Judgment Agri Horticultural Society of India was a society registered under the provisions of the West Bengal Society Registration Act, 1961. It was maintaining a huge garden in the southern part of the city of Calcutta principally espousing the case of agriculture and horticulture. It had a florist shop having an independent entry from the main road measuring about 350 square feet. In or about 1993 the society intended to engage someone to run the said shop inter alia selling the products of the society. It was agreed that the person would be engaged on commission basis on the terms and conditions stipulated in the agreement dated December 14, 1993 entered into with him. Accordingly, an agreement was entered into entrusting the appellant to look after the said shop on the terms and conditions stipulated therein. The agreement was initially for 13 (thirteen) years with option for renewal for the identical period. The terms and conditions as would appear from the agreement would inter alia provide as follows : i) The appellant would look after the flower unit by organizing sale and supply of flowers, cut-flowers and other agricultural and horticultural products from the sale counter of the society. He would be entitled to the profit of sale subject to 15 per cent commission to the society having a lower limit of Rs.5,000/-(Rupees five thousand) per month being minimum guarantee provision payable to the society. ii) He would have to maintain the counter engaging manpower at his cost. He would also have to discharge all statutory outgoings electricity charges and other incidentals to run the counter. iii) He or his representative would visit the society every morning and would collect the key from the society’s office. iv) The initial period of 13 (thirteen) years could be renewed for another 13 (thirteen) years period having a minimum commission to the society at the rate of 20 per cent provided there was no breach of any terms and conditions by the appellant. v) Society would be entitled to terminate the agreement as per Clauses 8 and 15 upon failure of the appellant to run the same by committing breach of any of the terms and conditions of the agreement and in such event he would forthwith hand over possession back to the society, default of which, would attract penalty of Rs.5,000/-(Rupees five thousand) per day. vi) Clause 25 would be denote that any dispute between the parties would be resolved by alternative resolution of dispute mechanism through arbitration. The appellant accordingly took possession. The agreement expired by afflux of time. On December 13, 2006 the society did not renew the agreement, however allowed him to continue for an additional five months on his request coupled with an assurance on the part of the appellant that he would vacate the premises by that period. Such period expired on May 13, 2007. The appellant did not vacate that resulted in a dispute between the parties that was referred to arbitration under the agreement. Initially the arbitration was conducted by the then President Mr. B.D. Bose and on his retirement Mr. B.K. Nahata, ultimately President for the year 2009 Sri Gourav Swarup published an Award on December 17, 2009 appearing at pages 152-167 of the paper book. The Arbitrator held that the appellant committed breach and was obliged to hand over possession. He failed to do so. Hence, the society was entitled to get peaceful possession of the flower unit coupled with a liquidated damage of Rs.3.3 crores calculated up to July 15, 2007 and thereafter at the rate of Rs.5,000/-(Rupees five thousand) per day on and from July 16, 2007 until he would deliver possession to the society. Pertaining to note, when the dispute arose the appellant did not hand over key to the Society as agreed by and between the parties and retained possession of the flower unit to the exclusion of the society. Initially, the society filed a Statement of Claim inter alia claiming damage for wrongful retention of the flower unit. Subsequently, on their prayer, the Statement of Claim was amended by incorporating the prayer for recovery of possession. The appellant filed an application for setting aside of the Award. From the grounds mentioned in the said application, we would find the principal issue that was raised by the appellant as to the authority of the Arbitrator in deciding the issue of possession. According to the appellant, the subject agreement was nothing but an agreement for tenancy and appellant being a tenant was entitled to the protection of the tenancy law and the dispute could not be resolved through arbitration. According to the appellant, the subject agreement was nothing but an agreement for tenancy and appellant being a tenant was entitled to the protection of the tenancy law and the dispute could not be resolved through arbitration. On merits, the appellant contended that on the expiry of the agreement on December 13, 2006, fresh agreement came into existence that would be apparent from the conduct of the parties. Such agreement for tenancy, even on termination, would not come within the scope of adjudication by the Arbitrator. On the money claim, the appellant contended that there was no basis to assess the liquidated damage. The appellant also raised the plea that the Arbitrator did not give them reasonable opportunity to defend the Statement of Claim. The society contested the arbitration by filing affidavit-in-opposition. In the affidavit the society annexed the minutes of the meeting of the arbitration to show that the appellant had prayed for adjournment