Karnataka High Court
Mr Krishna Prasad A R vs Mrs Shankari Rangarajan on 29 August, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 29TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.11375 OF 2017 (GM-CPC)
BETWEEN:
MR. KRISHNA PRASAD. A.R.
AGED ABOUT 50 YEARS
S/O MR. A.D. RANGANATHAN MUDALIAR
APARTMENT NO. 104, PROMENADE PLACE
NO. 45/2, PROMENADE ROAD
BANGALORE - 560 042.
... PETITIONER
(BY SRI. VEERENDRA SHARMA. R, ADV.-ABSENT)
AND:
MRS. SHANKARI RANGARAJAN
SINCE DECEASED
BY HER L.R. SMT. BHARATHI SHIVAKUMAR
AGED ABOUT 41 YEARS
R/AT NO.126, TURN BERRY DRIVE
AVONDALE PA 1931, USA
REPTD. BY GPA HOLDER
SMT. BHUVANESHWARI
NO.A-102, RANKA PLAZA
NO.157, WHEELER'S ROAD
FRAZER TOWN
BANGALORE-560 005.
... RESPONDENT
(BY SMT. JYOTHI BHAT, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DTD.6.1.2017, PASSED BY THE
Date of Order 29-08-2018 in W.P.No.11375/2017
Mr. Krishna Prasad. A.R. Vs.
Mrs. Shankari Rangarajan
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LEARNED XIV ADDL. CITY CIVIL JUDGE, BANGALORE ON
I.A.NO.II, IN O.S.NO.4745/2014, VIDE ANNEX-A AND ALLOW
THE I.A.NO.II FILED BY THE PETITIONER. TO DISMISS
O.S.NO.4745/2014, FILED BY THE RESPONDENT AND PENDING
BEFORE THE XIV ADDL. CITY CIVIL JUDGE AT BANGALORE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr. Veerendra Sharma R., Adv. for Petitioner - (Absent) Smt. Jyothi Bhat, Adv. for Respondents
1. The petitioner - defendant - tenant -
Mr.Krishna Prasad A.R. has filed this writ petition under Article 227 of the Constitution of India aggrieved by the order dated 06.01.2017 passed by the Trial Court in O.S.No.4745/2014 - Smt. Shankari Rangarajan vs. A.R.Krishna Prasad, by which order the learned Trial Judge has rejected the application of the defendant - IA No.2 filed under Order 7 Rule 11(D) of Code of Civil Procedure, 1908 to reject his plaint on the ground that there is an arbitration clause in the lease agreement between the parties and therefore, the matter ought to be referred for Arbitration.
Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 3/10
2. None presents on behalf of the petitioner.
3. Heard the learned counsel for the respondent.
4. In the opinion of this Court, there is no error in the impugned order passed by the learned Trial Judge, as the eviction suit is not an arbitral dispute covered by the provisions of the Arbitration and Conciliation Act, 1996. The Hon'ble Supreme Court in the case of Booz Allen and Hamilton Inc. Vs. SBI Home Finance Limited and others reported in (2011) 5 SCC 532 and in the case of Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia reported in (2017) 10 SCC 706 has included such eviction matters to be non-
arbitral disputes.
5. The relevant portion of these judgments are quoted below for ready reference:
Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 4/10 1 In Booz Allen and Hamilton Inc. Vs. SBI Home Finance Limited and others reported in (2011) 5 SCC 532:
"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 (grant 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".
2. In Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia reported in (2017) 10 SCC 706:
"18. In our considered opinion, the question involved in the appeal remains no Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 5/10 longer res integra and stands answered by two decisions of this Court in Natraj Studios (P) Ltd. vs Navrang Studios and Booz Allen & Hamilton Inc. vs. SBI Home Finance Ltd & Ors., against the appellant and in favour of the respondent.
19. So far as Natraj Studio's case (supra) is concerned there also, the landlord had filed a civil suit against the tenant in the Small Causes Court, Bombay claiming therein the tenant's eviction from the leased premises. There also, the tenant was inducted pursuant to "leave and license"
agreement executed between the landlord and the tenant. The tenant filed an application under Section 8 of the Arbitration Act, 1940 contending therein that since the "leave and license "agreement contained an arbitration clause for resolving all kinds of disputes arising between the parties in relation to the "leave and license agreement and the disputes had arisen between the parties in relation to the "leave and license"
agreement, such disputes could only be Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 6/10 resolved by the arbitrator as agreed by the parties in the agreement. It was contended that the civil suit was, therefore, not maintainable and the disputes for which the suit has been filed be referred to the arbitrator for their adjudication.
20. This Court (Three Judge Bench) speaking through Justice O. Chinnappa Reddy rejected the application filed by the tenant under Section 8 of the Act and held, inter alia, that the civil suit filed by the landlord was maintainable. It was held that the disputes of such nature cannot be referred to the arbitrator. This is what their Lordships held as under:
24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 7/10 and also in Deccan Merchants Co op Bank Ltd. v. Dalichand Jugraj Jain, the Court of Small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent licensor-landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant licensee-tenant.
That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 8/10 or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee tenant and the dispute between them relating to the possession of the licensed demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the arbitrator has none to adjudicate upon the dispute between the parties."
21. Yet in another case of Booz Allen & Hamilton Inc, this Court (two Judge Bench) speaking through R.V.Raveendran J. laid down the following proposition of law after examining the question as to which cases are arbitrable and which are non-arbitrable:
"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 Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 9/10 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 (grant 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."
22. Keeping in view the law laid down by this Court in aforementioned two decisions and applying the same to the facts of this case, we have no hesitation to hold that both the Courts below were right in dismissing the appellant's application filed under Section 8 of the Act and thereby were Date of Order 29-08-2018 in W.P.No.11375/2017 Mr. Krishna Prasad. A.R. Vs. Mrs. Shankari Rangarajan 10/10 justified in holding that the civil suit filed by the respondent was maintainable for grant of reliefs claimed in the plaint despite parties agreeing to get the disputes arising therefrom to be decided by the arbitrator."
6. Accordingly, there is no merit in this writ petition filed by the defendant - tenant. Hence, the present petition is liable to be dismissed and the same is dismissed.
Copy be sent to the petitioner and the Trial Court below.
Sd/-
JUDGE SA Sl.No.4