Calcutta High Court
Apo 114 Of 2022 vs Future Enterprise Limited And Anr on 4 September, 2025
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IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
(Commercial Divison)
Present: - Hon'ble Mr. Justice Subhendu Samanta.
IN THE MATTER OF
APO 114 of 2022
Laxmi Pat Surana.
Vs.
Future Enterprise Limited and Anr.
For the appellant : Mr. Arindam Paul, Adv.,
Ms. Subhasri Chatterjee, Adv.
For the respondent 2 : Mr. Rished Medora, Adv.,
Ms. Pooja Chakraborti, Adv.,
Ms. Arti Bhattacharyya, Adv.,
Ms. Debomita Sadhu, Adv.,
Mr. Sagnik Aditya, Adv.,
Reserved on : 25.04.2025
Judgment on : 04.09.2025
Subhendu Samanta, J.
1. This is an appeal under section 37 of Arbitration and Conciliation Act, 1996 filed by claimant/appellant Laxmipat Surana being aggrieved by and dissatisfied with an order dated 6th November 2022 passed by Learned Arbitrator in Arbitral dispute case No. 2 of 2021 (Laxipat Surana Vs. Future Enterprises and Anr.).
2. The brief fact of the case is that in terms of application u/s 11 of Arbitration and Conciliation Act. Hon'ble Justice PK Roy (retired), was appointed as a sole Arbitrator in respect of 2 Dispute of claim of licensee fee of the claimant against the respondent herein. On 19th April, 2021 Learned Arbitrator entered reference on 19th September, 2019 an application u/s 17 of Arbitration and Conciliation Act, 1996 was filed by the claimant/appellant before the Learned Arbitrator claiming for interim relief seeking direction upon the respondents to furnish security to the tune of Rs. 51,38,70,524/- only and to place the same at the disposal of Hon'ble Arbitrator in the event failure to furnish, the assets and property of respondent be attached before the judgment. Petitioner also made such interim prayer in terms of his prayer in Section 9 application seeking security against the dues towards admitted license fee from August 2013. Learned Tribunal after receiving pleadings from the parties and after hearing the respective party has disposed of the application u/s 17 of Said Act 1996 vide impugned order dated 06.11.2022. The operative portion of the said order is set out as follows:-
Having regard to the documents which have been considered by this Arbitral Tribunal, it appears that claim of possession by respondents vis-a-vis claimant as lessee over the demised property requires further adjudication on merit which cannot be done in Section 17 application. The issues as raised are required to be considered at length at the time of final hearing and prima facie this Hon'ble Tribunal is not satisfied to pass any order in a proceeding under Section 17 of the said Act which is for interim protection where claimant has to satisfy prima facie about their 3 claim and denial to make payment of such claims by the respondents. Hence the application under Section 17 of the said Act stands dismissed. It is made clear that this Hon'ble Tribunal has not gone into merits of the legal principles as thrashed by respective parties and parties are at liberty to urge all points at the final hearing of arbitral proceeding except the points and issues already decided in application under Section 16 of Arbitration & Conciliation Act, 1996 and award passed by earlier arbitral proceeding on 19.5.2016. No order as to costs.
3. Mr. Sakya Sen Learned Sr. Counsel appearing on behalf of the appellant submits that the impugned order passed by the Learned Arbitrator is per versed and illegal in the eye of law. He further submits that observation of Learned Tribunal regarding possession of the property is not at all tenable.
4. He further submits that the Learned Tribunal at the time of passing such impugned order has also raised dispute regarding title of the appellant/lessee over the disputed property in question which is beyond the scope of reference. He further submits that the observation of the Learned Tribunal i.e. the property is under custodial lease is also not proper.
5. Mr. Sen, submits that there is no evidence of arbitral records that respondents have delivered Khas & vacant possession of demise premises to the claimant/ appellant on April 14, 2012 or that the claimant/appellant has received back the vacant possession of demise premises from respondent on the said date. In terms of agreement dated 30.01.2007.4
6. Mr. Sen argued that the issue of possession was not a substantial question in earlier reference and therefore findings of the earlier reference and the same cannot be construed as res judicata in the present reference.
7. Mr. Sen further argued that the property in question is not under "custodial lesis" it has wrongfully hold by the Learned Arbitrator. There is no evidence in the arbitral record that either the claimant/appellant or its bank or the Learned Receiver has Receiver any payment of occupational charges in terms of the agreement form either Sub Licensee or from sub-sub- licensee or the claimant/appellant has accepted as such in the meeting called by SDO Kharagpur.
