Allahabad High Court
Airplaza Retail Holding Pvt. Ltd. vs Nitin Malhotra And Another on 30 October, 2025
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:190926
HIGH COURT OF JUDICATURE AT ALLAHABAD
S.C.C. REVISION No. - 141 of 2025
Airplaza Retail Holding Pvt. Ltd.
.....Revisionist(s)
Versus
Nitin Malhotra And Another
.....Opposite Party(s)
Counsel for Revisionist(s)
:
Ishir Sripat, Sushil Shukla, Sr. Advocate
Counsel for Opposite Party(s)
:
Ashish Kumar Srivastava
Court No. - 36
HON'BLE ROHIT RANJAN AGARWAL, J.
1. Heard Sri Rahul Sripat, learned Senior Counsel, assisted by Sri Ishir Sripat, learned counsel for the revisionist and Sri Ashish Kumar Srivastava, learned counsel for respondents.
2. This revision under Section 25 of Provincial Small Cause Courts Act, 1887 has been filed assailing the order dated 14.5.2025 passed by the Additional District Judge/Special Judge, Small Causes Court, Varanasi in Small Cause Case No. 11 of 2020 rejecting the application 39-C filed by the revisionist for referring the matter under Section 8 of the Arbitration & Conciliation Act, 1996 (hereinafter referred as the 'Act of 1996').
3. Facts, in nutshell, are that the defendant revisionist entered into an agreement to lease with the plaintiff respondents on 30.8.2019. The lease agreement provided for arbitration in clause no. 19 which is as under;
"19. All disputes, differences and questions of any nature which at any time arise between the Parties to this Agreement or their respective representatives and assigns or any of them out of the construction of or concerning anything contained in or arising out of this Agreement or as to the rights, duties or liabilities under it of the Parties to it respectively or their respective representatives shall be subject to the exclusive jurisdiction of the courts Varanasi, Uttar Pradesh. The disputes shall be settled by the arbitrator to he appointed by the Lessee in accordance with the Indian Arbitration & Conciliation Act 1996. The venue of arbitration shall be at Guragram, Haryana and the arbitration proceedings shall be conducted in English language. The applicable law shall be Indian law."
4. Dispute arose between the parties and the plaintiff lessor filed a Small Cause Case No. 11 of 2020 before the Small Causes Court at Varanasi claiming relief for eviction and arrears of rent. The said suit was decreed ex parte on 12.3.2021. When the defendant revisionist came to know about the ex parte judgment, he moved an application under Order IX Rule 13 CPC on 26.3.2021. The said application was rejected on 28.2.2022. The defendant revisionist filed a SCC Revision which was also dismissed on 30.5.2022. The defendant revisionist thereafter challenged the ex parte decree through SCC revision which was allowed on 27.9.2024 and the ex parte decree dated 12.3.2021 was set aside and matter was remitted to the trial court to decide the same afresh. Post remand, the defendant revisionist moved an application under Section 8 of the Act of 1996 on 6.12.2024. The said application has been rejected by the order impugned.
5. Learned Senior Counsel appearing for the revisionist submits that the court below was not correct in rejecting the application filed under Section 8 of the Act of 1996 on the ground that it is an unregistered document, as the matter has already attained finality by the judgment of Apex Court rendered in case of 'Re Interplay between Arbitration Agreement under Arbitration & Conciliation Act, 1996 and Stamp Act, 1899 (2024) 6 SCC 1, on 13.12.2023. According to him, the Apex Court had held that non-stamping of the document is curable and the said question can only be dealt by Arbitral Tribunal.
6. He has also relied upon another judgment of Apex Court rendered in case of Vidya Drolia and Ors. Vs. Durga Trading Corporation and Ors. MANU/SC/0939/2020 dated 14.12.2020 whereby the earlier judgment rendered by the Apex Court in case of Himangi Enterprises Vs. Kamaljeet Singh Ahluwalia (2017) 10 SCC 706 has been overruled. It was lastly contended that the matter should have been referred under Section 8 of the Act of 1996 to the Arbitrator as the suit was filed within a year from the date of execution of lease agreement.
