Jammu & Kashmir High Court
Rajinder Kour vs Union Of India And Another on 23 March, 2021
Author: Chief Justice
Bench: Chief Justice
Sr. No. 218
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CJ Court
Case : Arbitration Application No. 32 of 2017
Rajinder Kour ...Applicant(s)/Petitioner(s)
Through: Sh. Ajay Vaid, Advocate
v/s
Union of India and another .... Respondent(s)
Through: Sh. Vishal Sharma, ASGI
CORAM: HON'BLE THE CHIEF JUSTICE
ORDER
1. Heard Sh. Ajay Vaid learned counsel for the petitioner and Sh. Vishal Sharma, learned Assistant Solicitor General of India for the respondents.
2. The petition is for the appointment of an arbitrator on account of the dispute arising out of the lease deed dated 10.10.2011. It is alleged that the aforesaid lease was for a period of five years and that the respondents failed to vacate the premises despite expiry of the term.
3. Admittedly, the lease deed contains an arbitration clause vide clause 15 of the lease deed. Sh. Sharma, contends that the matter concerning termination of lease and eviction falls within the accepted matters and may not be arbitral and, as such, there is no point in appointment of an arbitrator. This 2 Arbitration Application No. 32 of 2017 submission has been made by him on the basis of the decision of the Supreme Court in the Himangni Enterprises vs. Kamaljeet Singh Ahluwalia reported in 2017 (10) SCC 706, Natraj Studios (P) Ltd. V. Navrang Studios reported in 1981 (1) SCC 523 and Booz Allen and Hamilton Inc. V. SBI Home Finance Ltd. reported in (2011) 5 SCC 532.
4. The aforesaid decisions have no relevance for the simple reason that the three Judges Bench of the Supreme Court in a recent case Vidya Drolia vs. Durga Trading Corporation reported in 2021(1) RCR (Civil) 345 has laid down otherwise and has provided that the Transfer of Property Act in no way negates the arbitrability of such disputes and if the lease deed or the agreement provides for the resolution of the disputes by arbitration, the same are necessarily to be referred to the arbitration. The court made a distinction between the statutory tenancy and those governed by simple contracts. Any dispute in relation to tenancy governed by the simple contracts was held to be referable to arbitration as against the statutory tenancy which is not the case in the present case at hand.
5. Since the agreement/lease deed contains an arbitration agreement and the parties to the proceedings are party to the said lease deed/agreement and the petitioner has invoked the arbitration clause vide notice dated 06.02.2017 and the dispute was not referred to the arbitration, it is incumbent upon this Court to appoint an arbitrator to resolve the dispute interse the parties.
6. Accordingly, the name of Sh. Subash Chander Gupta, (Retd. Principal District Judge Jammu) was proposed and agreed for by the parties for appointment as the sole arbitrator, however, before the order could be typed and signed when the said proposed arbitrator was contacted by the office to 3 Arbitration Application No. 32 of 2017 give his details regarding address and phone numbers etc., he declined to accept the proposal as he was indisposed on account of some eye problem.
7. In view of the above, I appoint Sh. D.K. Kapoor (Retired District and Sessions Judge/Former Member of J&K State Consumer Commission), House No. 135, Indira Vihar, Patoli (old Janipur), Jammu (mobile no. 9419180929) from the list of the arbitrators as the sole arbitrator who shall proceed in the matter in accordance with the provisions of the Act to make an award within the time provided in the Act itself after charging the prescribed fee along with incidental expenses to be shared by the parties.
8. Arbitration Application stands disposed of.
(PANKAJ MITHAL) CHIEF JUSTICE Jammu 23.03.2021 SUNIL-I