and those accommodations had been given by the Arbitrator. Two Arbitrators could not conclude the proceedings during their tenure. Ultimately Sri Swarup concluded the proceeding resulting in an Award after giving adequate opportunity to the appellant. The learned Single Judge dismissed the petition by judgment and order dated August 24, 2011 appearing at page 329-358 of the paper book. His Lordship’s painstaking judgment dealt with all issues that were raised before him and ultimately gave a conclusion that as per the agreement the society was entitled to terminate and was also entitled to get possession back. The liquidated damage was calculated on the basis of fixed amount as agreed by and between the parties in the agreement. His Lordship rejected the contentions of the appellant that they were tenant and they had exclusive possession of the flower shop. His Lordship based His judgment on the Apex Court decision in the case of McDermatt International Inc. Vs. Burn Standard Co. Ltd. reported in 2006 Volume II Supreme Court Cases page-181. His Lordship quoted paragraphs 112 and 113 of the said decision which are reproduced below : “It is trite that the terms of the contract can be expressed or implied. The conduct of the parties would also be a relevant factor in the matter of construction of a contract. Ltd. reported in 2006 Volume II Supreme Court Cases page-181. His Lordship quoted paragraphs 112 and 113 of the said decision which are reproduced below : “It is trite that the terms of the contract can be expressed or implied. The conduct of the parties would also be a relevant factor in the matter of construction of a contract. The construction of the contract agreement is within the jurisdiction of the arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties. It is also trite that correspondences exchanged by the parties are required to be taken into consideration for the purpose of construction of a contract. Interpretation of a contract is a matter for the arbitrator to determine, even if it gives rise to determination of a question of law. (See Pure Helium India (P) Ltd. Vs. ONGC and D.D. Sharma v. Union of India).” “Once, thus, it is held that the arbitrator had the jurisdiction, no further question shall be raised and the court will not exercise its jurisdiction unless it is found that there exists any bar on the face of the award." Being aggrieved, the appellant preferred the instant appeal that was heard by us on the abovementioned dates. Mr. Arindam Mukherjee, learned Advocate appearing for the appellant raised following three issues before us :- (i) The agreement was in effect an agreement of tenancy that would be outside the scope of arbitration. (ii) The Arbitrator violated the principle of natural justice by not extending suitable opportunity to the appellant to defend the action, (iii) Award was opposed to public policy. Elaborating his argument, Mr. Mukherjee construed the Clauses 11, 17 and 21 of the agreement that would indicate the obligations of the appellant to maintain the shop by discharging statutory outgoings, electricity charges, engagement of manpower for a fixed period having two subsequent renewals on the same term. According to him, he was entitled to be in possession till 2032. He contended, in terms of the order of the Court he was paying Rs.15,000/-(Rupees fifteen thousand) per month to run the shop. Hence, the society was obliged to approach the Tenancy Tribunal for his eviction upon compliance of the statutory provision of the tenancy law. According to him, he was entitled to be in possession till 2032. He contended, in terms of the order of the Court he was paying Rs.15,000/-(Rupees fifteen thousand) per month to run the shop. Hence, the society was obliged to approach the Tenancy Tribunal for his eviction upon compliance of the statutory provision of the tenancy law. He contended, tenancy not having been terminated in accordance with the tenancy law, the appellant was entitled to remain in possession and the Arbitrator could not have directed his eviction. On the money claim, he contended, since the appellant was entitled to be in possession, question of liquidated damage would not arise. The appellant lastly contended, on the identical cause suit was pending before the appropriate Court. Hence, Arbitrator could not have directed handing over of possession that would be in direct conflict with the pending suit. We are told that the said suit was still pending and awaiting disposal before the appropriate Civil Court. Mr. Mukherjee further contended that the Arbitrator concluded the hearing with undue haste. He not even considered the personal difficulty of the learned counsel who was indisposed. He referred to the medical documents, pertaining to the illness of the then Advocate-on-Record to show that the Arbitrator was biased and was bent upon to publish, the award in favour of the society. He contended, the Arbitrator, being the President of the Society, was biased and his Award was tainted with partisanship. To support his contention, Mr. Mukherjee relied on the following decisions : 1. S.L. Kapoor Vs. Jagmohan & Ors. reported in All India Reporter 1981 Supreme Court page-136. 2. Wazir Chand Karan Chand Vs. Uion of India & Anr. reported in All India Reporter 1981 Supreme Court page-1845. 3. Smt. Rajbir Kaur & Anr. Vs. M/s. S. Chokosiri & Co. reported in All India Reporter 1988 Supreme Court page-136. 4. C.M. Beena & Anr. Vs. P.N. Ramachandra Rao reported in 2004 Volume 3 Supreme Court Cases page-595. 