decision has
affirmed the four concentrates of the distillates extracted by us
hereinabove of the award.
17. We do not intend to burden ourselves with various judicial
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pronouncements where a particular document between the Court was

held to be an ‘Agreement to lease’ and where it was held to be
‘Agreement of lease’. The distinction between the two is well-
recognized by now and admits of no debate. As explained in ‘Woodfall
in Law of Landlord and Tenant’ Vol.I, 28th Edition at Page 127:‘A
contract for a lease is an agreement enforceable in law whereby one
party agrees to grant and another to take a lease. The expressions
‘contract for lease’ and ‘agreement for lease’ is to be preferred in being
more definite, agreement frequently means one of many stipulations in
a contract. A contract for a lease is to be distinguished from a
lease, because a lease is actually a conveyance of an estate in
land, whereas a contract for a lease is merely an agreement that
such a conveyance shall be entered into at a future date’.
18. Whilst it may be true, as held in the decision reported as 1995
RPC 255 Glaverbel SA v. British Coal Corp, that interpretation of a
document is a question of law and not one of fact; and therefore an
issue relating to an interpretation of a document would be an issue of
law and not one of fact, but it is settled law that where a document is
required to be interpreted, it would be within the jurisdiction of the
arbitrator to interpret the same. It is equally settled law that if two
interpretations are possible, while considering a challenge to the award
the Court would not set aside the interpretation adopted by an
arbitrator and would not reason whether the other interpretation is
more plausible.
19. The learned arbitrator has noted the rival versions and has
referred to various clauses of the agreement Ex.C-2 to conclude that
the same is a contract to enter into a lease and not a contract of lease.
In our opinion the learned Single Judge was not even obliged to discuss
the various authorities cited before him for the reason each authority
dealt with a different document and interpreted the same whether it
was a contract to enter into a lease or a contract of lease. Suffice it to
state that Ex.C-2 refers to Uppal Housing Ltd. as the intending lessor,
and to the appellant as an intending lessee. What better expression
could the parties use to clearly indicate what was their intention in
presenti and in the future. When they described themselves as the
intending lessor and the intending lessee, they clearly indicated that
the document does not create the relationship of a lessor and a lessee.
That the document is a binding contract binding them for the future,
when the effective date would come into being i.e. when possession
was to be offered; 75 days would be rent free and within 30 days of the
effective date the parties would execute and get registered a lease
deed.
20. Under the circumstances the reasoning in the award that Ex.C-2
is not a lease deed and thus was not required to be drawn up on a
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stamp paper treating the same to be a lease deed and did not require
registration has to be upheld.
21. The decision reported as 2011 (7) SCALE 747 SMS Tea Estate
Pvt. Ltd. v. Ms. Chandmari Tea Co. Pvt. Ltd. cited by learned senior
counsel for the appellant is thus not applicable in the facts of the
present case for the reason the indenture dated December 21, 2006
considered in said decision was construed by the Supreme Court as
creating a right in presenti as a lessee with concomitant obligation of
the opposite party as a lessor and since it was not drawn on a stamp
paper of adequate consideration it was held that the arbitration clause,
which otherwise is treated as distinct from the main agreement, could
not be even looked into unless the document was stamped as required
by Section 35 of the Stamp Act. Further, the view taken in the said
decision that in the absence of it being registered, the indenture could
not be looked into for its terms, would not be applicable in the instant
case for the reason in the instant case Ex.C-2 does not create any
lease.
22. Concededly Ex.C-2 has been breached. The appellant did not
agree to execute a lease deed and get the same registered. Rentals
appear to have fallen and even the sales. The period in question i.e.
2007-09 was one of low economic growth (though not one of
recession). Planned growth in business was not happening. Futuristic
plans did not measure to the time. Appellant's letter dated December
15, 2008 noted by us in paragraph 8 above admits said fact. By then
the appellant was in possession of the commercial space since July 07,
2008.
23. This takes us to the next issue concerning the award : what
would be the measure of damages to be paid by the appellant to the
respondent.
24. The learned arbitrator has found a decision : and to use the
language of the learned arbitrator - ‘it is pat on the point’. The decision
is reported as AIR 2004 SC 2926 Food Corporation of India v. Babulal
Aggarwal.
