Leelamayee Foods Pvt. Ltd v. West Bengal Tourism Development Corporation Ltd.
2010-06-15
ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE
body2010
DigiLaw.ai
JUDGMENT:- Ashim Kumar Banerjee, J. The dispute relates to running of a Bar at Udayachal Tourist Lodge, Salt Lake, belonging to West Bengal Tourism Development Corporation Ltd., the respondent no. 1 above named. The Corporation granted a lease to the appellant through an indenture dated February 22, 1993 appearing at pages 94–104 of the paper book. By the said agreement 1500 sq. ft. area along with kitchen, pantry, bar-storage and toilet facility at Udayachal Tourist Lodge was given to the appellant on the terms and conditions stipulated therein. It further appears that for running of the Bar the appellant wanted an office space and approached the Corporation vide letter dated November 11, 1994. The Corporation considered their prayer vide letter dated April 28, 1995 appearing at page 105 of the paper book and granted tenancy in respect of Room Nos. 9 and 10 at the first floor at the monthly rent of Rs. 2500/- for being used as Bar Office. The tenancy was confirmed by the Corporation through letter dated May 16, 1995 appearing at page 106 of the paper book. Mr. B.K. Bachowat, learned senior counsel, appearing for the appellant, contends that the Bar Office was given to them vide letter dated April 28, 1995 and May 16, 1995 for augmentation of the business of Bar covered under the agreement dated November 22, 1993. Hence, the Bar Office should not be considered as a separate entity. In support of his contention Mr. Bachowat further refers to the letter dated February 09, 2009 appearing at page 117(a) of the paper book where Corporation offered renewal at the rate of Rs.45/-per sq. ft. in respect of Bar and Rs. 16/- per sq. ft. for Bar Office. This offer was a composite offer as appears from the letter dated February 09, 2009. Disputing the contention of Mr. Bachowat, Mr. Jiban Ratan Chatterjee, learned senior counsel, appearing for the respondents, contends that on a plan reading of the agreement it would appear that the lease agreement containing an arbitration clause relates to 1500 sq. ft. area to be used as Bar. The Bar Office was given by a separate letter as referred to above and was not made a part of the agreement which could come within the mischief of the arbitration clause. With regard to the offer made by the Corporation appearing at page 117(a) Mr.
ft. area to be used as Bar. The Bar Office was given by a separate letter as referred to above and was not made a part of the agreement which could come within the mischief of the arbitration clause. With regard to the offer made by the Corporation appearing at page 117(a) Mr. Chatterjee contends that said offer was conditional upon the final approval of the Board of Directors of the Corporation. The Corporation vide letter dated March 27, 2009 appearing at page 118 of the paper book gave modified offer only in respect of Bar. The issue of Bar Office was consciously excluded as would appear from the said letter dated March 27, 2009. Both Mr. Bachowat and Mr. Chatterjee, however, on instruction agree that they would resolve their dispute through arbitration as per the arbitration clause contained in February 22, 1994 through Sri Ajoy Krishna Chatterjee, a senior advocate of this Court. The parties are also prepared to file an agreement to the said extent. Dispute, however, remains whether the Bar Office would also be included within the ambit of arbitration. We have carefully perused the documents entered into by the parties and the correspondence exchanged by them appearing at the paper book. We have considered the rival contentions of the parties. We are of the view that the lease agreement containing the arbitration clause relates to 1500 sq. ft. area which was subsequently enhanced to 1896.50 sq. ft. as would appear at page 107. This occupancy of the appellant under the respondents, in our view, is certainly covered by arbitration clause. The parties have agreed to resolve their dispute through arbitration. Let them have their dispute resolved through arbitration to that extent. With regard to the Bar Office, it would not be safe to conclude finally that the same was also included within the scope and ambit of the said arbitration agreement dated February 22, 1994. We could have accepted such submission of Mr. Bachowat if the offer at page 117(a) was finally approved by the Board of Directors. We find that the Corporation consciously kept the issue of Bar Office outside as would appear from their subsequent letter referred to above. Mr. Chatterjee contends that it was given under a tenancy which is covered by the Tenancy Law. Mr. Bachowat disputes the same.
Bachowat if the offer at page 117(a) was finally approved by the Board of Directors. We find that the Corporation consciously kept the issue of Bar Office outside as would appear from their subsequent letter referred to above. Mr. Chatterjee contends that it was given under a tenancy which is covered by the Tenancy Law. Mr. Bachowat disputes the same. The parties are at liberty to preserve their respective rights with regard to the tenancy of Bar Office in an appropriate proceeding before the appropriate forum. We do not make any comment to the same. The dispute pertaining to 1896.50 sq. ft. being used as Bar at Udayachal Tourist Lodge, Salt Lake, particularly the issue of renewal of the lease and the terms and conditions to be stipulated therein, should be decided and resolved by the parties through arbitration of Sri Ajoy Krishna Chatterjee as agreed by and between them. The parties have also agreed that they would pay lump sum remuneration of Rs. One lakh in equal share to Sri Chatterjee. Sri Chatterjee would have summary power to decide the controversy once for all. The parties would be at liberty to assist the arbitrator by filing appropriate pleadings and if necessary, by adducing oral and documentary evidence. The arbitrator would be entitled to appoint a clerk and a stenographer, the cost of which would be borne by the parties in equal share. A written agreement must be filed by the parties within two weeks from date. We earnestly request the learned Arbitrator, if he is approached by filing written agreement, to enter upon reference as early as possible. The appellant, in the mean time, would continue to pay occupation charges Rs. 45/-per sq. ft. as agreed upon by him vide letter dated February 13, 2009 appearing at page 117 (b) with effect from February 22, 2008. Mr. Bachowat, on instruction, submits that arrear amount would be cleared by the appellant within one week from date. The payments and receipts would, however, be without prejudice to the rights and contentions of the parties in the arbitration. Mr. Bachowat contends that he should also be given liberty to approach the Arbitrator with a prayer to include the Bar Office within the ambit of the arbitration. Mr. Chatterjee disputes such contention. We do not express any opinion about the same.
Mr. Bachowat contends that he should also be given liberty to approach the Arbitrator with a prayer to include the Bar Office within the ambit of the arbitration. Mr. Chatterjee disputes such contention. We do not express any opinion about the same. Interim order pertaining to Bar, already passed by us would continue to remain in force so long payments are made by the appellant to the respondents and until the matter is finally resolved in arbitration. With regard to the Bar Office, interim order passed earlier would continue till the Arbitrator enters upon reference. The appeal is thus disposed of without any orders to costs. Urgent xerox certified copy of this order, if applied for, be given to the parties, upon compliance of all formalities. I agree.