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2020 DIGILAW 938 (ALL)

Banke Bihari Developers Pvt. Ltd. v. Fashion World

2020-06-09

ANJANI KUMAR MISHRA

body2020
ORDER : Anjani Kumar Mishra, J. 1. Heard Shri Manish Kumar Nigam, learned counsel for the revisionist and Shri Tarun Varma, learned counsel for the opposite party. 2. The instant revision is directed against the order dated 09.10.2019 passed by the Civil Judge (Senior Division), Gorakhpur, in Suit No. 509 of 2019, whereby the revisionist's application 12-Ga under Order VII, Rule 11, CPC read with Section 8 of the Arbitration and Conciliation Act, 1996, has been rejected. 3. Suit No. 509 of 2019 was filed by the plaintiff-opposite party seeking an injunction restraining the defendant-revisionist from dispossessing the plaintiff except in accordance with law. 4. In the application under Order VII, Rule 11, CPC, the revisionist claimed that an agreement dated 06.02.2017 between the parties contained an arbitration clause. The suit therefore, was barred by Section & of the Arbitration and Conciliation Act, 1996. 5. The plaintiff filed an objection stating that the matter being a landlord and tenant matter, despite existence of an arbitration clause in the agreement between the parties, the civil court would still have jurisdiction in the matter. 6. It was also pleaded that the defendant-revisionist had denied the agreement/memorandum of understanding clause 21, wherein the stipulation for an arbitration is alleged to exist. Therefore, the application under Order VII, Rule 11, CPC was not maintainable. 7. The Court after hearing the parties dismissed the application under Order VII, Rule 11, CPC on the ground that the agreement/memorandum of understanding was not a registered document. It, being a lease agreement, was necessarily required to be registered. 8. The second ground for rejecting the application was that the relief claimed in the suit, namely that the plaintiff may not be dispossessed or evicted from the accommodation in its possession except in accordance with law was not something, which was part of the agreement which contains the arbitration clause. Therefore, the relief claimed in the suit was beyond the arbitration agreement between the parties. 9. Therefore, the relief claimed in the suit was beyond the arbitration agreement between the parties. 9. The contention of learned counsel for the revisionist is that in view of what has been held by the Apex Court in Mayavati Trading Private Limited v. Pradyuat Deb Burman (2019) 8 SCC 714 : AIR 2019 SC 4284 , once an arbitration agreement exists, the Court post the amendment in the Arbitration and Conciliation Act, 1996 w.e.f. 23.10.2015, is only required to consider as to whether the agreement between the parties contains an arbitration clause and nothing beyond that. Therefore, the application under Order VII, Rule 11, CPC has wrongly been rejected. The Court below while rejecting the application has gone into aspects, which were not required to be considered at all. 10. Counsel for the opposite party has supported the impugned order. 11. I have considered the submissions made by learned counsel for the parties and perused the record. 12. I have also carefully perused the memorandum of understanding, the alleged rent agreement between the parties, which contains an arbitration clause. The suit is one for injunction restraining the defendant from dispossessing the plaintiff from the accommodation in its possession, except in accordance with law. The alleged arbitration agreement does not contain any clause, which would pertain to the relief claimed in the suit. Therefore, the reasoning given by the Court below that the relief claimed in the suit was beyond the scope of the arbitration agreement is perfectly justified. 13. The second reason given for rejecting the application under Order VII, Rule 11, CPC is that the rent agreement/memorandum of understanding required registration before it would be relied upon, but was not a registered agreement. 14. 13. The second reason given for rejecting the application under Order VII, Rule 11, CPC is that the rent agreement/memorandum of understanding required registration before it would be relied upon, but was not a registered agreement. 14. Although, it is sought to be contended by learned counsel for the revisionist that this aspect was not required to be considered, I do not agree with this contention in view of the judgment of the Apex Court in Garware Wall Ropers Ltd. v. Coastal Marine Constructions and Engineering Limited, (2019) 9 SCC 209 : AIR 2019 SC 2053 : 2019 (4) ABR 83, wherein it has been held that despite introduction of Section 11(6-A) of the Arbitration and Conciliation Act, 1996, a document; which is compulsory registrable and contains an arbitration clause needs to be examined to see if it is duly stamped or not and such inquiry only means an inquiry as to whether an arbitration agreement exists in law and that it would not exist in law unless the document is duly stamped, and registered, if by law required. 15. In view of the foregoing discussion, I do not find any illegality in the impugned order, which suffers from no jurisdictional error warranting interference. The revision is accordingly, dismissed.