25. In the said case, FCI had floated tenders inviting offers for hiring
plinths for storing food grain and had indicated the specifications of the
plinths. As per the notice inviting offers, FCI had committed to enter
into lease agreements for the plinths in question for a period of three
years. M/s. Babulal Aggarwal erected the plinths as per the
specifications set by FCI and offered the same indicating the rent it
would be charging. The offer was accepted. Pending execution of formal
lease deed, possession was taken over by FCI on January 24, 1987. On
September 26, 1988, FCI gave 15 days' notice to vacate the plinths
and vacated the same on October 10, 1988, paying rent agreed as per
offer made by Babulal Aggarwal and accepted by FCI. Babulal Aggarwal
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sued for damages on the plea that the plinths made were as per
specifications of FCI and thus FCI was liable to pay rent for the three
years period. The Supreme Court upheld the claim holding that the
lease had to be treated as one from month to month, but the
termination of the basic agreement would mean that the promise held
out that the duration of the lease would be three years being broken,
since the plinths were made to the specifications of FCI for which
Babulal Aggarwal had raised loans, damages would be payable.
26. With respect to said decision, learned counsel for the appellant
urged that the learned arbitrator in the instant case fell into a
fundamental error by overlooking the fact that in Babulal Aggarwal's
case (supra) the plinths which were the subject matter of an agreement
to lease requiring an agreement of lease to be executed, were made to
specifications of FCI (implicit being the finding that the plinths would
have no utility for anybody else and hence not being capable of being
let) and in contra distinction, in the instant case, the commercial space
was a building not made to the appellant's specifications and hence
capable of being let to any third party. Learned senior counsel argued
that the learned arbitrator has held that possession given pursuant to
Ex.C-2 would be permissive in nature i.e. it would be ‘permissive
possession’. Counsel argued that this legal premise on which the
learned arbitrator has proceeded runs in the teeth of the decision in
Babulal Aggarwal's case, where FCI's possession pursuant to an
agreement to lease was held to be that of a tenancy month to month.
27. The decision in Babulal Aggarwal's case shows that the issue
before the Court was not argued as to what would be the nature of
possession of FCI and both parties argued on the presumption that
FCI's possession would be that of a tenant, with tenancy being from
month to month.
28. But, in the instant case, parties have extensively argued before
the learned arbitrator as to what would be the nature of appellant's
possession keeping in view the fact that lessor-lessee relationship
between the parties as per Ex.C-2 had to come into being only when a
written lease deed was drawn up on stamp paper of adequate value and
thereafter registered. The learned arbitrator has held that the
possession was permissive.
29. In the decision reported as (1912) 15 Ind. Cas. 432 In Re : Kaya
Ramakrishnamma the facts were that it was orally agreed that for faslis
1313 to 1317 the defendants would be given a khata on lease by the
plaintiff and pending execution of an instrument of lease the possession
was handed over. Lease deed was never executed. Answering the
question as to what was the nature of occupation by the defendants
and what would be the liability to recompense the plaintiff, it was held
that the possession of the defendants, in the absence of a legal tenancy
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being created, would be permissive and for which the owner of the land
would be entitled to compensation for use and occupation. In the
decision in Chandmari Tea Co.'s case (supra) it was held that
possession under a legally inadmissible lease deed would be treated as
lawful possession for the reason the legally inadmissible lease deed
could be looked into for collateral purpose.
30. The view taken by the learned arbitrator that appellant's
possession was permissive is a finding which intermixes the facts with
the law and cannot be classified as a finding which is premised on a
wrong principle of law.
31. This now takes us to the last issue which needs to be considered.
Whether appellant was in breach of Ex.C-2 and if yes to what damages
was the respondent entitled to.
