Bombay High Court
Icici Bank Ltd. Mumbai Through ... vs Mohd. Rafique Abdul Latif Isani on 16 August, 2018
Bench: A.S. Chandurkar
12-J-CRA-73-18 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.73 OF 2018
1. ICICI Bank Ltd.
A company licensed as a Bank
under Banking Regulation Act, 1949
having Registered Office at Vadodara-390
007, Through its Corporate Office at
ICICI Bank Towers, Bandra-Kurla Complex,
Mumbai-400 051, Thr. Its Power of Attorney
Holder
2. Rohan Ravindra Choudhary,
concerning authorized Officer of
ICICI Bank authorized to execute
Agreement on behalf of ICICI Bank,
Aged about 32 Town, Dharampeth,
Nagpur, Dist. Nagpur.
3. Branch Manager,
ICICI Bank, Branch Digras,
Dist. Yavatmal, Maharashtra
Pin Code - 445203. ... Applicants.
-vs-
Mohd. Rafique Abdul Latif Isani
Aged about 40 years, Occ. Business,
R/o Disgras, Tq. Digras,
Dist. Yavatmal. ... Non-applicant.
Shri M. R. Johrapurkar, Advocate for applicants.
Shri R. J. Mirza, Advocate for non-applicant.
::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 01:27:11 :::
12-J-CRA-73-18 2/6
CORAM : A. S. CHANDURKAR, J.
DATE : August 16, 2018.
Oral Judgment :
Admit.
Heard finally with consent of learned counsel for the parties.
The applicants are the original defendants in the suit that has
been filed by the non-applicant herein praying that a decree be passed
against the applicants to comply with the agreement of lease dated
21/07/2010 by paying rent regularly or at least till 30/04/2019 in terms
thereof. In the plaint it is the case of the original plaintiff that a lease
agreement was entered into between the parties with regard to the property
owned by the plaintiff. The said lease dated 21/07/2010 was for a period of
ten years and was to expire on 30/04/2019. According to the plaintiff, the
defendants failed to comply with the terms of lease and failed to pay the rent
and maintenance charges. Suit was accordingly filed seeking aforesaid
relief.
2. In that suit the defendants filed an application praying that the
proceedings be referred to arbitration in terms of the clause of arbitration in
the lease agreement. Reply was filed by the plaintiff stating therein that as
the defendants did not refer the matter to the arbitrator the plaintiff was
required to file the suit. By the impugned order the trial Court rejected the
12-J-CRA-73-18 3/6
said application on the ground that original copy of lease deed or its
photocopy was not placed on record by the defendants. Being aggrieved the
defendants have challenged the said order.
3. Shri M. R. Johrapurkar, learned counsel for the applicants
submitted that though the suit of the plaintiff was based on the registered
lease dated 21/07/2010, Clause-26 therein specified that the disputes
between the parties were liable to be resolved through arbitration. It was
submitted that alongwith the plaint a photocopy of said lease deed was
placed on record by the plaintiff and said fact was not in dispute. Placing
reliance on the decision in Ananthesh Bhakta represented by Mother Usha A.
Bhakta and ors. vs. Nayana S. Bhakta and ors. AIR 2016 SC 5359 it was
submitted that filing of a photocopy or its presence on record was sufficient
for the purposes of Section 8 of the Arbitration and Conciliation Act, 1996
(for short, the said Act). It was urged that there being no dispute between
the parties with regard to the registered lease-deed and the plaintiff in its
reply having not opposed the application on that ground, the trial Court was
not justified in rejecting the application. It was submitted that presence of a
photocopy of the lease agreement was sufficient.
4. Shri R. J. Mirza, learned counsel for the non-applicant supported
the impugned order. According to him the provisions of Section 8 of the said
12-J-CRA-73-18 4/6
Act were mandatory and unless a copy of the original lease-deed or its
certified copy was placed on record by the defendants, it could not seek
reference of the proceedings to the arbitrator. Placing reliance on the
decision in Atul Singh and Ors. vs. Sunil Kumar and ors. 2008(2) SCC 602 and
Motilal Khanayalal Bharadiya 2003 (2) MhLJ 751 , it was submitted that in
absence of mandatory compliance with the provisions of Section 8 of the said
Act, the trial Court was justified in rejecting the application.
5. I have heard the learned counsel for the parties at length and I
have perused the documents on record. In the plaint it is the specific case of
the plaintiff that the suit was based on the registered lease-deed dated
21/07/2010. Along with the plaint a photocopy of the aforesaid lease-deed
was placed on record. It is not in dispute that as per Clause-26 of the lease-
deed the disputes were required to be resolved through arbitration.
6. Under provisions of Section 8 of the said Act an application filed
in that regard has to be accompanied by the original arbitration agreement
or a certified copy thereof. Until the aforesaid documents are placed on
record, the application filed under Section 8(1) of the said Act cannot be
entertained. In Ananthesh Bhakta (supra) one of the questions considered
was whether non filing of the original copy of the document containing
arbitration clause or its certified copy would result in dismissal of the
12-J-CRA-73-18 5/6
application filed under Section 8(2) of the said Act. After referring to
earlier decisions it was held that the Court was not empowered to consider
any application filed under Section 8(1) of the said Act unless was
accompanied by the original agreement or its certified copy. However, if
subsequently such document is placed on record the application under
Section 8 of the said Act was not liable to be rejected. Reference was made
to the decision in Bharat Sewa Sansthan vs. U. P. Electronics Corporation Ltd.
2007(7) SCC 737 wherein it was held that when a photocopy of the relevant
agreement was on record same could be taken into consideration for the
purposes of Section 8 of the said Act. In the light of aforesaid decision it is
clear that photocopy of the agreement containing arbitration clause can be
taken into consideration for the purposes of Section 8 of the said Act.
7. Though the learned counsel for the plaintiff placed heavy reliance
on the decision in Atul Singh and ors. (supra) the said decision has been
considered by the Honourable Supreme Court in its subsequent decision in
Ananthesh Bhakta (supra) and has been distinguished. Considering the fact
that a photocopy of the lease agreement was available on record being
placed at the instance of the plaintiff himself and the said agreement was not
in dispute, the trial Court was not justified in rejecting the application filed
under Section 8 of the said Act.
12-J-CRA-73-18 6/6
8. In view of aforesaid, the following order is passed :
i) Order passed below Exhibit-11 dated 07/02/2018 is set aside.
ii) The application at Exhibit-11 is restored. The trial Court shall
decide that application in accordance with law expeditiously.
iii) Civil Revision Application is allowed and disposed of.
JUDGE
Asmita
