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2017 DIGILAW 825 (CAL)

Shree Rath Chemicals v. Bimala Devi Jalan

2017-10-30

MIR DARA SHEKO

body2017
JUDGMENT : MIR DARA SHEKO, J. 1. Heard Mr. Mukherjee being assisted by Ms. Chatterjee appearing for the petitioner-defendant. Heard also Mr. Sen representing the opposite parties plaintiffs. Perused the materials on record and the impugned order. Mr. Mukherjee criticizing the impugned order dated January 21, 2016 passed by learned Civil Judge (Jr. Division) 3rd Court at Howrah in Title Suit No. 129 of 2013 and counter suit being Title Suit No. 105 of 2014 filed by the petitioner-defendant (being tried analogously) rejecting an application under section 8 of the Arbitration and Conciliation Act, 1996 dated August 12, 2015 filed by the petitioner submitted that while in clause 15 of the arbitration agreement there was arbitration clause between his client and the landlord of the premises in question, and when the petitioner had filed the application to refer the matter for settlement by appointing an arbitrator, rejection of such application suffers from illegality and perversity. 2. In support of his submission Mr. Mukherjee relied upon the following decisions:- (a) Case of P. Anand Gajapathi Rami & Ors. v. P.V.G. Raju (died) & Ors. reported in AIR 2000 SC 1886 : (2000) 4 SCC 539 ; (b) Case of Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums reported in (2003) 6 SCC 503 ; (c) Case of Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. reported in (2007) 3 SCC 686 ; and (d) Case of Branch Manager, Magma Leasing and Finance Limited & Anr. v. Potluri Madhavilata & Anr. reported in (2009) 10 SCC 103 . 3. During course of hearing the court is apprised of that the petitioner initially had filed Title Suit No. 34 of 2013 (re-numbered as 105 of 2014) for declaration and injunction in respect of the suit property and the opposite parties filed Title Suit No. 129 of 2013 which was for eviction and khas possession, and admittedly under order of the learned District Judge, Howrah both the title suits are being tried analogously. Copy of both the plaints having been filed by Mr. Mukherjee with concurrence of Mr. Sen be taken on record for future reference. 4. Mr. Sen submitted supplementary affidavit pursuant to the order of this court dated June 20, 2017 which is taken on record. Supporting the impugned order Mr. Copy of both the plaints having been filed by Mr. Mukherjee with concurrence of Mr. Sen be taken on record for future reference. 4. Mr. Sen submitted supplementary affidavit pursuant to the order of this court dated June 20, 2017 which is taken on record. Supporting the impugned order Mr. Sen submitted that the eviction suit is to be tried and disposed of within the statutory provisions where the arbitration clause would have no applicability. Relying on the case of Booz Allen and Hamilton Inc. v. SBI Home Finance Limited & Ors. reported in (2011) 5 SCC 532 and the case of Ranjit Kumar Bose & Anr. v. Anannya Chowdhury & Anr. reported in (2014) 2 WBLR (SC) 948, Mr. Sen concluded his submission that the dispute of the present nature can only be decided by learned Civil Judge and after 2011 the same is not liable to be referred to before the arbitrator for arbitration. 5. It is obvious that generally has there been any arbitration clause in any agreement, the same may be exercised as a shield and not a sword whenever it would be necessary, and particularly such shield may be used when the other side comes up with a legal proceeding. Be that as it may, in the instant case the petitioner in advance had come up with a regular suit to protect his so-called tenancy right by filing an independent suit, presumably, due to the reason that without due exercise of law he may not be evicted. For the reasons thereby the later suit came into existence for eviction. The scope of further litigation like the instant one cropped up when learned trial court declined to go by the application filed by the petitioner proposing to refer the matter pertaining to the suit before the arbitrator for its resolution. 