5. Achintya Kumar Saha Vs. Nanee Printers & Ors. reported in 2004 Volume 12 Supreme Court Cases page-368. Mr. Mukherjee relied upon the first two decisions on the principles of natural justice whereas the other three decisions were on revocation of licence. Mr. Mukherjee prayed for setting aside of the Award as also the arbitration proceedings. Opposing the arbitration, Mr. 5. Achintya Kumar Saha Vs. Nanee Printers & Ors. reported in 2004 Volume 12 Supreme Court Cases page-368. Mr. Mukherjee relied upon the first two decisions on the principles of natural justice whereas the other three decisions were on revocation of licence. Mr. Mukherjee prayed for setting aside of the Award as also the arbitration proceedings. Opposing the arbitration, Mr. Debangshu Basak, learned Advocate appearing for the respondent society interpreted the agreement in his own way. According to him, the management of the flower counter was handed over by the said agreement to the appellant. The Clauses of the agreement would denote, it was neither a joint venture nor a partnership or a tenancy. It was nothing but handing over of the management of a particular unit of the society on specific terms. He put emphasis on Clause-3 that would oblige the appellant to open the counter, after obtaining key from the society’s office every morning and deposit the same in the evening after closure of the unit. Mr. Basak contended that such clause would clearly show that no exclusive possession was handed over to the appellant that would foreclose the claim for tenancy. He relied on the Apex Court decision in the case of Naraindas Lilaram Adnani Vs. Narsingdas Naraindas Adnani & Ors. reported in All India Reporter 1995 Supreme Court page-763 and in the case of Boozallen & Hamilton Inc. Vs. SBI Home Finanace Ltd. & Ors. reported in 2011 Volume 5 Supreme Court Cases page-532. According to him, since the appellant took possession of the counter and remained with the same wrongfully to the execution of the society he would not be entitled to the protection of the tenancy law. Even if it was contended, revocation of licence would attract delivery of vacant and peaceful possession that could be adjudicated upon by an alternate dispute resolution mechanism. He put emphasis on the Apex Court decision cited above. On the money claim, Mr. Basak relied on Clause-24 that would attract quantified damage of Rs.5,000/-(Rupees five thousand) per day on the agreement being terminated either by afflux of time or otherwise. He relied on the Apex Court decision in the case of Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. reported in 2003 Volume 5 Supreme Court Cases page-705. Basak relied on Clause-24 that would attract quantified damage of Rs.5,000/-(Rupees five thousand) per day on the agreement being terminated either by afflux of time or otherwise. He relied on the Apex Court decision in the case of Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. reported in 2003 Volume 5 Supreme Court Cases page-705. He relied on paragraph-68 of the said decision which is quoted below : “From the aforesaid discussions, it can be held that: (1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same. (2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act. (3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract. (4) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation.” While replying Mr. Mukherjee distinguished the decision in the case of Naraindas Lilaram Adnani (supra) and contended that prayer for possession in the said case was a consequential relief whereas the present case would relate to recovery of possession. He also distinguished the decision in the case of Boozallen & Hamilton Inc. (supra) by saying that it was not a case on tenancy law, hence, could be easily distinguished. He referred to the original statement of claim to say that claim for possession was not contemplated therein. Hence, the Arbitrator could not have extended the scope. He also distinguished the decision in the case of Boozallen & Hamilton Inc. (supra) by saying that it was not a case on tenancy law, hence, could be easily distinguished. He referred to the original statement of claim to say that claim for possession was not contemplated therein. Hence, the Arbitrator could not have extended the scope. On the money claim, he referred to page-119 to show that the appellant raised doubt on the applicability of Clause-24 before the Arbitrator. We have examined the minutes. We find that the grievance of the appellant was not justified that they were not given adequate opportunity. Adjournments galore were taken. The arbitration continued for about one and half years. Though the Statement of Claim was filed on July 16, 2007 the Award was published on December 17, 2009. The allegation of undue haste was far from truth. The Delhi High Court decision in the case of Wazir Chand Karan Chand (supra) and the Apex Court decision in the case of S.L. Kapoor (supra) were cited by Mr. Mukherjee. In paragraph 8 of the Delhi High Court decision would show, “Thread of natural justice should run through the entire arbitration proceedings and the principles of natural justice require that the person who is to be prejudiced by the evidence ought to be present to hear it taken to suggest cross-examination or himself to cross-examine and to be able to find evidence, if he can, that shall meet and answer it, in short to deal with in an ordinary course of legal proceedings.” In case of S.L. Kapoor (supra) the Apex Court observed “where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.” These paragraphs, in our view, would rather help