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2019 DIGILAW 11 (ORI)

Indira S Nair v. Chinmayee Pattnaik

2019-01-07

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 23.07.2018 passed by the learned Civil Judge (Senior Division), Bhubaneswar in C.S. No.1737 of 2017 whereby learned trial court allowed the application filed by the defendant under Sec. 8 of the Arbitration and Conciliation Act, 1996 ('the Act') and referred the matter to the arbitrator. 2. The dispute lies in a very narrow compass. The facts need not be recounted in detail. Suffice it to say that the plaintiff-petitioner instituted a suit for eviction of the defendant. There was a house rent agreement between the parties. Defendant entered contest and filed a written statement. While the matter stood thus, defendant filed an application under Sec. 8 of the Act stating that there was a stipulation in the house rent agreement that in case dispute arises between the parties, the same shall be referred to the arbitrator. The plaintiff filed an objection. The Learned trial judge allowed the application. 3. Heard Mr. Rajjeet Roy, learned counsel for the petitioner. None appears for the opposite party in spite of valid service of notice. 4. The seminal question that hinges for consideration of this Court is whether the arbitrator has jurisdiction to decide the dispute between the landlord and the tenant ? 5. The subject-matter of dispute is no more res integra. This Court in Choudhury Srikanta Das v. The Cuttack Central Co-operative Bank Ltd., represented through its Secretary, Cuttack (CMP No.636 of 2018 disposed of on 19.12.2018) held : "08. The subject-matter of dispute is no more res integra. An identical matter came up for consideration before the apex Court in the case of Natraj Studios (P) Ltd. vs. Navrang Studios, (1981) 1 SCC 523 . In the said case, the landlord instituted a civil suit against the tenant in the Small Causes Court, Bombay for eviction from the leased premises. The tenant was inducted pursuant to "leave and license" agreement executed between the landlord and tenant. The tenant filed an application under Sec.8 of the Arbitration Act, 1940 stating therein that since the "leave and license" agreement contained an arbitration clause, the dispute could be resolved by the arbitrator. The civil suit was not maintainable. The apex Court held that the disputes of such a nature cannot be referred to the arbitrator. The civil suit filed by the landlord was maintainable. 09. The civil suit was not maintainable. The apex Court held that the disputes of such a nature cannot be referred to the arbitrator. The civil suit filed by the landlord was maintainable. 09. In Booz Allen & Hamilton Inc.v. SBI Home Finance Ltd., (2011) 5 SCC 532 , the apex Court went in-depth into the matter and laid down the following proposition of law:- "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 matters (rant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes." (Emphasis supplied) 10. In view of the authoritative pronouncement of the apex Court in the decisions cited supra, the inescapable conclusion is that the dispute between the landlord and the tenant cannot be decided by the arbitrator. Even if there is an arbitration clause in the agreement, the civil court has jurisdiction to decide the same." 6. Admittedly the plaintiff is the landlord. Defendant is the tenant. Thus the dispute between the parties is non-arbitrable. The same cannot be referred to the arbitrator. 7. Resultantly, the impugned order 23.7.2018 passed by the learned Civil Judge (Senior Division), Bhubaneswar in C.S. No.1737 of 2017 is quashed. Learned trial judge shall proceed with the matter. There shall be no order as to costs.