6. To apprise the lis, let me quote from the text of clause 15 of the admitted arbitration agreement:- "15. In case of any dispute whatsoever relating to the terms of the Agreement the same shall be referred to arbitrator appointed by each party and their decision shall be binding on both the parties." The aforesaid text in one hand is very clear that any dispute whatsoever relating to the "terms" of the agreement shall be referred to the arbitrator. Emphasis is supplied to the word 'terms'. Emphasis is supplied to the word 'terms'. In the suits under reference one is relating to protection of tenancy right and the other is eviction therefrom. Therefore, there is no question of any dispute whatsoever relating to any old or new terms of the landlord-tenancy agreement. Meaning thereby, the dispute or the issues pertaining to both the suits are liable to be disposed of within the special statute. Because, admittedly, there was relationship between landlord and tenant. Therefore, even granting grace marks to the submission as advanced by Mr. Mukherjee if the clause 15 of the arbitration clause is construed, nonetheless the impugned order does not suffer from any perversity or illegality. Because in either of the suit the terms of agreement were not under challenge. Eventually the instant application under Article 227 of the Constitution has no merit. Because of refusal of the application to refer before the arbitrator no wrong was committed. 7. On the other hand, this court particularly desires to cite paragraphs 13 and 14 from the case of Ranjit Kumar Bose v. Annanya Chowdhury (supra) relied upon by Mr. Sen which are as follows:- "13. In Branch Manager, Magma Leasing and Finance Limited and Anr. v. Potluri Madhavilta and Anr. (supra), Magm Leasing Limited Public United Company (for short 'Magma') and Smt. Potluri Madhavilata (for short 'hirer') entered into an agreement of hire-purchase for the purchase of a motor vehicle whereunder the hirer was required to pay hire-purchase price in 46 instalments. When the instalments were not paid, Magma seized the vehicle and sent a notice to the hirer saying that the hire-purchase agreement has been terminated. The hirer then filed a suit against Magma in the Court of the Senior Civil Judge for recovery of possession of the vehicle and for restraining Magma from transferring the vehicle. Magma filed a petition before the Civil Judge under section 8 of the 1996 Act praying that the dispute raised in the suit be referred to an arbitrator in terms of Clause 22 of the Hire-Purchase Agreement, which contained the arbitration agreement. This Court reiterated that section 8 is in the form of legislative command to the court and once the prerequisite conditions are satisfied, the Court must refer the parties to arbitration. This Court reiterated that section 8 is in the form of legislative command to the court and once the prerequisite conditions are satisfied, the Court must refer the parties to arbitration. In this case again, there was no statutory bar to arbitration like section 6 of the Tenancy Act providing that the dispute can only be decided by a Civil Judge. 14. The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in section 8 of the 1996 Act. On the contrary, the relief claimed by the Appellants being mainly for eviction, it could only be granted by the "Civil Judge having jurisdiction" in a suit filed by the landlord as provided in section 6 of the Tenancy Act. The expression "Civil Judge having jurisdiction" will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit." 8. Since the case of Booz Allen and Hamilton Inc. v. SBI Home Finance Limited & Ors. (supra) was correctly appreciated by learned trial court, I refrain from repeating the same. The cases referred to by Mr. Mukherjee, on principle, are academic. Because in each and every such case there was no bar on the part of the court referring the parties to arbitration where there was such a clause in the agreement, but as I have discussed already that in one hand the very lis involved in both the suits do not involve the terms of the landlord and tenancy agreement, rather, the tenant is seeking protection in the form of declaration so that he may not be evicted from his tenancy right without due process of law and the other side has filed a suit for eviction of the tenant within the statutory provisions; and since the suit is liable to be disposed of only within the statutory provisions under the special statute. Therefore, either of the cases cited by Mr. Mukherjee is of no assistance to the petitioner. 9. Therefore, either of the cases cited by Mr. Mukherjee is of no assistance to the petitioner. 9. Therefore, upholding the impugned order dated January 21, 2016 passed by learned trial court in Title Suit No. 129 of 2013 and Title Suit No. 105 of 2014 the same being tried analogously, the CO stands dismissed with direction to learned trial court to proceed with the suit for its expeditious disposal as would be practicable according to the convenience of his diary. No order as to costs. Certified photostat copy of this order, if applied for, shall be given to the parties.