us, to hold otherwise. In the instant case, the Arbitrator came to conclusion, so do we, the agreement would denote the society would get back possession on the termination of the agreement by afflux of time or otherwise. In the instant case, the Arbitrator came to conclusion, so do we, the agreement would denote the society would get back possession on the termination of the agreement by afflux of time or otherwise. From the case made out by the appellant, the breach under the agreement was a foregone conclusion, as the appellant’s claim for exclusive possession through tenancy was held to be not correct in view of well-settled principle of law. There could not be any further scope to adduce evidence. Arbitrator is the master of his own procedure. It is not expected, he would rigidly follow the procedural law that was available in a regular civil action. Resolution of a dispute through domestic forum would not attract such procedure to be rigidly followed. Once we are satisfied, ample opportunity was given by the Arbitrator to the appellant to defend the action brought against him the Award would pass through the test of “audi alteram partem”. The learned Single Judge very rightly declined to interfere with the Award, so do we. Section 34 of the Arbitration and Conciliation Act, 1996 would extend jurisdiction to the Court to examine an Award that would be contrary to public policy. The connotation of public policy was explained by the Apex Court in the case of Oil & Natural Gas Corporation Ltd. (supra). We need not go into details. We would only observe, once the Arbitrator gave opportunity to the parties to ventilate their grievance and the Arbitrator examined their grievance and answered them through his Award the Award could not be faulted as it would not be contrary to public policy, so explained by Apex Court in Oil & Natural Gas Corporation Ltd. (supra). On a consolidated examination of facts coupled with the rival contentions, the facts as would appear to us are as follows : i) Society entered into agreement with the appellant for running of the flower counter on the terms mentioned in the agreement. The parties to the agreement would thus be not entitled to distract from the same. ii) As per Clause 3 the society would remain in possession of the flower unit being “legal, physical and symbolic” and the appellant would have to deposit the duplicate key of the doors with the society that would remain with them. The parties to the agreement would thus be not entitled to distract from the same. ii) As per Clause 3 the society would remain in possession of the flower unit being “legal, physical and symbolic” and the appellant would have to deposit the duplicate key of the doors with the society that would remain with them. It was agreed further that the appellant would deposit the key to the security or any authorised representative after the close of the day and collect the key on the next day. Interpreting Clause 3 it could not be said, the appellant was in exclusive possession. iii) If the appellant were not in exclusive possession neither he would be entitled to claim protection under the tenancy law as a tenant or property law as permissive occupant with exclusive possession. iv) The agreement admittedly expired on December 13, 2006. He remained in permissive possession up to May 2007 when the society asked him to vacate. As per Clause 24, he would attract penalty of Rs.5,000/-(Rupees five thousand) per day as liquidated damage. On the above factual matrix, let us apply the law on the subject. Three decisions, Mr. Mukherjee cited would relate to permissive occupation. In the case of Smt. Rajbir Kaur (supra) the Apex Court considered dispute under the tenancy law where landlord sought eviction of the tenancy. Paragraph 10 and 23 were relied upon. The Apex Court in paragraph 10 observed “exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease”. In paragraph-23 the Apex Court observed, “if exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind”. Mr. Mukherjee contended that payment of Rs.5,000/-(Rupees five thousand) per month was the monetary consideration in lieu of exclusive possession being handed over to the appellant. The facts would depict otherwise. We do not find any scope of application of this decision in the present case. Mr. Mukherjee contended that payment of Rs.5,000/-(Rupees five thousand) per month was the monetary consideration in lieu of exclusive possession being handed over to the appellant. The facts would depict otherwise. We do not find any scope of application of this decision in the present case. If we closely examine the payment clause we would find, the payment contemplated under the said clause was a “minimum guaranteed commission”. It is flexible. It would depend upon sale of products. Under the tenancy law a fixed amount is to be paid by the tenant to landlord in exchange of occupation. In the instant case, the appellant would sell the products of the respondent and would get the profit out of it in exchange of 15 per cent commission to be paid to the society. It would mean, in a particular month he may have to pay Rs.6,000/-(Rupees six thousand) or Rs.6,500/-(Rupees six thousand five hundred) or Rs.7,000/-(Rupees seven thousand) to the society and in the next month when he would not be in a position to make such profit he would still have to pay a minimum amount of Rs.5,000/-(Rupees five thousand). We have not come across any such tenancy agreement where the rent is flexible and would depend upon any eventuality. In the case of C.M. Beena (supra) the