Calcutta High Court
Apo 114 Of 2022 vs Future Enterprise Limited And Anr on 4 September, 2025
1
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
(Commercial Divison)
Present: - Hon'ble Mr. Justice Subhendu Samanta.
IN THE MATTER OF
APO 114 of 2022
Laxmi Pat Surana.
Vs.
Future Enterprise Limited and Anr.
For the appellant : Mr. Arindam Paul, Adv.,
Ms. Subhasri Chatterjee, Adv.
For the respondent 2 : Mr. Rished Medora, Adv.,
Ms. Pooja Chakraborti, Adv.,
Ms. Arti Bhattacharyya, Adv.,
Ms. Debomita Sadhu, Adv.,
Mr. Sagnik Aditya, Adv.,
Reserved on : 25.04.2025
Judgment on : 04.09.2025
Subhendu Samanta, J.
1. This is an appeal under section 37 of Arbitration and
Conciliation Act, 1996 filed by claimant/appellant Laxmipat
Surana being aggrieved by and dissatisfied with an order dated
6th November 2022 passed by Learned Arbitrator in Arbitral
dispute case No. 2 of 2021 (Laxipat Surana Vs. Future
Enterprises and Anr.).
2. The brief fact of the case is that in terms of application u/s 11
of Arbitration and Conciliation Act. Hon'ble Justice PK Roy
(retired), was appointed as a sole Arbitrator in respect of
Dispute of claim of licensee fee of the claimant against the
respondent herein. On 19th April, 2021 Learned Arbitrator
entered reference on 19th September, 2019 an application u/s
17 of Arbitration and Conciliation Act, 1996 was filed by the
claimant/appellant before the Learned Arbitrator claiming for
interim relief seeking direction upon the respondents to furnish
security to the tune of Rs. 51,38,70,524/- only and to place the
same at the disposal of Hon'ble Arbitrator in the event failure to
furnish, the assets and property of respondent be attached
before the judgment. Petitioner also made such interim prayer
in terms of his prayer in Section 9 application seeking security
against the dues towards admitted license fee from August
2013. Learned Tribunal after receiving pleadings from the
parties and after hearing the respective party has disposed of
the application u/s 17 of Said Act 1996 vide impugned order
dated 06.11.2022. The operative portion of the said order is set
out as follows:-
Having regard to the documents which have been considered by
this Arbitral Tribunal, it appears that claim of possession by
respondents vis-a-vis claimant as lessee over the demised
property requires further adjudication on merit which cannot be
done in Section 17 application. The issues as raised are required
to be considered at length at the time of final hearing and prima
facie this Hon'ble Tribunal is not satisfied to pass any order in a
proceeding under Section 17 of the said Act which is for interim
protection where claimant has to satisfy prima facie about their
claim and denial to make payment of such claims by the
respondents. Hence the application under Section 17 of the said
Act stands dismissed. It is made clear that this Hon'ble Tribunal
has not gone into merits of the legal principles as thrashed by
respective parties and parties are at liberty to urge all points at
the final hearing of arbitral proceeding except the points and
issues already decided in application under Section 16 of
Arbitration & Conciliation Act, 1996 and award passed by earlier
arbitral proceeding on 19.5.2016. No order as to costs.
3. Mr. Sakya Sen Learned Sr. Counsel appearing on behalf of the
appellant submits that the impugned order passed by the
Learned Arbitrator is per versed and illegal in the eye of law. He
further submits that observation of Learned Tribunal regarding
possession of the property is not at all tenable.
4. He further submits that the Learned Tribunal at the time of
passing such impugned order has also raised dispute regarding
title of the appellant/lessee over the disputed property in
question which is beyond the scope of reference. He further
submits that the observation of the Learned Tribunal i.e. the
property is under custodial lease is also not proper.
5. Mr. Sen, submits that there is no evidence of arbitral records
that respondents have delivered Khas & vacant possession of
demise premises to the claimant/ appellant on April 14, 2012 or
that the claimant/appellant has received back the vacant
possession of demise premises from respondent on the said
date. In terms of agreement dated 30.01.2007.
6. Mr. Sen argued that the issue of possession was not a
substantial question in earlier reference and therefore findings
of the earlier reference and the same cannot be construed as res
judicata in the present reference.
7. Mr. Sen further argued that the property in question is not
under "custodial lesis" it has wrongfully hold by the Learned
Arbitrator. There is no evidence in the arbitral record that either
the claimant/appellant or its bank or the Learned Receiver has
Receiver any payment of occupational charges in terms of the
agreement form either Sub Licensee or from sub-sub- licensee
or the claimant/appellant has accepted as such in the meeting
called by SDO Kharagpur.
