Bombay High Court
Genesis Colors Private Limited vs Mr.Anil Ramlabhaya Suri & Anr on 14 October, 2009
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
ARBITRATION PETITION NO. 613 OF 2009
Genesis Colors Private Limited
.... Petitioner
vs
Mr.Anil Ramlabhaya Suri & Anr.
.... Respondents
Mr.S.V. Doijode with Ms.Diksha Kakkar i/b. Doijode Associates
for the petitioner.
Mr.Rajiv Kumar with Mr.Vimadalal for the respondents.
CORAM: ANOOP V. MOHTA, J.
DATE : 14th October, 2009
ORAL JUDGMENT:
1 The petitioner has taken out this petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act) in a Leave and Licence Agreement (Agreement) between the parties having arbitration clause. The petitioner is claiming refund of a security deposit made in pursuance to the agreement. The claim of recovery is arising out of and part of the agreement. The dispute is quite interlinked and directly connected with the agreement. The remedy is elsewhere.
2 This High Court in Carona Limited vs. Sumangal Holdings 2007(7) LJSOFT 49 (D.B), considering the scheme and object of Section 41 of the Presidency Small Causes Court Act, 1883, held that such arbitration ::: Downloaded on - 09/06/2013 15:13:13 ::: 2 proceeding is impermissible. The basic observation in Carona Limited (supra) is as under:
"11 ..... Thus, as the legislature has created a special forum for adjudication of disputes between the licensee and licensor in relation to recovery of possession and licence fee, the jurisdiction of the court of original civil jurisdiction will be ousted by necessary implication and, therefore, applying the law laid down by the Supreme Court in Natraj Studios, the reference to arbitration of the question which falls for decision before the Small Causes Court suit under Section 41, cannot be possible."
Again this Court in ING Vyasya Bank vs. Modern India Limited & anr., 2008 (2) Bom.C.R. 25 has observed as under:
"23 For all these reasons, I am of the view that the objection to the jurisdiction of this Court to entertain the Petition is well founded. The recourse to arbitration under the terms of the arbitration clause contained in the agreement of leave and licence would be barred by virtue of the exclusive jurisdiction conferred upon the Court of Small Causes by Section 41(1) of the Presidency Small Cause Courts Act, 1882. The Petition shall stand dismissed."
3 In view of this specific bar and considering the averments so made and the prayer clauses as the dispute is arising out of the agreement which falls within the ambit of Section 41 of the Presidency Small Causes Court Act, in my view also, this Court has no jurisdiction to grant any relief under Section 9 of the Act in a dispute of such nature.
4 The petition is therefore dismissed. No costs.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 15:13:13 :::