7. Sri Ashish Kumar Srivastava, learned counsel for the respondent landlord, submits that the lease agreement which was executed between the parties was only for a period of three years. According to him the lease period had expired which is clear from the first clause of the agreement executed in the year 2019. According to him application under Section 8 of the Act of 1996 was moved on 6.12.2024 when the agreement came to an end and the matter can not be referred to arbitration. He has relied upon the judgment of Apex Court rendered in case of Himangi Enterprises (Supra), Meenakshi Solar Power Private Limited Vs. Abhydaya Green Economic Zones Private Limited and others, (2025) 5 SCC 702. Reliance has also been placed upon a decision of coordinate Bench of this Court rendered in Civil Revision No. 53 of 2010.
8. Having heard learned counsel for parties and after perusing the material on record, I find that the short question for consideration before this Court is as to whether the court below was justified in rejecting the application filed under Section 8 of the Act of 1996 by the defendant revisionist solely on the ground that it was an unregistered document.
9. Before proceeding to decide the issue in hand a cursory glance of Section 8 of the Act of 1996 is necessary, which is extracted hereasunder;
"8. Power to refer parties to arbitration where there is an arbitration agreement.
(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:
[Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.]
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made."
10. From perusal of Section 8 of the Act of 1996 it is clear that when an action is drawn before the judicial authority which is subject matter of arbitration, a party to the arbitration agreement or any person claiming through it can move on the first date to refer the dispute to arbitration. In the instant case, the case was filed by the landlord respondent in the year 2020 when arbitration was in operation. The suit was decreed ex parte in the year 2021 and the said ex parte decree was set aside in the year 2024. Thereafter, the defendant revisionist had moved an application under Section 8 of the Act of 1996 (Paper No. 39-C) for referring the dispute to arbitration on 6.12.2024.
11. The court below solely on the ground that it is an unregistered document had rejected the application. The matter is no more res integra as Apex Court had already dealt with the matter and held that non-stamping or inadequate stamping of an agreement is a curable defect and any objection in relation to stamping of the agreement fall within the ambit of Arbitral Tribunal. It was not provided for the court below to have rejected the application moved under Section 8 of the Act of 1996 as it is in teeth of the judgment of Apex Court rendered in 'Interplay between Arbitration Agreement under Arbitration & Conciliation Act, 1996 and Stamp Act, 1899', the relevant paragraph is extracted hereasunder;
"224. The conclusions reached in this judgment are summarised below:
a. Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable;
b. Non-stamping or inadequate stamping is a curable defect;
c. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The Court concerned must examine whether the arbitration agreement prima facie exists;
d. Any objections in relation to the stamping of the agreement fall within the ambit of the Arbitral Tribunal; and
e. The decision in N.N. Global 2 (supra) and SMS Tea Estates (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes (supra) are overruled to that extent."
12. Learned counsel for the plaintiff respondent has submitted that Section 8 (2) of the Act of 1996 requires that the original copy of arbitration agreement or a duly certified copy of that agreement has to be placed before the court and in the present case no such copy has been placed before the court below.
13. The statement, so made by learned counsel for the respondent, is opposed by learned Senior Counsel and has invited the attention of the Court to the order dated 14.5.2025 wherein the court below has categorically referred that the revisionist has brought the agreement on record which is Paper No. 51-C.
14. Thus, the argument raised by respondent's counsel falls flat in the eye of finding recorded by the court below. This Court, after hearing learned counsel for parties and perusing the material on record, finds that court below had committed gross error in rejecting application moved under Section 8 of the Act of 1996 merely on the ground that it is not a registered document as it is in teeth of the judgment rendered by the Apex Court in case of 'Interplay between Arbitration Agreement under Arbitration & Conciliation Act, 1996 and Stamp Act, 1899'. In view of the said fact, I am of the considered view that the court below was not correct in rejecting the application filed under Section 8 of the Act of 1996.
15. Revision stands allowed. The order dated 14.5.2025 passed by the Additional District Judge/Special Judge, Small Causes Court, Varanasi in Small Cause Case No. 11 of 2020, is hereby set aside.
16. The matter is remitted to the trial court to reconsider the application 39-C keeping in mind the judgment of Apex Court in case of 'Interplay between Arbitration Agreement under Arbitration & Conciliation Act, 1996 and Stamp Act, 1899'. The aforesaid exercise shall be carried out within a period of one month from the date of receipt of certified copy of this order.
(Rohit Ranjan Agarwal,J.)
October 30, 2025
Shekhar
