M/S. Dbar Code Restro Bar And Club ... vs Siddhant Commotrade Private ...
2021 Latest Caselaw 5839 Cal

              IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                         (Appellate Side)
                                          FMAT 85 of 2021
                                         (Through Video Conference)

                                          Reserved on: 18.11.2021
                                          Pronounced on: 25.11.2021

M/s. Dbar Code Restro Bar and Club LLP
                                                            ...Appellant
                                  -Vs-
Siddhant Commotrade Private Limited and Another
                                                         ...Respondents

Present:-

Mr. Partha Chakraborty, Ms. Sharmistha China, Advocates ... for the appellant Mr. Sabyasachi Chaudhary, Mr. Satadeep Bhattacharya, Mr. Rajesh Upadhyay, Advocates ... for the respondents Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE Prakash Shrivastava, CJ:

1. By this appeal under Section 37 of the Arbitration

Conciliation Act, 1996, (hereinafter referred to as 'the Act') defendant

in the suit has challenged order of the Trial Court dated 28.02.2020

whereby, the application filed by the appellant/defendant for

appointment of arbitrator under Section 8 of the Act has been

dismissed.

2. The facts in nutshell are that the respondent/plaintiff had

filed the suit for eviction with the plea that the appellant was inducted

as tenant in the suit premises and certain dispute and difference arose

between the parties in view of the alleged misutilisation of the suit

premises by the defendant and there was also allegation in respect of 2 FMAT 85 of 2021

default in the payment of rent, electricity bill, etc. Therefore, the

prayer was made to pass a decree of eviction and handing over of the

khas, peaceful and vacant possession of the suit premises. The

appellant had filed an application under Section 8 of the Act for

appointment of arbitrator on the ground that the agreement contains

arbitration clause. This application was opposed by the respondents

and the same has been dismissed by the Trial Court by the impugned

order.

3. Having heard the learned Counsel for the parties and on

perusal of the record, it is noticed that the Trial Court has rejected the

application on the sole ground that the dispute in a case of recovery of

possession does not come within the domain of arbitration. Learned

Counsel for the appellant placing reliance upon the judgment of the

Hon'ble Supreme Court in the matter of Suresh Shah vs. Hipad

Technology India Private Limited, (2021) 1 SCC 529 has submitted

that now it is settled that the dispute is arbitrable if it relates to

lease/tenancy agreements/deeds and eviction thereunder, if such a

lease is governed by the Transfer of Property Act, 1882 and not under

any established statute extending statutory protection to the tenant.

4. Learned Counsel for the respondent does not dispute the

above position in law and he has fairly accepted that since the present

case is not a case covered under the special statute but it is a case of

Transfer of Property Act, 1882 therefore, the dispute is arbitrable.

5. In view of the above, the Trial Court was not justified in

rejecting the application filed under Section 8 of the Act on the sole

ground that the dispute is not arbitrable.

3 FMAT 85 of 2021

6. Learned Counsel for the respondent has also tried to raise

other issues by contending that there is no arbitration clause in the

agreement, the arbitration agreement is not properly stamped, the

original arbitration agreement has not been filed before the Trial

Court, by referring to certain judgments on these issues but a perusal

of the impugned order reveals that none of these issues have been

examined by the Trial Court. In fact, while noting the objection of the

stamp duty and registration of the lease deed, the Trial Court has

observed that the same will be subsequently decided. The position in

respect of the filing of the original agreement is also disputed before

this Court as learned Counsel for the appellant has stated that the

agreement has been filed before the Trial Court along with the plaint

itself. In these circumstances, we are of the opinion that the Trial

Court is now required to decide the application under Section 8 of the

Act afresh in accordance with law and in that process, both the parties

will have an opportunity to raise all permissible arguments/objections.

7. Hence, we set aside the impugned order passed by the Trial

Court with the direction to the Trial Court to decide the application

under Section 8 of the Act afresh in accordance with law keeping in

view the observations made above.

8. The appeal is accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 25.11.2021 ___________ PA(RB)