8. Mr. Sen further argued that Learned Arbitrator has passed the impugned order by dismissing application Section 17 without any evidence or contrary the evidence and without application of mind thereby the findings of Learned Arbitrator is pervarse and required to set out.
9. Mr. Sen further argued that it has been stated that the respondent No. 2 they are not in occupation of demised premises, but there are evidence on record that respondent No. 2 and/or the entity under them are still in actual possession in demised premises which will appeal from time to time cash memos and TDS certificates.
10. Mr. Sen further argued that the Ld. Arbitrator has failed to appreciate the prima facie case which is in favour of the petitioner. He further submits that if interim relief is refused 5 irreparable harm and loss would be caused to the appellant which cannot be compensated in terms of money.
11. He further submitted that balance of convenience and inconvenience is in favour of the petitioner/ appellant. Thus the Learned Tribunal/ Arbitrator should have passed the interim order in terms of the prayers in application u/s 17 of the said Act, 1996.
12. Mr. Rished Medora appearing on behalf of the respondent submits that impugned order passed by the Learned Sole Arbitrator is justifiable and cannot be interfered in the limited scope u/s 37 of the Arbitration and Conciliation Act, 1996.
13. He further submits that respondent has time and again submits that the respondent No. 2 is not in a possession of the concerned premises, the same fact has already been decided by all arbitrator in the earlier reference. The Learned Tribunal in disposing of the application u/s 17 has correctly observed that the observation of earlier reference can be act as a res-judicata to this reference.
14. He further submits that peculiar facts suggest that the respondent No. 2 has handed over possession of the demised premises to the appellant in April 12, 2012. The Learned Arbitrator of earlier reference has accepted the plea and had passed an interim order to that effect. He submits that the appellant cannot utter otherwise in the present reference which they have already or the admitted in the earlier reference. Mr. Medora Submits that award dated 19th May, 2016 of earlier 6 reference has not been set aside or stayed thus, same in conclusive and binding on the sole arbitrator in the present reference.
15. He further submits that the appellants is vexatiously intending to secure an unsecure and unliquidated claim and the same cannot be allowed. He submits that the appellant knowing fully well that his claim cannot be allowed, he try to establish baseless claim. He further submits that the group of companies doctrine as argued by the appellant regarding the possession of the respondent over the demised premises cannot be entertained at the stage. He further submits that appellant has failed to make out substantial case for grant of interim relief.
Hence the impugned order passed by the Learned Arbitrator is justified. He prayed for rejection of the appeal.
16. Having heard the Learned Counsel for the parties and also taking note of their written notes of argument, it appears to me by plain perusal of the impugned order that- in inner page 8 of the said impugned order and Ld. sole arbitrator has hold that applicability of the principal of res-judicata u/s 11 of CPC is a submission of the respondent before the learned Tribunal. It is not a conclusive finding of Learned Arbitrator. In the same page the Learned Sole Arbitrator has also noted the plea of the respondent regarding the title of claimant as leasee is under dispute and the occupation of the respondent in the demise premises is also under dispute. So, there is also no conclusiveness of those findings.
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17. In the final operative paragraph of the impugned judgment Learned Arbitral Tribunal has categorically observed that claim of regarding vacating demised premises the respondent as well as the claim of leasee over the demise property can only be adjudicated on the final stage. However issue which touches the merit of the entire reference cannot be decided by the Learned Tribunal. It appears from the final paragraph of the impugned judgment that the Learned Tribunal is of opinion that the relevant issues cannot be decided at a stage u/s 17 application.
18. In my view the possession of a property is issue of fact which can only be determined through evidences. Whether respondent has vacate the premises by virtue of as interim order of earlier reference is a mixed question of fact and law. It further appears that the title of the licenses over the demised premises cannot be challenged by the respondent, u/s 116 of Indian Evidence Act.
19. It further appears that the Learned Tribunal could not passed the interim order in terms of the prayer u/s 17 of Act, 1996 only on the ground that the same can only be determined in final stage. In my view, if the order of interim protection was granted in favour of the petitioner the same would be tantamount to be final determination of the lis, which cannot possible at stage u/s 17 of Act, 1996.
20. Considering the same I find no illegality or perversity in the impugned order dated 6th November 2022 passed by the sole 8 arbitrator. Learned Arbitrator has kept all the issues pending for determination in final stage.
21. Under the above observation I find no scope to entertain the appeal; thus, the same is hereby dismissed and disposed of.
22. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.
(Subhendu Samanta, J.)