Calcutta High Court
Efcalon Tie Up Private Ltd vs Startrack Agency Pvt. Ltd on 20 February, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
OD-17 ORDER SHEET
A.P. no. 812 OF 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
EFCALON TIE UP PRIVATE LTD.
Versus
STARTRACK AGENCY PVT. LTD.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 20th February, 2019.
Appearance:
Mr. Sabyasachi Chowdhury, Adv.
Mr. A. Singh, Adv.
Mr. R. Updhyay, Adv.
... for petitioner.
Mr. Debasis Kundu, sr. Adv.
Mr. A. Mondal, Adv.
Mr. S. Mukherjee, Adv.
... for respondent.
The Court : This arbitration petition carries prayer for Court to appoint substitute arbitrator. Mr. Chowdhury, learned Advocate appears on behalf of petitioner and submits, reference was compelled on his client approaching this Court by arbitration petition invoking section 11 of Arbitration and Conciliation Act, 1996. Arbitrator was appointed and interim award of eviction made after which the reference continued on disputes regarding assessment of mesne profits. Respondent in the reference moved Court of District Judge for finding that arbitrator had been defacto unable to perform his functions since he had been appointed as authority by neighboring state. The arbitrator on coming to know of respondent having so moved, promptly withdrew from his office. He submits, clause (b) in sub-section (1) of section 14 thus stands satisfied. Procedure to be followed is for appointment by Court by applying provision in 2 sub-section (2), section 15. This is because appointment of arbitrator, who has withdrawn from office, was by Court having taken necessary measure to have appointed him under section 11.
Mr. Kundu, learned senior Advocate appears on behalf of respondents. He relies on judgment of Supreme Court in Himangni Enterprises V. Kamaljeet Singh Ahluwalia reported in (2017)10 SCC 706 as also AIR 2017 SC 5137. He submits, law declared by Supreme Court in Booz Allen & Hamilton Inc. V. SBI Home Finance Limited & Ors. reported in (2011)5 SCC 532 had scope of it widened by Himangni(supra). He relies on paragraph 26 in AIR as is reproduced below:-
"The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision(Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the Civil Court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises."
On query from Court he submits, defence taken by his client before arbitrator in resisting eviction did not include contention of tenancy protected under West Bengal Premises Tenancy Act, 1997.
3
In paragraph 23 of Himangni(supra), Supreme Court extracted declaration of law made in Booz Allen(supra). Said paragraph 23 is reproduced below:-
"23. Yet in another case of Booz Allen & Hamilton Inc. (AIR 2011 SC 2507), (para 22) (supra), 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 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.
(Emphasis supplied)"
Above extracted paragraph 26, as it appears to this Court, does not widen scope of law declared in Booz Allen (supra). Supreme Court in Himangni(supra) supplied emphasis on that part of declaration made by Booz Allen(supra) regarding 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 disputes. It is in this context that in paragraph 26(extracted above), said Court went on to say that in other words (in relation to the case before said Court) though section 3 4 in the Delhi Rent Act provided for exemption but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. This situation is not available here to respondent as it has not taken a defence under special statute. So there is no question of contingency where there may be application of special statute taking the disputes outside purview of arbitration. This Court does not see Himangni(supra) as having declared eviction claims under Transfer of Property Act, 1882, which Act does not provide for specified Courts or forums to try such claims, as outside the scope of application of Arbitration and Conciliation Act, 1996.
Retired Hon'ble Chief Justice Debasish Kar Gupta is appointed arbitrator. On remuneration of arbitrator Mr. Chowdhury submits, outgoing arbitrator had taken lump sum remuneration, paid by his client, but has demitted office at instance of respondent. Substitute arbitrator will be at liberty to fix his own remuneration and other attendant costs. The reference will resume.
Arbitration petition is disposed of.
(ARINDAM SINHA, J.) mg