Apex Court considered the difference between “lease” and “licence”. The Apex Court observed that the real intention can be derived from the document executed between the parties and the surrounding circumstances. Our answer to the issue, in facts and circumstances involved in this case, would be the same as observed in the case of Smt. Rajbir Kaur (supra). In the case of Achintya Kumar Saha (supra) the Apex Court held the same view as was observed in the case of C.M. Beena (supra). Mr. Mukherjee relied on Boozallen & Hamilton Inc. (supra) on the issue of arbitrability. It was a case of mortgage. The Apex Court held, “an agreement to sell or an agreement to mortgage does not involve any transfer of right in rem but creates only a personal obligation.” If a specific performance was sought either with regard to sale or mortgage the issue could be resolved through arbitration. However, when such claim would also involve possession that would be outside the scope. However, when such claim would also involve possession that would be outside the scope. When it was a case of transfer either through sale or mortgage or enforcement of any such right that would be a right in rem attracting the adjudication of civil forum as it would no longer be an action in personam. Mr. Basak also relied upon this decision, particularly paragraphs 34, 35 and 36, those are quoted below : “34.The term “arbitrability” has different meanings in different contexts. The three facets of arbitrability, relating to the jurisdiction of the Arbitral Tribunal, are as under: (i) Whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the Arbitral Tribunal) or whether they would exclusively fall within the domain of public for a(courts). (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the “excepted matters” excluded from the purview of the arbitration agreement. That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the “excepted matters” excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the Arbitral Tribunal, or whether they do not arise out of the statement of claim and the counterclaim filed before the Arbitral Tribunal. A dispute, even if it is capable of being decided by arbitration and falling within the scope of arbitration agreement, will not be “arbitrable” if it is not enumerated in the joint list of disputes referred to arbitration, or in the absence of such joint list of disputes, does not form part of the disputes raised in the pleadings before the Arbitral Tribunal. 35. The Arbitral Tribunals are private for a chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public for a constituted under the laws of the country. 35. The Arbitral Tribunals are private for a chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public for a constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of the Arbitral Tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the legislature exclusively for public for a as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public for a (courts and tribunals), may be necessary implication stand excluded from the purview of private for a. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under Section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. 36. The well-recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary maters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special status where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.” Paragraph-36 clearly excluded eventuality, the scope of arbitration that would include eviction or tenancy matters. He contended that clause 3 of the agreement would make it clear that it was not an agreement against tenancy. He also relied upon the decision of the case of Naraindas Lilaram Adnani (supra) particularly paragraphs 8, 9 and 10. In paragraph-8 the Apex Court observed “it would not now be fair to direct the appellant to seek his remedy of possession through the two suits which he has filed and which may take considerable time to be finally disposed of, when the consequential relief of possession could have been granted to him under the Award itself.” Mr. Mukherjee contended that prayer for possession was not consequential in the present case. Mukherjee contended that prayer for possession was not consequential in the present case. Examining the facts involved in the case of Naraindas Lilaram Adnani (supra) we would find that in a family dispute the resolution of dispute of a family partnership farm was assigned to the Arbitrator by the parties. The Arbitrator observed in paragraph 61 of the Award that “Narain Niwas” was the exclusive personal property of the deceased and the question of possession would be governed by the Bombay Rent Act. The appellant contended that the Arbitrator having held that “Narain Niwas” was exclusive personal property of the deceased, should have granted consequential relief of possession. Such argument was accepted by the Apex Court. In the instant case, once the Arbitrator held that by virtue of the agreement the society did not part with possession of the flower unit and the appellant was only entrusted to run the unit on the terms and conditions stipulated therein including the one that he would have to collect the key every morning and deposit the same at the end of the day after close of the unit the Arbitrator was well within his right to direct delivery of possession so long as the decision in the case of Naraindas Lilaram Adnani (supra) would be held as good law the Award could not be faulted. The appeal fails and is hereby dismissed. There will be no order as to costs.