8. Mr. Sen further argued that Learned Arbitrator has passed the
impugned order by dismissing application Section 17 without
any evidence or contrary the evidence and without application
of mind thereby the findings of Learned Arbitrator is pervarse
and required to set out.
9. Mr. Sen further argued that it has been stated that the
respondent No. 2 they are not in occupation of demised
premises, but there are evidence on record that respondent No.
2 and/or the entity under them are still in actual possession in
demised premises which will appeal from time to time cash
memos and TDS certificates.
10. Mr. Sen further argued that the Ld. Arbitrator has failed to
appreciate the prima facie case which is in favour of the
petitioner. He further submits that if interim relief is refused
irreparable harm and loss would be caused to the appellant
which cannot be compensated in terms of money.
11. He further submitted that balance of convenience and
inconvenience is in favour of the petitioner/ appellant. Thus the
Learned Tribunal/ Arbitrator should have passed the interim
order in terms of the prayers in application u/s 17 of the said
Act, 1996.
12. Mr. Rished Medora appearing on behalf of the respondent
submits that impugned order passed by the Learned Sole
Arbitrator is justifiable and cannot be interfered in the limited
scope u/s 37 of the Arbitration and Conciliation Act, 1996.
13. He further submits that respondent has time and again submits
that the respondent No. 2 is not in a possession of the
concerned premises, the same fact has already been decided by
all arbitrator in the earlier reference. The Learned Tribunal in
disposing of the application u/s 17 has correctly observed that
the observation of earlier reference can be act as a res-judicata
to this reference.
14. He further submits that peculiar facts suggest that the
respondent No. 2 has handed over possession of the demised
premises to the appellant in April 12, 2012. The Learned
Arbitrator of earlier reference has accepted the plea and had
passed an interim order to that effect. He submits that the
appellant cannot utter otherwise in the present reference which
they have already or the admitted in the earlier reference. Mr.
Medora Submits that award dated 19th May, 2016 of earlier
reference has not been set aside or stayed thus, same in
conclusive and binding on the sole arbitrator in the present
reference.
15. He further submits that the appellants is vexatiously intending
to secure an unsecure and unliquidated claim and the same
cannot be allowed. He submits that the appellant knowing fully
well that his claim cannot be allowed, he try to establish
baseless claim. He further submits that the group of companies
doctrine as argued by the appellant regarding the possession of
the respondent over the demised premises cannot be
entertained at the stage. He further submits that appellant has
failed to make out substantial case for grant of interim relief.
Hence the impugned order passed by the Learned Arbitrator is
justified. He prayed for rejection of the appeal.
16. Having heard the Learned Counsel for the parties and also
taking note of their written notes of argument, it appears to me
by plain perusal of the impugned order that- in inner page 8 of
the said impugned order and Ld. sole arbitrator has hold that
applicability of the principal of res-judicata u/s 11 of CPC is a
submission of the respondent before the learned Tribunal. It is
not a conclusive finding of Learned Arbitrator. In the same page
the Learned Sole Arbitrator has also noted the plea of the
respondent regarding the title of claimant as leasee is under
dispute and the occupation of the respondent in the demise
premises is also under dispute. So, there is also no
conclusiveness of those findings.
17. In the final operative paragraph of the impugned judgment
Learned Arbitral Tribunal has categorically observed that claim
of regarding vacating demised premises the respondent as well
as the claim of leasee over the demise property can only be
adjudicated on the final stage. However issue which touches the
merit of the entire reference cannot be decided by the Learned
Tribunal. It appears from the final paragraph of the impugned
judgment that the Learned Tribunal is of opinion that the
relevant issues cannot be decided at a stage u/s 17 application.
18. In my view the possession of a property is issue of fact which
can only be determined through evidences. Whether respondent
has vacate the premises by virtue of as interim order of earlier
reference is a mixed question of fact and law. It further appears
that the title of the licenses over the demised premises cannot
be challenged by the respondent, u/s 116 of Indian Evidence
Act.
19. It further appears that the Learned Tribunal could not passed
the interim order in terms of the prayer u/s 17 of Act, 1996 only
on the ground that the same can only be determined in final
stage. In my view, if the order of interim protection was granted
in favour of the petitioner the same would be tantamount to be
final determination of the lis, which cannot possible at stage
u/s 17 of Act, 1996.
20. Considering the same I find no illegality or perversity in the
impugned order dated 6th November 2022 passed by the sole
arbitrator. Learned Arbitrator has kept all the issues pending
for determination in final stage.
21. Under the above observation I find no scope to entertain the
appeal; thus, the same is hereby dismissed and disposed of.
22. Parties to act upon the server copy and urgent certified copy of
the judgment be received from the concerned Dept. on usual
terms and conditions.
(Subhendu Samanta, J.)