32. As regards the first part, the finding of fact returned by the
learned arbitrator that the appellant was in breach of Ex.C-2 cannot be
even touched upon by us for the reason it would require a re-
appreciation of the evidence; and it is not the plea of the appellant that
the finding of fact is returned on no evidence or is perverse. That apart,
appellant's letter Ex.C-11, dated December 15, 2008, contents whereof
have been noted by us in paragraph 8 above, is sufficient evidence of
appellant being in breach of its obligation under Ex.C-2 to execute the
lease deed and bear the expenses thereof. Having taken possession of
the commercial space pursuant to Ex.C-2, which enjoins upon the
lessee to offer and hand over possession of the commercial space
pending execution of the lease deed (which had to be executed within
30 days reckoned from the effective date), the appellant took
possession of the commercial space and started quibbling with rent to
be paid, on the ground that the economy was in a state of slow down.
33. We need to speak a word over here. Documents concerning
commercial transactions have to be interpreted to further trade and
commerce and in harmony with the facts which existed when the
parties struck the bargain. It is trite that in every commercial
transaction each party sees a gain to the mutual advantage of each and
additionally, in the spirit of reciprocity, agree to terms which are to the
mutual advantage of the other. The role of a Judge, and needless to
state an arbitrator, would then become akin to the Captain of a ship, to
navigate the parties in the sea of law with the document being the
ship. The commercial space to be given on lease in the instant case was
a huge hall and the parties knew that the appellant would need some
time to refurbish the same as per its commercial requirements.
Simultaneous with the tenancy being agreed to commence when
possession was handed over, the commercial part was kept in view, to
the benefit of the appellant by treating 75 days as rent free period.
Within this time, the appellant was to refurbish, as per its requirement,
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the commercial space agreed to be taken on lease. Parties clearly

envisage that the possession would be permissive without payment of
any rent, to be converted into possession as a tenant contingent upon
the lease deed being executed. The appellant would not be permitted,
and estoppel would prevent it, to take advantage under Ex.C-2 and
deny its obligations under the same very document.
34. Whilst it may be true that a lock in period clause in a lease deed,
being in the nature of a penalty, requiring the tenant to pay the rent for
the lock in period cannot be enforced without proof of loss of damages;
and additionally for the reason under the law of contract a party
wronged by a breach of contract is obliged to mitigate the loss
occasioned by the wrong act of the promisor or the promisee (because
of the explanation to Section 73 of the Indian Contract Act, 1872), but
that would only require the owner of the premises to prove the loss
which is occasioned due to breach of the agreement that possession
would be retained for the lock in period.
35. The learned arbitrator has noted the fact that the respondent
was influenced by the fact that the money which it would pay to Uppal
Housing Ltd. i.e. its investment in the commercial space would yield to
it a return, being the rent agreed to be paid by the appellant under
Ex.C-2. To which fact we may only supplement that it is common
business all over the world for builders to offer buildings or parts
thereof to buyers on an assurance of a fixed return and for which the
builder identifies prospective tenants who enter into written
commitments that when the building is completed they would take on
rent the building or parts thereof, as the case may be. These prior
commitments influence the prospective purchasers of the building or
parts thereof. In the instant case the respondent availed loans from the
bank to purchase the commercial space in question. There is further
evidence before the learned arbitrator that due to the economic global
melt down and slow down in the Indian economy rentals had fallen
drastically and so meager was the requirement of commercial space
that virtually there was no tenant available in the market. Letter Ex.C-
11, dated December 15, 2008, written by the appellant, contents
whereof have been noted by us in paragraph 8 above, is proof of said
state of affairs in the market. The appellant itself has admitted that
rentals have crashed by 40% - 50% in the market. The appellant
suggested a revenue sharing model.
36. The assurance by the appellant that for a period of 24 months it
would retain possession and pay Rs. 3,61,600/- per month as rent
induced the respondent to purchase the commercial space from Uppal
Housing Ltd. This promise by the appellant can be enforced by the
respondent against the appellant on the principles of estoppel, as
rightly held by the learned arbitrator. Further, for the reason rentals
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have fallen by nearly 50% and for the further reason there were
virtually no prospective tenants in the market. There is evidence that
the respondent could not find a tenant.
37. With the concession made to such part of the award which
possibly would have been struck down sans the concession, the
impugned decision which corrects the award on a concession is
unimpeachable and thus we dismiss the appeal with cost against the
appellant and in favour of the respondent.
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